[Federal Register Volume 61, Number 67 (Friday, April 5, 1996)]
[Proposed Rules]
[Pages 15340-15348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8379]
[[Page 15339]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 50
Office of the Secretary; Protection and Enhancement of Environmental
Quality; Proposed Rule
Federal Register / Vol. 61, No. 67 / Friday, April 5, 1996 / Proposed
Rules
[[Page 15340]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 50
[Docket No. FR-2206-P-01]
RIN 2501-AA30
Office of the Secretary; Protection and Enhancement of
Environmental Quality
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would simplify, improve, and update the
Department's implementation of responsibilities for environmental
review and decision making under the National Environmental Policy Act
and the other related Federal environmental laws and authorities. The
proposed rule would apply to all HUD activities and programs, except
those for which specific statutory authority exists to assign the
environmental review responsibilities to recipients and other
responsible entities that are States, units of general local
government, Indian Tribes or other entities subject to HUD regulations.
DATES: Comment due date: June 4, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Rules Docket Clerk, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title. Facsimile (FAX) comments
are not acceptable. A copy of each communication submitted will be
available for public inspection and copying between 7:30 a.m. and 5:30
p.m. weekdays at the above address.
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,
telephone (202) 708-2894. For telephone communication, contact Walter
Prybyla, Deputy Director for Policy, Environmental Review Division at
(202) 708-1767. Hearing or speech-impaired individuals may call the
Federal Information Relay Service number at 1-800-877-TDDY (1-800-877-
8339) and refer to (202) 708-1767.
SUPPLEMENTARY INFORMATION: The proposed rule would amend HUD's
regulations in 24 CFR part 50 to simplify, improve, and update the
current policy and procedures used by HUD for its environmental review
and decision making in carrying out responsibilities in accordance with
the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321-
4347), the NEPA implementing regulations of the Council on
Environmental Quality, and the other Federal environmental laws and
authorities related to NEPA as cited in Sec. 50.4 of this proposed
rule. The proposed rule would apply to all HUD activities and programs,
except those for which specific statutory authority exists to assign
the environmental review responsibilities to recipients and other
responsible entities that are States, units of general local
government, Indian Tribes or other entities subject to 24 CFR part 58.
When this proposed rule is issued as a final rule, it would replace the
current interim rule originally issued on December 15, 1982 (47 FR
56268) and amended since then. For HUD programs covered by this rule,
see paragraph E.
Some of the more recent action-driving developments for this
rulemaking result from the implementation of a series of innovative
initiatives designed to improve the way the Department delivers
services to the public. These and other reasons for this proposed rule
are the following:
A. HUD Regulatory Reinvention
This proposed rule is consistent with the President's March 4,
1995, memorandum directing Federal agencies to examine all regulations,
to eliminate those that are obsolete and to revise other regulations to
increase flexibility and reduce regulatory burden.
B. HUD Reorganization of Field Offices
The Secretary of HUD directed the transformation of HUD to make it
an activist, enabling agent for change through the recent empowering of
HUD field staff through reorganization of HUD field offices. The
proposed rule would remove from the current part 50 the nomenclature of
the previous HUD field office organization and assignments of
responsibility that no longer exist.
C. Environmental Justice
The President issued on February 11, 1994, Executive Order 12898,
(59 FR 7629-7633, February 16, 1994) which directed Federal agencies to
address environmental justice issues affecting minority and low-income
populations. HUD is awaiting additional guidance to Federal agencies
that the Council on Environmental Quality (CEQ) is preparing on how
agencies are to implement this Executive Order.
D. General Updating
There is need for general updating of current part 50, based on
program experience and changes in authorizations. The proposed rule
would restructure part 50 to focus on the new condition that Federal
environmental laws and authorities cited in Sec. 50.4 are now as
prominent as NEPA itself in HUD's environmental review processing. The
need for the preparation of environmental assessments under NEPA has
declined and will continue to decline as the number of categorical
exclusions increases in response to the evolving nature of HUD programs
of assistance. In addition, the proposed rule would respond to the
National Performance Review on government regulations in that the
proposed rule would simplify part 50 by removing the appendices and
other non-statutory provisions. Further information on the general
updating is provided in the following discussion of revisions proposed
in each subpart of the current rule:
Subpart A
Definitions are provided for the terms: HUD approving
official, project, and environmental review.
Additional related Federal laws and authorities are
referenced. Examples of new references are: Executive Order 12898 on
Environmental Justice; the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA); and the National Flood
Insurance Reform Act. Removed is the reference to HUD Notice 79-33,
Policy Guidance to Address the Problems Posed by Toxic Chemicals and
Radioactive Material (September 10, 1979). Issues related to toxic
chemicals and radioactive material would be covered under a new
Sec. 50.3(i). Removed also was the reference to the Fish and Wildlife
Coordination Act, because HUD believes this act does not impose a duty
on this Department in light of the nature of HUD's assistance programs
and activities.
Subpart B
Basic responsibility is revised to conform with the new
HUD field office organization.
Terminated functions. Removed from the current rule are
the sections covering functions abolished by the field reorganization,
for example, references to area and service office supervisors and
regional administrators.
Simplification. Also, removed is non-statutory and
internal organizational material that is more suitable for inclusion in
a HUD
[[Page 15341]]
handbook, for example, the section which currently details the
responsibilities of the Other Assistant Secretaries, Administrators,
and the General Counsel.
Responsibility for environmental review is specified. This
new section makes clear that the HUD approving official is responsible
for the environmental review and may use any information supplied by
the applicant or contractor for the environmental review, provided that
HUD independently evaluates the information.
