Title 41—Public Contracts and Property Management--Volume 1
PART 102-2—FEDERAL MANAGEMENT REGULATION SYSTEM
§ 102-75.565   Is the requirement for self-help housing or housing assistance use of the property by an eligible public agency or non-profit organization contingent upon the disposal agency's approval of an assignment recommendation from the Department of Housing and Urban Development (HUD)?
Yes, the requirement for self-help housing or housing assistance use of the property by an eligible public agency or nonprofit organization is contingent upon the disposal agency's approval under § 102-75.585 of HUD's assignment recommendation/request. Any subsequent transfer is subject to the approval of the head of the disposal agency as stipulated under 40 U.S.C. 550(f) and referenced in § 102-75.605.
§ 102-75.570   What happens if the disposal agency does not approve the assignment recommendation?
If the recommendation is not approved, the disposal agency must also notify the Secretary of HUD and then may proceed with other disposal action.
§ 102-75.575   Who notifies non-profit organizations that surplus real property and related personal property to be used for self-help housing or housing assistance purposes is available?
HUD notifies eligible non-profit organizations, following guidance in the GSA Customer Guide to Real Property Disposal. Such notices must require eligible nonprofit organizations to—
(a) Coordinate any requirement for self-help housing or housing assistance use of the property with the appropriate public agency; and
(b) Declare to the disposal agency an intent to develop and submit a comprehensive and coordinated plan of use and procurement for the property.
§ 102-75.580   When must HUD notify the disposal agency that an eligible applicant is interested in acquiring the property?
HUD must notify the disposal agency within 30 calendar days after the date of the surplus notice. Then, after the 30-day period expires, HUD has 30 calendar days to review and approve an application and request assignment or inform the disposal agency that no assignment request is forthcoming.
§ 102-75.585   What action must the disposal agency take after an eligible public agency has submitted a plan of use for property for a self-help housing or housing assistance requirement?
When an eligible public agency submits a plan of use for property for a self-help housing or housing assistance requirement, the disposal agency must transmit two copies of the plan to the appropriate HUD regional office. HUD must submit to the disposal agency, within 30 calendar days after the date the plan is transmitted, a recommendation for assignment of the property to the Secretary of HUD, or must inform the disposal agency, within the 30-calendar day period, that a recommendation will not be made for assignment of the property to HUD. If, after considering other uses for the property, the disposal agency approves the assignment recommendation from HUD, it must assign the property by letter or other document to the Secretary of HUD. The disposal agency must furnish to the landholding agency a copy of the assignment, unless the landholding agency is also the disposal agency. If the disposal agency disapproves the recommendation, the disposal agency must likewise notify the Secretary of HUD.
§ 102-75.590   What does the assignment recommendation contain?
Any assignment recommendation that HUD submits to the disposal agency must set forth complete information concerning the self-help housing or housing assistance use, including—
(a) Identification of the property;
(b) Name of the applicant and the size and nature of its program;
(c) Specific use planned;
(d) Intended public benefit allowance;
(e) Estimate of the value upon which such proposed allowance is based; and
(f) An explanation, if the acreage or value of the property exceeds the standards established by the Secretary.
§ 102-75.595   What responsibilities do landholding agencies have concerning properties to be used for self-help housing or housing assistance use?
Landholding agencies must cooperate to the fullest extent possible with HUD representatives in their inspection of such property and in furnishing information relating to such property.
§ 102-75.600   What happens if HUD does not approve any applications for self-help housing or housing assistance use?
In the absence of an approved application from HUD for self-help housing or housing assistance use, which must be received within the 30-calendar day time limit specified therein, the disposal agency must proceed with other disposal action.
§ 102-75.605   What responsibilities does HUD have after receiving the disposal agency's assignment letter?
After receiving the disposal agency's assignment letter, HUD must furnish the disposal agency with a Notice of Proposed Transfer within 30 calendar days. If the disposal agency approves the proposed transfer within 30 calendar days of receiving the Notice of Proposed Transfer, HUD may prepare the transfer documents and proceed with the transfer. HUD must take all necessary actions to accomplish the transfer within 15 calendar days beginning when the disposal agency approves the transfer. HUD must furnish the disposal agency two conformed copies of deeds, leases or other instruments conveying the property under 40 U.S.C. 550(f) and all related documents containing restrictions or conditions regulating the future use, maintenance or transfer of the property.
§ 102-75.610   Who is responsible for enforcing compliance with the terms and conditions of the transfer of the property for self-help housing or housing assistance use?
HUD is responsible for enforcing compliance with the terms and conditions of transfer. HUD is also responsible for reforming, correcting, or amending any transfer instrument; granting releases; and for taking any necessary actions for recapturing the property using the provisions of 40 U.S.C. 550(b). These actions are subject to the approval of the head of the disposal agency. HUD must notify the head of the disposal agency of its intent to take action to recapture the property. The notice must identify the property affected, describe in detail the proposed action, and state the reasons for the proposed action.
§ 102-75.615   Who is responsible for enforcing compliance with the terms and conditions of property transferred under section 414(a) of the 1969 HUD Act?
HUD maintains responsibility for properties previously conveyed under section 414(a) of the 1969 HUD Act. Property transferred to an entity other than a public body and used for any purpose other than that for which it was sold or leased within a 30-year period must revert to the United States. If the property was leased, then the lease terminates. The appropriate Secretary (HUD or Department of Agriculture) and the Administrator of GSA can approve the new use of the property after the first 20 years of the original 30-year period has expired.
§ 102-75.620   What happens if property that was transferred to meet a self-help housing or housing assistance use requirement is found to be in noncompliance with the terms of sale?
In each case of repossession under a terminated lease or reversion of title for noncompliance with the terms or conditions of sale or other cause, HUD (or USDA for property conveyed through the former Farmers Home Administration program under section 414(a) of the 1969 HUD Act) must, prior to repossession or reversion of title, provide the appropriate GSA regional office with an accurate description of the real and related personal property involved using the Report of Excess Real Property (Standard Form 118), and the appropriate schedules. After receiving a statement from HUD (or USDA) that title to the property is proposed for revesting, GSA will review the statement and determine if title should be revested. If GSA, in conjunction with HUD (or USDA), determines that the property should be revested, HUD (or USDA) must submit a Standard Form 118 to GSA. GSA will review and act upon the Standard Form 118, if acceptable. However, the grantee must provide protection and maintenance for the property until the title reverts to the Federal Government, including the period of any notice of intent to revert. Such protection and maintenance must, at a minimum, conform to the standards prescribed in the GSA Customer Guide to Real Property Disposal.
§ 102-75.625   Which Federal agency is assigned surplus real property for public park or recreation purposes?
The head of the disposal agency or his or her designee is authorized to assign to the Secretary of the Interior for disposal under 40 U.S.C. 550(e), surplus real property, including buildings, fixtures, and equipment as recommended by the Secretary as being needed for use as a public park or recreation area for conveyance to a State, political subdivision, instrumentalities, or municipality.
§ 102-75.630   Who must disposal agencies notify that real property for public park or recreation purposes is available?
The disposal agency must notify established State, regional, or metropolitan clearinghouses and eligible public agencies that surplus property is available for use as a public park or recreation area. The disposal agency must transmit the landholding agency's Report of Excess Real Property (Standard Form 118, with accompanying schedules) with the copy of each notice sent to a regional or field office of the National Park Service (NPS) of the Department of the Interior (DOI).
§ 102-75.635   What information must the Department of the Interior (DOI) furnish eligible public agencies?
Upon request, DOI must furnish eligible public agencies with an application form to acquire property for permanent use as a public park or recreation area and preparation instructions for the application.
§ 102-75.640   When must DOI notify the disposal agency that an eligible applicant is interested in acquiring the property?
DOI must notify the disposal agency if it has an eligible applicant interested in acquiring the property within 30 calendar days from the date of the surplus notice.
§ 102-75.645   What responsibilities do landholding agencies have concerning properties to be used for public park or recreation purposes?
Landholding agencies must cooperate to the fullest extent possible with DOI representatives in their inspection of the property and in furnishing information relating to the property.
§ 102-75.650   When must DOI request assignment of the property?
Within 30 calendar days after the expiration of the 30-calendar day period specified in § 102-75.640, DOI must submit to the disposal agency an assignment recommendation along with a copy of the application or inform the disposal agency that a recommendation will not be made for assignment of the property.
§ 102-75.655   What does the assignment recommendation contain?
Any recommendation submitted by DOI must provide complete information concerning the plans for use of the property as a public park or recreation area, including—
(a) Identification of the property;
(b) The name of the applicant;
(c) The specific use planned; and
(d) The intended public benefit allowance.
§ 102-75.660   What happens if DOI does not approve any applications or does not submit an assignment recommendation?
If DOI does not approve any applications or does not submit an assignment recommendation to convey the property for public park or recreation purposes, the disposal agency must proceed with other disposal action.
§ 102-75.665   What happens after the disposal agency receives the assignment recommendation from DOI?
If, after considering other uses for the property, the disposal agency approves the assignment recommendation from DOI, it must assign the property by letter or other document to the Secretary of the Interior. The disposal agency must furnish to the landholding agency a copy of the assignment, unless the landholding agency is also the disposal agency. If the recommendation is disapproved, the disposal agency must likewise notify the Secretary.
§ 102-75.670   What responsibilities does DOI have after receiving the disposal agency's assignment letter?
After receiving the disposal agency's assignment letter, the Secretary of the Interior must provide the disposal agency with a Notice of Proposed Transfer within 30 calendar days. If the disposal agency approves the proposed transfer within 30 calendar days, the Secretary may proceed with the transfer. DOI must take all necessary actions to accomplish the transfer within 15 calendar days after the expiration of the 30-calendar day period provided for the disposal agency to consider the notice. DOI may place the applicant in possession of the property as soon as practicable to minimize the Government's expense of protection and maintenance of the property. As of the date the applicant takes possession of the property, or the date it is conveyed, whichever occurs first, the applicant must assume responsibility for care and handling and all risks of loss or damage to the property, and has all obligations and liabilities of ownership. DOI must furnish the disposal agency two conformed copies of deeds, leases, or other instruments conveying property under 40 U.S.C. 550(e) and related documents containing reservations, restrictions, or conditions regulating the future use, maintenance or transfer of the property.
§ 102-75.675   What responsibilities does the grantee or recipient of the property have in accomplishing or completing the transfer?
Where appropriate, the disposal agency may make the assignment subject to DOI requiring the grantee or recipient to bear the cost of any out-of-pocket expenses necessary to accomplish the transfer, such as for surveys, fencing, security of the remaining property, or otherwise.
§ 102-75.680   What information must be included in the deed of conveyance of any surplus property transferred for public park or recreation purposes?
The deed of conveyance of any surplus real property transferred for public park and recreation purposes under 40 U.S.C. 550(e) must require that the property be used and maintained for the purpose for which it was conveyed in perpetuity. In the event that the property ceases to be used or maintained for that purpose, all or any portion of such property will in its existing condition, at the option of the United States, revert to the United States. The deed of conveyance may contain additional terms, reservations, restrictions, and conditions determined by the Secretary of the Interior to be necessary to safeguard the interests of the United States.
§ 102-75.685   Who is responsible for enforcing compliance with the terms and conditions of the transfer of property used for public park or recreation purposes?
The Secretary of the Interior is responsible for enforcing compliance with the terms and conditions of transfer. The Secretary of the Interior is also responsible for reforming, correcting, or amending any transfer instrument; granting releases; and for recapturing any property following the provisions of 40 U.S.C. 550(b). These actions are subject to the approval of the head of the disposal agency. DOI must notify the head of the disposal agency of its intent to take or recapture the property. The notice must identify the property affected and describe in detail the proposed action, including the reasons for the proposed action.
§ 102-75.690   What happens if property that was transferred for use as a public park or recreation area is revested in the United States by reason of noncompliance with the terms or conditions of disposal, or for other cause?
