Notice2024-17034
Waiver of Regulations Issued by HUD: Restatement of Policy
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 6, 2024
Issuing agencies
Housing and Urban Development Department
Abstract
This notice reiterates HUD's statement of policy concerning the procedures that govern the waiver of regulations and directives issued by HUD. This policy was first announced by notice published in 1991, following enactment of the Department of Housing and Urban Development Reform Act of 1989. In 2001, HUD published a notice that clarified how these procedures are implemented during a period of Administration transition. In 2008, HUD published a notice consolidating and updating the 1991 and 2001 notices. This notice updates information to reflect current HUD operations and procedures.
Full Text
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<title>Federal Register, Volume 89 Issue 151 (Tuesday, August 6, 2024)</title>
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[Federal Register Volume 89, Number 151 (Tuesday, August 6, 2024)]
[Notices]
[Pages 63959-63962]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17034]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6461-N-01]
Waiver of Regulations Issued by HUD: Restatement of Policy
AGENCY: Office of the Secretary, Department of Housing and Urban
Development (HUD).
ACTION: Notice of statement of policy.
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SUMMARY: This notice reiterates HUD's statement of policy concerning
the procedures that govern the waiver of regulations and directives
issued by HUD. This policy was first announced by notice published in
1991, following enactment of the Department of Housing and Urban
Development Reform Act of 1989. In 2001, HUD published a notice that
clarified how these procedures are implemented during a period of
Administration transition. In 2008, HUD published a notice
consolidating and updating the 1991 and 2001 notices. This notice
updates information to reflect current HUD operations and procedures.
DATES: Applicable date July 29, 2024.
FOR FURTHER INFORMATION CONTACT: Aaron Santa Anna, Associate General
Counsel for Legislation and Regulations, Office of General Counsel,
Department of Housing and Urban Development, 451 7th Street SW, Room
10282, Washington, DC 20410, telephone number 202-708-1793 (this is not
a toll-free number). HUD welcomes and is prepared to receive calls from
individuals who are deaf or hard of hearing, as well as individuals
with speech or communication disabilities. To learn more about how to
make an accessible telephone call, please visit: <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
SUPPLEMENTARY INFORMATION:
I. Background
Section 106 of the Department of Housing and Urban Development
Reform Act of 1989 (Pub. L. 101-235, approved December 15, 1989) added
a new section 7(q) to the Department of Housing and Urban Development
Act. (See 42 U.S.C. 3535(q).) This provision specifies that all waivers
of HUD regulations:
<bullet> Must be in writing and indicate the grounds for granting
the waiver;
<bullet> May be delegated by the Secretary only to an individual of
Assistant Secretary or equivalent rank, who is authorized to issue the
regulation to be waived; and
<bullet> Must provide notification to the public through a notice
published at least quarterly in the Federal Register. (See 42 U.S.C.
3535(q)(1) through (3).)
Section 7(q) also provides that any waiver of a provision of a HUD
handbook (which is included in HUD's definition of ``directive'') must
be in writing, specify the grounds for the waiver, and be indexed and
made available for public inspection for a period of 3 years. (See 42
U.S.C. 3535(q)(4).) Section 7(q) contains only procedural requirements
with respect to waivers of regulations and handbooks. These include
requirements governing the form and content of a waiver, who may grant
the waiver, and public notification of the waiver. Section 7(q) made no
change in the substantive grounds upon which, or the circumstances in
which, HUD may grant a waiver.
II. Statement of Policy on Waiver of Regulations and Directives
This statement sets forth HUD's policy and procedures governing the
waivers of HUD regulations and directives. These procedures are
consistent with the requirements of section 7(q) of the Department of
Housing and Urban Development Act, as added by section 106 of the
Department of Housing and Urban Development Reform Act of 1989 (42
U.S.C. 3535(q)). HUD's regulation at 24 CFR 5.110 also sets forth HUD's
obligation to comply with the waiver requirements of 42 U.S.C. 3535(q).
