[Federal Register Volume 60, Number 189 (Friday, September 29, 1995)]
[Notices]
[Pages 50635-50638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24228]



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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Public and Indian Housing
[Docket No. FR-3972-D-01]


Supersedure and Redelegation of Authority Regarding Waiver of 
Public and Indian Housing Directives for the Public Housing, Indian 
Housing and Section 8 Rental Voucher, Rental Certificate, and Moderate 
Rehabilitation Programs and for Waiver of Conflict of Interest 
Prohibitions in Section 8 Contracts for the Rental Voucher, Rental 
Certificate and Moderate Rehabilitation Programs

AGENCY: Office of the Assistant Secretary for Public and Indian 
Housing, HUD.

ACTION: Supersedure and Redelegation of Authority to Issue Waivers of 
Office of Public and Indian Housing Directives for Public Housing, 
Indian Housing and Section 8 Rental Certificate, Rental Voucher and 
Moderate Rehabilitation Programs and to Waive Conflict of Interest 
Prohibitions in Section 8 Contracts for the Rental Certificate, Rental 
Voucher and Moderate Rehabilitation Programs. (This notice does not 
apply to the Moderate Rehabilitation Single Room Occupancy Program.)

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SUMMARY: This notice consolidates in one document:

--Authority to waive Office of Public and Indian Housing directives for 
the Public Housing Program, Indian Housing Program and the Section 8 
Rental Certificate Program, Rental Voucher Program and Moderate 
Rehabilitation Program and
--Authority to waive conflict of interest prohibitions for the Section 
8 Rental Certificate and Rental Voucher programs and the Section 8 
Moderate Rehabilitation Program.

    The authority to waive Office of Public and Indian Housing 
Directives was previously retained and administered by the HUD Field 
Office Directors of Indian Programs, the Field Office Directors of HUD 
Public Housing Divisions and the Headquarters Director, Office of 
Native American Programs. The authority to waive conflict of interest 
prohibitions in the Section 8 Rental Certificate, Rental Voucher and 
Moderate Rehabilitation Programs was previously retained and 
administered by the Field Office Regional Administrators, Deputy 
Regional Administrators, Area Managers, Deputy Area Managers and 
Multifamily Service Office Supervisors.
    This notice supersedes the prior redelegations of authority to 
waive 

[[Page 50636]]
Section 8 conflict of interest prohibitions published at 45 FR 54143, 
August 14, 1980 and the redelegation of authority for the issuance of 
waivers of Office of Public and Indian Housing Directives published at 
34 FR 8266, February 18, 1994. It does not supersede the authority 
regarding the waiver of conflict of interest provisions for the public 
housing and Indian Housing programs.
    The authority to waive the conflict of interest includes the 
contracts for the Section 8 Rental Certificate, Rental Voucher and 
Moderate Rehabilitation Programs (exclusive of Moderate Rehabilitation 
Single Room Occupancy Program.)
    This notice relates only to the waiver of Public and Indian Housing 
directives and Section 8 conflict of interest prohibitions and does not 
grant authority to waive contractual provisions. This redelegation does 
not include authority to waive statutes, regulations or contracts and 
does not confer authority to waive the requirement that Housing 
Authorities (HAs) must use forms required by HUD Headquarters. Further, 
this redelegation does not confer authority to waive the requirement 
that HAs maintain program accounts in accordance with HUD regulations, 
or to waive provisions in Notices of Funding Availability.

EFFECTIVE DATE: September 21, 1995.

FOR FURTHER INFORMATION CONTACT:
With respect to conflict of interest prohibitions, contact Madeline 
Hastings, Director, Office of Rental Assistance, Department of Housing 
and Urban Development, Room 4226, 451 7th Street, SW., Washington, DC 
20410, telephone (202) 708-1842. With respect to directives, contact 
Mildred M. Hamman, Directives Management Officer, Office of Public and 
Indian Housing, Department of Housing and Urban Development, Room 4244, 
451 7th Street, SW., Washington, DC, telephone (202) 708-0846. (These 
are not toll-free numbers.)

SUPPLEMENTARY INFORMATION: Section 106 of the Department of Housing and 
Urban Development Reform Act of 1989 (Pub. L. 101-235, approved 
December 15, 1989) (HUD Reform Act), amended section 7 of the 
Department of Housing and Urban Development Act (42 U.S.C. 3535 (HUD 
Act) by adding section 7(q), governing circumstances upon which the 
Department may issue waivers of regulations and handbooks. According to 
section 7(q)(2), only an individual of Assistant Secretary rank or the 
equivalent may waive a regulation. This redelegation of authority does 
not include the authority to waive regulations.
    On April 22, 1991, at 56 FR 16337, HUD published a Statement of 
Policy implementing Section 106 of the HUD Reform Act. The new notice 
stated that although new section 7(q)(4) of the HUD Act addressed only 
``handbooks'', HUD would apply this term to all Departmental directives 
in order to give section 7(q)(4) ``the widest possible coverage.'' 
Therefore, the term ``directive'' was defined in the notice as follows:

    Directives means a Handbook (including a change or supplement), 
notice, interim notice, special directive, and any other issuance 
that the Department may classify as a directive.