DOI must notify the appropriate GSA regional office immediately by letter when title to property transferred for use as a public park or recreation area is to be revested in the United States for noncompliance with the terms or conditions of disposal or for other cause. The notification must cite the legal and administrative actions that DOI must take to obtain full title and possession of the property. In addition, it must include an adequate description of the property, using the Report of Excess Real Property (Standard Form 118) and the appropriate schedules. After receiving notice from DOI that title to the property is proposed for revesting, GSA will review the statement and determine if title should be revested. If GSA, in consultation with DOI, determines that the property should be revested, DOI must submit a Standard Form 118 to GSA. GSA will review and act upon the Standard Form 118, if acceptable. However, the grantee must provide protection and maintenance for the property until the title reverts to the Federal Government, including the period of any notice of intent to revert. Such protection and maintenance must, at a minimum, conform to the standards prescribed in the GSA Customer Guide to Real Property Disposal.
§ 102-75.695   Who can receive surplus real property for the purpose of providing replacement housing for persons who are to be displaced by Federal or Federally assisted projects?
Section 218 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. 4638 (the Relocation Act), authorizes the disposal agency to transfer surplus real property to a State agency to provide replacement housing under title II of the Relocation Act for persons who are or will be displaced by Federal or Federally assisted projects.
§ 102-75.700   Which Federal agencies may solicit applications from eligible State agencies interested in acquiring the property to provide replacement housing for persons being displaced by Federal or Federally assisted projects?
After receiving the surplus notice, any Federal agency needing property for replacement housing for displaced persons may solicit applications from eligible State agencies.
§ 102-75.705   When must the Federal agency notify the disposal agency that an eligible State agency is interested in acquiring the property under section 218?
Federal agencies must notify the disposal agency within 30 calendar days after the date of the surplus notice, if an eligible State agency is interested in acquiring the property under section 218 of the Relocation Act.
§ 102-75.710   What responsibilities do landholding and disposal agencies have concerning properties used for providing replacement housing for persons who will be displaced by Federal or Federally assisted projects?
Both landholding and disposal agencies must cooperate, to the fullest extent possible, with Federal and State agency representatives in their inspection of the property and in furnishing information relating to the property.
§ 102-75.715   When can a Federal agency request transfer of the property to the selected State agency?
Federal agencies must advise the disposal agency and request transfer of the property to the selected State agency within 30 calendar days after the expiration of the 30-calendar day period specified in § 102-75.705.
§ 102-75.720   Is there a specific or preferred format for the transfer request and who should receive it?
Any request submitted by a Federal agency must be in the form of a letter addressed to the appropriate GSA Public Buildings Service (PBS) regional property disposal office.
§ 102-75.725   What does the transfer request contain?
Any transfer request must include—
(a) Identification of the property by name, location, and control number;
(b) The name and address of the specific State agency and a copy of the State agency's application or proposal;
(c) A certification by the appropriate Federal agency official that the property is required to house displaced persons authorized by section 218; that all other options authorized under title II of the Relocation Act have been explored and replacement housing cannot be found or made available through those channels; and that the Federal or Federally assisted project cannot be accomplished unless the property is made available for replacement housing;
(d) Any special terms and conditions that the Federal agency deems necessary to include in conveyance instruments to ensure that the property is used for the intended purpose;
(e) The name and proposed location of the Federal or Federally assisted project that is creating the requirement;
(f) Purpose of the project;
(g) Citation of enabling legislation or authorization for the project, when appropriate;
(h) A detailed outline of steps taken to obtain replacement housing for displaced persons as authorized under title II of the Relocation Act; and
(i) Details of the arrangements that have been made to construct replacement housing on the surplus property and to ensure that displaced persons will be provided housing in the development.
§ 102-75.730   What happens if a Federal agency does not submit a transfer request to the disposal agency for property to be used for replacement housing for persons who will be displaced by Federal or Federally assisted projects?
If the disposal agency does not receive a request for assignment or transfer of the property under § 102-75.715, then the disposal agency must proceed with other appropriate disposal actions.
§ 102-75.735   What happens after the disposal agency receives the transfer request from the Federal agency?
If, after considering other uses for the property, the disposal agency determines that the property should be made available for replacement housing under section 218, it must transfer the property to the designated State agency on such terms and conditions as will protect the United States' interests, including the payment or the agreement to pay to the United States all amounts received by the State agency from any sale, lease, or other disposition of the property for such housing. The sale, lease, or other disposition of the property by the State agency must be at the fair market value as approved by the disposal agency, unless a compelling justification is offered for disposal of the property at less than fair market value. Disposal of the property at less than fair market value must also be approved by the disposal agency.
§ 102-75.740   Does the State agency have any responsibilities in helping to accomplish the transfer of the property?
Yes, the State agency is required to bear the costs of any out-of-pocket expenses necessary to accomplish the transfer, such as costs of surveys, fencing, or security of the remaining property.
§ 102-75.745   What happens if the property transfer request is not approved by the disposal agency?
If the request is not approved, the disposal agency must notify the Federal agency requesting the transfer. The disposal agency must furnish a copy of the notice of disapproval to the landholding agency.
§ 102-75.750   Who is eligible to receive surplus real and related personal property for correctional facility, law enforcement, or emergency management response purposes?
Under 40 U.S.C. 553, the head of the disposal agency or designee may, in his or her discretion, convey, without monetary consideration, to any State, or to those governmental bodies named in the section; or to any political subdivision or instrumentality, surplus real and related personal property for—
(a) Correctional facility purposes, if the Attorney General has determined that the property is required for such purposes and has approved an appropriate program or project for the care or rehabilitation of criminal offenders;
(b) Law enforcement purposes, if the Attorney General has determined that the property is required for such purposes; or
(c) Emergency management response purposes, including fire and rescue services, if the Director of the Federal Emergency Management Agency (FEMA) has determined that the property is required for such purposes.
§ 102-75.755   Which Federal agencies must the disposal agency notify concerning the availability of surplus properties for correctional facility, law enforcement, or emergency management response purposes?
The disposal agency must provide prompt notification to the Office of Justice Programs (OJP), Department of Justice (DOJ), and FEMA that surplus property is available. The disposal agency's notice or notification must include a copy of the landholding agency's Report of Excess Real Property (Standard Form 118), with accompanying schedules.
§ 102-75.760   Who must the Office of Justice Programs (OJP) and the Federal Emergency Management Agency (FEMA) notify that surplus real property is available for correctional facility, law enforcement, or emergency management response purposes?
OJP or FEMA must send notices of availability to the appropriate State and local public agencies. The notices must state that OJP or FEMA, as appropriate, must coordinate and approve any planning involved in developing a comprehensive and coordinated plan of use and procurement for the property for correctional facility, law enforcement, or emergency management response use. The notice must also state that public agencies may obtain application forms and preparation instructions from OJP or FEMA.
§ 102-75.765   What does the term “law enforcement” mean?
The OJP defines “law enforcement” as “any activity involving the control or reduction of crime and juvenile delinquency, or enforcement of the criminal law, including investigative activities such as laboratory functions as well as training.”
§ 102-75.770   Is the disposal agency required to approve a determination by the Department of Justice (DOJ) that identifies surplus property for correctional facility use or for law enforcement use?
Yes, the disposal agency must approve a determination, under § 102-75.795, by DOJ that identifies surplus property required for correctional facility use or for law enforcement use before an eligible public agency can obtain such property for correctional facility or law enforcement use.
§ 102-75.775   Is the disposal agency required to approve a determination by FEMA that identifies surplus property for emergency management response use?
Yes, the disposal agency must approve a determination, under § 102-75.795, by FEMA that identifies surplus property required for emergency management response use before an eligible public agency can obtain such property for emergency management response use.
§ 102-75.780   When must DOJ or FEMA notify the disposal agency that an eligible applicant is interested in acquiring the property?
OJP or FEMA must notify the disposal agency within 30 calendar days after the date of the surplus notice, if there is an eligible applicant interested in acquiring the property. After that 30-calendar day period expires, OJP or FEMA then has another 30 days to review and approve an appropriate program and notify the disposal agency of the need for the property. If no application is approved, then OJP or FEMA must notify the disposal agency that there is no requirement for the property within the 30-calendar day period allotted for review and approval.
§ 102-75.785   What specifically must DOJ or FEMA address in the assignment request or recommendation that is submitted to the disposal agency?
Any determination that DOJ or FEMA submits to the disposal agency must provide complete information concerning the correctional facility, law enforcement, or emergency management response use, including—
(a) Identification of the property;
(b) Certification that the property is required for correctional facility, law enforcement, or emergency management response use;
(c) A copy of the approved application that defines the proposed plan of use; and
(d) The environmental impact of the proposed correctional facility, law enforcement, or emergency management response use.
§ 102-75.790   What responsibilities do landholding agencies and disposal agencies have concerning properties to be used for correctional facility, law enforcement, or emergency management response purposes?
Both landholding and disposal agencies must cooperate to the fullest extent possible with Federal and State agency representatives in their inspection of such property and in furnishing information relating to the property.
§ 102-75.795   What happens after the disposal agency receives the assignment request by DOJ or FEMA?
If, after considering other uses for the property, the disposal agency approves the assignment request by DOJ or FEMA, the disposal agency must convey the property to the appropriate grantee. The disposal agency must proceed with other disposal action if it does not approve the assignment request, if DOJ or FEMA does not submit an assignment request, or if the disposal agency does not receive the determination within the 30 calendar days specified in § 102-75.780. The disposal agency must notify OJP or FEMA 15 days prior to any announcement of a determination to either approve or disapprove an application for correctional, law enforcement, or emergency management response purposes and must furnish to OJP or FEMA a copy of the conveyance documents.
§ 102-75.800   What information must be included in the deed of conveyance?
The deed of conveyance of any surplus real property transferred under the provisions of 40 U.S.C. 553 must provide that all property be used and maintained for the purpose for which it was conveyed in perpetuity. If the property ceases to be used or maintained for that purpose, all or any portion of the property must, at the option of the United States, revert to the United States in its existing condition. The deed of conveyance may contain additional terms, reservations, restrictions, and conditions the Administrator of General Services determines to be necessary to safeguard the United States' interests.
§ 102-75.805   Who is responsible for enforcing compliance with the terms and conditions of the transfer of the property used for correctional facility, law enforcement, or emergency management response purposes?
The Administrator of General Services is responsible for enforcing compliance with the terms and conditions of disposals of property to be used for correctional facility, law enforcement, or emergency management response purposes. GSA is also responsible for reforming, correcting, or amending any disposal instrument; granting releases; and any action necessary for recapturing the property following the provisions of 40 U.S.C. 553(e).
§ 102-75.810   What responsibilities do OJP or FEMA have if they discover any information indicating a change in use of a transferred property?
Upon discovery of any information indicating a change in use, OJP or FEMA must—
(a) Notify GSA; and
(b) Upon request, make a redetermination of continued appropriateness of the use of a transferred property.
§ 102-75.815   What happens if property conveyed for correctional facility, law enforcement, or emergency management response purposes is found to be in noncompliance with the terms of the conveyance documents?
OJP or FEMA must, prior to the repossession, provide the appropriate GSA regional property disposal office with an accurate description of the real and related personal property involved. OJP or FEMA must use the Report of Excess Real Property (Standard Form 118), and the appropriate schedules for this purpose. After receiving a statement from OJP or FEMA that the title to the property is proposed for revesting, GSA will review the statement and determine if title should be revested. If GSA, in consultation with OJP or FEMA, determines that the property should be revested, OJP or FEMA must submit a Standard Form 118 to GSA. GSA will review and act upon the Standard Form 118, if acceptable. However, the grantee must provide protection and maintenance for the property until the title reverts to the Federal Government, including the period following any notice of intent to revert. Such protection and maintenance must, at a minimum, conform to the standards prescribed in the GSA Customer Guide to Real Property Disposal.
