[Federal Register Volume 68, Number 15 (Thursday, January 23, 2003)]
[Rules and Regulations]
[Pages 3362-3363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1410]



[[Page 3361]]

-----------------------------------------------------------------------

Part III





Department of Housing and Urban Development





-----------------------------------------------------------------------



24 CFR Part 401



Authority To Waive the Market-to-Market Regulations; Final Rule

  Federal Register / Vol. 68 , No. 15 / Thursday, January 23, 2003 / 
Rules and Regulations  

[[Page 3362]]


-----------------------------------------------------------------------

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 401

[Docket No. FR-4791-F-01]


Authority To Waive the Market-to-Market Regulations

AGENCY: Office of the Assistant Secretary for Housing-Federal Housing 
Commissioner, HUD.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises HUD's regulations for the Multifamily 
Housing Mortgage and Housing Assistance Restructuring Program (Mark-to-
Market). The final rule provides that the Assistant Secretary for 
Housing-Federal Housing Commissioner, and not the Director of the 
Office of Multifamily Housing Assistance Restructuring (OMHAR), has the 
authority to waive the Mark-to-Market regulation.

DATES: Effective Date: February 24, 2003.

FOR FURTHER INFORMATION CONTACT: Eliot C. Horowitz, Senior Advisor to 
the Assistant Secretary for Housing-Federal Housing Commissioner, 
Office of Housing, Department of Housing and Urban Development, 451 
Seventh Street, SW., Room 9110, Washington, DC 20410-0500. Telephone 
(202) 708-1490 (this is not a toll-free number). A telecommunications 
device for hearing- and speech-impaired persons (TTY) is available at 
1-800-877-9339 (Federal Information relay Service) (this is a toll-free 
number).

SUPPLEMENTARY INFORMATION:

I. Background

    The Department of Housing and Urban Development Reform Act (Pub. L. 
101-235; 103 Stat.1987; December 15, 1989) (Reform Act), included 
provisions governing the manner in which HUD can waive regulations. 
Specifically, section 106 of the Reform Act amended section 7 of the 
Department of Housing and Development Act (HUD Act) by adding a new 
subsection 7(q) (42 U.S.C. 3535 (7)(q)). Section 7(q)(2) of the HUD Act 
provides that a regulation can only be waived ``by an individual of 
Assistant Secretary rank or equivalent rank, who is authorized to issue 
the regulation to be waived.''
    Section 622 of the Mark-to-Market Extension Act of 2001 (Title VI 
of the 2002 Appropriations Act for the Departments of Labor, Health and 
Human Services, and related agencies, Public Law 107-116, 115 Stat. 
2177, approved January 10, 2002) amended section 572 of the Multifamily 
Assisted Housing Reform and Affordability Act of 1997, 42 U.S.C. 1437f 
note, (MAHRA), altering the manner in which the Director of OMHAR is 
appointed. Previously, the President made the appointment, subject to 
confirmation by the United States Senate. Under the new law, the 
President makes the appointment, but Senate confirmation is not 
required. Consequently, the individual appointed as the Director of 
OMHAR is not of the equivalent rank of an Assistant Secretary (as the 
latter appointment requires Senate confirmation).
    The Mark-to-Market Extension Act of 2001 also amended section 578 
of MAHRA to provide that ``all authority and responsibilities assigned 
under this subtitle to the Secretary shall be carried out through the 
Assistant Secretary of the Department of Housing and Urban Development 
who is the Federal Housing Commissioner.''
    In tandem, the three legislative provisions cited above require 
that the Assistant Secretary for Housing-Federal Housing Commissioner 
is authorized to waive regulations under part 401, whereas the Director 
of OMHAR cannot. The Assistant Secretary for Housing-Federal Housing 
Commissioner has undertaken this responsibility since the enactment of 
the Mark-to-Market Extension Act of 2001. Today's amendment to 24 CFR 
401.3 updates the regulation to comport with current law and practice.

Findings and Certification

Justification for Final Rule

    In general, the Department publishes a rule for public comment 
before issuing the rule for effect, in accordance with its own 
regulations on rulemaking at 24 CFR part 10. Part 10 includes 
exceptions to the general rule, including where the regulatory 
amendment governs the Department's organization, internal practices or 
procedures. This rule amendment reflects statutory requirements that 
pertain to the Department's organization, practices and procedures and 
merely conforms part 401 to section 572 of MAHRA, as amended. The 
Department has determined, therefore, that prior notice and comment are 
not required.

Environmental Review

    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 final 
rule is categorically excluded from environmental review under the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (12 U.S.C. 1531-1538) 
establishes requirements for federal agencies to assess the effects of 
their regulatory actions on state, local, and tribal governments and 
the private sector. This final rule will not impose a federal mandate 
that will result in expenditures by state, local, or tribal governments 
and the private sector within the meaning of the Unfunded Mandates 
Reform Act of 1995.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this rule before publication and by 
approving it certifies that this rule would not have a significant 
economic impact on a substantial number of small entities. The reason 
for HUD's determination is that the rule only addresses the 
Department's internal practices and procedures.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either (1) imposes substantial direct compliance costs on state and 
local governments and is not required by statute, or (2) the rule 
preempts state law, unless the agency meets the consultation and 
funding requirements of section 6 of the Executive Order. This final 
rule does not have federalism implications and does not impose 
substantial direct compliance costs on state and local governments or 
preempt state law within the meaning of the Executive Order.

List of Subjects in 24 CFR Part 401

    Grant programs-housing and community development, Loan programs-
housing and community development, Low and moderate income housing, 
Mortgage insurance, Mortgages, Rent subsidies, Reporting and 
recordkeeping requirements.

    Accordingly, for the reasons described in the preamble, HUD is 
amending 24 CFR part 401 to read as follows:

[[Page 3363]]

PART 401--MULTIFAMILY HOUSING MORTGAGE AND HOUSING ASSISTANCE 
RESTRUCTURING PROGRAM (MARK-TO-MARKET)

    1. The authority for 24 CFR part 401 continues to read as follows:

    Authority: 12 U.S.C. 1715z-1 and 1735f-19(b); 42 U.S.C. 1437f 
note and 3535(d).


    2. Revise Sec.  401.3 to read as follows:


Sec.  401.3  Who may waive provisions in this part?

    The Assistant Secretary for Housing-Federal Housing Commissioner 
may waive any provision of this part, subject to Sec.  5.110 of this 
title.

    Dated: January 9, 2003.
John C. Weicher,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 03-1410 Filed 1-22-03; 8:45 am]
BILLING CODE 4210-27-P