E7-6390. Delegation of Authority to Regional Directors To Waive Certain Handbook and Directives Provisions

AGENCY:

Office of the Secretary, HUD.

ACTION:

Notice of delegation of authority to regional directors in the HUD regional offices.

SUMMARY:

In this notice, the Secretary delegates to the Regional Directors the authority to waive certain HUD handbook provisions and directives and announces the procedures that will govern these waivers. Specifically, the delegation provides Regional Directors with concurrent authority to waive certain HUD handbook provisions and directives. Currently, the Regional Directors are located in Region I (Boston, MA); Region II (New York, NY); Region III (Philadelphia, PA); Region IV (Atlanta, GA); Region V (Chicago, IL); Region VI (Fort Worth, TX); Region VII (Kansas City, KS); Region VIII (Denver, CO); Region IX (San Francisco, CA); and Region X (Seattle, WA).

Any waiver of HUD handbook provisions and directives made in the field must be in writing and must specify the grounds for granting it. All waiver decisions by a Regional Director in the Office of Field Policy and Management must be jointly concurred in by the appropriate regional program director or Assistant Secretary. In addition, the Department will make available for public inspection, for at least a 3-year period, a record of all waivers of HUD handbook provisions and directives.

EFFECTIVE DATE:

March 30, 2007.

FOR FURTHER INFORMATION CONTACT:

Aaron Santa Anna, Assistant General Counsel for Regulations, Office of Legislation and Regulations, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410; telephone number [phone] or Mark Borum, Field Management Officer, Office of Field Policy and Management, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7122, Washington, DC 20410; telephone number [phone]. (These are not toll-free numbers.) These numbers may be accessed through TTY by calling the Federal Information Relay Service at [phone]. Comments or questions can be submitted through the Internet to [e-mail] or to [e-mail].

SUPPLEMENTARY INFORMATION:

Section 106 of the Department of Housing and Urban Development Reform Act of 1989 (Pub. L. 101-235, approved December 15, 1989) added section 7(q) to the Department of Housing and Urban Development Act (HUD Act) (42 U.S.C. 3535(q)). Section 7(q) provides that any waiver of a HUD regulation or handbook provision must be in writing, specify the grounds for the waiver, and be indexed and made available for public inspection (42 U.S.C. 3535(q)(4)).

Pursuant to section 7(q) of the HUD Act, a regulation can be waived only by the Secretary or a designated Assistant Secretary or equivalent rank. The Secretary is the ultimate repository of the authority both to issue and to waive the regulations of the Department. The Secretary may delegate each of these powers to other HUD officers. Under section 7(q) of the HUD Act, however, the Secretary may not delegate the authority to waive a regulation below the Assistant Secretary rank. Individuals serving in an “acting” capacity may exercise the authority contained in this delegation. This delegation is subject to the provisions of the Federal Vacancies Reform Act of 1998 (5 U.S.C. 3345 et seq.).

Definitions as used in this delegation:

Assistant Secretary means an Assistant Secretary of the Department under section 4(a) of the Department of Housing and Urban Development Act (42 U.S.C. 3533(a)), or an individual of equivalent rank.

Individual of equivalent rank means an individual with rank equivalent to an Assistant Secretary. The term includes the following HUD officers: The General Counsel; the Inspector General; the President of the Government National Mortgage Association (GNMA); the Chief Financial Officer; and other positions appointed by the President requiring Senate confirmation.

Regional Director means an individual who is responsible for managing a HUD regional office.

Directive ^[1] means a non-Federal Register publication, as defined in HUD's handbook on the “HUD Directives System” (Handbook No. 000.2 REV-2 or such successor edition) and includes a handbook (including a change or supplement), notice, interim notice, special directive, and any other issuance that the Department may classify as a directive.

Handbook means a directive that communicates information of a non-temporary nature (including clarification of policies, instructions, guidance, procedures, forms, and reports) for HUD staff or program participants. The non-temporary nature distinguishes a handbook from temporary HUD directives, such as notices. (See paragraph 2-1A, HUD Handbook 000.2, HUD Directives System, or successor edition.)

Notice, in the context of a directive, means a non-Federal Register directive that is used to provide HUD program participants with temporary instructions involving HUD programs or to amend previous instructions until a handbook revision or change is issued. A notice must carry an expiration date of not to exceed one year, and may be extended. (See paragraph 2-1D, HUD Handbook 000.2, HUD Directives System, or successor edition.)

