Powers of the Secretary

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Being the Secretary of HUD is a major responsibility. Unlike the heads of private organizations, many of the duties and requirements that the Secretary must fulfill are dictated by laws. With the few exceptions noted, all powers and functions of the Department of Housing and Urban Development are vested in the Secretary.

The Secretary has power over the organization of the Department subject to certain legislative restrictions. The following positions are established by statute, including the Department of Housing and Urban Development Act (the HUD Act), 42 U.S.C. 3533:

• Deputy Secretary
• Eight Assistant Secretaries - which are currently designated as Assistant Secretary for Administration, Assistant Secretary for Public and Indian Housing, Assistant Secretary for Community Planning and Development, Assistant Secretary for Fair Housing and Equal Opportunity, Assistant Secretary for Housing-Federal Housing Commissioner, Assistant Secretary for Congressional and Intergovernmental Relations, Assistant Secretary for Policy Development and Research, and Assistant Secretary for Public Affairs
• General Counsel
• Director, Office of Federal Housing Enterprise Oversight
• President, Government National Mortgage Association
• Inspector General
• Chief Financial Officer
• Chief Information Officer
• Federal Housing Administration Comptroller
• Office of Lead-Based Paint Abatement and Poisoning Prevention
• Special Assistant for Indian and Alaska Native Programs
• Director of Urban Program Coordination (the Assistant Secretary for Community Planning and Development is currently designated to occupy this position)
• Assistant to the Secretary responsible for providing advice to nonprofit sponsors (the Assistant Secretary for Housing - Federal Housing Commissioner is currently designated to occupy this position)
• Director, Office of Multifamily Housing Assistance Restructuring (Pursuant to statutory authority, this program will expire on September 30, 2001. Upon expiration the remaining authorities and responsibilities are transferred to the Secretary)

There are certain legislative restrictions concerning certain positions in HUD as follows.

• Federal Housing Commissioner: The HUD Act requires that one of the assistant secretaries carry the title of "Federal Housing Commissioner" to head the "Federal Housing Administration" and, in addition to other duties, to administer, under the supervision and direction of the Secretary, Departmental programs relating to the private mortgage market.
• The Assistant Secretary for Fair Housing and Equal Opportunity: This position was established in the Department by Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et seq.) as amended by the Fair Housing Act Amendments, as well as the Rehabilitation Act of 1973 and other civil rights laws. The Secretary has also assigned to this position related functions of the Department under the Civil Rights Act of 1964 (42 U.S.C. 2000a et seq. and various Executive Orders regarding equal opportunity in housing and employment.

• Director, Office of Federal Housing Enterprise Oversight (OFHEO). The Office of Federal Housing Enterprise Oversight was established in the Department under Section 1311 of Title XIII of the Housing and Community Development Act of 1992 Pub. L. 102-550, enacted October 28, 1992 (HCD Act of 1992), for the purpose of ensuring that the Federal National Mortgage Association (FNMA) and the Federal Home Loan Mortgage Corporation (FHLMC) are adequately capitalized and operating in a safe and sound manner. Under the HCD Act of 1992, the Office is headed by a Director appointed by the President to a 5-year term. The Director is authorized to take various actions including issuing regulations, conducting examinations and taking enforcement actions without the review or approval of the Secretary.

• President, Government National Mortgage Association Ginnie Mae (GNMA) is a Government corporation created to provide a secondary market for FHA mortgages. Title III of the National Housing Act (12 U.S.C. 1717) requires that there be a President of GNMA appointed by the President, with the advice and consent of the Senate.