    The Policy Statement also indicated that the authority to waive 
directives may be delegated to any officer or employee in the issuing 
official's organization, as well as to any officer or employee in a 
field or regional office.
    With respect to handbooks, section 7(q)(4) states that a waiver of 
a provision of a handbook must:
    (A) Be in writing;
    (B) Specify the grounds for approving the waiver; and
    (C) Be maintained in indexed form and made available for public 
inspection for not less than the 3-year period beginning on the date of 
the waiver.
    The current process of reviewing requests to waive directives in 
Headquarters frequently adds an unnecessary layer to a procedure that 
can be adequately carried out at the HUD Field Office level. Officials 
in the HUD Field Offices are often best situated to assess and react 
promptly to requests for relief from administrative requirements of 
general application, where specific circumstances, unanticipated under 
the directive, warrant a departure from the ordinary standard.
    Therefore, in keeping with the objectives of the Secretary of 
Housing and Urban Development to improve the efficiency and enhance the 
productivity of the Department, the Assistant Secretary for Public and 
Indian Housing is redelegating the authority to waive directives and 
Section 8 conflict of interest prohibitions.
    Pursuant to 24 CFR 0.735-104 and 0.735-106 and HUD's Supplemental 
Standards of Conduct regulation, only the General Counsel may waive 
violations of HUD's Standards of Conduct regulations, including 
conflict of interest provisions. The General Counsel may not redelegate 
the authority to issue waivers of the Standards of Conduct for HUD 
employees. The Field Offices may not grant waivers for conflicts of 
interest for HUD employees under program contracts or 24 CFR 982.161. 
Therefore, this redelegation does not grant any authority to waive 
HUD's Standards of Conduct regulations, including waiving conflicts of 
interest for HUD employees.
    For example, pursuant to 24 CFR 0.735-204(4), with certain 
exceptions, a HUD employee may not own a financial interest in any 
Section 8 subsidy provided to or on behalf of a tenant of property 
owned by the employee. If a HUD employee seeks a waiver to obtain or 
retain an interest in a Section 8 subsidy, the General Counsel must 
grant or deny the employee's request. The Field Offices do not have 
authority to grant or deny the request.
    All Office Directors and Administrators to whom waiver authority 
for directives and/or conflicts of interest prohibitions are hereby 
redelegated are cautioned against the development of local 
requirements, processes, or procedures to replace those that are 
waived, which would counteract the intent of the established waiver 
process or the intent of any HUD regulation.
    Accordingly, the Assistant Secretary for Public and Indian Housing 
redelegates as follows:

Section A. Authority to waive directives

    (1) The Assistant Secretary for Public and Indian Housing 
redelegates to HUD State and Area Office Directors of the Offices of 
Public Housing and to the Administrators of the Field Offices of Native 
American Programs (waiver officials) the authority to waive Office of 
Public and Indian Housing directives for Public Housing, Indian Housing 
and Section 8 programs.
    (2) Paragraph (1) does not grant authority to waive:
    a. Any statutory or regulatory provision.
    b. Program contracts and other forms required by HUD Headquarters.
    c. A directive that requires a HUD Office action;
    d. Requirements to maintain complete and accurate accounts and 
other records for a program in accordance with HUD requirements and in 
the form required by HUD.
    e. Reporting requirements.
    f. Provisions in a Notice of Funding Availability and associated 
processing instructions;
    g. Any actual or potential conflict of interest on the part of a 
HUD employee.

[[Page 50637]]


Section B. Authority to Waive Prohibitions on Conflicts of Interest

    (1) The Assistant Secretary for Public and Indian Housing 
redelegates to HUD State and Area Office Directors of the Offices of 
Public Housing and to the Administrators of the Offices of Native 
American Programs (waiver officials) the following authority to waive 
conflict of interest prohibitions in contracts executed under the 
Section 8 Rental Certificate and Rental Voucher Programs and the 
Section 8 Moderate Rehabilitation Program:
    (a) In the case of the Section 8 Rental Certificate and Rental 
Voucher Programs, the authority to waive the conflict of interest 
prohibition for good cause in accordance with section 982.161, 
including the authority to waive related contractual conflict of 
interest prohibitions for non-HUD employees.
    (b) In the case of the Section 8 Moderate Rehabilitation Program 
the authority to waive contractual conflict of interest prohibitions 
for non-HUD employees.
    (2) Paragraph (1) does not grant authority to waive;
    a. Any statutory or regulatory provision.
    b. Program contracts and other forms required by HUD Headquarters.
    c. A directive that requires a HUD Office action;
    d. Requirements to maintain complete and accurate accounts and 
other records for a program in accordance with HUD requirements and in 
the form required by HUD.
    e. Reporting requirements.
    f. Provisions in a Notice of Funding Availability and associated 
processing instructions;
    g. Any actual or potential conflict of interest on the part of a 
HUD employee.