§ 102-75.820   Which Federal agency is eligible to receive surplus real and related personal property for the development or operation of a port facility?
Under 40 U.S.C. 554, the Administrator of General Services, the Secretary of the Department of Defense (in the case of property located at a military installation closed or realigned pursuant to a base closure law), or their designee, may assign to the Secretary of the Department of Transportation (DOT) for conveyance, without monetary consideration, to any State, or to governmental bodies, any political subdivision, municipality, or instrumentality, surplus real and related personal property, including buildings, fixtures, and equipment situated on the property, that DOT recommends as being needed for the development or operation of a port facility.
§ 102-75.825   Who must the disposal agency notify when surplus real and related personal property is available for port facility use?
The disposal agency must notify established State, regional or metropolitan clearinghouses and eligible public agencies that surplus real property is available for the development or operation of a port facility. The disposal agency must transmit a copy of the notice to DOT and a copy of the landholding agency's Report of Excess Real Property (Standard Form 118 and supporting schedules).
§ 102-75.830   What does the surplus notice contain?
Surplus notices to eligible public agencies must state—
(a) That public agencies must coordinate any planning involved in the development of the comprehensive and coordinated plan of use and procurement of property, with DOT, the Secretary of Labor, and the Secretary of Commerce;
(b) That any party interested in acquiring the property for use as a port facility must contact the Department of Transportation, Maritime Administration, for the application and instructions;
(c) That the disposal agency must approve a recommendation from DOT before it can assign the property to DOT (see § 102-75.905); and
(d) That any subsequent conveyance is subject to the approval of the head of the disposal agency as stipulated under 40 U.S.C. 554 and referenced in § 102-75.865.
§ 102-75.835   When must DOT notify the disposal agency that an eligible applicant is interested in acquiring the property?
DOT must notify the disposal agency within 30 calendar days after the date of the surplus notice if there is an eligible applicant interested in acquiring the property. After that 30-calendar day period expires, DOT then has another 30 calendar days to review and approve applications and notify the disposal agency of the need for the property. If no application is approved, then DOT must notify the disposal agency that there is no requirement for the property within the same 30-calendar day period allotted for review and approval.
§ 102-75.840   What action must the disposal agency take after an eligible public agency has submitted a plan of use for and an application to acquire a port facility property?
Whenever an eligible public agency has submitted a plan of use for a port facility requirement, the disposal agency must transmit two copies of the plan to DOT. DOT must either submit to the disposal agency, within 30 calendar days after the date the plan is transmitted, a recommendation for assignment of the property to DOT, or inform the disposal agency, within the 30-calendar day period, that a recommendation will not be made for assignment of the property to DOT.
§ 102-75.845   What must DOT address in the assignment recommendation submitted to the disposal agency?
Any assignment recommendation that DOT submits to the disposal agency must provide complete information concerning the contemplated port facility use, including—
(a) An identification of the property;
(b) An identification of the applicant;
(c) A copy of the approved application, which defines the proposed plan of use of the property;
(d) A statement that DOT's determination (that the property is located in an area of serious economic disruption) was made in consultation with the Secretary of Labor;
(e) A statement that DOT approved the economic development plan, associated with the plan of use of the property, in consultation with the Secretary of Commerce; and
(f) A copy of the explanatory statement, required under 40 U.S.C. 554(c)(2)(C).
§ 102-75.850   What responsibilities do landholding agencies have concerning properties to be used in the development or operation of a port facility?
Landholding agencies must cooperate to the fullest extent possible with DOT representatives and the Secretary of Commerce in their inspection of such property, and with the Secretary of Labor in affirming that the property is in an area of serious economic disruption, and in furnishing any information relating to such property.
§ 102-75.855   What happens if DOT does not submit an assignment recommendation?
If DOT does not submit an assignment recommendation or if it is not received within 30 calendar days, the disposal agency must proceed with other disposal action.
§ 102-75.860   What happens after the disposal agency receives the assignment recommendation from DOT?
If, after considering other uses for the property, the disposal agency approves the assignment recommendation from DOT, the disposal agency must assign the property by letter or other document to DOT. If the disposal agency disapproves the recommendation, the disposal agency must likewise notify DOT. The disposal agency must furnish to the landholding agency a copy of the assignment, unless the landholding agency is also the disposal agency.
§ 102-75.865   What responsibilities does DOT have after receiving the disposal agency's assignment letter?
After receiving the assignment letter from the disposal agency, DOT must provide the disposal agency with a Notice of Proposed Transfer within 30 calendar days after the date of the assignment letter. If the disposal agency approves the proposed transfer within 30 calendar days of the receipt of the Notice of Proposed Transfer, DOT may prepare the conveyance documents and proceed with the conveyance. DOT must take all necessary actions to accomplish the conveyance within 15 calendar days after the expiration of the 30-calendar day period provided for the disposal agency to consider the notice. DOT must furnish the disposal agency two conformed copies of the instruments conveying property and all related documents containing restrictions or conditions regulating the future use, maintenance, or transfer of the property.
§ 102-75.870   Who is responsible for enforcing compliance with the terms and conditions of the port facility conveyance?
DOT is responsible for enforcing compliance with the terms and conditions of conveyance, including reforming, correcting, or amending any instrument of conveyance; granting releases; and taking any necessary actions to recapture the property following the provisions of 40 U.S.C. 554(f). Any of these actions are subject to the approval of the head of the disposal agency. DOT must notify the head of the disposal agency of its intent to take any proposed action, identify the property affected, and describe in detail the proposed action, including the reasons for the proposed action.
§ 102-75.875   What happens in the case of repossession by the United States under a reversion of title for noncompliance with the terms or conditions of conveyance?
In each case of a repossession by the United States, DOT must, at or prior to reversion of title, provide the appropriate GSA regional property disposal office, with a Report of Excess Real Property (Standard Form 118) and accompanying schedules. After receiving a statement from DOT that title to the property is proposed for revesting, GSA will review the statement and determine if title should be revested. If GSA, in consultation with DOT, determines that the property should be revested, DOT must submit a Standard Form 118 to GSA. GSA will review and act upon the Standard Form 118, if acceptable. However, the grantee must provide protection and maintenance for the property until the title reverts to the Federal Government, including the period following the notice of intent to revert. Such protection and maintenance must, at a minimum, conform to the standards prescribed in the GSA Customer Guide to Real Property Disposal.
§ 102-75.880   When may Executive agencies conduct negotiated sales?
Executive agencies may conduct negotiated sales only when—
(a) The estimated fair market value of the property does not exceed $15,000;
(b) Bid prices after advertising are unreasonable (for all or part of the property) or were not independently arrived at in open competition;
(c) The character or condition of the property or unusual circumstances make it impractical to advertise for competitive bids and the fair market value of the property and other satisfactory terms of disposal are obtainable by negotiation;
(d) The disposals will be to States, the Commonwealth of Puerto Rico, possessions, political subdivisions, or tax-supported agencies therein, and the estimated fair market value of the property and other satisfactory terms of disposal are obtainable by negotiation. Negotiated sales to public bodies can only be conducted if a public benefit, which would not be realized from a competitive sale, will result from the negotiated sale; or
(e) Negotiation is otherwise authorized by Chapter 5 of Subtitle I of Title 40 of the United States Code or other law, such as disposals of power transmission lines for public or cooperative power projects.
§ 102-75.885   What are the disposal agency's responsibilities concerning negotiated sales?
The disposal agency must—
(a) Obtain such competition as is feasible in all negotiations of disposals and contracts for disposal of surplus property; and
(b) Prepare and transmit an explanatory statement if the fair market value of the property exceeds $100,000, identifying the circumstances of each disposal by negotiation for any real property specified in 40 U.S.C. 545(e), to the appropriate committees of the Congress in advance of such disposal.
§ 102-75.890   What clause must be in the offer to purchase and conveyance documents for negotiated sales to public agencies?
Disposal agencies must include in the offer to purchase and conveyance documents an excess profits clause, which usually runs for 3 years, to eliminate the potential for windfall profits to public agencies. This clause states that, if the purchaser should sell or enter into agreements to sell the property within 3 years from the date of title transfer by the Federal Government, all proceeds in excess of the purchaser's costs will be remitted to the Federal Government.
§ 102-75.895   What wording must generally be in the excess profits clause that is required in the offer to purchase and in the conveyance document?
The wording of the excess profits clause should generally be as follows:
Excess Profits Covenant for Negotiated Sales to Public Bodies
(a) This covenant shall run with the land for a period of 3 years from the date of conveyance. With respect to the property described in this deed, if at any time within a 3-year period from the date of transfer of title by the Grantor, the Grantee, or its successors or assigns, shall sell or enter into agreements to sell the property, either in a single transaction or in a series of transactions, it is covenanted and agreed that all proceeds received or to be received in excess of the Grantee's or a subsequent seller's actual allowable costs will be remitted to the Grantor. In the event of a sale of less than the entire property, actual allowable costs will be apportioned to the property based on a fair and reasonable determination by the Grantor.
(b) For purposes of this covenant, the Grantee's or a subsequent seller's allowable costs shall include the following:
(1) The purchase price of the real property.
(2) The direct costs actually incurred and paid for improvements that serve only the property, including road construction, storm and sanitary sewer construction, other public facilities or utility construction, building rehabilitation and demolition, landscaping, grading, and other site or public improvements.
(3) The direct costs actually incurred and paid for design and engineering services with respect to the improvements described in (b)(2) of this section.
(4) The finance charges actually incurred and paid in conjunction with loans obtained to meet any of the allowable costs enumerated above.
(c) None of the allowable costs described in paragraph (b) of this section will be deductible if defrayed by Federal grants or if used as matching funds to secure Federal grants.
(d) To verify compliance with the terms and conditions of this covenant, the Grantee, or its successors or assigns, shall submit an annual report for each of the subsequent 3 years to the Grantor on the anniversary date of this deed. Each report will identify the property involved in this transaction and will contain such of the following items of information as are applicable at the time of submission:
(1) A statement indicating whether or not a resale has been made.
(2) A description of each portion of the property that has been resold.
(3) The sale price of each such resold portion.
(4) The identity of each purchaser.
(5) The proposed land use.
(6) An enumeration of any allowable costs incurred and paid that would offset any realized profit.
(e) The Grantor may monitor the property and inspect records related thereto to ensure compliance with the terms and conditions of this covenant and may take any actions that it deems reasonable and prudent to recover any excess profits realized through the resale of the property.
§ 102-75.900   What is a negotiated sale for economic development purposes?
A negotiated sale for economic development purposes means that the public body purchasing the property will develop or make substantial improvements to the property with the intention of reselling or leasing the property in parcels to users to advance the community's economic benefit. This type of negotiated sale is acceptable where the expected public benefits to the community are greater than the anticipated proceeds derived from a competitive public sale.
§ 102-75.905   When must the disposal agency prepare an explanatory statement?
The disposal agency must prepare an explanatory statement of the circumstances of each of the following proposed disposals by negotiation:
(a) Any real property that has an estimated fair market value in excess of $100,000, except that any real property disposed of by lease or exchange is subject only to paragraphs (b) through (d) of this section.
(b) Any real property disposed of by lease for a term of 5 years or less, if the estimated fair annual rent is in excess of $100,000 for any of such years.
(c) Any real property disposed of by lease for a term of more than 5 years, if the total estimated rent over the term of the lease is in excess of $100,000.
(d) Any real property or real and related personal property disposed of by exchange, regardless of value, or any property disposed in which any part of the consideration is real property.
§ 102-75.910   Are there any exceptions to this policy of preparing explanatory statements?
Yes, the disposal agency is not required to prepare an explanatory statement for property authorized to be disposed of without advertising by any provision of law other than 40 U.S.C. 545.
§ 102-75.915   Do disposal agencies need to retain a copy of the explanatory statement?
Yes, disposal agencies must retain a copy of the explanatory statement in their files.
§ 102-75.920   Where is the explanatory statement sent?
