[Federal Register Volume 62, Number 63 (Wednesday, April 2, 1997)]
[Rules and Regulations]
[Pages 15800-15803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8291]
[[Page 15799]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 50 and 55
Protection and Enhancement of Environmental Quality; Technical and
Clarifying Amendments; Final Rule
Federal Register / Vol. 62, No. 63 / Wednesday, April 2, 1997 / Rules
and Regulations
[[Page 15800]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 50 and 55
[Docket No. FR-2206-F-04]
Protection and Enhancement of Environmental Quality; Technical
and Clarifying Amendments
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: On September 27, 1996 (61 FR 50914), HUD published a final
rule streamlining and updating 24 CFR part 50 in its entirety. Part 50
describes the procedures used by HUD to carry out its responsibilities
under the National Environmental Policy Act of 1969 (NEPA), the NEPA-
implementing regulations of the Council on Environmental Quality, and
the other NEPA-related Federal environmental laws and authorities. This
final rule makes several technical and clarifying amendments to
Sec. 50.19 of the September 27, 1996 rule. Section 50.19 lists those
activities which are excluded from the compliance requirements of the
various environmental authorities. Further, this rule also makes a
correction to the preamble of the September 27, 1996 final rule. This
rule also makes a necessary conforming amendment to 24 CFR part 55
(Floodplain Management).
EFFECTIVE DATE: May 2, 1997.
FOR FURTHER INFORMATION CONTACT: Richard H. Broun, Director, Office of
Community Viability, Room 7240, Department of Housing and Urban
Development, 451 Seventh Street, SW, Washington, DC 20410-7000. For
telephone communication, contact Walter Prybyla, Deputy Director for
Policy, Environmental Review Division at (202) 708-1201. Hearing or
speech-impaired individuals may access this number via TTY by calling
the Federal Information Relay Service number at 1-800-877-8339. (With
the exception of the ``800'' number, these telephone numbers are not
toll-free.)
SUPPLEMENTARY INFORMATION:
I. Background
A. The September 27, 1996 Final Rule
On September 27, 1996 (61 FR 50914), HUD published a final rule
streamlining and updating 24 CFR part 50 in its entirety. Part 50
describes the procedures used by HUD to carry out its responsibilities
under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321-4347), the NEPA-implementing regulations of the Council on
Environmental Quality, and the other NEPA-related Federal environmental
laws and authorities (see Sec. 50.4 of the September 27, 1996 final
rule). The September 27, 1996 final rule became effective on October
28, 1996.
B. Technical and Clarifying Amendments to the September 27, 1996 Final
Rule
Section 50.19 of the September 27, 1996 rule lists those activities
and approvals of policy documents which are categorically excluded from
the environmental assessment required by NEPA (except in extraordinary
circumstances as described in Sec. 50.20(b)) and are not subject to the
compliance requirements of the related environmental laws and
authorities cited at Sec. 50.4. The final rule makes the following
technical and clarifying changes to this section:
1. Refinancings Under HUD's Loan Guarantee Recovery Fund (LGRF) Program
Currently, Sec. 50.19(b)(21) excludes the ``[r]efinancing of HUD-
insured mortgages that will not allow new construction or
rehabilitation, nor result in any physical impacts or changes except
for routine maintenance.'' This provision is intended to apply solely
to the refinancing of HUD-insured mortgages on existing properties.
Since publication of the September 27, 1996 final rule, the issue of
refinancings under HUD's Loan Guarantee Recovery Fund (LGRF) program
(24 CFR part 573) has arisen for the first time. This final rule
updates 24 CFR part 50 by adding a new Sec. 50.19(b)(24) which
categorically excludes HUD guarantees under the LGRF program of loans
that refinance loans and mortgages where the refinancing will not allow
further construction or rehabilitation, nor result in any physical
impacts or changes except for routine maintenance. Compliance with
Secs. 50.4(b)(1), 50.4(c)(1), and 51.303(a)(3), however, is required.
LGRF refinancings would be identical or similar to HUD refinancings of
HUD-held mortgages on existing properties allowed under
Sec. 50.19(b)(21) and the proposed clarification does not constitute a
substantive change to the current rule. HUD has determined that such
refinancings do not involve physical development and should be
categorically excluded from environmental assessment under NEPA and
listed under Sec. 50.19 as not subject to the compliance requirements
of most of the related environmental laws and authorities. This
determination is based on the fact that unlike HUD financing of
proposed physical development for which a full environmental review and
compliance with the related authorities is required, the refinancing of
existing loans and mortgages would apply only to already-completed
construction and would not alter physical conditions so as to trigger
compliance with most environmental laws, since any physical change
would have occurred prior to the application for a HUD loan guarantee.