This policy was first announced by notice
[[Page 63960]]
published in 1991 (April 22, 1991, 56 FR 16337), following enactment of
the Department of Housing and Urban Development Reform Act of 1989. In
2001 (March 8, 2001, 66 FR 13944), HUD published a notice that
clarified how these procedures are implemented during a period of
Administration transition. In 2008 (December 17, 2008, 73 FR 76674),
HUD published a notice consolidating and updating the 1991 and 2001
notices. This notice updates information to reflect current HUD
operations and procedures. These operations and procedures apply during
periods of Administration transition and non-transition periods.
A. Definitions as Used in This Statement of Policy
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 (as such
term is defined in this section).
Department or HUD means the United States Department of Housing and
Urban Development.
Deputy Secretary means the Deputy Secretary of Housing and Urban
Development.
HUD Act means the Department of Housing and Urban Development Act
(42 U.S.C. 3531 et seq.).
Directive means a handbook (including a change or supplement),
notice, and any other issuance that HUD may classify as a directive.
Individual of equivalent rank means an individual with rank
equivalent to an Assistant Secretary, such as the General Counsel, the
Chief Financial Officer, the Inspector General, and the President of
the Government National Mortgage Association, or the highest-ranking
individual administering a HUD program office pursuant to the office's
Order of Succession, written Delegation of Authority, or designation.
Regulation means:
<bullet> Any material contained in Title 24, Code of Federal
Regulations;
<bullet> Any notice published in the Federal Register announcing
the availability of funds (referred to as a notice of funding
opportunity or NOFO), or the criteria to be used to select recipients
of the funds, under any program administered by HUD; and
<bullet> Any other notice published in the Federal Register that
establishes program requirements pursuant to a statute that authorizes
HUD to administer the program by Federal Register publication, pending
issuance of effective regulations amending Title 24, Code of Federal
Regulations.
Secretary means the Secretary of Housing and Urban Development.
B. Waiver of Regulations
1. Actions Subject to Section 7(q).
Section 7(q) of the HUD Act only covers waivers of non-statutory
regulatory requirements. Many HUD regulations reflect statutory
requirements, and section 7(q) grants no authority to waive statutory
requirements that may be codified in HUD regulations. Therefore, HUD
officials must always exercise caution that a waiver of a HUD
regulation is not a waiver of a statutory requirement.
Section 7(q), however, is not applicable to HUD regulations that
contain, within the regulation, the authority to grant an exception to
the overall requirement stated in the regulation under certain
specified criteria. This type of regulation was established to provide
``built-in'' exceptions to the general regulatory requirement, thereby
allowing the applicable HUD official to act on such exceptions under
the exception criteria specified without undertaking the more formal
regulatory waiver process. Examples of this type of regulation can be
found in the following regulations:
a. 24 CFR 203.43(c)(2)
Sec. 203.43 Eligibility of Miscellaneous Type Mortgages
* * * * *
(c) The Commissioner may insure under this part, without regard to
any limitation upon eligibility contained in the other provisions of
this subpart, any mortgage given to refinance an existing mortgage
insured under the National Housing Act. The refinancing mortgage must
meet the following special requirements:
* * * * *
(2) It must have a term which does not exceed the unexpired term of
the existing mortgage, except that in any case where the Commissioner
determines that an extension of the term of the mortgage will inure to
the benefit of the applicable insurance fund, taking into consideration
the outstanding insurance liability under the existing insured
mortgage, the term may be extended to the lesser of (i) 30 years or
(ii) the unexpired term of the existing mortgage, plus 12 years;
(Emphasis added).
Section 203.43 specifies the conditions under which the Federal
Housing Commissioner may grant an exception to the general condition
that a refinanced mortgage must have a term that does not exceed the
unexpired term of the existing mortgage.
b. 24 CFR 201.5
Sec. 201.5 Waivers
Waiver of lender's noncompliance. The Secretary may waive a
lender's noncompliance with any provision of this part, subject to
statutory limitations, when it is determined that enforcement of the
regulations would impose an injustice upon a lender which has
substantially complied with the regulations in good faith and refunded
or credited any excess charge made, and when such waiver does not
involve an increase in the Secretary's obligation beyond that which
would have been involved if the lender was in full compliance with the
regulations.
