[Federal Register Volume 61, Number 189 (Friday, September 27, 1996)]
[Rules and Regulations]
[Pages 50914-50921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24660]
[[Page 50913]]
_______________________________________________________________________
Part III
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 50
Protection and Enhancement of Environmental Quality; Final Rule
Federal Register / Vol. 61, No. 189 / Friday, September 27, 1996 /
Rules and Regulations
[[Page 50914]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Part 50
[Docket No. FR-2206-F-03]
RIN 2501-AA30
Protection and Enhancement of Environmental Quality
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This rule finalizes the policies and procedures set forth in
HUD's April 5, 1996 proposed rule. Additionally, this rule makes
several clarifying and technical amendments to the proposed rule. The
final rule simplifies, improves, and updates HUD'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. This final rule replaces HUD's
current regulations at 24 CFR part 50.
EFFECTIVE DATE: October 28, 1996.
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. (This number
is not toll-free.) Hearing or speech-impaired individuals may access
this number via TTY by calling the toll-free Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. The April 5, 1996 Proposed Rule
On April 5, 1996 (61 FR 15340), HUD published a rule for public
comment proposing to amend 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 (NEPA) of 1969 (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 this final rule). The April 5,
1996 rule proposed to simplify, improve, and update these regulations.
HUD decided to completely revise 24 CFR part 50 due to the
implementation of a series of innovative initiatives which have
improved the way HUD delivers services to the public. As detailed in
the preamble to the April 5, 1996 proposed rule, these initiatives
include: (1) HUD's regulatory reinvention efforts; (2) the
reorganization of HUD field offices; (3) Presidential Executive Order
12898 on Environmental Justice; and (4) the need to update 24 part 50
as a result of program experience and the evolving nature of HUD's
programs.
This rule finalizes the policies and procedures set forth in the
April 5, 1996 proposed rule and makes several technical and clarifying
amendments to the proposed regulation. The April 5, 1996 proposed rule
discussed in detail the amendments to 24 CFR part 50.
II. This Final Rule
The public comment period on the April 5, 1996 proposed rule
expired on June 4, 1996. No comments were received. Although no changes
are being made in response to public comment, HUD is making certain
technical and clarifying amendments to the proposed rule at the final
rule stage. This section of the preamble describes the amendments made
by this final rule to the April 5, 1996 proposed rule.
A. Clarification to 24 CFR 50.3(i)(1): Use of properties affected
by hazardous materials. Paragraph (i)(1) of Sec. 50.3 concerned the use
of properties affected by hazardous materials. The proposed use of such
a property will be important with respect to its suitability for
approval of HUD assistance. For example, properties which will be used
for housing, hospitals, or nursing homes must be free of hazardous
materials. In contrast, properties designated for industrial or
commercial purposes, as may be the case with ``brownfield'' locations
proposed for new uses, are permitted to be hazard-managed sites.
Proposed 24 CFR 50.3(i)(1) required that a site be hazard-free if a
``hazard could affect the health and safety of occupants or the
utilization of the property.'' This broad language could be
misinterpreted to mean that only hazard-free sites will be approved for
HUD assistance. The final rule amends 24 CFR 50.3(i)(1) to clarify that
a site must be free of hazardous materials if a ``hazard could affect
the health and safety of occupants or conflict with the intended
utilization of the property.''
B. Section 50.17: Decision points for the hospital mortgage
insurance and loan guarantee recovery fund programs. HUD's regulation
at 24 CFR 50.17 lists the environmental ``decision points'' for the
various HUD programs. A Finding of No Significant Impact (FONSI) with
respect to the environment or an Environmental Impact Statement (EIS)
must be completed before the applicable decision point. This final rule
amends the April 5, 1996 proposed rule by making two changes to
Sec. 50.17.