Subpart C
Terminated programs. The proposed rule would remove from
the list of project decision points all references to liquidated
programs such as the Urban Renewal Program, New Community Development
Corporation, and Rehabilitation Loan Program (Sec. 312). Also, the
proposed rule would remove project decision points for hospitals to
remove duplication of environmental review between HUD and the
Department of Health and Human Services (HHS). HHS is the Federal lead
agency responsible for all aspects of hospital need, type, necessary
services, design, capacity, location and physical/structural
requirements as well as for environmental review and decisionmaking.
HUD's function is confined to insuring the loan after all other
considerations (local, State, and Federal) are met. With each
application submitted to HUD for assistance, HHS would provide HUD with
a certification that HHS has complied with the applicable requirements
of NEPA and other related authorities in accordance with its
regulations.
Other program decision points. At Sec. 50.17(e), the
proposed rule would replace the reference to the Community Development
Block Grants Program (CDBG) with a general reference to ``HUD programs
subject to 24 CFR part 58.'' This general reference now covers a
greater number of HUD programs other than the CDBG program. Section
50.17(g) would provide the decision points for the Stewart B. McKinney
Homeless Assistance Act Programs where the recipients are nonprofit
organizations or governmental entities with special or limited purpose
powers.
Subpart D
Categorical exclusions. Sec. 50.19 is being revised to
cover all actions that are excluded from NEPA as well as the related
laws and authorities in Sec. 50.4. Sec. 50.20 continues to cover
actions that are categorically excluded from NEPA, but may be subject
to the laws and authorities cited in Sec. 50.4.
Sec. 50.19: The exclusions listed at Sec. 50.19--unlike
the exclusions listed at Sec. 50.20--rarely, if ever, assist physical
development and therefore are not generally subject to compliance with
the related Federal laws and authorities cited at Sec. 50.4. The rule
proposes additions to include simple transfers from the current list at
Sec. 50.20, for example, GNMA secondary mortgage market activities and
interstate land sales disclosure. Other additions include assistance to
control the effects of imminent threats to health and safety,
activities related to assistance for homeownership, and HUD's
acceptance for insurance of loans under Title I of the National Housing
Act. Also, in response to deregulation goals, the proposed rule at
Sec. 50.19 would require HUD to prepare environmental assessments and
findings of no significant impact on Departmental clearance documents
only when they involve physical development.
Sec. 50.20: The NEPA categorical exclusions listed at
Sec. 50.20 do assist physical development and therefore are generally
subject to compliance with the related Federal laws and authorities
cited at Sec. 50.4. An example of a new addition is any assistance for
the removal of material and architectural barriers that restrict the
mobility of and accessibility to the elderly and persons with
disabilities. In making its determinations that an activity is excluded
at Sec. 50.20 and in compliance with the Federal laws and authorities
cited at Sec. 50.4, HUD will use new form HUD-4128 to replace both the
current form HUD-4128 (an amended version of Appendix A of the current
rule) and the current form HUD-4128.1 (issued 07/93) (an amended
version of Appendix B of the current rule).
Intergovernmental Review: HUD policy is to provide notices
to the affected public and those who have requested them. The proposed
rule would remove references in Secs. 50.25 and 50.31 of the current
interim rule which requires HUD to submit notices to the state process
adopted under 24 CFR part 52, ``Intergovernmental Review of
Departmental Programs.'' Because both part 52 and the underlying
Executive Order 12372 are currently not in active use, HUD would
provide notices only to state agencies requesting them. This would
reduce unnecessary paperwork and acknowledge a decline in the state
process, largely due to the fact that States and local governments have
their own environmental review procedures, which regulate projects
including those proposed by developers with HUD assistance. Also, for a
number of years, HUD no longer is involved in programs that support
large-scale new community and residential subdivision development
having multi-jurisdictional impacts, which necessitated
intergovernmental coordination and review.
Subpart E
Compliance record for environmental assessment. To
document the environmental assessment for projects, the proposed rule
removes references to Appendix A of the current rule and states that
HUD shall use form HUD-4128--Environmental Assessment and Compliance
Findings for the Related Laws.
Subpart F
EIS policy: Rarely do HUD approvals involve a major
Federal action for which a detailed environmental impact statement is
required under the National Environmental Policy Act. As a result,
subpart F has become inactive. The proposed rule would address this
matter by improving this subpart in the following ways. It would reduce
duplication by eliminating the several sections of the current interim
rule which repeat guidance found in 40 CFR part 1502. The duplicative
guidance that is proposed for deletion includes the following sections:
Sec. 50.44 (Notice of intent to prepare an EIS); Sec. 50.45 (Scoping,
lead agencies and co-operating agencies); Sec. 50.46 (Tiering);
Sec. 50.47 (Procedural requirements); Sec. 50.48 (Adoption of other
agencies' environmental impact statements); and Sec. 50.49 (Use of
prior environmental impact statements). The proposed change in no way
diminishes the basic legal requirements under the removed sections,
because Sec. 50.1 of the proposed rule continues to incorporate the CEQ
regulations, including the requirements of part 1502 with respect to
EISs, by reference into part 50.
Cases when an EIS is required. Because HUD's New Community
Program no longer exists, the proposed rule would remove the reference
to the normal EIS requirement for an amendment to a Development Plan
for a new community.
Emergencies. The proposed rule would broaden the concept
of emergencies: (i) to include those other than national emergencies
and disasters and cases of imminent threat to health and safety; and
(ii) to apply to applicable Sec. 50.4 authorities which provide for
emergencies.