C. Procedures for Approval of a Waiver of a Directive or a Section 8 
Conflict of Interest Prohibition

    1. Before approval of a request for a waiver of a directive or a 
conflict of interest prohibition, the waiver official must consult with 
and obtain the concurrence of the HUD counsel in the HUD Field Office.
    2. HUD Offices shall advise public housing agencies and Indian 
Housing Authorities (housing agencies) to submit the following 
documentation when requesting a waiver of a conflict of interest 
prohibition for Section 8 Rental Certificate and Rental Voucher 
Programs or the Section 8 Moderate Rehabilitation Program:
    a. A complete statement of facts in the case.
    b. Justification for the waiver of the conflict of interest 
prohibition.
    If the case involves a hardship for a particular family, a 
statement of facts of the case, including: (a) circumstances of 
hardship, and (b) alternative housing available under the same or other 
forms of assisted housing. A ``hardship'' case includes a case where an 
eligible in-place family is handicapped, elderly or includes many 
minors, and moving would be a burden or very difficult because of a 
shortage of available units meeting housing quality standards.
    If the case involves a public official, member of a governing body, 
State or local legislator, or any member of the Congress of the United 
States, an explanation of the individual's duties under Federal, State 
or local law, including reference to any responsibilities that involve 
the Section 8 program to which the requested waiver relates. Where 
relevant, the interrelationship of city, county, State and Federal 
governments should be discussed.
    If the case involves an employee or a tenant of the housing agency, 
there should be an explanation of the responsibilities and duties of 
the job involved. (An employee would be permitted to receive Section 8 
assistance or participate as a Section 8 owner, if the employee is not 
serving in a capacity which would influence housing agency decision or 
formulate policy with respect to the Section 8 program. Also, Section 8 
tenants may be employed by the housing agency in such nonpolicy and 
nondecisionmaking positions.) The explanation must describe whether the 
employee formulates policy or influences decisions with respect to the 
program. (A PHA employee who is not serving in a capacity to influence 
housing agency decisions or formulate policy with respect to the 
Section 8 program may receive assistance or participate as a Section 8 
owner.).
    If the case involves an investment on the part of an officer or 
employee of the PHA, or any other non-HUD employee covered by the 
conflict of interest provisions, the nature of the investment should be 
described, and any divesture plans specified.
    c. Written evidence that the waiver, if granted, would be 
consistent with State law and local ordinances. Where appropriate, a 
legal opinion should be obtained from the State Attorney General or 
housing agency attorney.
    d. In cases where a waiver is approved to permit an individual to 
occupy a specific unit, the waiver should terminate when that tenant 
vacates the unit. In addition, no person for whom a waiver is approved 
shall be given any preferential treatment, nor shall any such person be 
permitted to exercise functions or responsibilities with respect to a 
contract to which that person is a party or recipient of a benefit 
resulting from the contract.
    3. HUD Office processing of requests for waiver directives or 
conflict of interest prohibitions shall be guided by the following:
    a. A waiver shall be granted only on a case-by-case basis. For each 
request, there must be a showing or other evidence of ``good cause'' 
which demonstrates that the major interest of providing low income 
housing overrides the purpose of the directive or conflict of interest 
prohibitions. The HUD Office shall permanently maintain a fully 
documented separate file for each waiver.
    b. The Field Office must inform the housing authority in writing of 
its decision regarding the waiver request, and of the basis for the HUD 
Office determination. Within 30 calendar days after issuance of the 
waiver, waiver officials must submit a copy of each determination 
granting a waiver to the Departmental Directives Management Office, 
Office of Administrative and Management Services-ACES, Office of 
Administration. A copy should be provided to the Office of Public and 
Indian Housing, Attention: Directives Management Officer. Copies of 
waivers of conflicts of interest do not require submission to 
Headquarters.
    c. The Field Office letter approving the waiver must cite the 
specific directive or conflicts prohibition being waived, the specific 
conduct being permitted, the time period the waiver shall be in effect 
(if not indefinitely), as well as the reason(s) for granting the 
waiver. This is because HUD maintains a record of all such waivers and 
makes them available for public inspection. The Office of Public and 
Indian Housing will periodically review all waivers of directives to 
assess such matters as (a) Whether a particular directive, or provision 
should be revised (because for example, the exception should become the 
rule), and (b) whether there is consistency in the granting of waiver 
requests.

Section D. No Further Redelegation

    The authority granted to waiver officials under this redelegation 
may not be further redelegated pursuant to this redelegation.

Section E. Authority Superseded

    The portions of the following delegations of authority relating to 
Directives and conflict of interest 

[[Page 50638]]
prohibitions described above are superseded; 36 F.R. 5004 (March 16, 
1971), 36 FR 5005 (March 16, 1971), 38 FR 8011 (March 27, 1973), 41 FR 
24755 (June 18, 1976), 45 FR 54143 August 14, 1980, 59 FR 8266 
(February 18, 1994).

    Authority: Section 7(d), Department of Housing and Urban 
Development Act [42 U.S.C. 3535(d)], and Section 7(q), Department of 
Housing and Urban Development Act (42 U.S.C. 3535(q).

    Dated: September 21, 1995.
Joseph Shuldiner,
Assistant Secretary for Public and Indian Housing and Urban 
Development.
[FR Doc. 95-24228 Filed 9-28-95; 8:45 am]
BILLING CODE 4210-33-M