Only three of the environmental requirements listed in Sec. 50.4 would
apply to refinancing under the LGRF program. These requirements are
flood insurance, protection of coastal barrier resources, and
notification of airport hazards.
A conforming amendment to 24 CFR part 55 (Floodplain Management) is
required as a result of the new categorical exclusion for LGRF
refinancings. Part 55 covers the proposed acquisition, construction,
improvement, disposition, financing and use of properties located in a
floodplain for which approval is required either from HUD or from a
grant recipient subject to 24 CFR part 58 (Environmental Review
Procedures for Entities Assuming HUD Environmental Responsibilities).
Paragraph (b) of Sec. 55.12 describes the inapplicability of 24 CFR
part 55 to certain categories of proposed actions. This final rule adds
a new paragraph (b)(4) to Sec. 55.12 for HUD refinancings of loans and
mortgages under the LGRF program.
2. Lender Insurance Program
Section 427 of the Departments of Veterans Affairs and Housing and
Urban Development, and Independent Agencies Appropriations Act, 1997
(Pub. L. 104-204, approved September 26, 1996; 110 Stat. 2874, 2928)
(the Appropriations Act) amended title II of the National Housing Act
(12 U.S.C. 1707 et seq.) to provide that the Secretary may delegate to
Direct Endorsement (DE) mortgagees the authority to insure mortgages on
one-to four-family properties. Section 50.19(b)(17) of the September
27, 1996 final rule provides that HUD's endorsement of one-to-four
family mortgage insurance under the DE program is not subject to all of
the individual compliance requirements of the Federal laws and
authorities cited in Sec. 50.4; compliance with Secs. 50.4(b)(1),
50.4(c)(1), and 51.303(a)(3), however, is required. Since section 427
allows HUD to delegate the authority to insure mortgages to certain
eligible DE mortgagees, this Lender Insurance process should be
similarly excluded from certain requirements. Therefore, this final
rule amends Sec. 50.19(b)(17) to include the Lender Insurance program.
[[Page 15801]]
3. Tenant-based Rental Assistance
Currently, Sec. 50.19(b)(11) provides that tenant-based rental
assistance is categorically excluded from the assessment required by
NEPA except in extraordinary circumstances (Sec. 50.20(b)), and is not
subject to the related laws cited at Sec. 50.4. Regarding the approval
of policy documents for tenant-based rental assistance, HUD is adding a
parenthetical to clarify that the term ``leasing'' as covered in
Sec. 50.19(c)(1) does not include tenant-based rental assistance.
Paragraphs (b) and (c) of Sec. 50.19 provide a list of activities and
policy documents, respectively, which are categorically excluded from
the environmental review requirements described elsewhere in part 50.
The list of policy documents in Sec. 50.19(c) was intended to be
sufficiently broad to encompass any rules and notices proposed for
publication in the Federal Register by HUD to establish the policies
and procedures necessary for the implementation of a categorically
excluded activity listed in Sec. 50.19(b) on the condition that such
rules and notices otherwise do not involve real property transfer,
physical development or standards setting described in
Sec. 50.19(c)(1).
4. Other Miscellaneous Corrections and Clarifications to Sec. 50.19
Currently, Sec. 50.19(b)(4) categorically excludes economic
development activity costs that are not associated with construction or
expansion of existing operations. This final rule clarifies the scope
of the exclusion by revising the imprecise phrase ``expansion of
existing operations'' to refer specifically to ``physical expansion of
existing facilities.'' Generally, economic development results in some
kind of expansion. Where expansion occurs in ways other than expansion
of the physical plant, such as expansion in sales volume or number of
employees, HUD does not anticipate significant environmental impact or
physical changes that would trigger environmental reviews under the
related environmental laws and authorities.
A new paragraph (c)(5)(ii) is added to Sec. 50.19 to clarify that
proposed Notices of Funding Availability (NOFA) are categorically
excluded where an existing regulation or guideline pertaining to the
NOFA contains no environmental review provisions because the regulation
or guideline concerns only activities listed in Sec. 50.19(b).
The final rule revises Sec. 50.19(c)(6) to refer specifically to
the establishment and review of income limits and exclusions with
regard to eligibility for or calculation of HUD housing assistance or
rental assistance. This activity does not involve physical development
or standards setting.