The April 5, 1996 proposed rule would have removed from Sec. 50.17
the reference to the decision point for HUD's hospital mortgage
insurance program. The Department of Health and Human Services (HHS) is
the lead Federal agency responsible for hospital related environmental
review and decisionmaking. Accordingly, the preamble to the April 5,
1996 rule explained that HUD, for purposes of its hospital mortgage
insurance program, would rely on an HHS certification that HHS had
complied with the applicable environmental requirements. Subsequent to
publication of the April 5, 1996 proposed rule, HUD decided to continue
being responsible for the environmental reviews related to its hospital
mortgage insurance program. HUD, therefore, will continue to list the
decision point for this program in Sec. 50.17. This final rule
continues to require that the FONSI or EIS be completed before issuance
of the Site Appraisal and Market Analysis (SAMA) Letter, or initial
equivalent indication of HUD approval of a specific site. In the case
of hospital mortgage insurance, this decision point is HUD's issuance
of a conditional commitment.
This final rule also updates Sec. 50.17 by adding the decision
point for HUD's loan guarantee recovery fund program. This program,
which is codified at new 24 CFR part 573, was established subsequent to
publication of the April 5, 1996 proposed rule. Part 573 implements
section 4 of the Church Arson Prevention Act of 1996 (Pub. L. 104-155,
approved July 3, 1996). This final rule adds a new Sec. 50.17(a)(3)
which states that the decision point for loans guaranteed under part
573 is HUD's issuance of a commitment letter or initial equivalent
indication of HUD approval.
C. New Paragraphs (b) (21), (22), and (23) to Sec. 50.19:
Additional categorical exclusions. Section 50.19 lists those activities
which are excluded from the compliance requirements of the various
environmental authorities. HUD omitted to list several exclusions in
the April 5, 1996 proposed rule. This final rule corrects the
oversight.
1. Refinancing of HUD-insured mortgages. This final rule adds a new
paragraph (b)(21) to Sec. 5.19, which excludes any refinancing of HUD-
insured mortgages that will not allow new construction or
rehabilitation, nor result in any physical impacts or changes except
for routine maintenance. Such actions are excluded from NEPA as well as
the related laws and
[[Page 50915]]
authorities listed in Sec. 50.4, except that compliance with 24 CFR
50.4(b)(1), which relates to flood insurance requirements, is required
for buildings located in special flood hazard areas.
2. Sale of HUD-held mortgages. This final rule adds a new paragraph
(b)(22) to Sec. 50.19, which excludes the sale of a HUD-held mortgage
on an existing property. In these cases, there is no physical impact
and the property is not owned by HUD; the mortgage will be held by a
new mortgagee, but the ownership of the real property does not change.
3. Foreclosure sales of properties with HUD-held mortgages. This
final rule also excludes the foreclosure sale of a property with a HUD-
held mortgage. Appropriate restrictions, however, will be imposed to
protect historic properties. As is true with the exclusion listed in
new 24 CFR 50.19(b)(22), HUD does not own the property in these cases.
HUD, therefore, does not dispose of the property, but causes the
property to be sold to satisfy HUD's lien. HUD has long viewed
foreclosure sales as in the nature of civil enforcement actions (which
are not considered Federal actions under the NEPA regulations published
by the Council on Environmental Quality). This final rule adds a new 24
CFR 50.19(b)(23) to clarify that these foreclosure sales are
categorically excluded from compliance with NEPA and the other
environmental authorities.
D. Intergovernmental review. An error concerning intergovernmental
review appeared in the preamble to the April 5, 1996 proposed rule.
HUD's regulations at 24 CFR part 52 govern the intergovernmental review
of HUD programs and activities. The preamble to the proposed rule
mistakenly stated that 24 CFR part 52 is no longer in active use (61 FR
15340, 15341). Accordingly, the April 5, 1996 rule proposed to remove
all references to part 52 from 24 CFR part 50. Part 52 remains current
and in effect. This rule, however, finalizes the removal of the
references to 24 CFR part 52. The provisions of 24 CFR part 52 apply to
HUD programs notwithstanding any specific reference in part 50. It is
unnecessary for 24 CFR part 50 to cite these regulatory requirements.
E. Section 50.23: Public participation notices. The final rule
clarifies that notices pertaining to an EIS, an amendment to an EIS,
and any FONSI subject to Sec. 50.34 (Time delays for exceptional
circumstances), will be provided to the public, in accordance with
HUD's longstanding policy to provide notices to the affected public and
to those who have requested them. This final rule provides that the
local HUD field office may be contacted by persons who wish to review a
FONSI which is not subject to Sec. 50.34.
