Browse by Year
/ 2002
/ June
/ Wednesday, June 26, 2002
[Federal Register: June 26, 2002 (Volume 67, Number 123)]
[Proposed Rules]
[Page 43207-43216]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn02-27]
[[Page 43207]]
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Part II
Department of Housing and Urban Development
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24 CFR Part 50, et al.
Environmental Review Procedures for Entities Assuming HUD's
Environmental Responsibilities; Proposed Rule
[[Page 43208]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 50, 58, 574, 582, 583, and 970
[Docket No. FR-4523-P-01]
RIN 2501-AC64
Environmental Review Procedures for Entities Assuming HUD's
Environmental Responsibilities
AGENCY: Office of the Assistant Secretary for Community Planning and
Development, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would update the list of programs and
statutory authorities for which other entities may assume HUD's
environmental responsibilities, and make other changes to update the
regulation on assumption of HUD's environmental responsibilities. Also,
the proposed rule would make conforming changes to the affected
environmental provisions contained in various program regulations.
DATES: Comment Due Date: August 26, 2002.
ADDRESSES: Interested persons are invited to submit comments regarding
this 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, Office of Community Planning and Development, Room
7240, Department of Housing and Urban Development, 451 Seventh Street,
SW., Washington, DC 20410-7000. For inquiry by phone or e-mail: contact
Walter Prybyla, Deputy Director for Policy, Environmental Review
Division, Office of Community Planning and Development, at (202) 708-
1201, Ext. 4466 (this is not a toll-free number), or e-mail:
WalterPrybyla@hud.gov. Hearing-impaired or speech-impaired individuals
may access the voice telephone number listed above by calling the
Federal information relay service during working hours at 1-800-877-
8339.
SUPPLEMENTARY INFORMATION: This proposed rule would make a number of
changes to HUD regulations in 24 CFR part 58. Part 58 implements
statutory authorities that permit certain entities other than HUD to
assume HUD's environmental responsibilities for various HUD programs.
HUD proposes to update the list of programs and statutory authorities
covered by part 58. Also, the proposed rule would make conforming
changes to environmental provisions in certain program regulations to
include a cross-reference to part 58. In addition, the proposed rule
would make conforming changes in HUD's regulations in 24 CFR part 50,
which governs when HUD is responsible to perform environmental
responsibilities in accordance with the National Environmental Policy
Act (NEPA) (42 U.S.C. 4321 et seq.), the Council on Environmental
Quality Regulations (40 CFR parts 1500-1508), and other environmental
requirements (as specified in 24 CFR 50.4).
The following additional programs would be added to the list in
Sec. 58.1:
(1) Grants provided to private nonprofit organizations and housing
agencies under the Supportive Housing Program and the Shelter Plus Care
Program (in accordance with section 443 of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11402), as amended by section 208 of the HUD
Appropriations Act for FY 2001 (Pub. L. 106-377, approved October 27,
2000)). Section 443 was amended to provide for assumption of
environmental responsibilities by a State or unit of general local
government regardless of whether or not it is the recipient. The rule
would reflect prospective part 58 coverage of grants to nonprofit
organizations and housing agencies, i.e., coverage of such grants for
Fiscal Year (FY) 2001 and later;
(2) Assistance provided under the Native American Housing
Assistance and Self-Determination Act of 1996 (NAHASDA) (25 U.S.C. 4101
et seq.), (in accordance with section 105 of NAHASDA);
(3) Indian housing loan guarantees under section 184 of the Housing
and Community Development Act of 1992 (1992 Act) (12 U.S.C. 1715z-13a,
in accordance with section 184(k) of the 1992 Act);
(4) HOPE VI grants for FY 1999 and earlier (in accordance with the
HUD Appropriations Act for FY 1999 (Pub. L. 105-276, approved October
21, 1998)). Section 58.1 also would be amended to reflect amendments to
the United States Housing Act of 1937 (42 U.S.C. 1437 et seq.),
including amendments that make permanent the HOPE VI program and thus
make section 26 of the United States Housing Act of 1937 the permanent
authority for States and units of general local government to assume
environmental responsibilities for the HOPE VI program;
(5) Housing Opportunities for Persons with AIDS (HOPWA) (42
U.S.C.12901 et seq.) grants. Section 203(c) of the HUD Appropriations
Act for FY 2001 (Pub. L. 106-377, approved October 27, 2000) added
section 856(h) of the AIDS Housing Opportunity Act, which provides
permanent authority for HOPWA grantees to assume environmental
responsibilities. Section 207(c) of HUD's Appropriations Act for FY
1999 instructed HUD to treat HOPWA grants for FY 1999 and prior years
as assistance for special projects subject to section 305(c) of the
Multifamily Housing Property Disposition Reform Act of 1994 (42 U.S.C.
3547), and subject to HUD's regulations implementing that section at 24
CFR part 58. The HUD Appropriations Act for FY 2000 (Pub. L. 106-74,
approved October 20, 1999) extended section 207(a) and (b) of the 1999
Act to apply to FY 2000 grants, but did not extend section 207(c).
Accordingly, part 58 applies to environmental reviews for all HOPWA
grants entered into after enactment of section 856(h) of HOPWA and all
HOPWA grants for FY 1999 and prior years. Part 58 also applies to HOPWA
formula grants for FY 2000, but does not apply to HOPWA competitive
grants for FY 2000, which by their terms are not subject to subsequent
changes in the HOPWA legislation. The amendment to Sec. 58.1 would
reflect this applicability.
The Rental Rehabilitation Program and the Housing Development Grant
Program authorized by section 17 of the United States Housing Act of
1937 (42 U.S.C. 1437 et seq.) are no longer in use and would be removed
from paragraph (b)(2) of the list in Sec. 58.1. The authority for these
programs was repealed by the Cranston-Gonzalez National Affordable
Housing Act (42 U.S.C. 12701 et seq.). References to these programs
would be removed from Secs. 58.4(b)(2), 58.4(b)(3), 58.5(a)(i), 58.17,
and 58.18.
