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

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Information about this document as published in the Federal Register.

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Office of the Secretary, HUD.


Statement of policy.


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.


March 8, 2001.

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Aaron Santa Anna, Assistant General Start Printed Page 13945Counsel 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.

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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.


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.

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Dated: March 2, 2001.

Mel Martinez,


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[FR Doc. 01-5698 Filed 3-7-01; 8:45 am]