Office of the Secretary; Protection and Enhancement of Environmental Quality

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.

[[Page 15342]]

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

[[Page 15343]]

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.

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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