[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