• Inspector General. The Inspector General Act of 1978 (5 U.S.C. Appendix) requires the establishment of an Inspector General in HUD to conduct and supervise audits and investigations relating to programs and operations of the Department. The Inspector General is appointed by the President, with the advice and consent of the Senate. Under the Act, the IG must report to and be under the general supervision of the Secretary, or if delegated, to the Deputy Secretary but not any other officer of HUD. The Inspector General also reports to the Attorney General and Congress. In accordance with the statute, neither the Secretary nor the Deputy Secretary may prevent or prohibit the IG from initiating, carrying out or completing any audit or investigation or from issuing a subpoena.
• Chief Financial Officer. The HUD Reform Act of 1989 (Pub. L. 101-235) and the Chief Financial Officer Act of 1990 (31 U.S.C. 901) require the establishment of a Chief Financial Officer in HUD. The Chief Financial Officer Act provides that the CFO shall be appointed by the President, with the advice and consent of the Senate. The CFO reports directly to the Secretary regarding financial management matters.
• Director of the Office of Lead-Based Paint Abatement and Poisoning Prevention. The 1992 HUD Appropriations Act (102 Pub. L. 139, enacted October 28, 1991) required the establishment of an Office of Lead-Based Paint Abatement and Poisoning Prevention, in the Office of the Secretary, headed by a career Senior Executive Service employee, which is responsible for all lead-based paint abatement and poisoning prevention activities within the Department.
• Director of Small and Disadvantaged Business Utilization. The 1978 Amendment to the Small Business Act (15 U.S.C. 631 et seq.) and the 1992 HUD Appropriations Act (102 Pub. L. 139, enacted October 28, 1991) require the appointment of a Director of Small and Disadvantaged Business to report to the Secretary concerning business opportunities for small and disadvantaged businesses.
• Board of Contract Appeals. The Contract Disputes Act of 1978 (41 U.S.C. 605) requires that disputes under Federal procurement contracts be heard by Boards of Contract Appeals and, pursuant to the Act, the Secretary established a HUD Board of Contract Appeals. The Act sets forth certain requirements for the positions of Board Chairman, Vice Chairman and members.
• The Office of Multifamily Housing Assistance Restructuring (OMHAR). This Office was established by the Multifamily Assisted Housing Reform and Affordability Act of 1997 (MAHRA) to administer the Mark-to-Market program. OMHAR is working with property owners, Participating Administrative Entities (PAEs), tenants, lenders, and others with a stake in the future of affordable housing to reduce rents to market levels and restructure existing debt to levels supportable by these rents. OMHAR's goals are to: (1) preserve affordability and availability of low income rental housing; (2) reduce the costs of Federal housing assistance; (3) address financially and physically troubled projects; and (4) correct management and ownership deficiencies. Under the statute, this program will expire on September 30, 2001.
• Chief Information Officer. The Information Technology Management Reform Act (Clinger/Cohen) of 1996 requires the head of each agency to designate a Chief Information Officer who shall report directly to the agency head and carry out the duties of Chapter 35 of Title 44 of the U.S. Code. (44 U.S.C. 3506(a)(2)(A)). The CIO advises the Secretary and senior managers on the use of information technology to support core business processes and to achieve mission critical goals.

In addition to the positions established by statute, other positions in the Department have been established by the Secretary such as the Assistant Deputy Secretary for Field Policy and Management, the Director of the Departmental Enforcement Center, the Director of the Real Estate Assessment Center, and the Chief Procurement Officer.

The HUD Act, as amended, at 42 U.S.C. 3535(p), restricts the Secretary's authority to reorganize the Department's field structure. The "Dole Amendment" requires that a cost benefit analysis be performed and that a reorganization not take place until 90 days after the cost-benefit analysis is published in the Federal Register.

Delegations of Authority

Generally, all powers of the Department are vested in the Secretary. Therefore, delegations of authority are essential to permit subordinate officials to act and to define the limits of the actions they may take. The Secretary's authority to delegate functions, powers, and duties is set forth in Section 7(d) of the Department of HUD Act (42 USC 3535(d)). Implicit in this power, of course, is the related authority to revoke or revise any delegations already in effect.

The Department's delegations of authority fall into two categories:

1. Those which are administrative, technical, or ministerial in nature and required by law to be performed by the Secretary or a designee. Examples are the power to certify vouchers for payment, act as Contracting Officer on behalf of the Government or authenticate documents.
   
   
2. Those conferring broad substantive powers necessary to carry out specific programs.
   
   

The established HUD delegation pattern creates a flow of authority from the Secretary to the Assistant Secretaries and from them in turn to Headquarters staff, to Field Directors in the various program areas and their subordinates, and to the Secretary's Representatives in the Field.

The transmission of power at the Assistant Secretarial level reflects the fact that Assistant Secretaries operate both as line officials and as staff to the Secretary. Generally, redelegations of authority to Field Office officials under the organizational concept provide that Field Office Directors derive their power from the Assistant Secretaries (or Deputy Assistant Secretaries) in the respective program areas. Assistant Secretaries maintain direct lines of communication with Field Offices in matters of technical support and policy direction, and also report directly to the Secretary.

As a general proposition, policy making, coordination of Field practices, and rulemaking authority, are retained at Headquarters and not delegated below the Assistant Secretary level. The HUD Reform Act forbids waiver of regulations below the Assistant Secretary level.