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Appendices to 24 CFR 50
The proposed rule would remove dated Appendix A to Part 50
(Environmental Assessments for Subdivision and Multifamily Projects)
and Appendix B to Part 50 (Compliance and LAC Conditions Record). The
current rule references Appendices A (form HUD-4128) and B (form HUD-
4128.1) for use by HUD for documenting environmental assessments and
environmental reviews for categorical exclusions, respectively. Under
the proposed rule, the two forms (last issued 07/93) would be
simplified and combined into a new form HUD-4128--Environmental
Assessment and Compliance Findings for Related Laws.
E. HUD Programs Subject to 24 CFR 50
HUD programs that lack specific authority for assigning the Federal
environmental review responsibilities to recipients are presented below
by the HUD office that administers the program, the program title, the
program regulation part number of title 24 CFR, and the program number
used in the Catalog of Federal Programs. This list is provided for the
reader's convenience. Generally, this list covers all HUD programs
other than those identified at Sec. 58.1(b) of 24 CFR Part 58 (60 FR
49469). In addition to the programs listed below, part 50 applies to
projects and activities carried out by recipients subject to
environmental policy and procedures of 24 CFR part 58 in specific
circumstances discussed at Sec. 50.1(d) of this proposed rule. The
following may not be an exhaustive list, but contains the principal HUD
assistance programs subject to part 50.
Office of Community Planning and Development
HOPE for Homeownership of Single Family Homes: HOPE 3
[572] 14.240
Housing Opportunities for Persons with AIDS [574] 14.241
Emergency Shelter Grants Program: Stewart B. McKinney
Homeless Assistance Act [576] [Part 50 applies only to applicants that
are private nonprofit organizations and to governmental entities with
special or limited purpose powers] 14.231
Supportive Housing Program [583] [Part 50 applies only to
applicants that are private nonprofit organizations and to governmental
entities with special or limited purpose powers] 14.235
Shelter Plus Care [582] [Part 50 applies only to
conditionally selected applications received from Public Housing
Authority applicants] 14.238
Opportunities for Youth: Youthbuild [585] 14.243
John Heinz Neighborhood Development Program [594] 14.242
Special Purpose Grants for Historically-Black Colleges and
Universities [570.404] 14.237
Base Closure Community Redevelopment and Homeless
Assistance [586] 14.227
Office of Housing: Single Family Housing Programs
HUD-Owned Single Family Property Disposition [291] 14.XXX
Office of Housing: Multifamily Housing Programs
Multifamily Rental Housing for Moderate-Income Families:
Section 221(d) (3) and (4) [221] 14.135
Existing Multifamily Rental Housing: Section 223(f)
[207.32a] 14.155
Supportive Housing for the Elderly: Section 202 [889]
14.157
Supportive Housing for Persons with Disabilities: Section
811 [890] 14.181
Mortgage Insurance for Single Room Occupancy Projects:
Section 221(d) pursuant to Section 223(g) [221.565] 14.135
Mortgage Insurance for Nursing Homes, Intermediate Care
Facilities, and Board and Care Homes: Section 232 [232] 14.129
Supplemental Loans for Multifamily Projects: Section 241
[241] 14.151
HOPE for Homeownership of Multifamily Units: HOPE 2
[Appendix B to Subtitle A of 24 CFR] 14.185
Low-Income Housing Preservation and Resident
Homeownership: Title VI [248 A] 14.187
Emergency Low-Income Housing Preservation: Title II [248
B] 14.187
Flexible Subsidy Program for Troubled Projects: Section
201 [219] 14.164
Manufactured Home Parks: Section 207 Land development
[207.33] 14.127
Management and Disposition of HUD-owned Multifamily
Projects [290] 14.XXX
Mortgage Insurance for Housing for the Elderly: Section
231 [231] 14.138 [Not used. Instead Section 221(d)3 and (d)(4) are
used.]
Cooperative Housing: Section 213 [213] 14.126 [Authorized
but not used. New construction and substantial rehabilitation
cooperative projects are currently insured under Section 221(d)(3)]
Multifamily Rental Housing: Section 207 [207] 14.134 [Not
used. Instead Section 221(d)3 and (d)(4) are used.]
Mortgage Insurance and Insured Improvement Loans for Urban
Renewal and Concentrated Development Areas: Section 220 [220] 14.139
[Not frequently used]
Group Practice Medical Facilities: Title XI [244] 14.116
[Not used in recent years]
Nehemiah Housing Opportunity Grants Program [280] [No
current funding]
Office of Public and Indian Housing
HOPE for Public and Indian Housing Homeownership Program:
[Appendix A to Subtitle A of 24 CFR] 14.858
Public and Indian Housing Youth Sports Program [proposed
961.50] 14.863
Public and Indian Housing Drug Elimination Program [961]
14.854
Part 50 continues to be used, because the implementation
of part 58 is delayed for the remaining Public housing programs until a
Federal Register notice is published making part 58 effective or until
October 14, 1996, whichever comes first:
Public Housing Development [941] 14.850 and 14.851
Public Housing Modernization [968] 14.852 and 14.859
Demolition or Disposition of Public Housing Projects [970]
14.850
Office of Policy Research and Development
CDBG Joint Community Development Program [570.411] 14.XXX
[Part 50 applies only to applicants (e.g. to universities) that are not
a State or unit of general local government.]
Findings and Other Matters
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, S.W., Washington, D.C. 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 proposed rule have no federalism
implications, and that the policies are not subject to review under the
order. This proposed rule is limited to updating the Department's
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implementation of its responsibilities for environmental review and
decisionmaking 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, ``The Family,'' has determined that this proposed 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. No significant change in existing HUD policies or programs will
result from promulgation of this proposed 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 proposed rule, and in so
doing certifies that this proposed rule will not have a significant
economic impact on a substantial number of small entities. This
proposed rule would streamline 24 CFR part 50 and carry out the
statutory mandate of the National Environmental Policy Act and the
other Federal environmental laws and authorities listed in Sec. 50.4.
