[Federal Register Volume 66, Number 46 (Thursday, March 8, 2001)]
[Notices]
[Pages 13944-13945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5698]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-4666-N-01]


Waiver of Regulations Issued by HUD; Clarification of Authority 
During Transition Period

AGENCY: Office of the Secretary, HUD.

ACTION: Statement of policy.

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SUMMARY: The purpose of this statement of policy is to clarify the 
scope of persons authorized to waive regulations under an earlier 
statement of policy published in the Federal Register on April 22, 
1991.

EFFECTIVE DATE: March 8, 2001.

FOR FURTHER INFORMATION CONTACT: Aaron Santa Anna, Assistant General

[[Page 13945]]

Counsel for Regulations, Office of the General Counsel, Department of 
Housing and Urban Development, 451 Seventh Street, SW, room 10276, 
Washington, DC 20410; telephone (202) 708-3055 (this number is not a 
toll free number). Hearing- and speech-impaired individuals may access 
this number via TTY by calling the toll-free Federal Information Relay 
Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: Section 106 of the Department of Housing and 
Urban Development Reform Act of 1989 (Pub. L. 101-235) added a new 
section 7(q) to the Department of Housing and Urban Development Act, 42 
U.S.C. 3535(q). The provision provides that the Secretary may delegate 
authority to approve a waiver of HUD regulations ``only to an 
individual of Assistant Secretary rank or equivalent rank'' who is 
authorized to issue the regulation to be waived. On April 22, 1991, the 
Department published in the Federal Register (at 56 FR 16337) HUD's 
statement of policy on this provision. Among other things, the April 
22, 1991 statement of policy provided that: ``Individual of equivalent 
rank means an individual with rank equivalent to an Assistant 
Secretary.'' The 1991 policy statement also noted that the term 
includes the following HUD officers: the General Counsel, the Inspector 
General, and the President of the Government National Mortgage 
Association (GNMA).
    Under this provision, the Department limited the authority to waive 
regulations to individuals occupying positions nominated by the 
President, by and with the consent of the Senate. This policy also 
prohibited individuals occupying positions requiring Senate 
confirmation from further re-delegating the authority to waive 
regulations, even to individuals who have been delegated authority 
concurrent with the individual occupying a position that required 
Senate confirmation.
    This statement of policy, published in today's Federal Register, 
clarifies the scope of ``individuals of equivalent rank'' to include 
persons who are designated authority to perform the functions and 
duties of the vacant office under a published Order of Succession. The 
Department's Orders of Succession, consistent with 42 U.S.C. 3535(d), 
ensure that waivers of regulations will be exercised only by 
individuals who have authority to perform the functions and duties of 
the vacant office. The waiver authority and procedures covered in 
today's policy statement are interim and continue only until 
individuals nominated by the President to offices requiring Senate 
confirmation are confirmed by the Senate and sworn into office. Nothing 
in today's statement of policy otherwise changes the scope of the April 
22, 1991 statement of policy.

Justification

    Clarifying the scope of individuals of equivalent rank under the 
April 22, 1991 policy statement is essential to ensure that, during 
this period of critical vacancies in positions requiring Presidential 
appointment and Senate confirmation, the business of the Department is 
not seriously impaired by the absence of individuals occupying 
positions requiring Senate confirmation. The Department continues to 
receive a significant number of requests for waivers. Failing to 
respond to these requests in a timely, considered manner may have 
significant adverse effects on HUD grantees and undercut the 
Department's credibility with the public. This clarification is also 
consistent with the Department's April 22, 1991 statement of policy. In 
that statement, the Department noted that:

    The only other persons who are authorized to waive a regulation 
are those serving in an ``acting'' capacity. Thus, persons formally 
authorized to act for the Secretary, Deputy Secretary, or an 
Assistant Secretary in that officer's absence may exercise the 
waiver authority of that individual. Use of this power is limited to 
situations in which an official is designated as, and is performing 
the duties of, the absent official pursuant to a current, written 
order of succession signed by the appropriate official.

    As contemplated by the April 22, 1991 statement of policy, the 
Department has put into place written Orders of Succession to ensure an 
orderly flow of the authority of those vacant positions which require 
Senate confirmation. The published orders are consistent with the 
Vacancies Reform Act of 1998 and may be found at 65 FR 51014, August 
22, 2000 (for the Office of Community Planning and Development; 65 FR 
6655, November 6, 2000 (for the Office of Public and Indian Housing); 
65 FR 51015, August 22, 2000 (for the Office of Housing-Federal Housing 
Commissioner); 65 FR 66550, November 6, 2000 (for the Office of Fair 
Housing and Equal Opportunity); and 63 FR 66193, December 12, 1998 (for 
the Office of Policy, Development and Research).

Legal Concurrence in Waivers Procedure

    All proposed waivers of regulations under today's statement of 
policy must be concurred in by the Associate General Counsel who serves 
as program counsel to the program office and by the General Counsel or 
the Deputy General Counsel for Housing Finance and Operations or his or 
her designee. It should be noted that this procedure is broader than 
that outlined in the statement of policy dated April 22, 1991, because 
this procedure now requires concurrence on all waivers.

Notification to the Public

    The Department will continue to notify the public of all waivers of 
regulations subject to Section 106 of the Department of Housing and 
Urban Development Reform Act of 1989 and this Statement of Policy. 
Specifically, the provisions of the April 22, 1991 statement of policy 
addressing timing of notice, content of notice and public inspection 
continue unchanged.

    Dated: March 2, 2001.
Mel Martinez,
Secretary.
[FR Doc. 01-5698 Filed 3-7-01; 8:45 am]
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