The Office of General Counsel provides legal review of proposed delegations drafted by the program offices, and arranges for publication of delegations and redelegations of authority in the Federal Register. OGC maintains copies of published delegations and redelegations of authority. These delegations and redelegations may also be obtained from the Federal Register, from on-line sources, and/or from Lexis-Nexis or Westlaw.

On January 4, 1996, HUD published a Notice of Delegation of Concurrent Authority to the Deputy Secretary in the Federal Register at 61 FR 353. Under this notice, the Deputy Secretary was delegated, concurrently with the Secretary, all power and authority vested in the Secretary, with the exception of the power to sue and be sued.

In addition to the Deputy Secretary having been delegated authority concurrently, the Secretary has published an Order of Succession which provides for officials below the Secretary to be delegated authority during any period when, by reason of absence, disability, or vacancy in office, the Secretary is unavailable to exercise the powers or perform the duties of the office. On November 30, 2000, the Secretary signed an Order of Succession which was published in the Federal Register on December 12, 2000. (Delegations of Authority, including Orders of Succession, are effective upon signature.)

The Secretary's Order of Succession provides the following:

Subject to the provisions of the Federal Vacancies Reform Act of 1998, during any period when, by reason of absence, disability, or vacancy in office, the Secretary is not available to exercise the powers or perform the duties of the Secretary, the following are hereby designated to exercise all powers, functions and duties assigned to or vested in the Secretary. However, no official shall act as Secretary until all of the appointees listed before such official's title in this designation are unable to act by reason of absence, disability, or vacancy in office:

1. Deputy Secretary
2. General Counsel
3. Assistant Secretary for Housing - Federal Housing Commissioner
4. Assistant Secretary for Community Planning and Development
5. Assistant Secretary for Public and Indian Housing
6. Assistant Secretary for Policy Development and Research
7. Assistant Secretary for Fair Housing and Equal Opportunity
8. Assistant Secretary for Congressional and Intergovernmental Relations
9. Assistant Secretary for Administration
10. Assistant Secretary for Public Affairs
    
    

In the event of a national security or other emergency and none of the officials named above is able to act, appointees to the positions listed below are authorized to exercise all powers, functions, and duties assigned to or vested in the Secretary. Executive Order No. 12656, 53 FR 47491 (published November 23, 1998), as amended at 63 FR 7277 (February 12, 1998). However, no official shall act as Secretary until all of the appointees listed before such official's title in this designation are unable to act by reason of absence, disability, or vacancy in office:

1. President, Government National Mortgage Association
2. Chief Financial Officer
3. Director, Office of Federal Housing Enterprise Oversight
4. Secretary's Representative, New England (Boston)
5. Secretary's Representative, New York/New Jersey (New York)
6. Secretary's Representative, Mid-Atlantic (Philadelphia)
7. Secretary's Representative, Southeast/Caribbean (Atlanta)
8. Secretary's Representative, Midwest (Chicago)
9. Secretary's Representative, Southwest (Fort Worth)
10. Secretary's Representative, Great Plains (Kansas City)
11. Secretary's Representative, Rocky Mountains (Denver)
12. Secretary's Representative, Pacific/ Hawaii (San Francisco)
13. Secretary's Representative, Northwest/Alaska (Seattle)

The Federal Vacancies Reform Act of 1998, 5 USC 3345-3349d, was signed into law on October 21, 1998, and became effective November 20, 1998. It changes the way in which vacancies in Presidentially-appointed, Senate-confirmed (PAS) offices within the executive branch may be filled on a temporary basis. The Act specifies who may serve as an "Acting" officer; imposes a 210-day limit on how long an "Acting" officer may serve (in the absence of a pending nomination to fill the position); and requires agencies to report information on PAS vacancies to both Houses of Congress and the General Accounting Office (GAO). Under significant provisions of the Act, generally when a PAS vacancy occurs, only the "first assistant" who has been in position for at least 90 days may perform the duties in an "acting" capacity. That individual can serve in an "acting capacity" for 210 days. Additionally, the President may also direct another PAS or a non-PAS to perform the functions and duties of a vacant Senate-confirmed position, subject to the same time constraints. Under the Act, if there is no "first assistant" or if the time limits are exceeded, then the statutory and regulatory duties and responsibilities of the vacant PAS position must be performed by the head of the agency. However, there are many responsibilities which are not "exclusive" to a particular office-holder, and those may be performed or delegated to other officers or employees.