A new Sec. 58.1(c) also would be added to clarify that activities
assisted with repayments to a revolving loan fund initially assisted
with HUD funds are subject to environmental requirements only if HUD
program rules treat the activity assisted with repayments as being
subject to Federal requirements.
A new Sec. 58.1(d) would clarify that the Assistant Secretary for
Community Planning and Development, to the extent permitted by
applicable laws and the regulations of the Council on Environmental
Quality, may, for good cause and with appropriate conditions,
[[Page 43209]]
approve waivers and exceptions or establish criteria for exceptions
from the requirements of this part.
Changes would be made to the definitions section, Sec. 58.2.
Obsolete references to Indian Housing Authorities would be removed from
the definition of ``recipient'' and the Indian tribe would be defined
as the ``recipient'' for part 58 purposes with respect to assistance
awarded under NAHASDA and the Section 184 Indian Housing Loan Guaranty
program (Section 184 program). The specification of the Indian tribe as
the ``recipient'' for these two programs is for part 58 purposes only.
The revision reflects the Indian tribe's role in the part 58 process
under section 105 of NAHASDA and the Section 184 program and would not
affect the definition of ``recipient'' in 24 CFR part 1000 and section
4 of NAHASDA.
Further, the definition of ``responsible entity'' (RE) would be
revised to clarify that the Indian tribe is the RE under NAHASDA
whether or not a Tribally Designated Housing Entity is authorized to
receive funds on behalf of the tribe and is also the RE under the
Section 184 program. This definition also would state that Regional
Corporations in Alaska are considered Indian tribes. The inclusion of
Regional Corporations as Indian tribes reflects their specific
inclusion in the definition of ``Indian tribe'' in section 4 of
NAHASDA.
A new Sec. 58.4(c) would clarify that under NAHASDA and the Section
184 program, Indian tribes have a choice whether or not to assume
environmental responsibilities under part 58. This provision conforms
to NAHASDA rules that were adopted through negotiated rulemaking (24
CFR 1000.20).
The list of NEPA-related environmental authorities in Sec. 58.5
would be updated by replacing a reference to an obsolete HUD notice on
toxic chemicals and radioactive materials with updated requirements
regarding contamination. The new requirements would be similar to those
identified in 24 CFR 50.3(i), which apply when HUD performs the
environmental review for a project. The new provision would reflect a
general HUD policy that regardless of whether the environmental reviews
are performed by HUD or by the responsible entity, the same standards
would be used. The proposed provision would state HUD's policy that
property proposed for use in HUD programs must be free of hazardous
materials, contamination, toxic chemicals and gases, and radioactive
substances, where a hazard could affect the health and safety of
occupants of the property or conflict with the intended utilization of
the property.
Environmental reviews for multifamily housing with five or more
units (including leasing) and non-residential property must include
evaluation of previous site uses and other evidence of contamination on
or near the site. The entity responsible for compliance with part 58
must give particular attention to any proposed site on or in the
general proximity of areas that contain or may have contained hazardous
waste, such as dumps, landfills, and industrial sites. This provision
relies on a general performance standard, which could include a Phase I
environmental assessment for toxics (American Society for Testing
Materials, ASTM E 1527). Some HUD programs already require a Phase I
report, which is a standard of private real estate transactions.
Section 58.11 (pertaining to legal capacity and performance) is
revised to exclude the term ``Indian housing'' recipient and add the
term ``HOPWA'' recipient. This section allows recipients that are not a
responsible entity to object to the performance of the environmental
review by a responsible entity on the basis of performance, timing, or
compatibility of objectives. In such a case, HUD will review the facts
to determine who will perform the environmental review.
The current provisions of Sec. 58.22(a) would be revised and placed
in paragraphs (a) through (c). The new provisions would make it clear
that all participants in the development process are subject to the
provisions of this part.
The proposed provisions would clarify that the limitations on
activities apply not only to recipients, but also to other project
participants, such as public or private nonprofit or for-profit
entities and their contractors. The provisions also would make it clear
that undertaking an activity that would have adverse environmental
impact or limit the choice of alternatives, as well as committing non-
HUD funds to such an activity, is prohibited before the request for
release of funds and environmental certification have been approved.
New paragraph (c) would require that, if a recipient is considering
an application from a prospective sub-recipient or beneficiary and is
aware that the applicant is about to take an action within the
recipient's jurisdiction that is prohibited by Sec. 58.22(a), the
recipient shall promptly notify the applicant that the recipient will
take appropriate action to ensure that the objectives and procedures of
NEPA are achieved. This latter provision is based on provisions in the
NEPA regulations of the Council on Environmental Quality (40 CFR
1506.1(b)). The Department is concerned that there have been situations
in which the environmental review process has been impaired where
private participants have undertaken choice-limiting actions on pending
projects with the apparent acquiescence or encouragement of recipients.
These revisions would clarify that until the environmental review
process and release of funds process are completed, participants other
than recipients are expected to adhere to limitations on permissible
actions. Further, recipients have a responsibility to respond when they
are aware that an applicant is taking a prohibited action.
In addition, a new paragraph would be added to Sec. 58.22 to
reflect a statutory amendment that permits an organization, consortium,
or affiliate under the Self-Help Homeownership Opportunity Program
(SHOP) to advance nongrant funds to acquire land prior to completion of
the environmental review process. Section 202(b) of the American
Homeownership and Economic Opportunity Act of 2000 (Pub. L. 106-569,
approved December 27, 2000) amended section 11(d)(2)(A) of the Housing
Opportunity Program Extension Act of 1996 (42 U.S.C. 12805 note) to
provide that eligible expenses under the SHOP program ``may include
reimbursing an organization, consortium, or affiliate upon approval of
any required environmental review, for nongrant amounts of the
organization, consortium, or affiliate advanced before such a review to
acquire land.'' This amendment permits SHOP recipients to advance
nongrant amounts to acquire land before completion of the environmental
review process and be reimbursed from grant amounts. However, such
advances are incurred at the recipient's risk, and the Department is
not under any obligation to reimburse a recipient for these acquisition
costs if the subsequent environmental review is unfavorable and the
land is deemed unsuitable to carry out the SHOP project. The Department
also notes that advancing nongrant funds for land acquisition prior to
approval of a request for release of funds is generally considered a
choice-limiting action that is prohibited under Sec. 58.22. The new
provision would reflect a statutory exception to this prohibition that
applies only under the SHOP program. All other forms of HUD assistance
continue to have the more restrictive policy.