Disposal agencies must submit each explanatory statement to the Administrator of General Services for review and transmittal by letter from the Administrator of General Services to the Senate Committee on Governmental Affairs and the House Committee on Government Reform and any other appropriate committees of the Senate and House of Representatives. Disposal agencies must include in the submission to the Administrator of General Services any supporting data that may be relevant and necessary for evaluating the proposed action.
§ 102-75.925   Is GSA required to furnish the disposal agency with the explanatory statement's transmittal letter sent to Congress?
Yes, GSA must furnish copies of its transmittal letters to the committees of the Congress (see § 102-75.920) to the disposal agency.
§ 102-75.930   What happens if there is no objection by an appropriate committee or subcommittee of Congress concerning the proposed negotiated sale?
If there is no objection, the disposal agency may consummate the sale on or after 35 days from the date the Administrator of General Services transmitted the explanatory statement to the committees. If there is an objection, the disposal agency must resolve objections with the appropriate Congressional committee or subcommittee before consummating the sale.
§ 102-75.935   What are disposal agencies' responsibilities concerning public sales?
Disposal agencies must make available by competitive public sale any surplus property that is not disposed of by public benefit discount conveyance or by negotiated sale. Awards must be made to the responsible bidder whose bid will be most advantageous to the Government, price and other factors considered.
§ 102-75.936   When can an agency dispose of an easement?
When the use, occupancy or control of an easement is no longer needed, agencies may release the easement to the owner of the land subject to the easement (servient estate).
§ 102-75.937   Can an easement be released or disposed of at no cost?
Yes. However, agencies must consider the Government's cost of acquiring the easement and other factors when determining if the easement will be disposed of with or without monetary or other consideration. If the easement was acquired at substantial consideration, agencies must—
(a) Determine the easement's fair market value (estimate the fair market value of the fee land without the easement and with the easement then compute the difference or compute the damage the easement caused to the fee land); and
(b) Negotiate the highest obtainable price with the owner of the servient estate to release the easement.
§ 102-75.938   May the easement and the land that benefited from the easement (dominant estate) be disposed of separately?
Yes. If the easement is no longer needed in connection with the dominant estate, it may be disposed of separately to the owner of the servient estate. However, if the dominant estate is also surplus, the easement should be disposed of with the dominant estate.
§ 102-75.939   When can agencies grant easements?
Agencies may grant easements in, on, or over Government-owned real property upon determining that the easement will not adversely impact the Government's interests.
§ 102-75.940   Can agencies grant easements at no cost?
Yes. Easements may be granted with or without monetary or other consideration, including any interest in real property.
§ 102-75.941   Does an agency retain responsibility for the easement?
Agencies may relinquish legislative jurisdiction as deemed necessary and desirable to the State where the real property containing the easement is located.
§ 102-75.942   What must agencies consider when granting easements?
Agencies must—
(a) Determine the easement's fair market value; and
(b) Determine the remaining property's reduced or enhanced value because of the easement.
§ 102-75.943   What happens if granting an easement will reduce the value of the property?
If the easement will reduce the property's value, agencies must grant the easement for the amount by which the property's fair market value is decreased unless the agency determines that the Government's best interests are served by granting the easement at either reduced or without monetary or other consideration.
§ 102-75.944   Can landholding agencies outlease surplus real property for non-Federal interim use?
Yes, landholding agencies who possess independent authority to outlease property may allow organizations to use surplus real property awaiting disposal using either a lease or permit, only when—
(a) The lease or permit does not exceed one year and is revocable with not more than a 30-day notice by the disposal agency;
(b) The use and occupancy will not interfere with, delay, or impede the disposal of the property; and
(c) The agency executing the agreement is responsible for the servicing of such property.
§ 102-75.945   What is GSA's policy concerning the physical care, handling, protection, and maintenance of excess and surplus real property and related personal property?
GSA's policy is to—
(a) Manage excess and surplus real property, including related personal property, by providing only those minimum services necessary to preserve the Government's interest and realizable value of the property considered;
(b) Place excess and surplus real property in productive use through interim utilization, provided, that such temporary use and occupancy do not interfere with, delay, or impede its transfer to a Federal agency or disposal; and
(c) Render safe or destroy aspects of excess and surplus real property that are dangerous to the public health or safety.
§ 102-75.950   Who has the responsibility for paying property-related obligations pending transfer or disposal of the property?
Except as otherwise provided in § 102-75.230, the landholding agency is still responsible for any and all operational costs and expenses or other property-related obligations pending transfer or disposal of the property.
§ 102-75.955   Who is responsible for decontaminating excess and surplus real property?
The landholding agency is responsible for all expenses to the Government and for the supervision of the decontamination of excess and surplus real property that has been contaminated with hazardous materials of any sort. Extreme care must be exercised in the decontamination, management, and disposal of contaminated property in order to prevent such properties from becoming a hazard to the general public. The landholding agency must inform the disposal agency of any and all hazards involved relative to such property to protect the general public from hazards and to limit the Government's liability resulting from disposal or mishandling of hazardous materials.
§ 102-75.960   May landholding agencies make improvements or alterations to excess or surplus property in those cases where disposal is otherwise not feasible?
Yes, landholding agencies may make improvements or alterations that involve rehabilitation, reconditioning, conversion, completion, additions, and replacements in excess or surplus structures, utilities, installations, and land improvements, in those cases where disposal cannot be accomplished without such improvements or alterations. However, agencies must not enter into commitments concerning improvements or alterations without GSA's prior approval.
§ 102-75.965   Who must perform the protection and maintenance of excess and surplus real property pending transfer to another Federal agency or disposal?
The landholding agency remains responsible and accountable for excess and surplus real property, including related personal property, and must perform the protection and maintenance of such property pending transfer to another Federal agency or disposal. Guidelines for protection and maintenance of excess and surplus real property are in the GSA Customer Guide to Real Property Disposal. The landholding agency is responsible for complying with the requirements of the National Oil and Hazardous Substances Pollution Contingency Plan and initiating or cooperating with others in the actions prescribed for the prevention, containment, or remedy of hazardous conditions.
§ 102-75.970   How long is the landholding agency responsible for the expense of protection and maintenance of excess and surplus real property pending its transfer or disposal?
Generally, the landholding agency is responsible for the cost of protection and maintenance of excess or surplus property until the property is transferred or disposed, but not more than 15 months. However, the landholding agency is responsible for providing and funding protection and maintenance during any delay beyond that 15 month period, if the landholding agency—
(a) Requests deferral of the disposal beyond the 15 month period;
(b) Continues to occupy the property beyond the 15 month period to the detriment of orderly disposal; or
(c) Otherwise takes actions that result in a delay in the disposition beyond the 15 months.
§ 102-75.975   What happens if the property is not conveyed or disposed of during this time frame?
If the property is not transferred to a Federal agency or disposed of during the 15-month period mentioned in § 102-75.970, then the disposal agency must pay or reimburse the landholding agency for protection and maintenance expenses incurred from the expiration date of said time period to final disposal, unless—
(a) There is no written agreement between the landholding agency and the disposal agency specifying the maximum amount of protection and maintenance expenses for which the disposal agency is responsible;
(b) The disposal agency's appropriation, as authorized by Congress, does not contain a provision to allow for payment and/or reimbursement of protection and maintenance expenses; or
(c) The delay is caused by an Executive agency's request for an exception from the 100 percent reimbursement requirement specified in § 102-75.205. In this latter case, the requesting agency becomes responsible for protection and maintenance expenses incurred because of the delay.
§ 102-75.980   Who is responsible for protection and maintenance expenses if there is no written agreement or no Congressional appropriation to the disposal agency?
If there is no written agreement (between the landholding agency and the disposal agency) or no Congressional appropriation to the disposal agency, the landholding agency is responsible for all protection and maintenance expenses, without any right of contribution or reimbursement from the disposal agency.
§ 102-75.985   Is the landholding agency required to assist the disposal agency in the disposition process?
Yes, the landholding agency must cooperate with the disposal agency in showing the property to prospective transferees or purchasers. Unless extraordinary expenses are incurred in showing the property, the landholding agency must absorb the entire cost of such actions.
§ 102-75.990   May Federal agencies abandon, destroy, or donate to public bodies real property?
Yes, subject to the restrictions in this subpart, any Federal agency having control of real property that has no commercial value or for which the estimated cost of continued care and handling exceeds the estimated proceeds from its sale, may—
(a) Abandon or destroy Government-owned improvements and related personal property located on privately-owned land;
(b) Destroy Government-owned improvements and related personal property located on Government-owned land (abandonment of such property is not authorized); or
(c) Donate to public bodies any Government-owned real property (land and/or improvements and related personal property), or interests therein.
§ 102-75.995   May Federal agencies dispose of dangerous property?
No, property that is dangerous to public health or safety must be made harmless or have adequate safeguards in place before it can be abandoned, destroyed, or donated to public bodies.
§ 102-75.1000   How is the decision made to abandon, destroy, or donate property?
No property shall be abandoned, destroyed, or donated by a Federal agency under § 102-75.990, unless a duly authorized official of that agency determines, in writing, that—
(a) The property has no commercial value; or
(b) The estimated cost of its continued care and handling exceeds the estimated proceeds from its sale.
§ 102-75.1005   Who can make the determination within the Federal agency on whether a property can be abandoned, destroyed, or donated?
Only a duly authorized official of that agency not directly accountable for the subject property can make the determination.
§ 102-75.1010   When is a reviewing authority required to approve the determination concerning a property that is to be abandoned, destroyed, or donated?
A reviewing authority must approve determinations made under § 102-75.1000 before any such disposal, whenever all the property proposed to be disposed of by a Federal agency has a current estimated fair market value of more than $50,000.
§ 102-75.1015   Are there any restrictions on Federal agencies concerning property donations to public bodies?
Yes, Federal agencies must obtain prior concurrence of GSA before donating to public bodies—
(a) Improvements on land or related personal property having a current estimated fair market value in excess of $250,000; and
(b) Land, regardless of cost.
§ 102-75.1020   Are public bodies ever required to pay the disposal costs associated with donated property?
Yes, any public body receiving donated improvements on land or related personal property must pay the disposal costs associated with the donation, such as dismantling, removal, and the cleaning up of the premises.
§ 102-75.1025   When can a Federal agency abandon or destroy improvements on land or related personal property in lieu of donating it to a public body?
A Federal agency may not abandon or destroy improvements on land or related personal property unless a duly authorized official of that agency finds, in writing, that donating the property is not feasible. This written finding is in addition to the determination prescribed in §§ 102-75.1000, 102-75.1005, and 102-75.1010. If donating the property becomes feasible at any time prior to actually abandoning or destroying the property, the Federal agency must donate it.
§ 102-75.1030   May Federal agencies abandon or destroy property in any manner they decide?
No, Federal agencies may not abandon or destroy property in a manner that is detrimental or dangerous to public health or safety or that will infringe on the rights of other persons.
§ 102-75.1035   Are there any restrictions on Federal agencies concerning the abandonment or destruction of improvements on land or related personal property?
Yes, GSA must concur in an agency's abandonment or destruction of improvements on land or related personal property prior to abandoning or destroying such improvements on land or related personal property—
(a) That are of permanent type construction; or
(b) The retention of which would enhance the value of the underlying land, if it were to be made available for sale or lease.
§ 102-75.1040   May Federal agencies abandon or destroy improvements on land or related personal property before public notice is given of such proposed abandonment or destruction?
Except as provided in § 102-75.1045, a Federal agency must not abandon or destroy improvements on land or related personal property until after it has given public notice of the proposed abandonment or destruction. This notice must be given in the area in which the property is located, must contain a general description of the property to be abandoned or destroyed, and must include an offering of the property for sale. A copy of the notice must be given to the GSA regional property disposal office for the region in which the property is located.
§ 102-75.1045   Are there exceptions to the policy that requires public notice be given before Federal agencies abandon or destroy improvements on land or related personal property?