Regulatory Authority over the Federal National Mortgage Association (FNMA) and the Federal Home Loan Mortgage Corporation (FHLMC)

Title III of the National Housing Act (Federal National Mortgage Association Charter Act) gives the Secretary regulatory authority over FNMA and the Financial Institution Reform Recovery and Enforcement Act of 1989 conferred the same authority on the Secretary respecting the Federal Home Loan Mortgage Corporation (FHLMC). The recently enacted HCD Act of 1992 substantially modified the Secretary's authority under the Charter Acts and established an independent office in HUD responsible for financial safety and soundness regulation. The Secretary retains general regulatory authority over FNMA and FHLMC except for the authority of the Director. Under the new Act, the Secretary has specific authority to approve new programs of the enterprises, establish and enforce low- and moderate-income housing and other goals for mortgage purchases by FNMA and FHLMC and assure the compliance of the enterprises with the Fair Housing provisions of the new Act.

Responsibilities Outside the Department

Secretary-designated Positions

The Secretary of Housing and Urban Development is designated by statute and under Executive Orders to participate in Governmental bodies outside of the Department. In certain cases (noted below), the particular statute or Executive Order permits the Secretary to designate another official to serve as HUD's representative. In other cases, the Secretary has designated another HUD official to serve pursuant to authority under the HUD Act. These outside responsibilities include:

• Director, Federal Housing Finance Board (12 U.S.C. 1422a);
  
  
• Member, Thrift Depositor Protection Oversight Board (after termination of Resolution Trust Corporation) (12 U.S.C. 1441b(k)(7)(B), as amended by Pub. L. 102-233 enacted December 12, 1991);
  
  
• Member (or Secretary's designee), Community Enterprise Assessment Credit Board (12 U.S.C. 1834a, as amended by Pub. L. 102-242 enacted December 19,1991);
  
  
• Member (or Secretary's designee), Appraisal Subcommittee of the Federal Financial Institutions Examination Council (12 U.S.C. 3310, as amended by Section 142 of the Department of Housing and Urban Development Reform Act of 1989, Pub. L. 101-235, enacted December 15, 1989 (HUD Reform Act));
  
  
• >Member, Advisory Council on Historic Preservation (16 U.S.C. 470i);
  
  
• Member (or Secretary's designee at Executive Level IV or higher), Architectural and Transportation Barriers Compliance Board (29 U.S.C. 792);
  
  
• Member, Martin Luther King, Jr. Federal Holiday Commission (36 U.S.C. 169j-3); {Repealed by P.L. 105-225, enacted August 12, 1998};
  
  
• Member, Board of Directors, Pennsylvania Avenue Development Corporation (40 U.S.C 872); {Dissolved as of April 1, 1996. Remaining functions carried out by Interior Department};
  
  
• Member, Coordinating Council on Juvenile Justice and Delinquency Prevention (42 U.S.C. 5616);
  
  
• Member of Board of Directors, Neighborhood Reinvestment Corporation (42 U.S.C. 8103);
  
  
• Member (or designee), Interagency Council on the Homeless (42 U.S.C. 11312);
  
  
• Chairperson, Board of Directors, National Homeownership Trust (Section 301 of the National Affordable Housing Act, Public Law 101-625 (NAHA), codified at 42 U.S.C. 12701 note, as amended by Section 182 of the Housing and Community Development Act of 1992, Public Law 102-550, enacted October 28, 1992 (HCD Act of 1992)) (The Trust is established within HUD and the other Members of the Board include the Secretary of the Treasury, the chairperson of the FDIC, the chairperson of FHFB, the chairperson of FHLMC, the chairperson of FNMA, and an individual representing consumer interests appointed by the President, with the advice and consent of the Senate.); {The Trust sunset September 30, 1994. However, under 42 U.S.C. § 12859, the Secretary may conduct necessary business to provide for concluding the outstanding of the Trust.};
  
  
• Member, National Commission on Manufactured Housing (Section 943 of NAHA, as amended by Section 906 of the HCD Act of 1992);
  
  
• Member, National Interagency Task Force on Multifamily Housing (Section 543 of the HCD Act of 1992);
  
  
• Member, National Drug Policy Board (E.O. 12590, March 26, 1987);
  
  
• Member, President's Committee on Mental Retardation (E.O. 11776, March 28,1974, as amended by E.O. 12608, September 9, 1987);
  
  
• Officer (or Secretary's designated alternate), Advisory Council on Employment of People with Disabilities (E.O. 12640, May 10, 1988);
  
  
• Member (or designated Principal Deputy), Economic Adjustment Committee (E.O. 12788, January 15, 1992);
  