The proposed rule would revise the first sentence of Sec. 58.33(b)
concerning when and how the pre-submission
[[Page 43210]]
comment periods for the Notice of Finding of No Significant Impact
(FONSI Notice) and/or the Notice of Intent to Request a Release of
Funds (NOI/RROF) may be combined with the post-submission comment
period for the Request for Release of Funds (RROF). Under the proposed
rule, the combined procedure could be used if funds are needed on an
emergency basis due to a locally declared emergency as well as during a
Presidentially declared disaster, and there is immediate need for
public action to protect public safety.
Three of the NEPA categorical exclusions in Sec. 58.35 would be
revised and one new exclusion would be added. With respect to
rehabilitation, the rule would be revised to clarify that the
categorical exclusion for minor rehabilitation applies to single-family
dwellings as well as to multifamily buildings. The rule would add a
reference to ``single-family'' residential buildings (with one to four
dwelling units), whose unit density is not increased beyond four units,
and whose dwelling units do not result from a conversion of use from a
non-residential use. The rule also would indicate that the exclusion
for an individual action on a one-to four-family dwelling would apply
when there are no more than four dwelling units on any one site,
whether in one or multiple buildings. This rulemaking includes
conforming changes to 24 CFR part 50 pertaining to the proposed
revision for the exclusions for rehabilitation and individual actions.
New Sec. 58.35(b)(7) would exclude from NEPA and non-NEPA
environmental requirements the approval of supplemental assistance
(including insurance or guarantee) to complete a project previously
approved under this part, if the project or activities have already
been environmentally assessed by the same responsible entity, unless a
reevaluation of the environmental findings is required under
Sec. 58.47(a). This statement of policy is new to this part and would
conform this part to the long-held HUD policy stated at 24 CFR 50.36,
when HUD itself performs the environmental responsibilities. Also, the
exclusion for acquisition of an existing structure or vacant land to be
retained for the same use would be revised to clarify that acquisition
includes leasing, and a conforming change would be made to 24 CFR part
50. The homeownership assistance exclusion in Sec. 58.35(b)(5) covers
dwelling units under construction as well as existing units, while the
similar exclusion in Sec. 50.19(b)(5) covers only existing
construction; therefore, this rule amends Sec. 50.19(b)(5) to cover
units under construction.
Sections 58.34(b) and 58.35(d) would be revised to clarify that the
responsible entity's documentation of exemptions and exclusions must be
made prior to committing funds for or undertaking the exempt or
excluded activities.
In Sec. 58.45, revised language would clarify that the periods
provided for certain public comment periods are minimum required
periods. Section 58.45 also has been reformatted into a chart for
easier reading.
Sections 58.72 and 58.75 would be revised to conform to the changes
proposed in Sec. 58.22 ``Limitations on actions pending clearance.''
The Department also proposes to add language to certain program
regulations for programs that are subject to part 58 procedures. They
are part 574 (Housing Opportunities for Persons with AIDS or HOPWA),
part 582 (Shelter Plus Care), part 583 (Supportive Housing Program),
and part 970 (Public Housing Program--Demolition or Disposition of
Public Housing Projects). The added language makes conforming
amendments for certain program regulations that do not currently
adequately reflect the applicability of part 58 procedures.
Findings and Certifications
Environmental Impact
A Finding of No Significant Impact with respect to the environment
for this rule has been made in accordance with HUD regulations at 24
CFR part 50, which implement section 102(2)(C) of the National
Environmental Policy Act of 1969. The Finding of No Significant Impact
is available for public inspection between 7:30 a.m. and 5:30 p.m.
weekdays in the Office of the Rules Docket Clerk, Office of the General
Counsel, Department of Housing and Urban Development, Room 10276, 451
Seventh Street, SW., Washington, DC 20410-5000.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector. This proposed rule does not impose a Federal
mandate on any State, local, or tribal governments, or on the private
sector, within the meaning of the Unfunded Mandates Reform Act of 1995.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule would not have a significant
economic impact on a substantial number of small entities. There are no
anti-competitive discriminatory aspects of the rule with regard to
small entities, and there are not any unusual procedures that would
need to be complied with by small entities. Although HUD has determined
that this proposed rule would not have a significant economic impact on
a substantial number of small entities, HUD welcomes comments regarding
any less burdensome alternatives to this rule that will meet HUD's
objectives as described in this preamble.
Executive Order 13132, Federalism
This proposed rule does not have Federalism implications and does
not impose substantial direct compliance costs on State and local
governments or preempt State law within the meaning of the Executive
Order.
List of Subjects in 24 CFR
Part 58
Environmental protection, Community Development Block Grants,
Public Housing Capital Fund Grants, HOPE VI Program Grants, Indian
Housing Block Grants, HOME Investment Partnerships Grants, Housing
Opportunities for Persons with AIDS Grants, Shelter Plus Care Grants,
Supportive Housing Program Grants, Self-Help Homeownership Opportunity
Program Grants, Environmental Impact Statements, Environmental
Assessments, Grant programs--housing and community development,
Reporting and recordkeeping requirements.
Part 574
AIDS, Community facilities, Disabled, Emergency shelter, Grant
programs--health programs, Grant programs--housing and community
development, Grant programs--social programs, Homeless, Housing, Low
and moderate income housing, Nonprofit organizations, Rent subsidies,
Reporting and recordkeeping requirements, Technical assistance.
Part 582
Homeless, Rent subsidies, Reporting and recordkeeping requirements,
Supportive housing programs--housing and community development,
Supportive services.