Yes, property can be abandoned or destroyed without public notice if—
(a) Its value is so low or the cost of its care and handling so great that retaining the property to post public notice is clearly not economical;
(b) Health, safety, or security considerations require its immediate abandonment or destruction; or
(c) The assigned mission of the agency might be jeopardized by the delay, and a duly authorized Federal agency official finds in writing, with respect to paragraph (a), (b), or (c) of this section, and a reviewing authority approves this finding. The finding must be in addition to the determinations prescribed in §§ 102-75.1000, 102-75.1005, 102-75.1010, and 102-75.1025.
§ 102-75.1050   Is there any property for which this subpart does not apply?
Yes, this subpart does not apply to surplus property assigned for disposal to educational or public health institutions pursuant to 40 U.S.C. 550(c) or (d).
§ 102-75.1055   What is the policy governing delegations of real property disposal authority to the Secretary of Defense?
GSA delegates to the Secretary of Defense the authority to determine that Federal agencies do not need Department of Defense controlled excess real property and related personal property having a total estimated fair market value, including all the component units of the property, of less than $50,000; and to dispose of the property by means deemed most advantageous to the United States.
§ 102-75.1060   What must the Secretary of Defense do before determining that DoD-controlled excess real property and related personal property is not required for the needs of any Federal agency and prior to disposal?
The Secretary must conduct a Federal screening to determine that there is no further Federal need or requirement for the property.
§ 102-75.1065   When using a delegation of real property disposal authority under this subpart, is DoD required to report excess property to GSA?
No, although the authority in this delegation must be used following the provisions of Chapter 5 of Subtitle I of Title 40 of the United States Code and its implementing regulations.
§ 102-75.1070   Can this delegation of authority to the Secretary of Defense be redelegated?
Yes, the Secretary of Defense may redelegate the authority delegated in § 102-75.1055 to any officer or employee of the Department of Defense.
§ 102-75.1075   What is the policy governing delegations of real property disposal authority to the Secretary of Agriculture?
GSA delegates authority to the Secretary of Agriculture to determine that Federal agencies do not need USDA-controlled excess real property and related personal property having a total estimated fair market value, including all the component units of the property, of less than $50,000; and to dispose of the property by means deemed most advantageous to the United States.
§ 102-75.1080   What must the Secretary of Agriculture do before determining that USDA-controlled excess real property and related personal property is not required for the needs of any Federal agency and prior to disposal?
The Secretary must conduct a Federal screening to determine that there is no further Federal need or requirement for the property.
§ 102-75.1085   When using a delegation of real property disposal authority under this subpart, is USDA required to report excess property to GSA?
No, although the authority in this delegation must be used following the provisions of Chapter 5 of Subtitle I of Title 40 of the United States Code and its implementing regulations.
§ 102-75.1090   Can this delegation of authority to the Secretary of Agriculture be redelegated?
Yes, the Secretary of Agriculture may redelegate authority delegated in § 102-75.1075 to any officer or employee of the Department of Agriculture.
§ 102-75.1095   What is the policy governing delegations of authority to the Secretary of the Interior?
GSA delegates authority to the Secretary of the Interior to—
(a) Maintain custody, control, and accountability for mineral resources in, on, or under Federal real property that the Administrator or his designee occasionally designates as currently utilized, excess, or surplus to the Government's needs;
(b) Dispose of mineral resources by lease and to administer those leases that are made; and
(c) Determine that Federal agencies do not need Department of the Interior controlled excess real property and related personal property with an estimated fair market value, including all components of the property, of less than $50,000; and to dispose of the property by means most advantageous to the United States.
§ 102-75.1100   Can this delegation of authority to the Secretary of the Interior be redelegated?
Yes, the Secretary of the Interior may redelegate this authority to any officer, official, or employee of the Department of the Interior.
§ 102-75.1105   What other responsibilities does the Secretary of the Interior have under this delegation of authority?
Under this authority, the Secretary of the Interior is responsible for—
(a) Maintaining proper inventory records, as head of the landholding agency;
(b) Monitoring the minerals as necessary, as head of the landholding agency, to prevent unauthorized mining or removal of the minerals;
(c) Securing any appraisals deemed necessary by the Secretary;
(d) Coordinating with all surface landowners, Federal or otherwise, to prevent unnecessary interference with the surface use;
(e) Restoring damaged or disturbed lands after removal of the mineral deposits;
(f) Notifying the Administrator of General Services when the disposal of all marketable mineral deposits is complete;
(g) Complying with the applicable environmental laws and regulations, including the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq. ); and the implementing regulations issued by the Council on Environmental Quality (40 CFR part 1500); section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470f); and the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq. ) and the Department of Commerce implementing regulations (15 CFR parts 923 and 930);
(h) Forwarding promptly to the Administrator of General Services copies of any agreements executed under this authority; and
(i) Providing the Administrator of General Services with an annual accounting of the proceeds received from leases executed under this authority.
§ 102-75.1110   What is the policy governing delegations of authority to the Secretary of the Interior, the Secretary of Health and Human Services, and the Secretary of Education for property used in the administration of any Native American-related functions?
GSA delegates authority to the Secretary of the Interior, the Secretary of Health and Human Services, and the Secretary of Education to transfer and to retransfer to each other, upon request, any of the property of each agency that is being used and will continue to be used in the administration of any functions relating to the Native Americans. The term property, as used in this delegation, includes real property and such personal property as the Secretary making the transfer or re-transfer determines to be related personal property. The Departments must exercise the authority conferred in this section following applicable GSA regulations issued pursuant to the provisions of Chapter 5 of Subtitle I of Title 40 of the United States Code.
§ 102-75.1115   Are there any limitations or restrictions on this delegation of authority?
This authority must be used only in connection with property that the appropriate Secretary determines—
(a) Comprises a functional unit;
(b) Is located within the United States; and
(c) Has an acquisition cost of $100,000 or less, provided that the transfer or retransfer does not include property situated in any area that is recognized as an urban area or place as identified by the most recent decennial census.
§ 102-75.1120   Does the property have to be Federally screened?
No, screening is not required because it would accomplish no useful purpose, since the property subject to transfer or retransfer will continue to be used in the administration of any functions relating to Native Americans.
§ 102-75.1125   Can the transfer/retransfer under this delegation be at no cost or without consideration?
Yes, transfers/retransfers under this delegation can be at no cost or without consideration, except—
(a) Where funds programmed and appropriated for acquisition of the property are available to the Secretary requesting the transfer or retransfer; or
(b) Whenever reimbursement at fair market value is required by subpart B of this part (entitled “Utilization of Excess Real Property”).
§ 102-75.1130   What action must the Secretary requesting the transfer take where funds were not programmed and appropriated for acquisition of the property?
The Secretary requesting the transfer or retransfer must certify in writing that no funds are available to acquire the property. The Secretary transferring or retransferring the property may make any determination necessary that would otherwise be made by GSA to carry out the authority contained in this delegation.
§ 102-75.1135   May this delegation of authority to the Secretary of the Interior, the Secretary of Health and Human Services, and the Secretary of Education be redelegated?
Yes, the Secretary of the Interior, the Secretary of Health and Human Services, and the Secretary of Education may redelegate any of the authority contained in this delegation to any officers or employees of their respective departments.
§ 102-75.1140   What is the policy governing the acceptance or rejection of a conditional gift of real property for a particular defense purpose?
Any Federal agency receiving an offer of a conditional gift of real property for a particular defense purpose within the purview of Chapter 582-Public Law 537 (July 27, 1954) must notify the appropriate GSA regional property disposal office and must submit to GSA a recommendation indicating whether the Government should accept or reject the gift. Nothing in this subpart shall be construed as applicable to the acceptance of gifts under the provisions of other laws. Following receipt of such notification and recommendation, GSA must—
(a) Consult with the interested agencies before it may accept or reject such conditional gifts of real property on behalf of the United States or before it transfers such conditional gifts of real property to an agency; and
(b) Advise the donor and the agencies concerned of the action taken with respect to acceptance or rejection of the conditional gift and of its final disposition.
§ 102-75.1145   What action must the Federal agency receiving an offer of a conditional gift take?
Prior to notifying the appropriate GSA regional property disposal office, the receiving Federal agency must acknowledge receipt of the offer in writing and advise the donor that the offer will be referred to the appropriate GSA regional property disposal office. The receiving agency must not indicate acceptance or rejection of the gift on behalf of the United States at this time. The receiving agency must provide a copy of the acknowledgment with the notification and recommendation to the GSA regional property disposal office.
§ 102-75.1150   What happens to the gift if GSA determines it to be acceptable?
When GSA determines that the gift is acceptable and can be accepted and used in the form in which it was offered, GSA must designate an agency and transfer the gift without reimbursement to this agency to use as the donor intended.
§ 102-75.1155   May an acceptable gift of property be converted to money?
GSA can determine whether or not a gift of property can and should be converted to money. After conversion, GSA must deposit the funds with the Treasury Department for transfer to an appropriate account that will best effectuate the intent of the donor, in accordance with Treasury Department procedures.
§ 102-75.1160   What definitions apply to this subpart?
Applicant means any eligible organization that has submitted an application to the Department of Health and Human Services to obtain use of a certain suitable property to assist the homeless.
Checklist or property checklist means the form developed by HUD for use by landholding agencies to report the information to be used by HUD in making determinations of suitability.
Classification means a property's designation as unutilized, underutilized, excess, or surplus.
Day means one calendar day, including weekends and holidays.
Eligible organization means a State or local government agency, or a private, non-profit organization that provides assistance to the homeless, and that is authorized under the State law in which the property is located to carry out the activity for which it requests property and enter into an agreement with the Federal Government for use of property for the purposes of this part. Eligible organizations that are private, non-profit organizations interested in applying for suitable property must be tax exempt under section 501(c)(3) of the Internal Revenue Code at the time of application and remain tax exempt throughout the time the Federal Government retains a reversionary interest in the property.
Encumbrance means any non-approved use by a transferee or a third party that limits the full utilization of the transferred property, regardless of time period, and includes liens, easements, restrictive covenants, licenses, leases, mortgages, informal agreements, and unaddressed trespass.
Excess property means any property under the control of a Federal executive agency that the head of the agency determines is not required to meet the agency's needs or responsibilities, pursuant to 40 U.S.C. 524.
GSA means the General Services Administration.
HHS means the Department of Health and Human Services.
Homeless is defined in 42 U.S.C. 11302. This term is synonymous with “homeless individual” and “homeless person.”
HUD means the Department of Housing and Urban Development.
HUD website means a website maintained by HUD providing information about HUD, including any successor websites or technologies that are equally accessible and available to the public.
Landholding agency means the Federal department or agency with statutory authority to control property. For purposes of this subpart, the landholding agency is typically the Federal department or agency that had custody and accountability on behalf of the Federal Government, of a certain piece of property at the time that such property was reported to HUD for a suitability determination pursuant to 42 U.S.C. 11411.
Lease means an agreement in writing between either HHS for surplus property or landholding agencies for underutilized and unutilized properties and the applicant giving rise to the relationship of lessor and lessee for the use of Federal property for a term of at least one year under the conditions set forth in the lease document.
Non-profit organization means an organization recognized as a non-profit by the State in which the organization operates, no part of the net earnings of which inures to the benefit of any member, founder, contributor, or individual; that has a voluntary board; that has an accounting system or has designated an entity that will maintain a functioning accounting system for the organization in accordance with generally accepted accounting procedures; and that practices nondiscrimination in the provision of assistance.
Permit means a license granted by a landholding agency to use unutilized or underutilized property for a specific amount of time, usually one year or less, under terms and conditions determined by the landholding agency. A permit does not grant to the recipient an estate in land or any interest in the property.
Property means real property consisting of vacant land or buildings, or a portion thereof, that is excess, surplus, or designated as unutilized or underutilized in surveys by the heads of landholding agencies conducted pursuant to 40 U.S.C. 524.