Catalog of Federal Domestic Assistance (1994)
The program numbers are 14.128-14.900. Also see the above paragraph
E.
List of Subjects in 24 CFR Part 50
Environmental quality, Environmental protection, Environmental
review policy and procedures, Environmental assessment, Environmental
impact statement, Compliance record.
For the reasons set forth in the preamble, part 50 of title 24 of
the Code of Federal Regulations is proposed to be revised to read as
follows:
PART 50--PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY
Subpart A--General: Federal Laws and Authorities
Sec.
50.1 Purpose, authority, and applicability.
50.2 Terms and abbreviations.
50.3 Environmental policy.
50.4 Related Federal laws and authorities.
50.5--50.9 [Reserved]
Subpart B--General Policy: Responsibilities and Program Coverage
50.10 Basic environmental responsibility.
50.11 [Reserved]
50.12 Responsibility of the HUD approving official.
50.13--50.15 [Reserved]
Subpart C--General Policy: Decision Points
50.16 Decision points for policy actions.
50.17 Decision points for projects.
Subpart D--General Policy: Environmental Review Procedures
50.18 General.
50.19 Categorical exclusions not subject to the Federal laws and
authorities cited in Sec. 50.4.
50.20 Categorical exclusions subject to the Federal laws and
authorities cited in Sec. 50.4.
50.21 Aggregation.
50.22 Environmental management and monitoring.
50.23 Public participation.
50.24 HUD review of another agency's EIS.
50.25--50.30 [Reserved]
Subpart E--Environmental Assessments and Related Reviews
50.31 The EA.
50.32 Responsibility for environmental processing.
50.33 Action resulting from the assessment.
50.34 Time delays for exceptional circumstances.
50.35 Use of prior environmental assessments.
50.36 Updating of environmental reviews.
50.37--50.40 [Reserved]
Subpart F--Environmental Impact Statements
50.41 EIS policy.
50.42 Cases when an EIS is required.
50.43 Emergencies.
50.44--50.50 [Reserved]
Authority: 42 U.S.C. 3535(d) and 4332; and Executive Order
11991, 3 CFR, 1977 Comp., p. 123.
Subpart A--General: Federal Laws and Authorities
Sec. 50.1 Purpose, authority, and applicability.
(a) This part implements the policies of the National Environmental
Policy Act (NEPA) and other environmental requirements (as specified in
Sec. 50.4).
(b) NEPA, 42 U.S.C. 4321 et seq., establishes national policy,
goals and procedures for protecting, restoring and enhancing
environmental quality. NEPA is implemented by Executive Order 11514 of
March 5, 1970, (3 CFR, 1966-1970 Comp., p. 902) as amended by Executive
Order 11991 of May 24, 1977, (3 CFR, 1977 Comp., p. 123) and by the
Council on Environmental Quality (CEQ) Regulations, 40 CFR parts 1500
through 1508.
(c) The regulations issued by CEQ at 40 CFR parts 1500 through 1508
establish the basic procedural requirements for compliance with NEPA.
These procedures are to be followed by all Federal agencies. This part,
therefore, provides supplemental instructions to reflect the particular
nature of HUD programs, and is to be used in tandem with 40 CFR parts
1500 through 1508 and regulations that implement authorities cited at
Sec. 50.4.
(d) The regulations in this part apply to all HUD policy actions
(as defined in Sec. 50.16), and to all HUD project actions (see
Sec. 50.2(a)(2)). Also, they apply to projects and activities carried
out by recipients subject to environmental policy and procedures of 24
CFR part 58, when the recipient that is regulated under 24 CFR part 58
claims the lack of legal capacity to assume the Secretary's
environmental review responsibilities and the claim is approved by HUD
or when HUD determines to conduct an environmental review itself in
place of a nonrecipient responsible entity. For programs, activities or
actions not specifically identified or when there are questions
regarding the applicability of this part, the Assistant Secretary for
Community Planning and Development shall be consulted.
Sec. 50.2 Terms and abbreviations.
(a) The definitions for most of the key terms or phrases contained
in this part appear in 40 CFR part 1508 and in the authorities cited in
Sec. 50.4. The following definitions also apply to this part:
(1) HUD approving official means the HUD official authorized to
make the approval decision for any proposed policy or project subject
to this part.
(2) Project means an activity, or a group of integrally-related
activities, undertaken directly by HUD or proposed for HUD assistance
or insurance.
(3) Environmental review means a process for complying with NEPA
(through an EA or EIS) and/or with the laws and authorities cited in
Sec. 50.4.
(b) The following abbreviations are used throughout this part:
AS/CPD--Assistant Secretary for Community Planning and Development
CEQ--Council on Environmental Quality
CO--HUD Headquarters (Central Office)
DECO--Departmental Environmental Clearance Officer
EA--Environmental Assessment
EIS--Environmental Impact Statement
EPA--U.S. Environmental Protection Agency
FECO--Field Environmental Clearance Officer
FO--HUD Field Office
FONSI--Finding of No Significant Impact
HUD--Department of Housing and Urban Development
NEPA--National Environmental Policy Act
NOI/EIS--Notice of Intent to Prepare an Environmental Impact
Statement
PECO--Program Environmental Clearance Officer
PHA--Public Housing Authority
[[Page 15344]]
Sec. 50.3 Environmental policy.