Section 201.5 provides a built-in waiver provision and specifies
the basis upon which the waiver may be granted.
2. Form and Content of Waivers. Each waiver of a HUD regulation
must be in writing and specify the grounds for granting the waiver.
3. Who May Grant a Waiver? The Secretary is the ultimate repository
of the authority both to issue and to waive HUD regulations. The Deputy
Secretary has been delegated concurrent authority with the Secretary to
issue and waive HUD regulations. The Secretary and the Deputy Secretary
may delegate each of these powers to HUD Assistant Secretaries or other
individuals of equivalent rank, as defined in this notice, and as
provided in this section. Typically, the authority to issue final
regulations is delegated to an Assistant Secretary or an individual
with equivalent rank.
The authority to waive a regulation may not be delegated below the
Assistant Secretary or equivalent rank (as defined in Section A of this
Notice). An individual formally authorized to act for the Secretary,
Deputy Secretary, or an Assistant Secretary, or an individual of
equivalent rank in that official'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
designation or order of succession signed by the appropriate official
and subject to the limitations of the Federal Vacancies Reform Act of
1998 (5 U.S.C. 3345 et. seq.), or the Inspector General Act of 1978 (5
U.S.C. 403(h)) as amended by the Securing Inspector General
Independence Act of 2022 (Title LII, Subtitle A, of Pub. L. 117-263,
Sec. 5203). Note: Special issues are raised by the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, as
amended (42 U.S.C. 4601 et seq.) (``URA''). The URA statute authorizes
the Department of Transportation, as the lead agency, to
[[Page 63961]]
issue regulations. (See 42 U.S.C. 4633 and the implementing regulations
at 49 CFR part 24.) Section 24.7 of the Department of Transportation
regulations (49 CFR 24.7) authorizes HUD, as a federal funding agency
to waive certain non-statutory requirements of 49 CFR part 24 subject
to certain restrictions imposed by the lead agency. Under 49 CFR 24.7,
HUD may waive any requirement in 49 CFR part 24 that is not required by
law, if HUD determines that the waiver does not reduce any assistance
or protection provided to an owner or displaced person under 49 CFR
part 24. Any request for a waiver shall be justified on a case-by-case
basis. Accordingly, the authority to issue URA regulations in 49 CFR
part 24 and the authority to waive regulations in 49 CFR part 24 are in
different agencies. HUD's position is that the authority to waive
provisions of 49 CFR part 24 given to HUD in 49 CFR 24.7 is not subject
to section 7(q) of the HUD Act because section 7(q) addresses only
regulations that the Secretary has the authority to issue. HUD's
authority to issue waiver of relocation regulations in title 24 of the
Code of Federal Regulations that are not required under the URA statute
remains subject to section 7(q).
4. Legal Concurrence on Waivers. A proposed waiver of a regulation
subject to section 7(q) must be concurred on by the General Counsel (or
the General Counsel's designee with responsibility for the legal area
involving the waiver), if the waiver would:
a. Be precedential in effect;
b. Affect in any way the competitive ``ground rules'' under which
assistance is distributed to recipients;
c. Relate to litigation involving HUD or its programs; or
d. Otherwise present novel decisions or circumstances.
A proposed waiver that does not meet any of these criteria may be
granted without the concurrence of the Office of General Counsel.
5. Concurrence on Waivers of Nondiscrimination Provisions. Any
proposed waiver of a regulation that prohibits discrimination on the
basis of race, color, religion, national origin, sex, disability, age,
or familial status, or that sets forth related affirmative obligations
subject to section 7(q), must be concurred on by the Assistant
Secretary for Fair Housing and Equal Opportunity, or the Assistant
Secretary's designee.
