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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.
Power
with Respect to the Organization
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.
Powers
with Respect to Reorganization of the Department
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:
- 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.
- 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.
Orders
of Succession
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:
- Deputy
Secretary
- General
Counsel
- Assistant
Secretary for Housing - Federal Housing Commissioner
- Assistant
Secretary for Community Planning and Development
- Assistant
Secretary for Public and Indian Housing
- Assistant
Secretary for Policy Development and Research
- Assistant
Secretary for Fair Housing and Equal Opportunity
- Assistant
Secretary for Congressional and Intergovernmental Relations
- Assistant
Secretary for Administration
- 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:
-
President, Government National Mortgage Association
-
Chief Financial Officer
-
Director, Office of Federal Housing Enterprise Oversight
-
Secretary's Representative, New England (Boston)
-
Secretary's Representative, New York/New Jersey (New York)
-
Secretary's Representative, Mid-Atlantic (Philadelphia)
-
Secretary's Representative, Southeast/Caribbean (Atlanta)
-
Secretary's Representative, Midwest (Chicago)
-
Secretary's Representative, Southwest (Fort Worth)
-
Secretary's Representative, Great Plains (Kansas City)
-
Secretary's Representative, Rocky Mountains (Denver)
-
Secretary's Representative, Pacific/ Hawaii (San Francisco)
-
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);
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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).
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