HUD also assures public participation in other ways. For example,
many HUD programs have public participation elements. To enhance
citizen participation and access to information on HUD-supported
projects, HUD has placed on the Internet the executive summaries of
Consolidated Plans for over 900 major cities and counties. HUD
regulations, handbooks, legislation and related documents are also
available to the public on the Internet.
III. HUD Programs Subject to 24 CFR Part 50
This final rule, which replaces the current provisions of 24 CFR
part 50, applies 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.
The following is a list of those HUD programs that lack specific
authority for assigning the Federal environmental review
responsibilities to recipients and other responsible entities.
Generally, the list covers all HUD programs other than those identified
at 24 CFR 58.1(b). In addition to the programs listed below, part 50
applies to certain projects and activities carried out by recipients
subject to the environmental policy and procedures of 24 CFR part 58
(see 24 CFR 50.1(d)).
The following may not be an exhaustive list, but contains the
principal HUD assistance programs subject to 24 CFR part 50. The number
in brackets represents the part or section of title 24 in which the
program regulations can be found. The number, if any following the
brackets, represents the Catalog Number of Federal Domestic Assistance.
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 to applications
from Public Housing Agency applicants, except that Part 58 applies to
the Section 8 Moderate Rehabilitation for Single Room Occupancy (SRO)
Dwellings component of the Shelter Plus Care program] 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.
Loan Guarantee Recovery Fund Program [573].
Office of Housing: Single Family Housing Programs
HUD-Acquired Single Family Property Disposition [291].
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, Board and Care Homes, and Assisted Living Facilities:
Section 232 [232] 14.129.
Supplementary Financing 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 subpart B] 14.187.
Emergency Low-Income Housing Preservation: Title II [248
subpart C] 14.187.
Flexible Subsidy Program for Troubled Projects: Section
201 [219] 14.164.
Manufactured Home Parks: Section 207 Land development
[207.33] 14.127.
[[Page 50916]]
Disposition of Multifamily Projects and Sale of HUD-held
Multifamily Mortgages [290].
Mortgage Insurance for Housing for the Elderly: Section
231 [231] 14.138 [Not used. Instead Sections 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 Sections 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 [761]
14.854.
Part 50 continues to be used for the following public
housing programs until October 14, 1996, when the programs will become
subject to environmental review procedures under 24 CFR part 58:
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 Development and Research
CDBG Joint Community Development Program [570.411] [Part
50 applies only to applicants (e.g. to universities) that are not a
State or unit of general local government.]
IV. 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) at the time of the development of the proposed
rule. The Finding of No Significant Impact remains applicable to this
final rule and 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 updating 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 updates and streamlines 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 rule will not have a significant economic impact on
a substantial number of small entities. This rule, which revises 24 CFR
part 50 in its entirety, finalizes the policies and procedures set
forth in the April 5, 1996 proposed rule. Specifically, the rule
simplifies, improves, and updates HUD'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. 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. Also see section III. of
this preamble.
List of Subjects in 24 CFR Part 50
Environmental quality, Environmental protection, Environmental
review policy and procedures, Environmental assessment, Environmental
impact statement, Compliance record.
Accordingly, 24 CFR part 50 is 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.
Subpart B--General Policy: Responsibilities and Program Coverage
50.10 Basic environmental responsibility.
50.11 Responsibility of the HUD approving official.
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.
Subpart E--Environmental Assessments and Related Reviews
50.31 The EA.
50.32 Responsibility for environmental processing.
50.33 Action resulting from the EA.
50.34 Time delays for exceptional circumstances.
[[Page 50917]]
50.35 Use of prior environmental assessments.
50.36 Updating environmental reviews.
Subpart F--Environmental Impact Statements
50.41 EIS policy.
50.42 Cases when an EIS is required.
50.43 Emergencies.
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
1500-1508.
(c) The regulations issued by CEQ at 40 CFR parts 1500-1508
establish the basic procedural requirements for compliance with NEPA.
These procedures are to be followed by all Federal agencies and are
incorporated by reference into this part. 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 1500-1508
and regulations that implement authorities cited at Sec. 50.4.
(d) These regulations 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:
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.
HUD approving official means the HUD official authorized to make
the approval decision for any proposed policy or project subject to
this part.