Part 583
Homeless, Rent subsidies, Reporting and recordkeeping requirements,
Supportive housing programs--housing
[[Page 43211]]
and community development, Supportive services.
Part 970
Grant programs--housing and community development, Loan programs--
housing and community development, Public housing, Reporting and
recordkeeping requirements.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers are 14.235,
14.238, 14.241, 14.850, and 14.866.
Accordingly, for the reasons described in the preamble, the
Department proposes to amend 24 CFR parts 50, 58, 574, 582, 583, and
970 as follows:
PART 50--PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY
1. The authority citation for part 50 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 4332; and Executive Order
11991, 3 CFR, 1977 Comp., p. 123.
2. Amend Sec. 50.19 by revising paragraph (b)(15) to read as
follows:
Sec. 50.19 Categorical exclusions not subject to the Federal laws and
authorities cited in Sec. 50.4.
* * * * *
(b) * * *
(15) Activities to assist homebuyers to purchase existing dwelling
units or dwelling units under construction, including closing costs and
downpayment assistance, interest buydowns, and similar activities that
result in the transfer of title.
* * * * *
3. Amend Sec. 50.20 by revising paragraphs (a)(2), (a)(3), and
(a)(4), to read as follows:
Sec. 50.20 Categorical exclusions subject to the Federal laws and
authorities cited in Sec. 50.4.
(a) * * *
(2) Rehabilitation of buildings and improvements when the following
conditions are met:
(i) In the case of single-family buildings (with one to four
units), unit density is not increased beyond four units and the
dwellings do not result from a conversion of use from a non-residential
use;
(ii) In the case of multifamily residential buildings:
(A) Unit density is not changed more than 20 percent;
(B) The project does not involve changes in land use from non-
residential to residential or from residential to non-residential; and
(C) The estimated cost of rehabilitation is less than 75 percent of
the total estimated cost of replacement after rehabilitation.
(iii) In the case of non-residential structures, including
commercial, industrial, and public buildings:
(A) The facilities and improvements are in place and will not be
changed in size or capacity by more than 20 percent; and
(B) The activity does not involve a change in land use, such as
from non-residential to residential, commercial to industrial, or from
one industrial use to another.
(3)(i) An individual action on up to four dwelling units where
there is a maximum of four units on any one site. The units can be four
one-unit buildings or one four-unit building or any combination in
between; or
(ii) An individual action on a project of five or more housing
units developed on scattered sites when the sites are more than 2,000
feet apart and there are not more than four housing units on any one
site.
(4) Acquisition (including leasing) or disposition of, or equity
loans on an existing structure, or acquisition (including leasing) of
vacant land provided that the structure or land acquired, financed, or
disposed of will be retained for the same use.
* * * * *
PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD
ENVIRONMENTAL RESPONSIBILITIES
4. The authority citation for part 58 is revised to read as
follows:
Authority: 12 U.S.C. 1707 note, 1715z-13a(k); 25 U.S.C. 4115; 42
U.S.C. 1437x, 3535(d), 3547, 4332, 4852, 5304(g), 11402, 12838, and
12905(h); title II of Pub. L. 105-276; E.O. 11514 as amended by E.O.
11991, 3 C.F.R. 1977 Comp. p 123.
5. Amend Sec. 58.1 as follows:
a. Removing paragraph (b)(2) and designating it as ``reserved'';
b. Redesignating paragraph (b)(3) as paragraph (b)(3)(i) and
revising newly redesignated paragraph (b)(3)(i);
c. Adding paragraph (b)(3)(ii);
d. Revising paragraph (b)(6);
e. Removing ``and'' at the end of paragraph (b)(8);
f. Replacing the period at the end of paragraph (b)(9) with a
semicolon; and
g. Adding new paragraphs (b)(10), (11), (12), (c), and (d).
The revisions and additions read as follows:
Sec. 58.1 Purpose and applicability.
* * * * *
(b) * * *
(2) [Reserved]
(3)(i) Grants to States and units of general local government under
the Emergency Shelter Grant Program, Supportive Housing Program (and
its predecessors, the Supportive Housing Demonstration Program (both
Transitional Housing and Permanent Housing for Homeless Persons with
Disabilities) and Supplemental Assistance for Facilities to Assist the
Homeless), Shelter Plus Care Program, Safe Havens for Homeless
Individuals Demonstration Program, and Rural Homeless Housing
Assistance, authorized by Title IV of the McKinney-Vento Homeless
Assistance Act, in accordance with section 443 (42 U.S.C. 11402);
(ii) Grants beginning with fiscal year 2001 to private nonprofit
organizations and housing agencies under the Supportive Housing Program
and Shelter Plus Care Program authorized by Title IV of the McKinney-
Vento Homeless Assistance Act, in accordance with section 443 (42
U.S.C. 11402);
* * * * *
(6)(i) Public Housing Programs under Title I of the United States
Housing Act of 1937, including HOPE VI grants authorized under section
24 of the Act for fiscal year 2000 and later, in accordance with
section 26 (42 U.S.C. 1437x);
(ii) Grants for the revitalization of severely distressed public
housing (HOPE VI) for fiscal year 1999 and prior years, in accordance
with Title II of the Departments of Veterans Affairs and Housing and
Urban Development, and Independent Agencies Appropriations Act, 1999
(Pub. L. 105-276, approved October 21, 1998); and
(iii) Assistance administered by a public housing agency under
section 8 of the United States Housing Act of 1937, except for
assistance provided under part 886 of this title, in accordance with
section 26 (42 U.S.C. 1437x);
* * * * *
(10) Assistance provided under the Native American Housing
Assistance and Self-Determination Act of 1996 (NAHASDA), in accordance
with section 105 (25 U.S.C. 4115);
(11) Indian Housing Loan Guarantees authorized by section 184 of
the Housing and Community Development Act of 1992, in accordance with
section 184(k) (12 U.S.C. 1715z-13a(k)); and
(12) Grants for Housing Opportunities for Persons with AIDS (HOPWA)
under the AIDS Housing Opportunity Act, as follows: competitive grants
beginning with fiscal year 2001 and all formula
[[Page 43212]]
grants, in accordance with section 856(h) (42 U.S.C. 12905(h)); all
grants for fiscal year 1999 and prior years, in accordance with section
207(c) of the Departments of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations Act, 1999 (Pub. L.