Related personal property means any personal property that is located on real property and is either an integral part of or useful in the operation of that property or is determined by GSA to be otherwise related to the property.
Representative of the homeless means a State or local government agency, or private nonprofit organization that provides, or proposes to provide, services to the homeless.
Screen means the process by which GSA surveys Federal executive agencies to determine if they have an interest in using excess Federal property to carry out a particular agency mission, and then surveys State, local and non-profit entities, to determine if any such entity has an interest in using surplus Federal property to carry out a specific public use.
State means a State of the United States, and includes the District of Columbia, the Commonwealth of Puerto Rico, and the Territories and possessions of the United States.
Suitable property means that HUD has determined that a certain property satisfies the criteria listed in § 102-75.1165.
Surplus property means any excess property not required by any Federal landholding agency for its needs or the discharge of its responsibilities, as determined by GSA.
Transfer document means a lease, deed, or permit transferring surplus, unutilized, or underutilized property.
Transferee means an eligible entity that acquires Federal property by lease, deed, or permit.
Underutilized means an entire property or portion thereof, with or without improvements which is used only at irregular periods or intermittently by the accountable landholding agency for current program purposes of that agency, or which is used for current program purposes that can be satisfied with only a portion of the property.
Unsuitable property means that HUD has determined that a particular property does not satisfy the criteria in § 102-75.1165.
Unutilized property means an entire property or portion thereof, with or without improvements, not occupied for current program purposes for the accountable executive agency or occupied in caretaker status only.
§ 102-75.1161   What is the applicability of this subpart?
(a) This subpart applies to Federal property that has been designated by Federal landholding agencies as unutilized, underutilized, excess, or surplus and is therefore subject to the provisions of Title V of the McKinney Act, as amended (42 U.S.C. 11411).
(b) The following categories of properties are not subject to this subpart (regardless of whether they may be unutilized or underutilized):
(1) Buildings and property at military installations that were approved for closure under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note) after October 25, 1994.
(2) Machinery and equipment not determined to be related personal property by the landholding agency or GSA or determined to be related personal property that the landholding agency or GSA chooses to dispose of separate from real property.
(3) Government-owned, contractor-operated machinery, equipment, land, and other facilities reported excess for sale only to the using contractor and subject to a continuing military requirement.
(4) Properties subject to special legislation directing a particular action.
(5) Properties subject to a court order that is binding on the Federal Government and, for any reason, precludes transfer for use to assist the homeless under the authority of 42 U.S.C. 11411.
(6) Property not subject to Federal Real Property Council reporting requirements in accordance with 40 U.S.C. 623(i).
(7) Mineral rights interests independent of surface rights.
(8) Air space interests independent of surface rights.
(9) Indian Reservation land subject to 40 U.S.C. 523.
(10) Property interests subject to reversion.
(11) Easements.
(12) Any building or fixture that is excess, or surplus, that is on land under the control of a landholding agency, where the underlying land is not excess or surplus.
(13) Property purchased in whole or in part with Federal funds if title to the property is not held by a Federal landholding agency as defined in this subpart.
§ 102-75.1162   How will information be collected?
(a) Canvass of landholding agencies. On a quarterly basis, HUD will canvass each landholding agency to collect information about property described as unutilized, underutilized, excess or surplus in accordance with 40 U.S.C. 524; however, HUD will accept property information between canvasses. Each canvass will collect information on properties not previously reported, and about property reported previously where the status or classification of the property has changed, or improvements have been made to the property. HUD will request descriptive information on properties sufficient to make a reasonable determination, under the criteria described in this section, of the suitability of a property for use to assist the homeless. Landholding agencies must report property information to HUD using the property checklist developed by HUD for that purpose. Property checklists submitted in response to a canvass must be submitted to HUD within 25 days of receipt of the canvass.
(b) Agency annual suitable property report. By December 31 of each year, each landholding agency must notify HUD of the current availability status and classification of each property controlled by the agency that:
(1) Was included in a list of suitable properties published that year by HUD; and
(2) Remains available for application for use to assist the homeless or has become available for application during that year.
(c) GSA inventory. HUD will collect information, in the same manner as described in paragraph (a) of this section, from GSA regarding property that is in GSA's current inventory of excess or surplus property.
(d) Change in status. If the information provided on the property checklist changes subsequent to HUD's determination of suitability, including any improvements or other alterations to the physical condition of the land or the buildings on the property, and the property remains unutilized, underutilized, excess, or surplus, the landholding agency must submit a revised property checklist in response to the next quarterly canvass. HUD will review for suitability and, if it differs from the previous determination, repost the property information on the HUD website. For example, property determined unsuitable due to extensive deterioration may have had improvements, or property determined suitable may subsequently be found to be extensively deteriorated.
§ 102-75.1163   Who issues the suitability determination?
(a) Suitability determination. Within 30 days after the receipt of a completed property checklist from landholding agencies either in response to a quarterly canvass, or between canvasses, HUD will determine, using the criteria set forth in 24 CFR 581.6 whether a property is suitable for use to assist the homeless and report its determination to the landholding agency. Properties that are under lease, contract, license, or agreement by which a Federal agency retains a real property interest or which are scheduled to become unutilized or underutilized will be reviewed for suitability no earlier than six months prior to the expected date when the property will become unutilized or underutilized.
(b) Scope of suitability. HUD will determine the suitability of a property for use to assist the homeless without regard to any particular use.
(c) Environmental information. HUD will evaluate the environmental information contained in property checklists forwarded to HUD by the landholding agencies solely for the purpose of determining suitability of properties under the criteria in § 102-75.1166.
(d) Record of suitability determination. HUD will assign an identification number to each property reviewed for suitability. HUD will maintain a public record of the following:
(1) The suitability determination for a particular piece of property, and the reasons for that determination; and
(2) The landholding agency's response to the determination pursuant to the requirements of § 102-75.1166(a).
(e) Property determined unsuitable. Property that is reviewed by HUD under this section and that is determined unsuitable for use to assist the homeless may not be made available for any other purpose for 20 days after publication of a notice of unsuitability on the HUD website.
(f) Procedures for appealing unsuitability determinations. (1) To request review of a determination of unsuitability, a representative of the homeless must contact HUD, in writing, through the U.S. Mail, email, or the HUD website, or such other method as HUD may require, within 20 days of publication of the notice of unsuitability.
(2) Requests for review of a determination of unsuitability may be made only by representatives of the homeless.
(3) The request for review must specify the grounds on which it is based, i.e., HUD has improperly applied the criteria or HUD has relied on incorrect or incomplete information in making the determination ( e.g., that property is in a floodplain but not in a floodway).
(4) Upon receipt of a request to review a determination of unsuitability, HUD will notify the landholding agency or GSA that such a request has been made. The landholding agency or GSA shall have 20 days from receipt of the notice from HUD, or an extended period agreed to between HUD and the landholding agency or GSA, to provide any information pertinent to the review. The landholding agency or GSA must refrain from initiating disposal procedures until HUD has completed its reconsideration regarding unsuitability. If the landholding agency or GSA fails to meet the deadline, HUD will move forward with the appeal review with the property information it already has and information submitted in the appeal request provided by the representative of the homeless.
(i) HUD will act on all requests for review within 30 days of receipt of the landholding agency's or GSA's response, or, if the landholding agency or GSA failed to meet the deadline, within 30 days of such deadline, and will notify the representative of the homeless and the landholding agency or GSA in writing of its decision.
(ii) If a property is determined suitable as a result of the review, HUD will request the landholding agency's or GSA's determination of availability pursuant to § 102-75.1166, upon receipt of which HUD will promptly publish the determination on the HUD website.
§ 102-75.1164   For the purposes of this subpart, what is the policy concerning real property reported excess to GSA?
(a) Each landholding agency must submit a report to GSA of properties it determines excess. Each landholding agency must also provide a copy of HUD's suitability determination, if any, including HUD's identification number for the property.
(b) If a landholding agency reports an excess property to GSA that HUD has already determined to be suitable for use to assist the homeless, GSA will screen the property pursuant to paragraph (h) of this section and will advise HUD of the availability of the property for use by the homeless as provided in paragraph (e) of this section. In lieu of the preceding sentence, GSA may submit a new checklist to HUD and follow the procedures in paragraphs (c) through (h) of this section.
(c) If a landholding agency reports an excess property to GSA that has not been reviewed by HUD for homeless assistance suitability, GSA will complete a property checklist, based on information provided by the landholding agency, and will forward this checklist to HUD for a suitability determination. This checklist will reflect any change in classification, such as from unutilized or underutilized to excess or surplus.
(d) Within 30 days after GSA's submission, HUD will advise GSA of the suitability determination.
(e) When GSA receives notification from HUD listing suitable excess properties, GSA will transmit a response to HUD within 45 days. GSA's response will include the following for each identified property:
(1) A statement that there is no other compelling Federal need for the property and, therefore, the property will be determined surplus; or
(2) A statement that there is further and compelling Federal need for the property (including a full explanation of such need) and that, therefore, the property is not presently available for use to assist the homeless.
(f) When GSA submits a checklist to HUD in accordance with paragraphs (b) and (c) of this section, the information regarding the availability of the property, as specified in paragraph (e)(1) and (2) of this section, may be included with the checklist if it is known at the time of submittal.
(g) When a surplus property is determined as suitable, confirmed as available by GSA, and notice is published on the HUD website, GSA will concurrently notify HHS, State and local government units, and known homeless assistance providers that have expressed interest in the particular property, and other organizations, as appropriate, concerning suitable properties.
(h) Upon submission of a Report of Excess to GSA, GSA may screen the property for Federal use. In addition, GSA may screen State and local governmental units and eligible non-profit organizations to determine interest in the property in accordance with this part. (See §§ 102-75.1220, 102-75.255, and 102-75.350.)
(i) The landholding agency will retain custody and accountability and will protect and maintain any property that is reported excess to GSA as provided in § 102-75.965.
§ 102-75.1165   What are suitability criteria?
(a) In general, properties will be determined suitable unless a property's characteristics include one or more of the following conditions:
(1) Flammable or explosive hazards. Property located less than an acceptable separation distance (under the standards in 24 CFR part 51, subpart C, and the HUD Guidebook, “Siting of HUD-Assisted Projects Near Hazardous Facilities” or successor guidebook) from any stationary aboveground container or facility which stores, handles, or processes hazardous substances of an explosive or fire prone nature (excluding containers and facilities that are not hazards as defined in 24 CFR 51.201), unless HUD can determine during the review period based on information provided by the landholding agency that appropriate mitigating measures, as defined in 24 CFR 51.205, are already in place.
(2) Coastal barriers. Property located in a System Unit, as defined at 16 U.S.C. 3502(7), under the Coastal Barrier Resources Act, as amended (16 U.S.C. 3501 et seq. ).
(3) Site safety conditions. Property with a documented and extensive condition(s) that represents a clear threat to personal physical safety or health. Such conditions may include, but are not limited to, significant contamination from hazardous substances, as defined by 42 U.S.C. 9601, periodic flooding, sinkholes, or landslides.
(b) In the cases in paragraphs (b)(1) through (4) of this section, properties will be determined unsuitable, unless the landholding agencies provide information to enable HUD to determine the property is suitable:
(1) Inaccessible. Property that is inaccessible, meaning that the property is not accessible by road (including property on small offshore islands) or is landlocked ( e.g., can be reached only by crossing private property and there is no established right or means of entry).
(2) National security. Property located in an area to which the general public is denied access in the interest of national security ( e.g., where a special pass or security clearance is a condition of entry to the property), unless there is an alternative method to gain access without compromising national security.
(3) Runway clear zones. Property located within a runway clear zone or a military airfield clear zone.
(4) Floodway. Property located in a floodway, unless only an incidental portion of the property is in the floodway and that incidental portion does not affect the use of the remainder of the property to assist the homeless.
§ 102-75.1166   What is the policy concerning determination of availability statements for suitable properties?