6. Notification to the Public.
a. In General. HUD will notify the public of all waivers of
regulations subject to section 7(q) that are granted by HUD through
notice published in the Federal Register.
b. Timing of Notice. Each notice will be published not less
frequently than quarterly and will provide information on all waivers
of regulations subject to section 7(q) since the end of the period
covered by the last Federal Register notice containing all the waivers
granted during the reporting period.
c. Content of Notice. The notice will contain the following
information for each waiver:
i. An identification of the project or activity that is the subject
of the regulatory waiver;
ii. A description of the nature of the requirement that has been
waived and a specification of the provision involved, including the
citation to the Code of Federal Regulations (CFR), if the provision is
codified in the CFR;
iii. The name and title of the official who granted the waiver;
iv. A brief description of the grounds for granting the waiver; and
v. A statement of how more information about the waiver, a copy of
any request, and the approval of the waiver may be obtained.
d. Public Inspection of Waivers. A record of each waiver of a HUD
regulation (including the information specified in Section B.6.c. of
this notice) is maintained by the office of the HUD official who
granted the waiver, and will be published in the Federal Register not
less than quarterly as required by section 7(q)(3). Information about
specific waivers granted should be directed to the office that granted
the waiver. General information about the procedures for granting
waivers of regulations may be obtained from the Regulations Division,
Office of General Counsel, Department of Housing and Urban Development,
451 7th Street SW, Room 10276, Washington, DC 20410, telephone number
202-708-2084 (this is not a toll-free number). HUD welcomes and is
prepared to receive calls from individuals who are deaf or hard of
hearing, as well as individuals with speech or communication
disabilities. To learn more about how to make an accessible telephone
call, please visit: <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
C. Waiver of Directives
1. Form and Content of Waivers. Each waiver of a provision in a HUD
directive will be in writing and will specify the grounds for granting
it.
2. Who May Grant a Waiver? The HUD officer who is authorized to
issue a directive may also grant waivers of its provisions. This
authority may be delegated to any officer or employee in the issuing
official's organization, as well as to any officer or employee in a HUD
Field or Regional Office. Any such delegation must be in writing,
although a published delegation of authority is not necessary to
delegate the power to waive the provisions of directives.
3. What May be Waived? This notice applies only to a waiver that is
intended to provide a benefit to, or to remove an obstacle to
participation in a HUD program by specific individuals or entities
outside the Department. Waivers of provisions governing internal HUD
operations, and any action establishing guidance that applies to all
individuals or entities that are in similar circumstances, are not
subject to the waiver requirements of this notice. Issuance of a new
directive is not a waiver for purposes of this notice.
HUD officials must be alert and cognizant that waiver of a
directive provision that restates or summarizes a regulation may
constitute a regulatory waiver. In determining whether a directive
provision is to be treated as a regulatory waiver, HUD will consider
whether the waiver of the directive would also require a regulatory
waiver. If so, the waiver must meet the regulatory waiver requirements
set forth in this notice.
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, are considered regulatory prohibitions.
4. Public Inspection of Waivers. A record of each waiver of a HUD
directive (including the grounds for granting the waiver) will be made
available to the public. For more information on where and how this
information may be inspected, interested members of the public are to
contact the HUD office that granted the waiver. The record of the
waiver will be maintained in indexed form for not less than the 3-year
period beginning on the date the waiver is granted.
III. Findings and Certifications
Environmental Review. This notice 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 notice is categorically
excluded from environmental review under the National Environmental
Policy Act of
[[Page 63962]]
1969 (42 U.S.C. 4321). It should be noted that the actual grant of a
waiver pursuant to this notice may require environmental review. If
this occurs, the environmental considerations will be assessed at that
time and in that context.
Executive Order 13132, Federalism. Executive Order 13132 (entitled
``Federalism'') prohibits, to the extent practicable and permitted by
law, an agency from promulgating a regulation that has federalism
implications and either imposes substantial direct compliance costs on
state and local governments and is not required by statute, or preempts
state law, unless the relevant requirements of section 6 of the
Executive Order are met. The statement of policy sets forth only the
procedures for granting waivers of regulations and directives, and for
notifying the public of the waiver. Accordingly, this statement of
policy 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.
Authority: Sections 7(d) and 7(q) of the United States Department
of Housing and Urban Development Act, 42 U.S.C. 3535(d) and 3535(q).
Damon Smith,
General Counsel.
[FR Doc. 2024-17034 Filed 8-5-24; 8:45 am]
BILLING CODE 4210-67-P
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</html>Indexed from Federal Register on August 6, 2024.
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