[Federal Register Volume 79, Number 161 (Wednesday, August 20, 2014)]
[Rules and Regulations]
[Pages 49226-49229]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19652]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 50 and 58

[Docket No. FR-5616-F-02]
RIN 2506-AC34


Environmental Compliance Recordkeeping Requirements

AGENCY: Office of the Assistant Secretary for Community Planning and 
Development, HUD.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations governing the format 
used for conducting the required environmental reviews for HUD program 
and policy actions. HUD's current regulations require that HUD staff 
document environmental review compliance using form HUD-4128. 
Recipients receiving HUD assistance and other entities responsible for 
conducting environmental reviews (responsible entities) are currently 
allowed to either use HUD-recommended formats or develop equivalent 
formats for documenting environmental review compliance.
    The reference to a specific form number in part 50 restricts HUD's 
ability to adopt alternative form designations and forms, while 
authorizing the use of alternate forms makes it difficult for HUD to 
assess, compare, and collect data on responsible entities' 
environmental review records. Despite being applicable to different 
parties, environmental review responsibilities under parts 50 and 58 
are substantively similar. In light of that, the final rule gives the 
Departmental Environmental Clearance Officer (DECO) the authority to 
create one standardized format for use in reviews and authorize 
exceptions, thereby eliminating unnecessary distinctions between 
reviews completed by HUD employees and responsible entities.
    This final rule also makes a technical amendment by making the 
steps required to prepare an environmental assessment in HUD's 
regulations consistent with the ``Environmental Assessment'' definition 
provided in the Council on Environmental Quality (CEQ) regulations 
implementing the National Environmental Policy Act (NEPA).

DATES: Effective Date: September 19, 2014.

FOR FURTHER INFORMATION CONTACT: Danielle Schopp, Director, Office of 
Environment and Energy, Office of Community Planning and Development, 
Department of Housing and Urban Development, 451 7th Street SW., Room 
7250, Washington, DC 20410; telephone number 202-402-4442 (this is not 
a toll-free number). Persons with hearing or speech impairments may 
access this number through TTY by calling the toll-free Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    On February 27, 2014, at 79 FR 11045, HUD published for public 
comment a proposed rule that would address the formats used for 
preparing and documenting the required environmental reviews under both 
24 CFR parts 50 and 58. Additionally, the rule proposed to make a 
technical amendment to part 58 to align it with CEQ regulations 
implementing NEPA's environmental assessment requirements.
    NEPA and related authorities \1\ require review of the potential 
environmental impacts of, and the preparation of environmental reviews 
for, Federal policy and program actions. HUD's regulations at 24 CFR 
part 50 and part 58 implement these environmental requirements. HUD's 
regulations at 24 CFR part 50, entitled ``Protection and Enhancement of 
Environmental Quality,'' govern the environmental reviews performed by 
HUD for its policies and programs. The regulations at 24 CFR part 58, 
entitled ``Environmental Review Procedures for Entities Assuming HUD 
Environmental Responsibilities,'' prescribe the requirements governing 
environmental reviews performed by recipients of HUD assistance and 
other responsible entities that assume HUD's environmental 
responsibilities in applicable HUD programs. Both 24 CFR part 50 and 
part 58 address the formats used for preparing and documenting the 
required environmental reviews.
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    \1\ See 24 CFR 50.4 and 24 CFR 58.5-6 for a listing of these 
Federal laws and authorities.
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    The reference to a single form number in part 50 at Sec.  50.20(a) 
and Sec.  50.31(a) restricts HUD's ability to issue a new form with a 
different designation or other forms. The part 58 regulations at Sec.  
58.38 and Sec.  58.40 allow entities assuming HUD environmental review 
responsibilities to develop an equivalent format for preparing and 
documenting an environmental review, which results in entities using a 
variety of formats. This sometimes makes it difficult for HUD and 
interested members of the public to assess compliance and prevents HUD 
from collecting reliable data. To resolve both concerns, HUD issued the 
February 27, 2014, proposed rule to remove the reference to a single 
form in part 50 and give the Departmental Environmental Clearance 
Officer (DECO) the authority to create one standardized format for use 
in both part 50 and part 58 reviews and authorize exceptions. In 
addition to resolving the above concerns, HUD proposed to make a 
technical amendment to part 58.