(a) It is the policy of the Department to reject proposals which
have significant adverse environmental impacts and to encourage the
modification of projects in order to enhance environmental quality and
minimize environmental harm.
(b) The HUD approving official shall consider environmental and
other Departmental objectives in the decisionmaking process.
(c) When EA's or EIS's or reviews under Sec. 50.4 reveal conditions
or safeguards that should be implemented once a proposal is approved in
order to protect and enhance environmental quality or minimize adverse
environmental impacts, such conditions or safeguards must be included
in agreements or other relevant documents.
(d) A systematic, interdisciplinary approach shall be used to
assure the integrated use of the natural and social sciences and the
environmental design arts in making decisions.
(e) Environmental impacts shall be evaluated on as comprehensive a
scale as is practicable.
(f) HUD offices shall begin the environmental review process at the
earliest possible time so that potential conflicts between program
procedures and environmental requirements are identified at an early
stage.
(g) Applicants for HUD assistance shall be advised of environmental
requirements and consultation with governmental agencies and
individuals shall take place at the earliest time feasible.
(h) For HUD grant programs in which the funding approval for an
applicant's program must occur before the applicant's selection of
properties, the application shall contain an assurance that the
applicant agrees to assist HUD to comply with this part and that the
applicant shall:
(1) Supply HUD with all available, relevant information necessary
for HUD to perform for each property any environmental review required
by this part;
(2) Carry out mitigating measures required by HUD or select
alternate eligible property; and
(3) Not acquire, rehabilitate, convert, lease, repair or construct
property, nor commit or expend HUD or local funds for these program
activities with respect to any eligible property, until HUD approval of
the property is received.
(i)(1) It is HUD policy that all property proposed for use in HUD
programs be free of hazardous materials, contamination, toxic chemicals
and gasses, and radioactive substances, where a hazard could affect the
health and safety of occupants or the utilization of the property.
(2) HUD environmental review of multifamily and non-residential
properties shall include evaluation of previous uses of the site and
other evidence of contamination on or near the site, to assure that
occupants of proposed sites are not adversely affected by the hazards
listed in paragraph (i)(1) of this section.
(3) Particular attention should be given to any proposed site on or
in the general proximity of such areas as dumps, landfills, industrial
sites or other locations that contain hazardous wastes.
(4) HUD shall require the use of current techniques by qualified
professionals to undertake investigations determined necessary.
Sec. 50.4 Related Federal laws and authorities.
HUD and/or applicants must comply, where applicable, with all
environmental requirements, guidelines and statutory obligations under
the following authorities and HUD standards:
(a) Historic properties: (1) The National Historic Preservation Act
of 1966 as amended (16 U.S.C. 470 et seq.).
(2) Executive Order 11593, Protection and Enhancement of the
Cultural Environment, May 13, 1971 (3 CFR, 1971-1975 Comp., p. 559).
(3) The Archaeological and Historic Preservation Act of 1974, which
amends the Reservoir Salvage Act of 1960 (16 U.S.C. 469 et seq.).
(4) Procedures for the Protection of Historic and Cultural
Properties (Advisory Council on Historic Preservation--36 CFR part
800).
(b) Flood insurance, floodplain management and wetland protection:
(1) Flood Disaster Protection Act of 1973 (42 U.S.C. 4001-4128) and the
National Flood Insurance Reform Act of 1994 (Pub. L.103-325, 108 Stat.
2160).
(2) HUD Procedure for the Implementation of Executive Order 11988
of May 24, 1977 (3 CFR, 1977 Comp., p. 117)--24 CFR part 55, Floodplain
Management.
(3) Executive Order 11990 of May 24, 1977 (Protection of Wetlands),
(3 CFR, 1977 Comp., p. 121).
(c) Coastal areas protection and management: (1) The Coastal
Barrier Resources Act, as amended by the Coastal Barrier Improvement
Act of 1990 (16 U.S.C. 3501 et seq.).
(2) The Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et
seq.), as amended.
(d) Sole source aquifers: The Safe Drinking Water Act of 1974 (42
U.S.C. 201, 300 et seq., and 21 U.S.C. 349), as amended. (See 40 CFR
part 149.)
(e) Endangered species: The Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.), as amended. (See 50 CFR part 402.)
(f) Wild and scenic rivers: The Wild and Scenic Rivers Act (16
U.S.C 1271 et seq.), as amended.
(g) Water quality: The Federal Water Pollution Control Act, as
amended by the Federal Water Pollution Control Act Amendments of 1972
(33 U.S.C. 1251 et seq.), and later enactments.
(h) Air quality: The Clean Air Act (42 U.S.C. 7401 et seq.), as
amended. (See 40 CFR parts 6, 51, and 93.)
(i) [Reserved]
(j) Solid waste management: (1) The Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 (42
U.S.C. 6901 et seq.), and later enactments.
(2) The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.).
(k) Farmlands protection: The Farmland Protection Policy Act of
1981 (7 U.S.C. 4201 et seq.). (See 7 CFR part 658.)
(l) HUD environmental standards: Applicable criteria and standards
specified in HUD environmental regulations (24 CFR part 51).
(m) Environmental justice: Executive Order 12898--Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations (3 CFR, 1994 Comp., p. 859).
Secs. 50.5-50.9 [Reserved]
Subpart B--General Policy: Responsibilities and Program Coverage
Sec. 50.10 Basic environmental responsibility.
(a) It is the responsibility of all Assistant Secretaries, the
General Counsel, and the HUD approving official to assure that the
requirements of this part are implemented.