Interim Notice means a non-Federal Register directive that is issued at the discretion of an Assistant Secretary under emergency circumstances. Interim notices carry an expiration date not to exceed 120 days, and may not be extended. (See paragraph 2-1E, HUD Handbook 000.2, HUD Directives System, or successor edition.)

Regulation means “rule” or “regulation,” as these terms are defined in Part 10 of Title 24 of the Code of Federal Regulations, and includes any material contained in Title 24 of the Code of Federal Regulations; any notice published in the Federal Register announcing the availability of funds, or the criteria to be used to select recipients of the funds, under any program administered by the Department; and any other notice published in the Federal Register that establishes program requirements pursuant to a statute that authorizes the Department to administer the program by Federal Register publication, pending issuance of effective regulations amending Title 24 of the Code of Federal Regulations.

Waiver of Directives and Handbook Provisions:

Form and Content of Waivers. Section 7(q) within the Department of Housing and Urban Development Act, 42 U.S.C. 3535(q), provides that any waiver of a HUD handbook or directive provision must be in writing, specify the grounds for the waiver, and be indexed and made available for public inspection.

Waivers of Directive or Handbook Provisions That Restate or Summarize a Regulation. Waiver of a directive or handbook provision that restates or summarizes a regulation may constitute a regulatory waiver for purposes of this Notice. The Office of General Counsel will determine whether a handbook or directive provision is to be treated as a regulatory waiver. If the handbook or directive provision is determined to be a regulatory waiver, it must comport with section 7(q) of the HUD Act, which requires the signature of the Assistant Secretary or equivalent.

All Prohibitions Against Discrimination. All prohibitions against discrimination on the basis of race, sex, color, national origin, religion, handicap, age, or familial status, and all related affirmative obligations that are direct derivatives of regulations governing prohibitions of discrimination are considered regulatory prohibitions.

Public Inspection of Waivers. A record of each waiver of a HUD directive or handbook provision (including the grounds for granting the waiver) will be maintained in indexed form, and will be made available to the public at the HUD Headquarters office with program authority over the HUD directive. The record will be maintained for not less than the 3-year period beginning on the date the waiver is granted.

Executive Order 12612, Federalism. The General Counsel, as the Designated Official under section 6(a) of Executive Order 12612, Federalism, has determined that this delegation will not have substantial direct impact on states or their political subdivisions, or on the relationship between the federal government and the states, or on the distribution of power and responsibilities among the various levels of government. The delegation only states procedures for granting waivers of regulations and directives, and for notifying the public of the waiver. As a result, this delegation is not subject to review under the Executive Order.

It should be noted that the actual grant of a waiver pursuant to this delegation may involve federalism implications. If this occurs, the relationship of the waiver to the Executive Order will be assessed at that time and in that context.

Section A: Authority Delegated

The Secretary delegates to each Regional Director concurrent authority within his or her respective jurisdiction, to waive those directives and handbook provisions pertaining to programs in the Offices of Housing, Public and Indian Housing, Community Planning and Development, and Fair Housing and Equal Opportunity. All waivers by the Regional Directors in the Office of Field Policy and Management must be jointly concurred in by the appropriate Regional Program Director or Assistant Secretary, as directed by the applicable Assistant Secretary.

Section B: Directives, Handbooks, and Provisions Excluded

The waiver authority delegated herein does not include the authority to waive regulations, or those Departmental directives and handbook provisions mandated by or directly predicated on a statute, executive order, or regulation, including, but not limited to, environmental, ethics, fair housing, civil rights enforcement and compliance, procurement, and other provisions. Additionally, the waiver authority delegated herein does not include the authority to waive provisions contained in the HUD Litigation Handbook.

Section C: Authority Revoked

Any previous delegated or redelegated authority to Regional Directors inconsistent with this delegation of authority is hereby revoked.

Section D: Authority To Redelegate

This authority may not be redelegated.

Authority: Section 7(q), Department of Housing and Urban Development Act (42 U.S.C. 3535(a)); Section 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)); Federal Vacancies Reform Act of 1998 (5 U.S.C. 3345 et seq.).

Dated: March 30, 2007.

Alphonso Jackson,

Secretary.

Footnotes

1.  By its terms, section 106 reaches only HUD “handbooks.” This is the one class of HUD directives, as defined in this Notice. In order to give section 106 the widest possible coverage, the Department has decided, as a matter of agency discretion, to subject all the Department's directives to the provisions of section 106.