II. This Final Rule

    This final rule follows publication of the February 27, 2014, 
proposed rule and takes into consideration the public comments received 
on the proposed rule. The public comment period on the proposed rule 
closed on April 28, 2014. HUD received public comments from three 
commenters. Section III of this preamble discusses the comments 
received on the final rule. HUD has decided to adopt the final rule as 
final with no substantive changes.
    This final rule amends 24 CFR part 50 by removing the reference to 
the form HUD-4128. The revised regulation will require that HUD staff 
use a format approved by the DECO to prepare and document the required 
environmental

[[Page 49227]]

reviews. The rule will give the DECO the authority to establish 
alternative formats as necessary to meet specific program needs. 
However, this rule does not change or replace HUD-4128.
    This rule will also amend 24 CFR part 58 by requiring entities 
assuming HUD's environmental review responsibilities to use a format 
prescribed by the DECO. As with environmental reviews conducted under 
part 50, the DECO will have the authority to establish alternative 
formats as necessary to meet specific program needs. However, again, 
this rule does not prescribe the format to be used.
    Finally, this rule makes a technical amendment to Sec.  58.40 by 
incorporating the CEQ's language implementing NEPA's environmental 
assessment requirements into HUD's regulations.

III. Discussion of Public Comments

    The following section presents a summary of the public comments in 
response to the February 27, 2014, proposed rule, and HUD's responses.
    Comment: Opposition to the HEROS system. Commenters wrote in 
opposition to HUD's new web-based system HEROS.
    HUD Response: The public was given a separate opportunity to 
comment on HUD's new HUD Environmental Review Online System (HEROS) 
through Paperwork Reduction Act (PRA) notices published in the Federal 
Register on December 27, 2013 and March 31, 2014. The public was also 
notified of the new system for use in both part 50 and part 58 
environmental reviews in HUD's announcement of the Office of Management 
and Budget (OMB) Approval Number on July 24, 2014 (79 FR 43059).
    Comment: General concerns and possible alternatives to the proposed 
rule. Commenters wrote that HUD's data collection objectives could be 
easily accomplished by having the states provide the desired data to 
HUD by other means. Two commenters wrote that HUD should provide 
further clarification regarding what HUD wants the agencies to assess.
    One commenter wrote that changing an entire process that works for 
states when HUD could clarify the information it requires is overly 
burdensome. Additionally, the commenter expressed concern that 
receiving all the data from sub-recipients rather than having states 
normalize it or provide explanation could become burdensome for HUD.
    Commenters also wrote that states want to be considered partners 
with HUD. One commenter specifically wrote that while it understands 
that the information being collected from the field helps HUD make 
decisions regarding future environmental regulatory changes that would 
streamline the process for everyone involved, HUD must also consider 
the burden placed on states.
    HUD Response: HUD anticipates that instituting standardized formats 
will allow the Department to collect consistent data on environmental 
reviews for the first time. In addition, using a single format for 
collecting information will increase transparency and overall 
compliance in HUD's environmental reviews. Nevertheless, the proposed 
rule allows for flexibility as appropriate for the DECO to prescribe 
alternative formats.
    HUD considered and will continue to consider the burden on sub-
recipients, states and HUD when implementing any new formats for 
environmental reviews.
    HUD values the commenters' statement that states want to be 
considered partners with HUD. This partnership is important to HUD and 
the Department will continue to work closely with states on data 
collection and analysis.
    Comment: The proposed rule limits flexibility for states. Two 
commenters opposed the rule and wrote that states should continue to 
have the option of using an equivalent format. The commenters wrote 
that states should have the flexibility and freedom of choice regarding 
the means of providing data to HUD. One of the commenters wrote that at 
a minimum the State Community Development Block Grant (CDBG) program 
should be exempt from the new requirements. Another commenter requested 
that state-administered HUD programs, in particular, the CDBG Small 
Cities Program, be exempted from the new requirements.
    Commenters also wrote that under the State CDBG program 
regulations, 24 CFR 570.480(c), states are to have the maximum feasible 
deference in the interpretation of the requirements and in the 
administrations of the CDBG program, and requiring a single format 
infringes on the states' ability to operate with maximum feasible 
deference.
    One commenter also wrote that the rule violates Executive Orders 
12866 and 13563 which require federal agencies to identify and consider 
regulatory approaches that reduce burdens and maintain flexibility and 
freedom of choice.
    HUD Response: The purpose of the rule is to eliminate the need for 
agencies to develop individual formats and to mitigate the 
redundancies, inaccuracies, and confusion that arise when many forms 
are used for the same purpose. Having previously allowed multiple 
formats under part 58, HUD believes that standardized formats are 
necessary to ensure compliance with all applicable environmental laws 
and authorities. HUD intends for the new requirements to ease the 
environmental compliance burden on all HUD recipients by applying a 
uniform and consistent approach.
    Nevertheless, the rule allows for flexibility as appropriate. Under 
the rule, the DECO may prescribe alternative formats to meet specific 
program needs where the forms established by HUD cannot achieve the 
aforementioned goals. This option may be exercised if the DECO 
determines that the forms established by HUD are not suitable for a 
program's needs.
    Comment: The proposed rule does not address what format HUD will 
adopt and how it will increase access for the public to the 
environmental review records (``ERR''). Two commenters wrote that HUD 
has not described how the proposed rule will increase citizens' access 
to the ERRs. Additionally, these commenters wrote that a web copy of 
the record might not provide additional access to the public for small 
communities. Furthermore, requiring both a paper copy and a web copy 
would result in additional work for these communities.
    HUD Response: This final rule does not address format. The public 
had an opportunity to comment on HUD's new HUD Environmental Review 
Online System (HEROS) through Paperwork Reduction Act (PRA) notices 
published in the Federal Register on December 27, 2013 and March 31, 
2014, and was notified of the new system for use in both Part 50 and 
Part 58 environmental reviews in HUD's announcement of the OMB Approval 
Number on July 24, 2014 (79 FR 43059). Nevertheless, HUD considers 
transparency in all PRA processes and will continue to seek ways to 
increase access for the public to the ERRs.
    Comment: Request for a regulatory flexibility analysis. One 
commenter recommended that HUD conduct a regulatory flexibility 
analysis because the proposed rule would cause a significant economic 
impact on a substantial number of small entities.
    HUD Response: HUD intends for the new requirements to ease the 
environmental compliance burden on all HUD recipients by eliminating 
the need for agencies to develop individual formats. HUD will continue 
to monitor the impact on small entities and exercise the flexibility 
provided in the rule if appropriate.