(b) The Assistant Secretary for Community Planning and Development
(A/S CPD), represented by the Office of Community Viability, whose
Director shall serve as the DECO, is assigned the overall Departmental
responsibility for environmental policies and procedures for compliance
with NEPA and the related laws and authorities. To the extent permitted
by applicable laws and the CEQ regulations, the A/S CPD shall approve
waivers and exceptions or establish criteria for exceptions from the
requirements of this part.
[[Page 15345]]
Sec. 50.11 [Reserved]
Sec. 50.12 Responsibility of the HUD approving official.
(a) The HUD approving official shall make an independent evaluation
of the environmental issues, take responsibility for the scope and
content of the compliance finding, EA or EIS, and make the
environmental finding, where applicable. (Also, see Sec. 50.32.)
(b) Copies of environmental reviews and findings shall be
maintained in the project file for projects, in the Rules Docket files
for Federal Register publications, and in program files for non-Federal
Register policy documents.
Secs. 50.13-50.15 [Reserved]
Subpart C--General Policy: Decision Points
Sec. 50.16 Decision points for policy actions.
Either an EA and FONSI or an EIS on all policy actions not meeting
the criteria of Sec. 50.19 shall be completed prior to the approval
action. Policy actions include all proposed Federal Register policy
documents and other policy-related Federal actions (40 CFR 1508.18).
The decision as to whether a proposed policy action is categorically
excluded from an EA shall be made by the PECO as early as possible.
Where the PECO has any doubt as to whether a proposed action qualifies
for exclusion, the PECO shall request a determination by the AS/CPD.
The EA and FONSI may be combined into a single document.
Sec. 50.17 Decision points for projects.
Either an EA and FONSI or an EIS for individual projects shall be
completed before the applicable program decision points described in
this section for projects not meeting the criteria of Sec. 50.20.
Compliance with applicable authorities cited in Sec. 50.4 shall be
completed before the applicable program decision points described in
this section unless the project meets the criteria for exclusion under
Sec. 50.19.
(a) New Construction. (1) Project mortgage insurance or other
financial assistance for multifamily housing projects (including
Sections 202 and 811), nursing homes, group practice facilities and
manufactured home parks: Issuance of Site Appraisal and Market Analysis
(SAMA) Letter or initial equivalent indication of HUD approval of a
specific site;
(2) Public Housing: PHA proposal approval.
(b) Rehabilitation. Rehabilitation Projects: Use the decision
points under ``new construction'' for HUD programs cited in paragraph
(a) of this section; otherwise the decision point is the HUD project
approval.
(c) Public Housing Programs. Modernization Programs: HUD approval
of the modernization grants.
(d) Property Disposition. (1) Vacant land and one to four family
structures: HUD approval of the Disposition Program.
(2) Multifamily structures, college housing, nursing homes,
manufactured homes and parks, group practice facilities: HUD approval
of the Disposition Program.
(e) HUD programs subject to 24 CFR part 58. For cases in which HUD
exercises environmental responsibility under this part where a
recipient lacks legal capacity to do so or HUD determines to do so in
place of a nonrecipient responsible entity under 24 CFR part 58 (see
Sec. 50.1(d)), the decision point is: HUD's execution of an agreement
or contract, whichever comes first, or in the case of Section 8
Project-Based Certificate Assistance and Moderate Rehabilitation, HUD
notification to the PHA to proceed with execution of an Agreement to
Enter into Housing Assistance Payments (HAP) Contract.
(f) Notwithstanding the other paragraphs of this section, the
decision point for grant programs in which HUD approval of funding for
an applicant's program must occur before the applicant's selection of
properties for use in its program is: HUD approval of specific
properties (see Sec. 50.3(h)).
(g) Steward B. McKinney Homeless Assistance Act Programs. Where the
recipients are nonprofit organizations or governmental entities with
special or limited purpose powers, the decision point is: HUD project
approval.
(h) Programs not specifically covered in this section. Consult with
the AS/CPD for decision points.
Subpart D--General Policy: Environmental Review Procedures
Sec. 50.18 General.
HUD may, from time to time, complete programmatic reviews that
further avoid the necessity of complying with the laws and authorities
in Sec. 50.4 on a property-by-property basis.
Sec. 50.19 Categorical exclusions not subject to the Federal laws and
authorities cited in Sec. 50.4.
(a) The activities listed in this section are not subject to the
individual compliance requirements of the Federal laws and authorities
cited in Sec. 50.4, unless otherwise indicated in this section. These
activities 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 related policy
actions 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)(1) Environmental and other studies, resource identification and
the development of plans and strategies.
(2) Information and financial advisory services.
(3) Administrative and management activities by HUD clients.
(4) Public services that will not have a physical impact or result
in any physical changes, including but not limited to services
concerned with employment, crime prevention, child care, health, drug
abuse, education, counseling, energy conservation and welfare or
recreational needs.
(5) Inspections and testing of properties for hazards or defects.
(6) Purchase of insurance.
(7) Purchase of tools.
(8) Engineering or design costs.
(9) Technical assistance and training.
(10) Assistance for temporary or permanent improvements that do not
alter environmental conditions and are limited to protection, repair or
restoration activities necessary only to control or arrest the effects
from disasters, imminent threats or physical deterioration.
(11) Tenant-based rental assistance.
(12) Supportive services including, but not limited to, health
care, housing services, permanent housing placement, day care,
nutritional services, short-term payments for rent/mortgage/utility
costs, and assistance in gaining access to local, State, and Federal
government benefits and services.
(13) Operating costs including maintenance, security, operation,
utilities, furnishings, equipment, supplies, staff training and
recruitment and other incidental costs; however, in the case of
equipment, compliance with Sec. 50.4(b)(1) is required.