105-276, approved October 21, 1998).
(c) When HUD assistance is used to help fund a revolving loan fund
that is administered by a recipient or another party, the activities
initially receiving assistance from the fund are subject to the
requirements in this part. Future activities receiving assistance from
the revolving loan fund, after the fund has received loan repayments,
are subject to the environmental review requirements if the rules of
the HUD program that initially provided assistance to the fund continue
to treat the activities as subject to the Federal requirements. If the
HUD program treats the activities as not being subject to any Federal
requirements, then the activities cease to become Federally funded
activities and the provisions of this part do not apply.
(d) To the extent permitted by applicable laws and the applicable
regulations of the Council on Environmental Quality, the Assistant
Secretary for Community Planning and Development may, for good cause
and with appropriate conditions, approve waivers and exceptions or
establish criteria for exceptions from the requirements of this part.
6. Amend Sec. 58.2 as follows:
a. Revising paragraph (a)(5)(v);
b. Removing ``and'' at the end of paragraph (a)(5)(vii);
c. Adding new paragraphs (a)(5)(ix) and (x);
d. Revising paragraphs (a)(6) and (a)(7), introductory text,
(a)(7)(i), and (a)(7)(ii), introductory text;
e. Removing paragraphs (a)(7)(ii)(D) and (E).
The revisions and additions read as follows:
Sec. 58.2 Terms, abbreviations and definitions.
(a) * * *
(5) * * *
(v) With respect to Public Housing Programs under
Sec. 58.1(b)(6)(i), fiscal year 1999 and prior HOPE VI grants under
Sec. 58.1(b)(6)(ii) or Section 8 assistance under Sec. 58.1(b)(6)(iii),
a public housing agency;
* * * * *
(vii) With respect to the FHA Multifamily Housing Finance Agency
Pilot Program under Sec. 58.1(b)(8), a qualified housing finance
agency;
(viii) With respect to the Self-Help Homeownership Opportunity
Program under Sec. 58.1(b)(9), any direct grantee of HUD;
(ix) With respect to NAHASDA assistance under Sec. 58.1(b)(10) and
the Section 184 Indian Housing Loan Guarantee program under
Sec. 58.1(b)(11), the Indian tribe.
(x) With respect to the Shelter Plus Care and Supportive Housing
Programs under Sec. 58.1(b)(3)(ii), nonprofit organizations and other
entities.
(6) Release of funds. In the case of the FHA Multifamily Housing
Finance Agency Pilot Program under Sec. 58.1(b)(8), Release of Funds,
as used in this part, refers to HUD issuance of a firm approval letter,
and Request for Release of Funds refers to a recipient's request for a
firm approval letter. In the case of the Section 184 Indian Housing
Loan Guarantee program under Sec. 58.1(b)(11), Release of Funds refers
to HUD's issuance of a commitment to guarantee a loan, or if there is
no commitment, HUD's issuance of a certificate of guarantee.
(7) Responsible Entity. Responsible Entity means:
(i) With respect to environmental responsibilities under programs
listed in Sec. 58.1(b)(1), (2), (3)(i), (4), and (5), a recipient under
the program.
(ii) With respect to environmental responsibilities under the
programs listed in Sec. 58.1(b)(3)(ii) and (6) through (12), a State,
unit of general local government, Indian tribe or Alaska Native
Village, when it is the recipient under the program. Under the Native
American Housing Assistance and Self-Determination Act of 1996 (25
U.S.C. 4101 et seq.) listed in Sec. 58.1(b)(10), the Indian tribe is
the responsible entity whether or not a Tribally Designated Housing
Entity is authorized to receive grant amounts on behalf of the tribe.
The Indian tribe is also the responsible entity under the Section 184
Indian Housing Loan Guarantee program listed in Sec. 58.1(b)(11).
Regional Corporations in Alaska are considered Indian tribes in this
part. Non-recipient responsible entities are designated as follows:
* * * * *
7. Amend Sec. 58.4 as follows:
a. Revising paragraph (b)(2);
b. Removing paragraph (b)(3); and
c. Adding a new paragraph (c).
The revision and addition read as follows:
Sec. 58.4 Assumption authority.
* * * * *
(b) * * *
(2) States must exercise HUD's responsibilities in accordance with
Sec. 58.18, with respect to approval of a unit of local government's
environmental certification and RROF for a HUD assisted project funded
through the State. Approval by the State of a unit of local
government's certification and RROF satisfies the Secretary's
responsibilities under NEPA and the related laws cited in Sec. 58.5.
(c) Particular responsibilities of Indian tribes. An Indian tribe
may, but is not required to, assume responsibilities for environmental
review, decision-making and action for programs authorized by the
Native American Housing Assistance and Self-Determination Act of 1996
(25 U.S.C. 4101 et seq.) or section 184 of the Housing and Community
Development Act of 1992 (12 U.S.C. 1715z-13a). The tribe must make a
separate decision regarding assumption of responsibilities for each of
these Acts and communicate that decision in writing to HUD. If the
tribe assumes these responsibilities, the requirements of this part
shall apply. If a tribe formally declines assumption of these
responsibilities, they are retained by HUD and the provisions of part
50 of this title apply.
8. Amend Sec. 58.5 by revising paragraphs (a)(1) and (i) to read as
follows:
Sec. 58.5 Related Federal laws and authorities.
* * * * *
(a) Historic properties. (1) The National Historic Preservation Act
of 1966 (16 U.S.C. 470 et seq.), particularly sections 106 and 110 (16
U.S.C. 470 and 470h-2).