C. Corrected Preamble to the September 27, 1996 Final Rule
The preamble to the September 27, 1996 final rule included a list
of HUD programs subject to the requirements of 24 CFR part 50 (61 FR
50915-50916). HUD wishes to make the following corrections to this
list.
1. The HOPE VI Revitalization Program is added to the list of
programs administered by the Office of Public and Indian Housing. This
program will remain subject to part 50 and is not affected by the
October 14, 1996 effective date for the transition to 24 CFR part 58
(Environmental Review Procedures for Entities Assuming HUD
Environmental Responsibilities) of activities under title I of the
United States Housing Act of 1937.
2. The Nehemiah Housing Opportunity Grants Program (NHOP) is
deleted from the list of programs administered by the Office of
Housing. The Congress is no longer authorizing new grants under NHOP.
3. Research grants authorized under sections 1051-53 of the Lead-
Based Paint Hazard Reduction Act of 1992 (LBPHRA) are added to the list
of activities subject to 24 CFR part 50. The only lead-based paint
grants that are statutorily permitted to be subject to 24 CFR part 58
procedures are the abatement or hazard reduction grants that are
authorized under section 1011 of the LBPHRA or under the 1992 HUD
appropriations act.
II. Justification for Final Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. Part 10 provides for exceptions to the general rule
if the agency finds good cause to omit advance notice and public
participation. The good cause requirement is satisfied when prior
public procedure is ``impracticable, unnecessary, or contrary to the
public interest'' (24 CFR 10.1). HUD finds that in this case prior
public procedure is unnecessary. This rule does not make any
substantive amendments to the September 27, 1996 final rule. The rule
clarifies that HUD's guarantees for the refinancing of a mortgage or
loan under the LGRF program are categorically excluded. This amendment
will benefit eligible program participants by facilitating their
ability to secure a lower interest rate. This rule also clarifies that
since the insurance of mortgages through the Direct Endorsement process
is categorically excluded, the insurance of mortgages through the
Lender Insurance process should be similarly excluded. The other
amendments made by this final rule clarify the policies and procedures
contained in the September 27, 1996 final rule.
III. Findings and Certifications
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
implementing section 102(2)(C) of the National Environmental Policy Act
of 1969 (42 U.S.C. 4332). The Finding of No Significant Impact is
available for public inspection during business hours in the Office of
the Rules Docket Clerk, Room 10276, Department of Housing and Urban
Development, 451 Seventh Street, SW., Washington, DC 20410-0500.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this rule have no federalism implications, and that the
policies are not subject to review under the Order. This rule is
limited to clarifying HUD's implementation of its responsibilities for
environmental review and decision making under the National
Environmental Policy Act and other related Federal environmental laws
and authorities.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this final rule does not
have potential for significant impact on family formation, maintenance,
and general well-being, and, thus, is not subject to review under the
Order. This rule clarifies 24 CFR part 50, which sets forth HUD's
regulations governing the protection and enhancement of environmental
quality. No significant change in existing HUD policies or programs
will result from promulgation of this rule, as those policies and
programs relate to family concerns.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) has reviewed and approved this rule, and in so doing
certifies that this
[[Page 15802]]
rule will not have a significant economic impact on a substantial
number of small entities. This rule makes several technical and
clarifying changes to the September 27, 1996 final rule. This final
rule will have no adverse or disproportionate economic impact on small
entities.
Unfunded Mandates Reform Act
The Secretary has reviewed this rule before publication and by
approving it certifies, in accordance with the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1532), that this rule does not impose a Federal
mandate that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
Catalog of Federal Domestic Assistance
The program numbers are 14.128-14.900.
List of Subjects
24 CFR Part 50
Environmental quality, Environmental protection, Environmental
review policy and procedures, Environmental assessment, Environmental
impact statement, Compliance record.
24 CFR Part 55
Floodplain management, Floodplains, Environmental protection.
Accordingly, 24 CFR parts 50 and 55 are amended as follows:
PART 50--PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 4332; and Executive Order
11991, 3 CFR, 1977 Comp., p. 123.
2. Section 50.19 is amended by:
a. Revising paragraph (a);
b. Adding a heading to paragraph (b);
c. Revising paragraph (b)(14);
d. Revising paragraph (b)(17);
e. Adding a new paragraph (b)(24); and
f. Revising paragraph (c), to read as follows:
Sec. 50.19 Categorical exclusions not subject to the Federal laws and
authorities cited in Sec. 50.4.
(a) General. The activities and related approvals of policy
documents listed in paragraphs (b) and (c) of this section are not
subject to the individual compliance requirements of the Federal laws
and authorities cited in Sec. 50.4, unless otherwise indicated below.