Within 45 days after receipt of notification from HUD pursuant to § 102-75.1162(a) that a property has been determined to be suitable, each landholding agency or GSA must transmit to HUD a statement of one of the following:
(a) In the case of unutilized or underutilized property—
(1) An intention to declare the property excess;
(2) An intention to make the property available for use to assist the homeless; or
(3) The reasons why the property cannot be declared excess or made available for use to assist the homeless. The reasons given must be different from those listed as suitability criteria in § 102-75.1165.
(b) In the case of excess property which has been reported to GSA—
(1) A statement that there is no compelling Federal need for the property, and, therefore, the property will be determined surplus; or
(2) A statement that there is a further and compelling Federal need for the property (including a full explanation of such need) and therefore, the property is not presently available for use to assist the homeless.
§ 102-75.1167   What is the policy concerning making public the notice of determination?
(a) No later than 15 days after the most recent 45-day period has elapsed for receiving responses from the landholding agencies or GSA regarding availability, HUD will post on the HUD website a list of all properties reviewed, including a description of the property, its address, and classification. The following designations will be made:
(1) Properties that are suitable and available.
(2) Properties that are suitable and unavailable.
(3) Properties that are suitable and to be declared excess.
(4) Properties that are unsuitable.
(b) HUD will establish and maintain a toll-free number for the public to obtain specific information about properties in paragraph (a) of this section.
(c) No later than 15 days after the most recent 45-day period has elapsed for receiving responses from the landholding agencies or GSA regarding availability, HUD will transmit to the United States Interagency Council on Homelessness (USICH) a copy of the list of all properties in paragraph (a) of this section. The USICH will immediately distribute to all State and regional homeless coordinators area-relevant portions of the list. The USICH will encourage the State and regional homeless coordinators to disseminate this information widely.
(d) No later than February 15 of each year, HUD will publish in the Federal Register a list of all properties in the agency annual suitable property reports, reported to HUD pursuant to § 102-75.1162(b).
(e) HUD will publish an annual list of properties determined suitable, but which agencies reported unavailable including the reasons such properties are not available.
§ 102-75.1168   What are the general policies of HHS?
(a) It is the policy of HHS to foster and assure maximum utilization of surplus property for homeless assistance purposes.
(b) Transfers may be made only to eligible organizations.
(c) Property will be requested for assignment only when HUD has made a final determination that the property is suitable for use to assist the homeless, GSA has determined it is available, and HHS has determined it is needed for homeless assistance purposes. The amount of real and related personal property to be transferred shall not exceed normal operating requirements of the applicant. Such property will not be requested for assignment unless it is needed at the time of application for homeless assistance purposes or will be so needed within the immediate or foreseeable future.
(d) Transfers by deed will be made only after the applicant's financial plan is approved and the applicant provides certification that the proposed program is permissible under all applicable State and local zoning restrictions, building codes, and similar limitations.
(e) In instances of noncompliance, transferees are provided an opportunity to cure the noncompliance pursuant to 45 CFR 12a.10.
§ 102-75.1169   How may eligible organizations express interest in properties to assist the homeless?
(a) Properties published by HUD as suitable and available, pursuant to § 102-75.1167, for application for use to assist the homeless shall not be available for any other purpose for a period of 30 days beginning on the date the list of properties is published on the HUD website. Any eligible organization interested in any underutilized, unutilized, excess, or surplus property for use to assist the homeless must send HHS a written expression of interest in that property within 30 days after the property has been published on the HUD website.
(b) Although a property may be determined suitable by HUD, HUD's determination does not mean a property is necessarily fit for use for the purpose(s) stated in the application, nor does it guarantee subsequent conveyance or transfer of a property.
(c) If a written expression of interest to apply for suitable property for use to assist the homeless is received by HHS within the 30-day holding period, such property may not be made available for any other purpose until the date HHS or the appropriate landholding agency has completed action on the application submitted pursuant to that expression of interest.
(d)(1) The expression of interest should identify the specific property, briefly describe the proposed use, include the name of the organization, and indicate whether it is a public body or a private, non-profit organization. The expression of interest must be sent to HHS by email, rpb@psc.hhs.gov, or by mail at the following address: Department of Health and Human Services, Program Manager, Federal Real Property Assistance Program, Real Estate Logistics and Operations, 5600 Fishers Lane, Rockville, Maryland 20852.
(2) HHS will notify the landholding agency (for unutilized and underutilized properties) or GSA (for excess and surplus properties) when an expression of interest has been received for a certain property.
(e) An expression of interest may be sent to and accepted by HHS any time after the 30-day holding period has expired only if the property remains available as determined by GSA or the landholding agency for application to assist the homeless. In such a case, an application submitted pursuant to this expression of interest may be approved for use by the homeless if:
(1) There are no pending applications or written expressions of interest made under any law for use of the property for any purpose; and
(2) In the case of excess or surplus property, GSA has not received a bona fide offer to purchase that property or advertised for the sale of the property by public auction.
§ 102-75.1170   How may eligible organizations apply for the use of properties to assist the homeless?
(a) Upon receipt of an expression of interest, HHS will send an application packet to the interested entity. The application packet requires the applicant to provide certain information, including the following—
(1) Acquisition type. The applicant must state whether it is requesting acquisition of the property by lease, deed, or permit. A lease of one year, extendable at HHS's discretion, with the concurrence of GSA or the landholding agency, may be granted when the applicant's initial application is approved and the applicant's final application outlining the applicant's financial plan is found to be otherwise reasonable based on the criteria in paragraph (a)(7) of this section, but either a change in zoning is required or the financial plan proposes to utilize Low-Income Housing Tax Credits or other funding sources that typically take longer to process than other forms of financing. Applicants that initially apply for transfer by lease or permit and subsequently request transfer by deed will follow the same bifurcated application process, including deadlines, contained in 42 U.S.C. 11411. Should an applicant wish to transition from acquisition by lease to acquisition by deed, HHS will issue a letter of commitment to a lessee indicating that, provided its application meets all application criteria, including securing of all necessary financing that complies with Federal Government requirements, HHS will issue a deed.
(2) Description of the applicant organization. The applicant must document that it satisfies the definition of an eligible organization as specified in § 102-75.1160.
(3) Description of the property desired. The applicant must describe the listed property desired, including existing zoning. Applicants must certify that any modification(s) made to and use of the property will conform to all applicable building codes, and local use restrictions, or similar limitations. In accordance with GSA policy, determinations regarding parcelization are made prior to screening. Therefore, expressions of interest and applications for portions of listed properties will not be accepted.
(4) Description of the proposed program. The applicant must fully describe the proposed program and plan of use, including implementation plans.
(5) Demonstration of need. The applicant must demonstrate that the property is needed for homeless assistance purposes at the time of application and how the program will address the needs of the homeless population to be assisted. The applicant must demonstrate that it has an immediate need and ability to utilize all of the property for which it is applying.
(6) Demonstrate that the property is suitable and adaptable for the proposed program and plan of use. The applicant must fully explain why the property is suitable and describe what, if any, modification(s) will be made to the property before the program becomes operational.
(7) Ability to finance and operate the proposed program. If the applicant's initial application is approved, the applicant must set forth a reasonable plan to finance the approved program within 45 days of the initial approval. To be considered reasonable, the plan must, at a minimum:
(i) Specifically describe all anticipated costs and sources of funding for the proposed program, including any property modifications;
(ii) Be accompanied by supporting documentation which demonstrates that the proposed plan is likely to succeed;
(iii) Demonstrate that the applicant is ready, willing, able, and authorized to assume care, custody, and maintenance of the property;
(iv) Demonstrate that it has secured the necessary dedicated funds, or will obtain such funds, to carry out the approved proposed program and plan of use for the property, including administrative expenses incident to the transfer by deed, lease, or permit;
(v) Not diminish the value of the Federal Government's interest in the property nor impair the Federal Government's ability to revert and immediately dispose of the property free of any and all liens, encumbrances, or anything else which renders the property unmarketable. Deed transfers will only be made after an applicant demonstrates its financial plan adequately protects the Federal Government's interest in the property; and
(vi) Neither subject the Federal Government's interest in the property to foreclosure nor impose obligations ( e.g., extended use agreements) on the Federal Government.
(8) Compliance with non-discrimination requirements. Each applicant under this part must certify in writing that it will comply with all requirements of Federal law and HHS policy, as amended, relating to non-discrimination, including the following: the Fair Housing Act (42 U.S.C. 3601-3619) and implementing regulations at 24 CFR part 100; and, as applicable, Executive Order 11063 (Equal Opportunity in Housing) and implementing regulations at 24 CFR part 107; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to d-4) (Non-discrimination in Federally Assisted Programs) and implementing regulations at 24 CFR part 1 and 45 CFR part 80; section 1557 of the Affordable Care Act and implementing regulations at 45 CFR part 92; the prohibitions against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101-6107) and implementing regulations at 24 CFR part 146 and 44 CFR part 91; and the prohibitions against discrimination against otherwise qualified individuals with disabilities under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at 24 CFR part 8 and 45 CFR part 84. The applicant must maintain the required records to demonstrate compliance with all applicable Federal laws and HHS policies related to non-discrimination.
(9) Insurance and indemnification. The applicant must certify that it will insure the property against loss, damage, or destruction to protect the residual financial interest of the United States. The United States shall be named as an additional insured. Applicants must provide proof of insurance annually or upon request. Failure to maintain sufficient insurance may result in adverse action, including reversion of the property, at the discretion of HHS. In the event of a covered loss, the transferee must hold all insurance proceeds in trust and obtain written concurrence from HHS before disbursing the funds. Applicants, and all affiliated parties utilizing the property, as approved by HHS, must indemnify the United States and hold the United States harmless for all actions involving use of the property.
(10) Historic preservation. Where applicable, the applicant must provide information that will enable HHS to comply with Federal historic preservation requirements.
(11) Environmental information. The applicant must provide sufficient information to allow HHS to analyze the potential impact of the applicant's proposal on the environment, in accordance with the instructions provided with the application packet. HHS will assist applicants in obtaining any pertinent environmental information in the possession of HUD, GSA, or the landholding agency. However, the burden is on the applicant to submit sufficient documentation for analysis by HHS.
(12) Local government notification. The applicant must certify that it has notified the applicable unit of general local government responsible for sewer, water, police, and fire services, in writing, of its proposed program for the specific property and submit a copy of that written notification.
(13) Zoning and local use restrictions. An applicant requesting a deed must certify that it has consulted all State and local governmental entities that will have jurisdiction over the property and that the proposed use will comply with all applicable zoning and local use restrictions, including local building code requirements. An applicant that applies for a lease or permit is not required to comply with local zoning requirements, as long as the Federal Government retains ownership of the property. Deed transfers will only be made after the applicant has provided acceptable written proof that the proposed program is not in conflict with State or local zoning laws and restrictions, building codes, or similar limitations.
(b) Scope of evaluations. Due to the short time frame imposed by statute for evaluating applications, HHS's evaluation will, generally, be limited to the information contained in the application. It is therefore incumbent on applicants to provide thorough and complete applications.
(c) Deadline for initial application. An initial application must be received by HHS, at the email address in § 102-75.1169(d)(1) or other address indicated by HHS, within 75 days after an expression of interest is received from a particular applicant for that property. Upon written request from the applicant, HHS may, in its discretion, grant extensions authorized by 42 U.S.C. 11411(e)(2)(A), provided that the appropriate landholding agency or GSA concurs with the extension.
(d) Evaluation of initial application. (1) Upon receipt of an initial application, HHS will review it for completeness, and, if incomplete and time permits, may, in its discretion, return it or ask the applicant to furnish any missing or additional required information prior to final evaluation of the initial application.
(2) HHS will evaluate each initial application within 10 days of receipt and will promptly advise the applicant of its decision. All initial applications will be reviewed on the basis of the following elements:
(i) Services offered. The extent and range of proposed services, such as meals, shelter, job training, and counseling.