* * * * *
(i) HUD environmental standards. (1) Applicable criteria and
standards specified in part 51 of this title, other than the runway
clear zone notification requirement in Sec. 51.303(a)(3). Also, it is
HUD policy that all properties that are being proposed for use in HUD
programs be free of hazardous materials, contamination, toxic chemicals
and gases, and radioactive substances, where a hazard could affect the
health and safety of occupants or conflict with the intended
utilization of the property.
(2) The environmental review of multifamily housing with five or
more dwelling units (including leasing), or non-residential property,
must include the evaluation of previous uses of the site or other
evidence of contamination on or near the site, to assure that the
occupants of proposed sites are not adversely affected by any of the
hazards listed in Sec. 58.5(i)(1).
(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, or may have contained,
hazardous wastes.
[[Page 43213]]
(4) The responsible entity shall use current techniques by
qualified professionals to undertake investigations determined
necessary.
* * * * *
9. Revise Sec. 58.10 to read as follows:
Sec. 58.10 Basic environmental responsibility.
In accordance with the provisions of law cited in Sec. 58.1(b),
except as otherwise provided in Sec. 58.4(c), the responsible entity
must assume the environmental responsibilities for projects under
programs cited in Sec. 58.1(b). In doing so, the responsible entity
must comply with the provisions of NEPA and the CEQ regulations
contained in 40 CFR parts 1500 through 1508, including the requirements
set forth in this part.
10. Amend Sec. 58.11 by revising paragraph (b) to read as follows:
Sec. 58.11 Legal capacity and performance.
* * * * *
(b) If a public housing, special project, HOPWA, Supportive
Housing, Shelter Plus Care, or Self-Help Homeownership Opportunity
recipient that is not a responsible entity objects to the non-recipient
responsible entity conducting the environmental review on the basis of
performance, timing, or compatibility of objectives, HUD will review
the facts to determine who will perform the environmental review.
* * * * *
11. Remove and reserve Sec. 58.17 to read as follows.
Sec. 58.17 [Reserved]
12. Revise Sec. 58.18 to read as follows:
Sec. 58.18 Responsibilities of States assuming HUD environmental
responsibilities.
States that elect to administer a HUD program shall ensure that the
program complies with the provisions of this part. The State must:
(a) Designate the State agency or agencies that will be responsible
for carrying out the requirements and administrative responsibilities
set forth in subpart H of this part and which will:
(1) Develop a monitoring and enforcement program for post-review
actions on environmental reviews and monitor compliance with any
environmental conditions included in the award.
(2) Receive public notices, RROFs and certifications from
recipients pursuant to Secs. 58.70 and 58.71; accept objections from
the public and from other agencies (Sec. 58.73); and perform other
related responsibilities regarding releases of funds.
(b) Fulfill the State role in subpart H relative to the time period
set for the receipt and disposition of comments, objections and appeals
(if any) on particular projects.
13. Revise Sec. 58.22 to read as follows:
Sec. 58.22 Limitations on activities pending clearance.
(a) Neither a recipient nor any participant in the development
process, including public or private nonprofit or for-profit entities,
or any of their contractors, may commit HUD assistance under a program
listed in Sec. 58.1(b) on an activity or project until HUD or the state
has approved the recipient's RROF and the related certification from
the responsible entity. In addition, until the RROF and the related
certification have been approved, neither a recipient nor any
participant in the development process may commit non-HUD funds on or
undertake an activity or project under a program listed in Sec. 58.1(b)
if the activity or project would have an adverse environmental impact
or limit the choice of reasonable alternatives.
(b) If a project or activity is exempt under Sec. 58.34, or is
categorically excluded (except in extraordinary circumstances) under
Sec. 58.35(b), no RROF is required and the recipient may undertake the
activity immediately after the responsible entity has documented its
determination as required in Sec. 58.34(b) and Sec. 58.35(d), but the
recipient must comply with applicable requirements under Sec. 58.6.
(c) If a recipient is considering an application from a prospective
subrecipient or beneficiary and is aware that the prospective
subrecipient or beneficiary is about to take an action within the
jurisdiction of the recipient that is prohibited by Sec. 58.22(a), then
the recipient will take appropriate action to ensure that the
objectives and procedures of NEPA are achieved.
(d) An option agreement on a proposed site or property is allowable
prior to the completion of the environmental review if the option
agreement is subject to a determination by the recipient on the
desirability of the property for the project as a result of the
completion of the environmental review in accordance with this part and
the cost of the option is a nominal portion of the purchase price.
There is no constraint on the purchase of an option by third parties
that have not been selected for HUD funding, have no responsibility for
the environmental review and have no say in the approval or disapproval
of the project.
(e) Self-Help Homeownership Opportunity Program (SHOP). In
accordance with section 11(d)(2)(A) of the Housing Opportunity Program
Extension Act of 1996 (42 U.S.C. 12805 note), an organization,
consortium, or affiliate receiving assistance under the SHOP program
may advance nongrant funds to acquire land prior to completion of an
environmental review and approval of an Request for Release of Funds
(RROF) and certification, notwithstanding Sec. 58.22(a). Any advances
to acquire land prior to approval of the RROF and certification are
made at the risk of the organization, consortium, or affiliate and
reimbursement for such advances may depend on the result of the
environmental review. This authorization is limited to the SHOP program
only and all other forms of HUD assistance are subject to the
limitations in paragraph (a) of this section.
(f) Relocation. Funds may be committed for relocation assistance
before the approval of the RROF and related certification for the
project provided that the relocation assistance is required by 24 CFR
part 42.
14. Amend Sec. 58.33 by revising paragraph (b) to read as follows:
Sec. 58.33 Emergencies.
* * * * *
(b) If funds are needed on an emergency basis and adherence to
separate comment periods would prevent the giving of assistance during
a Presidentially declared disaster, or during a local emergency that
has been declared by the chief elected official of the responsible
entity who has proclaimed that there is an immediate need for public
action to protect the public safety, the combined Notice of FONSI and
Notice of Intent to Request Release of Funds (NOI/RROF) may be
disseminated and/or published simultaneously with the submission of the
RROF. The combined Notice of FONSI and NOI/RROF shall state that the
funds are needed on an emergency basis due to a declared disaster and
that the comment periods have been combined. The Notice shall also
invite commenters to submit their comments to both HUD and the
responsible entity issuing the notice to assure that these comments
will receive full consideration.