  
• Member, Community Empowerment Board (Presidential Memorandum, September 9, 1993; 34 Pres. Doc. 373; expanded by Presidential Memorandum, March 3, 1993);
  
  
• Member (or designee), Task Force on Environmental Health Risks and Safety Risks to Children (E.O. 13045, April 21, 1997);
  
  
• Member (or designee at Assistant Secretary level), American Heritage Rivers Interagency Committee (E.O. 13061, September 11, 1997);
  
  
• Member (or designee), President's Council on the Future of Princeville, North Carolina (E.O. 13146, February 29, 2000);
  
  
• Member (or designee), Interagency Task Force on the Economic Development of the Southwest Border (E.O. 13122, May 25, 1999);
  
  

• Member (or designee), Interagency Task Force on the Economic Development of the Central San Joaquin Valley (E.O. 13173, October 25, 2000).

   

Secretary-appointment Positions

The Secretary is required by Executive Order or statute to appoint a Departmental representative to serve on the following governmental bodies:

• Federal Housing Administration Advisory Board (12 U.S.C. 1708(b), as amended by Section 502 of the HCD Act of 1992). (The Secretary appoints 9 members from among individuals who have expertise and experience in housing and mortgage lending.);
  
• Lowell Historic Preservation Commission (16 U.S.C. 410cc-31) (A Representative is recommended by the Secretary of HUD and appointed by Secretary of the Interior);
  
  
• National Manufactured Home Advisory Council (42 U.S.C. 5404) (The Secretary appoints 8 members from consumer and community groups, 8 members from the industry and 8 members from government agencies);
  
  
• Federal Coordinating Council on Science, Engineering & Technology (42 U.S.C. 6651) (1 representative from HUD);
  
  
• Energy Efficiency Advisory Task Force (42 U.S.C. 12709) (The Secretary is required to consult with an advisory task force composed of homebuilders, housing agencies, energy organizations, etc. The statute does not specify the means of appointment.);
  
  
• Advanced Building Technology Council, within the National Institute of Building Sciences (Section 952 of NAHA) (The Secretary appoints between 6 and 11 members from the nationwide building community. Although the Secretary made appointments to this Council, the Council was never funded.);
  
  
• Task Force to assist the Secretary in establishing reasonable criteria for occupancy in federally assisted housing (Section 643 of the HCD Act of 1992) (The Secretary appoints members to the Task Force, including representatives of owners, managers, tenants, tenant advocacy organizations, persons with disabilities, organizations assisting the homeless, social service, mental health and other nonprofit service providers);
  
  
• Community Outreach National Advisory Council (Section 851 (i) of the HCD Act of 1992) (The Secretary appoints 12 members from State and local governments, higher education, organizations with expertise in urban issues, and community advisory committees);
  
  
• Advisory Board for Community Investment Corporation Demonstration (Section 853(b)(11) of the HCD Act of 1992) (The Act requires the Secretary to consult with an advisory board comprised of the Administrator of the SBA, various representatives of organizations that possess expertise in economic development and low-income housing. The statute does not specify how the members shall be appointed.);
  
  
• Task Force on Lead-Based Paint Hazard Reduction and Financing (Section 1015 of the HCD Act of 1992) (Task Force includes individuals representing HUD, VA, FHLMC, FNMA, EPA and numerous other organizations);
  
  
• Consumer Affairs Council (E.O. 12265, January 15, 1981) (Representative of HUD);
  
  
• Commission on Alternative Utilization of Military Facilities (E.O. 12682, July 7, 1989) (Representative of HUD designated by the Secretary);
  
  
• President's Council on Management Improvement (E.O. 12816, October 14, 1992) (Senior Official responsible for management or administration);
  
  
• Presidential Memorandum on Protections for Human Subjects of Classified Research, Advisory Committee on Human Radiation Experiments (March 27, 1997; 33 Pres. Doc. 422);
  
  
• Interagency Council on Administrative Management (E.O. 13048, June 10, 1997) (Secretary designates senior administrative management official);
• White House Millennium Council (E.O. 13072, February 2, 1998) (Secretary designates representative);
  
  
• National Task Force on Employment of Adults with Disabilities (E.O. 13078, March 13, 1998) ("Such other senior executive branch officials as may be determined by the Chair (Secretary of Labor)");
  
  
• American Indian and Alaska Native Education Task Force (E.O. 13096, August 6, 1998) (representatives of Department of Housing and Urban Development).