(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
expansion of existing operations; however, in the case of equipment
purchase, compliance with Sec. 50.4(b)(1) is required.
(15) Activities to assist homeownership of existing dwelling units,
including closing costs and down payment assistance to home buyers,
[[Page 15346]]
interest buydowns and similar activities that result in the transfer of
title to a property; however, compliance with Sec. 50.4 (b)(1) and
(c)(1), and 24 CFR 51.303(a)(3) is required.
(16) Housing pre-development costs including legal, consulting,
developer and other costs related to site options, project financing,
administrative costs and fees for loan commitments, zoning approvals,
and other related activities which do not have a physical impact.
(17) HUD's endorsement of one-to-four family mortgage insurance
under the Direct Endorsement program and HUD's acceptance for insurance
of loans under Title I of the National Housing Act; however, compliance
with Sec. 50.4 (b)(1) and (c)(1), and 24 CFR 51.303(a)(3) is required.
(18) HUD's endorsement of one-to-four family mortgage insurance for
proposed construction under Improved Area processing, however, the
Appraiser/Review Appraiser Checksheet (Form HUD-54891) must be
completed.
(19) Activities of the Government National Mortgage Association
under Title III of the National Housing Act, 12 U.S.C. 1716 et seq.
(20) Activities under the Interstate Land Sales Full Disclosure Act
(15 U.S.C. 1701 et seq.).
(c)(1) Approval of policy documents that do not direct, provide for
assistance or loan and mortgage insurance for, or otherwise govern or
regulate property acquisition, disposition, lease, rehabilitation,
alteration, demolition, or new construction, or set out or provide for
standards for construction or construction materials, manufactured
housing, or occupancy.
(2) Approval of policy documents that amend a previous document
where the underlying document as a whole would not fall within the
exclusion but the amendment by itself would do so.
(3) Approval of policy documents that set out fair housing or
nondiscrimination standards 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 environmental requirements
of, a regulation or program guideline that was previously published in
the Federal Register, provided that the NOFA specifically refers to the
environmental review provisions of the regulation or guideline;
(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, 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.
Sec. 50.20 Categorical exclusions subject to the Federal laws and
authorities cited in Sec. 50.4.
(a) The following actions, activities and programs are
categorically excluded from the NEPA requirements of this part.
However, they are not excluded from individual compliance requirements
of other environmental statutes, Executive orders and HUD standards
cited in Sec. 50.4, where appropriate. Form HUD-4128 shall be used to
document compliance. Where the responsible official determines that any
item identified in this paragraph may have an environmental effect
because of extraordinary circumstances (40 CFR 1508.4), the
requirements of NEPA shall apply (see paragraph (b) of this section).
(1) Special projects directed to the removal of material and
architectural barriers that restrict the mobility of and accessibility
to elderly and persons with disabilities.
(2) Rehabilitation of structures when the following conditions are
met:
(i) In the case of residential buildings, the unit density is not
changed more than 20 percent;
(ii) The project does not involve changes in land use (from non-
residential to residential or from residential to non-residential); and
(iii) The estimated cost of rehabilitation is less than 75 percent
of the total estimated cost of replacement after rehabilitation.
(3) An individual action on a one- to four-family dwelling or an
individual action on a project of five or more units developed on
scattered sites when the sites are more than 2,000 feet apart and there
are not more than four units on any one site.
(4) Acquisition or disposition of, or equity loans on, an existing
structure.
(5) Purchased or refinanced housing and medical facilities under
section 223(f) of the National Housing Act (12 U.S.C. 1715n).
(6) Mortgage prepayments or plans of actions (including incentives)
under 24 CFR part 248.
(b) For categorical exclusions having the potential for significant
impact because of extraordinary circumstances, HUD must prepare an EA
in accordance with subpart E of this part. If it is evident without
preparing an EA that an EIS is required pursuant to Sec. 50.42, HUD
should proceed directly to the preparation of an EIS in accordance with
subpart F of this part.
Sec. 50.21 Aggregation.
Activities which are geographically related and are logical parts
of a composite of contemplated HUD projects shall be evaluated
together.
Sec. 50.22 Environmental management and monitoring.
An Environmental Management and Monitoring Program shall be
established prior to project approval when it is deemed necessary by
the HUD approving official. The program shall be part of the approval
document and must:
(a) Be concurred in by the FECO and any cooperating agencies;
(b) Contain specific standards, safeguards and commitments to be
completed during project implementation;
(c) Identify the staff who will be responsible for the post-
approval inspection; and
(d) Specify the time periods for conducting the evaluation and
monitoring the applicant's compliance with the project agreements.
Sec. 50.23 Public participation.
HUD shall inform the affected public about NEPA-related hearings
and public meetings and environmental documents. Where project actions
result in a FONSI, the FONSI will be available in the project file. In
all cases, HUD shall mail notices to those who have requested them.
Additional efforts for involving the public in specific notice or
compliance requirements shall be made in accord with the NEPA-related
laws and authorities and their implementing procedures cited in
Sec. 50.4.
(a) A NOI/EIS shall be forwarded to the AS/CPD to the attention of
the DECO for publication in the Federal Register.
(b) Notices will be bilingual if the affected public includes a
significant portion of non-English speaking persons and will identify a
date when the official public involvement element of the proposed
action is to be completed and HUD internal processing is to continue.
(c) All notices shall be published in an appropriate local printed
news
[[Page 15347]]
medium, and sent to individuals and groups known to be interested in
the proposed action.
(d) All notices shall inform the public where additional
information may be obtained.