Project means an activity, or a group of integrally-related
activities, undertaken directly by HUD or proposed for HUD assistance
or insurance.
(b) The following abbreviations are used throughout this part:
AS/CPD--Assistant Secretary for Community Planning and Development.
CEQ--Council on Environmental Quality
EA--Environmental Assessment
EIS--Environmental Impact Statement
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
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 conflict with the intended
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:
[[Page 50918]]
(a) Historic properties: (1) The National Historic Preservation Act
of 1966 (16 U.S.C. 470 et seq.), as amended.
(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
(3 CFR, 1977 Comp., p. 117)--24 CFR part 55, Floodplain Management.
(3) Executive Order 11990 (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) 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.), as amended.
(j) Farmlands protection. The Farmland Protection Policy Act of
1981 (7 U.S.C. 4201 et seq.), as amended. (See 7 CFR part 658.)
(k) HUD environmental standards. Applicable criteria and standards
specified in HUD environmental regulations (24 CFR part 51).
(l) Environmental justice. Executive Order 12898--Federal Actions
to Address Environmental Justice in Minority Populations and Low-Income
Populations (3 CFR, 1994 Comp., p. 859).
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 Departmental Environmental Clearance
Officer (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.
Sec. 50.11 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.
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 Program Environmental
Clearance Officer (PECO) in Headquarters 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 below 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 below 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, hospitals, 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: HUD approval of the proposal.
(3) Loan Guarantee Recovery Fund Program (24 CFR part 573). HUD
issuance of a letter of commitment or initial equivalent indication of
HUD approval.
(b) 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 modernization programs. HUD approval of the
modernization grants.
(d) Property Disposition. Multifamily structures, college housing,
nursing homes, manufactured homes and parks, group practice facilities,
vacant land and one to four family structures: 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 Public Housing Agency to proceed with execution of
an Agreement to Enter into Housing Assistance Payments (HAP) Contract.
[[Page 50919]]
(f) Section 50.3(h). 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.
(g) Stewart 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 below 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 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 expenses.
(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 or imminent threats to public safety including those
resulting from 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,
interest buydowns and similar activities that result in the transfer of
title to a property; however, compliance with Secs. 50.4 (b)(1) and
(c)(1) and 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 Secs. 50.4 (b)(1) and (c)(1) and 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.).
(21) Refinancing of HUD-insured mortgages that will not allow new
construction or rehabilitation, nor result in any physical impacts or
changes except for routine maintenance; however, compliance with
Sec. 50.4(b)(1) is required.
(22) Approval of the sale of a HUD-held mortgage.
(23) Approval of the foreclosure sale of a property with a HUD-held
mortgage; however, appropriate restrictions will be imposed to protect
historic properties.
(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.
[[Page 50920]]
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. 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 below 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 action (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. 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.
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 Field Environmental Clearance Officer
(FECO) (in the absence of a FECO, by the Program Environmental
Clearance Officer in Headquarters) 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,
public meetings, and the availability of environmental documents (see
40 CFR 1506.6(b)) in accordance with this section. Where project
actions result in a FONSI, the FONSI will be available in the project
file. The local HUD field office may be contacted by persons who wish
to review the FONSI. 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 implementing procedures of the laws and authorities cited in
Sec. 50.4. Notices pertaining to an EIS or an amendment to an EIS or a
FONSI subject to Sec. 50.34 shall be given to the public in accordance
with paragraphs (a) through (d) of this section.
(a) A NOI/EIS shall be forwarded to the AS/CPD to the attention of
the Departmental Environmental Clearance Officer 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 required notices shall be published in an appropriate local
printed news 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 Field Office in
whose jurisdiction the project is located, the Field Environmental
Clearance Officer 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.
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. The
Departmental Environmental Clearance Officer 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 Field Environmental
Clearance Officer (FECO) or, in the absence of a FECO, to the Program
Environmental Clearance
[[Page 50921]]
Officer in Headquarters 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 Program Environmental Clearance Officer. 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.
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.
(b) An EIS will normally be required if the proposal:
(1) Would provide a site or sites for hospitals or 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. 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.
Dated: September 19, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-24660 Filed 9-26-96; 8:45 am]
BILLING CODE 4210-32-P