[[Page 49228]]

IV. Findings and Certifications

Regulatory Review--Executive Orders 12866 and 13563

    Under Executive Order 12866 (Regulatory Planning and Review), a 
determination must be made on whether a regulatory action is 
significant and, therefore, subject to review by the Office of 
Management and Budget (OMB) in accordance with the requirements of the 
order. Executive Order 13563 (Improving Regulations and Regulatory 
Review) directs executive agencies to analyze regulations that are 
``outmoded, ineffective, insufficient, or excessively burdensome, and 
to modify, streamline, expand, or repeal them in accordance with what 
has been learned.'' Executive Order 13563 also directs that, where 
relevant, feasible, and consistent with regulatory objectives, and to 
the extent permitted by law, agencies are to identify and consider 
regulatory approaches that reduce burdens and maintain flexibility and 
freedom of choice for the public.
    As discussed above in this preamble, the final rule revises the 
regulations governing the format used for conducting the required 
environmental reviews for HUD program and policy actions. The purpose 
of the rule is to eliminate the need for entities to develop individual 
formats and to mitigate the redundancies, inaccuracies, and confusion 
that arise when many forms are used for the same purpose. The use of 
multiple formats under part 58 was ineffective, insufficient, and for 
some entities, excessively burdensome. As a result of HUD's previous 
experience, HUD believes that standardized formats are necessary to 
ensure compliance with all applicable environmental laws and 
authorities. HUD intends for the new requirements to ease the 
environmental compliance burden on all HUD recipients, streamlining the 
compliance process by applying a uniform and consistent approach.
    Consistent with the goals of Executive Order 13563, the final 
amendments simplify and standardize the format requirements. Changes to 
the format will now be made through the PRA notice-and-comment process, 
the more appropriate forum for such changes. In addition, the final 
rule makes a technical amendment to include in HUD's regulations the 
procedures a responsible entity must complete when preparing an 
environmental assessment already required under the Council on 
Environmental Quality (CEQ) regulations. As a result, this rule was 
determined to not be a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and therefore 
was not reviewed by OMB.

Paperwork Reduction Act

    The information collection requirements for part 50 and part 58 
contained in this final rule have been approved by OMB under the 
Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520) and 
assigned OMB control number 2506-0202. In accordance with the PRA, an 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information, unless the collection displays 
a currently valid OMB control number.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 605(b)) generally requires 
an agency to conduct regulatory flexibility analysis of any rule 
subject to notice-and-comment rulemaking requirements, unless the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities.
    The final rule would not have a significant economic impact on a 
substantial number of small entities. The final rule does not add any 
new substantive regulatory obligations on participants in HUD programs. 
The current regulations already require that entities maintain ERRs in 
accordance with HUD-recommended formats or equivalent formats, and HUD 
is merely standardizing the recording format. HUD intends for the new 
requirements to ease the environmental compliance burden on all HUD 
recipients by eliminating the need for agencies to develop individual 
formats. Nevertheless, the proposed rule allows for flexibility as 
appropriate as the DECO may prescribe alternative formats to meet 
specific program needs where the forms established by HUD cannot 
achieve the aforementioned goals.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
imposes substantial direct compliance costs on state and local 
governments and is not required by statute or if the rule preempts 
state law, unless the agency meets the consultation and funding 
requirements of section 6 of the Executive Order. This rule will not 
have federalism implications and would not impose substantial direct 
compliance costs on state and local governments or preempt state law 
within the meaning of the Executive Order.