Sec. 50.24 HUD review of another agency's EIS.
Where another agency's EIS is referred to the HUD FO in whose
jurisdiction the project is located, the FECO shall determine whether
HUD has an interest in the EIS and, if so, will review and comment. Any
EIS received from another Federal agency requesting comment on
legislative proposals, regulations, or other policy documents shall be
sent to the AS/CPD for comment, and the AS/CPD shall provide the
General Counsel the opportunity for comment.
Secs. 50.25-50.30 [Reserved]
Subpart E--Environmental Assessments and Related Reviews
Sec. 50.31 The EA.
(a) Form HUD-4128--Environmental Assessment and Compliance Findings
for the Related Laws is the EA form to be used for analysis and
documentation by HUD for projects and activities under subpart E of
this part. The DECO shall approve the issuance of equivalent formats,
if Form HUD-4128 does not meet specific program needs.
(b) The program representative shall obtain interdisciplinary
assistance from professional experts and other HUD staff as needed.
Additional information may also be requested of the sponsor/applicant.
HUD is responsible for assessing and documenting the extent of the
environmental impact.
Sec. 50.32 Responsibility for environmental processing.
The program staff in the HUD office responsible for processing the
project application or recommending a policy action is responsible for
conducting the compliance finding, EA, or EIS. The collection of data
and studies as part of the information contained in the environmental
review may be done by an applicant or the applicant's contractor. The
HUD program staff may use any information supplied by the applicant or
contractor, provided HUD independently evaluates the information, will
be responsible for its accuracy, supplements the information, if
necessary, to conform to the requirements of this part, and prepares
the environmental finding. Assessments for projects over 200 lots/
dwelling units or beds shall be sent to the FECO or, in the absence of
a FECO, to the PECO for review and comment.
Sec. 50.33 Action resulting from the assessment.
(a) A proposal may be accepted without modifications if the EA
indicates that the proposal will not significantly (see 40 CFR 1508.27)
affect the quality of the human environment and a FONSI is prepared.
(b) A proposal may be accepted with modifications provided that:
(1) Changes have been made that would reduce adverse environmental
impact to acceptable and insignificant levels; and
(2) An Environmental Management and Monitoring Program is developed
in accordance with Sec. 50.22 when it is deemed necessary by the HUD
approving official.
(c) A proposal should be rejected if significant and unavoidable
adverse environmental impacts would still exist after modifications
have been made to the proposal and an EIS is not prepared.
(d) A proposal (if not rejected) shall require an EIS if the EA
indicates that significant environmental impacts would result.
Sec. 50.34 Time delays for exceptional circumstances.
(a) Under the circumstances described in this section, the FONSI
must be made available for public review for 30 calendar days before a
final decision is made whether to prepare an EIS and before the HUD
action is taken. The circumstances are:
(1) When the proposed action is, or is closely similar to, one
which normally requires the preparation of an EIS pursuant to
Sec. 50.42(b) but it is determined, as a result of an EA or in the
course of preparation of a draft EIS, that the proposed action will not
have a significant impact on the human environment; or
(2) When the nature of the proposed action is without precedent and
does not appear to require more than an assessment.
(b) In such cases, the FONSI must be concurred in by the AS/CPD and
the PECO. Notice of the availability of the FONSI shall be given to the
public in accordance with paragraphs (a) through (d) of Sec. 50.23.
Sec. 50.35 Use of prior environmental assessments.
When other Federal, State, or local agencies have prepared an EA or
other environmental analysis for a proposed HUD project, these
documents should be requested and used to the extent possible. HUD
must, however, conduct the environmental analysis and prepare the EA
and be responsible for the required environmental finding.
Sec. 50.36 Updating of environmental reviews.
The environmental review must be re-evaluated and updated when the
basis for the original environmental or compliance findings is affected
by a major change requiring HUD approval in the nature, magnitude or
extent of a project and the project is not yet complete. A change only
in the amount of financing or mortgage insurance involved does not
normally require the environmental review to be re-evaluated or
updated.
Secs. 50.37-50.40 [Reserved]
Subpart F--Environmental Impact Statements
Sec. 50.41 EIS policy.
EIS's will be prepared and considered in program determinations
pursuant to the general environmental policy stated in Sec. 50.3 and 40
CFR 1505.2(b) and (c).
Sec. 50.42 Cases when an EIS is required.
(a) An EIS is required if the proposal is determined to have a
significant impact on the human environment pursuant to subpart E of
this part.
(b) An EIS will normally be required if the proposal:
(1) Would provide a site or sites for nursing homes containing a
total of 2,500 or more beds; or
(2) Would remove, demolish, convert, or substantially rehabilitate
2,500 or more existing housing units (but not including rehabilitation
projects categorically excluded under Sec. 50.20), or which would
result in the construction or installation of 2,500 or more housing
units, or which would provide sites for 2,500 or more housing units.
(c) When the environmental concerns of one or more Federal
authorities cited in Sec. 50.4 will be affected by the proposal, the
cumulative impact of all such effects should be assessed to determine
whether an EIS is required. However, where all of the affected
authorities provide alternative procedures for resolution, those
procedures should be used in lieu of an EIS.
Sec. 50.43 Emergencies.
In cases of national emergency and disasters or cases of imminent
threat to health and safety or other emergency which require the taking
of an action with significant environmental impact, the provisions of
40 CFR 1506.11 and of any applicable Sec. 50.4 authorities which
provide for emergencies shall apply.
[[Page 15348]]
Secs. 50.44--50.50 [Reserved]
Dated: February 26, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-8379 Filed 4-4-96; 8:45 am]
BILLING CODE 4210-32-P