15. Amend Sec. 58.34 by revising paragraph (b) to read as follows:
Sec. 58.34 Exempt activities.
* * * * *
(b) A recipient does not have to submit an RROF and certification,
and no further approval from HUD or the State will be needed by the
recipient for
[[Page 43214]]
the drawdown of funds to carry out exempt activities and projects.
However, the responsible entity must document in writing its
determination that each activity or project is exempt and meets the
conditions specified for such exemption under this section.
Documentation in the Environmental Review Record (ERR) must be made
prior to the commitment of funds or undertaking any of the activities
listed in Sec. 58.34(a).
16. Amend Sec. 58.35 as follows:
a. Redesignating paragraphs (a)(3)(i) and (a)(3)(ii) as paragraphs
(a)(3)(ii) and (a)(3)(iii);
b. Adding a new paragraph (a)(3)(i);
c. Revising newly redesignated paragraph (a)(3)(ii)(B);
d. Revising paragraphs (a)(4) and (a)(5); and
e. Adding a new paragraph (b)(7) and adding a last sentence to the
end of paragraph (d).
The additions and revisions read as follows:
Sec. 58.35 Categorical exclusions.
(a) * * *
(3) * * *
(i) In the case of single family residential buildings (with one to
four units), unit density is not increased beyond four units and the
dwellings do not result from a conversion of use from a non-residential
use.
(ii) * * *
(A) * * *
(B) The project does not involve changes in land use from non-
residential to residential or from residential to non-residential; and
(C) * * *
(4)(i) An individual action on up to four dwelling units where
there is a maximum of four units on any one site. The units can be four
one-unit buildings or one four-unit building or any combination in
between; or
(ii) An individual action on a project of five or more housing
units developed on scattered sites when the sites are more than 2,000
feet apart and there are not more than four housing units on any one
site.
(5) Acquisition (including leasing) or disposition of, or equity
loans on an existing structure, or acquisition (including leasing) of
vacant land provided that the structure or land acquired, financed or
disposed of will be retained for the same use.
* * * * *
(b) * * *
(7) Approval of supplemental assistance (including insurance or
guarantee) to a project previously approved under this part, if the
approval is made by the same responsible entity that conducted the
environmental review on the original project and re-evaluation of the
environmental findings is not required under Sec. 58.47.
* * * * *
(d) Documentation in the ERR must be made prior to the commitment
of funds or to undertaking any of the activities listed in Sec. 58.35.
17. Revise Sec. 58.45 to read as follows:
Sec. 58.45 Public comment periods.
Required notices must afford the public the following minimum
comment periods, counted in accordance with Sec. 58.21:
(a) Notice of Finding of No Significant Impact (FONSI): 15 days
when published or, if no publication, 18 days when mailing and posting.
(b) Notice of Intent to Request Release of Funds (NOI-RROF): 7 days
when published or, if no publication, 10 days when mailing and posting.
(c) Concurrent or combined notices: 15 days when published or, if
no publication, 18 days when mailing and posting.
18. Amend Sec. 58.72 by revising paragraph (b) to read as follows:
Sec. 58.72 HUD or State actions on RROFs and certifications.
* * * * *
(b) HUD (or the State) may disapprove a certification and RROF if
it has knowledge that the responsible entity or other participants in
the development process have not complied with the items in Sec. 58.75,
or that the RROF and certification are inaccurate.
* * * * *
19. Amend Sec. 58.75 by revising paragraph (e) to read as follows:
Sec. 58.75 Permissible bases for objections.
* * * * *
(e) The recipient or other participants in the development process
have committed funds, incurred costs or undertaken activities not
authorized by this part before release of funds and approval of the
environmental certification by HUD (or the State).
* * * * *
PART 574--HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS
20. The authority citation for part 574 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 12901-12912.
21. Revise Sec. 574.510 to read as follows:
Sec. 574.510 Environmental procedures and standards.
(a) Activities under this part are subject to HUD environmental
regulations in part 58 of this title, except that HUD will perform an
environmental review in accordance with part 50 of this title for any
competitive grant for fiscal year 2000.
(b) The recipient, its project partners and their contractors may
not acquire, rehabilitate, convert, lease, repair, dispose of, demolish
or construct property for a project under this part, or commit or
expend HUD or local funds for such eligible activities under this part,
until the responsible entity (as defined in Sec. 58.2 of this title)
has completed the environmental review procedures required by part 58
and the environmental certification and RROF have been approved (or HUD
has performed an environmental review and the recipient has received
HUD approval of the property). HUD will not release grant funds if the
recipient or any other party commits grant funds (i.e., incurs any
costs or expenditures to be paid or reimbursed with such funds) before
the recipient submits and HUD approves its RROF (where such submission
is required).
(c) For activities under a grant to a nonprofit entity that would
generally be subject to review under part 58, HUD may make a finding in
accordance with Sec. 58.11(d) and may itself perform the environmental
review under the provisions of part 50 of this title if the recipient
nonprofit entity objects in writing to the responsible entity's (RE)
performing the review under part 58. Irrespective of whether the RE in
accord with part 58 (or HUD in accord with part 50) performs the
environmental review, the recipient shall supply all available,
relevant information necessary for the RE (or HUD, if applicable) to
perform for each property any environmental review required by this
part. The recipient also shall carry out mitigating measures required
by the RE (or HUD, if applicable) or select alternate eligible
property.
PART 582--SHELTER PLUS CARE
22. The authority citation for part 582 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11403-11407b.
23. Revise Sec. 582.230 to read as follows:
Sec. 582.230 Environmental review.