Environmental Review

    This final rule does not direct, provide for assistance or loan and 
mortgage insurance for, or otherwise govern or regulate real property 
acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, manufactured 
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this 
final rule is categorically excluded from environmental review under 
the NEPA.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) establishes requirements for Federal agencies to 
assess the effects of their regulatory actions on state, local, and 
tribal governments, and the private sector. This final rule does not 
impose any Federal mandates on any state, local, or tribal government, 
or the private sector within the meaning of UMRA.

List of Subjects

24 CFR Part 50

    Environmental quality, Environmental protection, Environmental 
review policy and procedures, Environmental assessment, Environmental 
impact statement, Compliance record.

24 CFR Part 58

    Environmental protection, Community Development Block Grants, 
Environmental impact statements, Grant programs--housing and community 
development, Reporting and recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, HUD amends 24 
CFR parts 50 and 58, to read as follows:

PART 50--PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY

0
1. The authority citation for part 50 is revised to read as follows:


    Authority: 42 U.S.C. 3535(d) and 4321-4335; and Executive Order 
11991, 3 CFR, 1977 Comp., p. 123.


0
2. In Sec.  50.18, designate the undesignated paragraph as paragraph 
(b) and add new paragraph (a) to read as follow:


Sec.  50.18  General.

    (a) The Departmental Environmental Clearance Officer (DECO) shall 
establish a prescribed format to be used to document compliance with 
NEPA and the Federal laws and authorities cited in

[[Page 49229]]

Sec.  50.4. The DECO may prescribe alternative formats as necessary to 
meet specific program needs.
* * * * *
0
3. In Sec.  50.20, revise the introductory text of paragraph (a) to 
read as follows:


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 for further review in 
an Environmental Assessment or an Environmental Impact Statement as set 
forth in this part. They are not excluded from individual compliance 
requirements of other environmental statutes, Executive orders, and HUD 
standards cited in Sec.  50.4, where appropriate. Where the responsible 
official determines that any proposed action identified below may have 
an environmental effect because of extraordinary circumstances (40 CFR 
1508.4), the requirements for further review under NEPA shall apply 
(see paragraph (b) of this section).
* * * * *
0
4. Revise Sec.  50.31(a) to read as follows:


Sec.  50.31  The EA.

    (a) The Departmental Environmental Clearance Officer (DECO) shall 
establish a prescribed format used for the environmental analysis and 
documentation of projects and activities under subpart E. The DECO may 
prescribe alternative formats as necessary to meet specific program 
needs.
* * * * *

PART 58--ENVIRONMENTAL REVIEW PROCEDURES FOR ENTITIES ASSUMING HUD 
ENVIRONMENTAL RESPONSIBILITIES

0
5. 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 and 
4226; 42 U.S.C. 1437x, 3535(d), 3547, 4321-4335, 4852, 5304(g), 
12838, and 12905(h); title II of Pub. L. 105-276; E.O. 11514 as 
amended by E.O. 11991, 3 CFR, 1977 Comp., p. 123.

0
6. In Sec.  58.38, revise the introductory text to read as follows:


Sec.  58.38  Environmental review record.

    The responsible entity must maintain a written record of the 
environmental review undertaken under this part for each project. This 
document will be designated the ``Environmental Review Record'' (ERR) 
and shall be available for public review. The Departmental 
Environmental Clearance Officer (DECO) shall establish a prescribed 
format that the responsible entity shall use to prepare the ERR. The 
DECO may prescribe alternative formats as necessary to meet specific 
program needs.
* * * * *
0
7. In Sec.  58.40, revise the introductory text and paragraph (e) to 
read as follows:


Sec.  58.40  Preparing the environmental assessment.

    The DECO shall establish a prescribed format that the responsible 
entity shall use to prepare the EA. The DECO may prescribe alternative 
formats as necessary to meet specific program needs. In preparing an EA 
for a particular proposed project or other action, the responsible 
entity must:
* * * * *
    (e) Discuss the need for the proposal, appropriate alternatives 
where the proposal involves unresolved conflicts concerning alternative 
uses of available resources, the environmental impacts of the proposed 
action and alternatives, and a listing of agencies and persons 
consulted.
* * * * *

    Dated: August 5, 2014.
Clifford Taffet,
 Assistant Secretary for Community Planning and Development (Acting).
[FR Doc. 2014-19652 Filed 8-19-14; 8:45 am]
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