These activities and approvals of policy documents are also
categorically excluded from the EA required by NEPA except in
extraordinary circumstances (Sec. 50.20(b)). HUD approval or
implementation of these categories of activities and policy documents
does not require environmental review, because they do not alter
physical conditions in a manner or to an extent that would require
review under NEPA or the other laws and authorities cited at Sec. 50.4.
(b) Activities. (1) Environmental and other studies, resource
identification and the development of plans and strategies.
* * * * *
(14) Economic development activities, including but not limited to,
equipment purchase, inventory financing, interest subsidy, operating
expenses and similar costs not associated with construction or physical
expansion of existing facilities; however, in the case of equipment
purchase, compliance with Sec. 50.4(b)(1) is required.
* * * * *
(17) HUD's endorsement of one-to-four family mortgage insurance
under the Direct Endorsement program, the insurance of one-to-four
family mortgages under the Lender Insurance program, and HUD's
acceptance for insurance of loans under Title I of the National Housing
Act; however, compliance with Secs. 50.4 (b)(1) and (c)(1) and
51.303(a)(3) is required.
* * * * *
(24) HUD guarantees under the Loan Guarantee Recovery Fund Program
(24 CFR part 573) of loans that refinance existing loans and mortgages,
where any new construction or rehabilitation financed by the existing
loan or mortgage has been completed prior to the filing of an
application under the program, and the refinancing will not allow
further construction or rehabilitation, nor result in any physical
impacts or changes except for routine maintenance; however, compliance
with Secs. 50.4 (b)(1) and (c)(1) and 51.303(a) is required.
(c) Approval of policy documents. (1) Approval of rules and notices
proposed for publication in the Federal Register or other policy
documents that do not:
(i) Direct, provide for assistance or loan and mortgage insurance
for, or otherwise govern or regulate, real property acquisition,
disposition, leasing (other than tenant-based rental assistance),
rehabilitation, alteration, demolition, or new construction; or
(ii) Establish, revise, or provide for standards for construction
or construction materials, manufactured housing, or occupancy.
(2) Approval of policy documents that amend an existing document
where the existing document as a whole would not fall within an
exclusion in this paragraph (c) but the amendment by itself would do
so;
(3) Approval of policy documents that set out fair housing or
nondiscrimination standards or enforcement procedures or provide for
assistance in promoting or enforcing fair housing or nondiscrimination;
(4) Approval of handbooks, notices and other documents that provide
operating instructions and procedures in connection with activities
under a Federal Register document that has previously been subject to a
required environmental review.
(5) Approval of a Notice of Funding Availability (NOFA) that
provides funding under, and does not alter any environmental
requirements of, a regulation or program guideline that was previously
published in the Federal Register, provided that
(i) The NOFA specifically refers to the environmental review
provisions of the regulation or guideline; or
(ii) The regulation or guideline contains no environmental review
provisions because it concerns only activities listed in paragraph (b)
of this section.
(6) Statutorily required and/or discretionary establishment and
review of interest rates, loan limits, building cost limits, prototype
costs, fair market rent schedules, HUD-determined prevailing wage
rates, income limits and exclusions with regard to eligibility for or
calculation of HUD housing assistance or rental assistance, and similar
rate and cost determinations and related external administrative or
fiscal requirements or procedures which do not constitute a development
decision that affects the physical condition of specific project areas
or building sites.
PART 55--FLOODPLAIN MANAGEMENT
3. The authority citation for 24 CFR part 55 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 4001-4128; E.O. 11988, 42 FR
26951, 3 CFR, 1977 Comp., p. 117.
4. Section 55.12 is amended by revising paragraph (b)(3) and adding
a new paragraph (b)(4) to read as follows:
Sec. 55.12 Inapplicability of 24 CFR part 55 to certain categories of
proposed actions.
* * * * *
(b) * * *
[[Page 15803]]
(3) HUD actions involving the disposition of individual HUD-
acquired, one- to four-family properties; and
(4) HUD guarantees under the Loan Guarantee Recovery Fund Program
(24 CFR part 573) of loans that refinance existing loans and mortgages,
where any new construction or rehabilitation financed by the existing
loan or mortgage has been completed prior to the filing of an
application under the program, and the refinancing will not allow
further construction or rehabilitation, nor result in any physical
impacts or changes except for routine maintenance.
* * * * *
Dated: March 4, 1997.
Andrew M. Cuomo,
Secretary.
[FR Doc. 97-8291 Filed 4-1-97; 8:45 am]
BILLING CODE 4210-32-P