(a) Activities under this part are subject to HUD environmental
regulations in part 58 of this title, except that HUD will perform an
[[Page 43215]]
environmental review in accordance with part 50 of this title prior to
its approval of any conditionally selected applications from PHAs for
fiscal year 2000 and prior years for other than the SRO component. For
activities under a grant to a PHA that generally would be subject to
review under part 58, HUD may make a finding in accordance with
Sec. 58.11(d) and may itself perform the environmental review under the
provisions of part 50 of this title if the recipient PHA objects in
writing to the responsible entity's (RE) performing the review under
part 58. Irrespective of whether the RE in accord with part 58 (or HUD
in accord with part 50) performs the environmental review, the
recipient shall supply all available, relevant information necessary
for the RE (or HUD, if applicable) to perform for each property any
environmental review required by this part. The recipient also shall
carry out mitigating measures required by the RE (or HUD, if
applicable) or select alternate eligible property. HUD may eliminate
from consideration any application that would require an Environmental
Impact Statement (EIS).
(b) The recipient, its project partners and their contractors may
not acquire, rehabilitate, convert, lease, repair, dispose of, demolish
or construct property for a project under this part, or commit or
expend HUD or local funds for such eligible activities under this part,
until the responsible entity (as defined in Sec. 58.2 of this title)
has completed the environmental review procedures required by part 58
and the environmental certification and RROF have been approved or HUD
has performed an environmental review under part 50 and the recipient
has received HUD approval of the property. HUD will not release grant
funds if the recipient or any other party commits grant funds (i.e.,
incurs any costs or expenditures to be paid or reimbursed with such
funds) before the recipient submits and HUD approves its RROF (where
such submission is required).
PART 583--SUPPORTIVE HOUSING
24. The authority citation for part 583 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11389.
25. Revise Sec. 583.230 to read as follows:
Sec. 583.230 Environmental review.
(a) Activities under this part are subject to HUD environmental
regulations in part 58 of this title, except that HUD will perform an
environmental review in accordance with part 50 of this title prior to
its approval of any conditionally selected applications for fiscal year
2000 and prior years that were received directly from private nonprofit
entities and governmental entities with special or limited purpose
powers. For activities under a grant that generally would be subject to
review under part 58, HUD may make a finding in accordance with
Sec. 58.11(d) and may itself perform the environmental review under the
provisions of part 50 of this title if the recipient objects in writing
to the responsible entity (RE) performing the review under part 58.
Irrespective of whether the RE in accord with part 58 (or HUD in accord
with part 50) performs the environmental review, the recipient shall
supply all available, relevant information necessary for the RE (or
HUD, if applicable) to perform for each property any environmental
review required by this part. The recipient also shall carry out
mitigating measures required by the RE (or HUD, if applicable) or
select alternate eligible property. HUD may eliminate from
consideration any application that would require an Environmental
Impact Statement (EIS).
(b) The recipient, its project partners and their contractors may
not acquire, rehabilitate, convert, lease, repair, dispose of, demolish
or construct property for a project under this part, or commit or
expend HUD or local funds for such eligible activities under this part,
until the RE (as defined in Sec. 58.2 of this title) has completed the
environmental review procedures required by part 58 and the
environmental certification and RROF have been approved or HUD has
performed an environmental review under part 50 and the recipient has
received HUD approval of the property. HUD will not release grant funds
if the recipient or any other party commits grant funds (i.e., incurs
any costs or expenditures to be paid or reimbursed with such funds)
before the recipient submits and HUD approves its RROF (where such
submission is required).
PART 970--PUBLIC HOUSING PROGRAM--DEMOLITION OR DISPOSITION OF
PUBLIC HOUSING PROJECTS
26. The authority citation for part 970 continues to read as
follows:
Authority: 42 U.S.C. 1437p and 3535(d).
27. Amend Sec. 970.4 by revising paragraph (b), removing paragraph
(c) and designating it as reserved, to read as follows:
Sec. 970.4 General requirements for HUD approval of applications for
demolition or disposition.
* * * * *
(b) Environmental review. (1) Activities under this part are
subject to HUD environmental regulations in part 58 of this title.
However, HUD may make a finding in accordance with Sec. 58.11(d) and
may itself perform the environmental review under the provisions of
part 50 of this title if a PHA objects in writing to the responsible
entity (RE) performing the review under part 58.
(2) The PHA, its project partners and their contractors may not
acquire, rehabilitate, convert, lease, repair, dispose of, demolish or
construct property for a project under this part, or commit or expend
HUD or local funds for such eligible activities under this part, until
the responsible entity (as defined in Sec. 58.2 of this title) has
completed the environmental review procedures required by part 58 and
the environmental certification and RROF have been approved or HUD has
performed an environmental review under part 50 and has notified the
PHA in writing of environmental approval of the property. HUD will not
release grant funds if the recipient or any other party commits grant
funds (i.e., incurs any costs or expenditures to be paid or reimbursed
with such funds) before the recipient submits and HUD approves its RROF
(where such submission is required).
(3) Irrespective of whether the RE in accord with part 58 (or HUD
in accord with part 50) performs the environmental review, the PHA
shall supply all available, relevant information necessary for the RE
(or HUD, if applicable) to perform for each property any environmental
review required by this part. The PHA also shall carry out mitigating
measures required by the RE (or HUD, if applicable) or select alternate
eligible property.
(4) Demolition or disposition (including any related replacement
housing plan) will be aggregated in accordance with Sec. 58.32 to meet
the environmental review requirements. If the site of the replacement
housing is unknown at the time of submission of the application for
demolition or disposition, the application must contain a certification
that the applicant agrees to assist the responsible entity to comply
with part 58 (or HUD to comply with part 50, if applicable) of this
title, and that the applicant shall obtain environmental clearance of
the replacement housing in accordance with
[[Page 43216]]
procedures of part 58 (or part 50 if applicable) of this title.
(c) [Reserved]
* * * * *
Dated: May 28, 2002.
Roy A. Bernardi,
Assistant Secretary for Community Planning and Development.
[FR Doc. 02-15881 Filed 6-25-02; 8:45 am]
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