(ii) Need. The demand for the program, the program's ability to satisfy unmet needs of the community, and the degree to which the available property will be fully utilized.
(iii) Experience. Demonstrated ability to provide the services, such as prior success in operating similar programs and recommendations attesting to that fact by Federal, State, and local authorities.
(e) Deadline and evaluation of final application. (1) If HHS approves an initial application, HHS will notify the applicant and provide the applicant 45 days in which to provide a final application. The final application shall set forth a reasonable plan to finance, as specified in paragraph (a)(6) of this section, the approved program as set forth in the initial application. Applicants may not modify the approved initial application within its final application proposal.
(2) Upon receipt of the final application, HHS will make a determination within 15 days and notify the applicant.
(3) Unlike with initial applications, requests for extensions are not authorized by 42 U.S.C. 11411 and thus will not be considered for final applications.
(4) Applications are evaluated on a first-come, first-served basis. HHS will notify all organizations that have submitted expressions of interest for a particular property whether an earlier application received for that property has been approved.
(f) Competing applications. If HHS receives more than one final application simultaneously, HHS will evaluate all applications and make a determination based on each application's merit. HHS will rank approved applications based on the elements listed in paragraph (a) of this section, and notify the landholding agency, or GSA, as appropriate, of the approved applicant.
§ 102-75.1171   What action must be taken on approved applications?
(a) Unutilized and underutilized properties. (1) When HHS approves an application, it will so notify the applicant and forward a copy of the application to the landholding agency. The landholding agency will execute the lease, or permit document, as appropriate, in consultation with the applicant.
(2) The landholding agency maintains the discretion to decide the following:
(i) The length of time the property will be available.
(ii) The terms and conditions of the lease or permit document (except that a landholding agency may not charge any fees or impose any costs).
(b) Excess and surplus properties. (1) When HHS approves an application, it will so notify the applicant and request that GSA assign the property to HHS for transfer. Requests to GSA for the assignment of surplus property to HHS for homeless assistance purposes will be based on the following conditions:
(i) HHS has a fully approved application for the property;
(ii) The applicant is able, willing, and authorized to assume immediate care, custody, and maintenance of the property;
(iii) The applicant is able, willing and authorized to pay the administrative expenses incident to the transfer; and
(iv) The applicant has secured the necessary funds, or had demonstrated the ability to obtain such funds, to carry out the approved program of use of the property.
(2) Upon receipt of an acceptable assignment, HHS will execute the transfer document in accordance with the procedures and requirements set out in this subpart and any other terms and conditions HHS and GSA determines are appropriate or necessary. Custody and accountability of the property will remain throughout the lease term with the landholding agency ( i.e., the agency which initially reported the property as excess) and throughout the deed term with the transferee.
(3) Prior to assignment to HHS, GSA may consider other Federal uses and other important national needs in deciding the disposition of surplus property. Priority of consideration will normally be given to uses to assist the homeless. However, both GSA and HHS may consider any competing request for the property made under 40 U.S.C. 550 that is so meritorious and compelling that it outweighs the needs of the homeless.
(4) Whenever GSA or HHS decides in favor of a competing request over a request for property for homeless assistance, the agency making the decision will transmit to the appropriate committees of Congress an explanatory statement which details the need satisfied by conveyance of the surplus property, and the reasons for determining that such need was so meritorious and compelling as to outweigh the needs of the homeless.
§ 102-75.1172   What documents are used for the transfer of surplus property for use to assist the homeless?
(a) Surplus property may be conveyed to eligible organizations pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease or deed, at the applicant's discretion.
(b) Transfers of surplus property for homeless assistance purposes are in exchange for the transferee's agreement to fully utilize the property for homeless assistance purposes in accordance with the terms specified in the transfer document.
(c) A transfer of surplus property for homeless assistance purposes is subject to the disapproval of GSA within 30 days after notice is given to GSA of the proposed transfer.
(d) Surplus property transferred pursuant to this subpart will be disposed on an “as is, where is” basis without warranty of any kind except as may be stated in the transfer document.
(e) Unless excepted by GSA in its assignment, the disposal of property includes mineral rights associated with the surface estate.
(f) Transfers of surplus property under this subpart will be made with the following general terms and conditions:
(1) For the period provided in the transfer document, the transferee shall utilize all the surplus property it receives solely and continuously for the approved program and plan of use, in accordance with 42 U.S.C. 11411 and this subpart, except that:
(i) The transferee has 12 months from the date of transfer to place the surplus property into use, if HHS did not approve in writing, construction of new facilities or major renovation of the property when it approved the final application;
(ii) The transferee has 48 months from the date of transfer to place the surplus property into use, if the transferee proposes construction of new facilities or major renovation of the property and HHS approves it in writing at the time it approves the final application;
(iii) If the applicable time limitation is not met, the transferee shall either commence payments in cash to the Federal Government for each month thereafter during which the proposed use has not been implemented or take such other action as set forth at § 102-75.1176 as is deemed appropriate by HHS. Such monthly payments shall be computed on the basis of the current fair market value of the property, as conveyed, at the time of the first payment and dividing it by 360 months. At HHS's discretion, the payment may be waived if the transferee makes a sufficient showing of continued progress to place the property into use or if an unforeseeable event occurs which prevents the property from being put into use within the applicable timeframe; and
(iv) HHS may permit use of surplus property at any time during the period of restriction by an entity other than the transferee in accordance with § 102-75.1177.
(2) The transferee will not be permitted to encumber, or dispose of the property, or impair full utilization thereof, without the prior written authorization of HHS. In the event the property is encumbered, sold, or disposed of, or is used for any purposes other than those set forth in an approved plan without the written consent of HHS, all revenues or the reasonable value of other benefits received by the transferee directly or indirectly from such use, as determined by HHS, will be considered to have been received and held in trust by the transferee for the account of the United States and will be subject to the direction and control of HHS. The provisions of this paragraph (f)(2) shall not impair or affect the rights reserved to the United States in paragraph (f)(8) of this section, or the right of HHS to impose conditions to its consent.
(3) The transferee will file with HHS such reports on its maintenance and use of the surplus property and any other reports or information deemed necessary by HHS.
(4) The transferee shall pay all administrative costs incidental to the transfer, including but not limited to—transfer taxes; surveys; appraisals; title search; the transferee's legal fees; recordation expenses, etc. Transferee is solely responsible for such costs and may not seek reimbursement from the Federal Government for any reason.
(5) The transferee shall protect, preserve, maintain, and repair the property to ensure that the property remains in as good a condition as when received.
(6) The transferee shall protect the residual financial interest of the United States in the surplus property by insurance or such other means as HHS directs.
(7) The transferee shall abide by all applicable Federal civil rights laws including those specified in the covenants and conditions contained in the transfer document, prohibiting the transferee from discriminating on the basis of, including but not limited to, race, color, national origin, religion, sex, familial status, or disability in the use of the property.
(8) In the event of noncompliance with any conditions of the deed as determined by HHS, whether caused by the legal or other inability of the transferee, its successors and assigns, to perform any of the obligations of the transfer document, the Federal Government has an immediate right of reentry thereon, and to cause all right, title, and interest in and to the property to revert to the United States, and the transferee shall forfeit all right, title, and interest in and to the property. In such event, transferee shall execute a quitclaim deed and take all other actions necessary to return the property to the United States within ninety (90) days of a written request from the Federal Government, extended only at the discretion of the Federal Government. Transferee shall cooperate with the United States in the event of a reversion and agrees that the United States need not seek judicial intervention before exercising its right to revert, reenter, and reconvey the property.
(9) In the event title is reverted to the United States for noncompliance or voluntarily reconveyed to the United States, the transferee shall, at the option of HHS, be required to: reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the transferee to adapt the property to the homeless use for which the property was transferred; and reimburse the United States for any costs incurred in reverting title to or possession of the property, including reasonable attorneys' fees.
(10) With respect to leased property, in the event of noncompliance with any of the conditions of the lease, as determined by HHS or the landholding agency, the right of occupancy and possession shall, at the option of HHS or the landholding agency, be terminated. In the event a leasehold is terminated by the United States for noncompliance or is voluntarily surrendered, the lessee shall be required, at the option of HHS, to reimburse the United States for the decrease in value of the property not due to market conditions, reasonable wear and tear, acts of God, or approved alterations completed by the lessee to adapt the property to the homeless use for which the property was leased. With respect to any termination of leasehold resulting from noncompliance, the United States, shall, in addition thereto, be reimbursed for such costs as may be incurred in recovering possession of the property, including reasonable attorneys' fees.
(11) Any other term or condition that HHS and GSA determine appropriate or necessary.
(12) With respect to surplus property transferred by deed, the terms and conditions including those in this paragraph (f), apply for a period of three hundred sixty (360) months of use in accordance with a program of use approved in writing by HHS. The three hundred sixty months (360) period may, in HHS's sole discretion, be extended or restarted in the event the property is not fully utilized or is retransferred to a successor entity. Expiration of the terms and conditions in this paragraph (f) does not release the transferee from continuing compliance, as appropriate, with any conditions that may run with the land, e.g., environmental conditions and/or historic preservation covenants. Such conditions will continue to be the responsibility of the transferee and successors.
(13) With respect to surplus property transferred by lease, the terms and conditions including those in this paragraph (f), extend for the entire initial lease and for any subsequent renewal periods, unless specifically excluded in writing by HHS.
(g) Related personal property may be transferred or leased as a part of the realty and in accordance with real property procedures.
(h) Transferees will be responsible for the protection and maintenance of the property during the time that they possess the property. Upon termination of the lease term or reversion of title to the United States, the transferee will be responsible for removing improvements made to the property if directed to by the United States and, in such event, will be responsible for restoration of the property or the costs associated with restoring the property. If improvements made by the transferee are not voluntarily removed by the transferee and the United States consents, they will become the property of the United States. If the United States does not consent, the transferee shall reimburse the United States for reasonable costs of removal. GSA or the landholding agency, as appropriate, will assume responsibility for protection and maintenance of a property when the lease terminates or title reverts.
(i) Transferees, by obtaining the written consent of HHS, may abrogate the restrictions set forth in paragraph (f) of this section for all or any portion of the property in accordance with the provisions of § 102-75.1178.
§ 102-75.1173   What action must be taken on properties determined unsuitable for homeless assistance?
The landholding agency or GSA will defer action to dispose of properties determined unsuitable for homeless assistance for 20 days after the date that notice of a property is posted on the HUD website. HUD will inform landholding agencies or GSA if an appeal of an unsuitability determination is filed by a representative of the homeless pursuant to § 102-75.1163(f). HUD will advise the agency to refrain from initiating disposal procedures until HUD has completed its reconsideration process regarding unsuitability. Thereafter, or if no appeal has been filed after 20 days, GSA or the appropriate landholding agency may proceed with disposal action in accordance with applicable law.
§ 102-75.1174   What are the requirements for compliance with the National Environmental Policy Act of 1969 and other related Acts (environmental impact) for the transfer of Federal real property for use to assist the homeless?
(a) HHS, prior to making a final decision to convey or lease, or to amend, reform, or grant an approval or release with respect to a previous conveyance or lease of, surplus property for homeless purposes, will act in accordance with applicable provisions of the National Environmental Policy Act of 1969, the National Historic Preservation Act of 1966, the National Archeological Data Preservation Act, and other related acts. No lease to use surplus property shall allow the lessee to make, or cause to be made, any irreversible change in the conditions of said property, and no lease shall be employed for the purpose of delaying or avoiding compliance with the requirements of these Acts, unless approved by the United States.
(b) Applicants shall be required to provide such information as HHS deems necessary to make an assessment of the impact of the proposed Federal action on the human environment. Materials contained in the applicant's official request, responses to a standard questionnaire prescribed by HHS, as well as other relevant information, will be used by HHS in making said assessment.
(c) If the assessment reveals:
(1) That the proposed Federal action involved properties of historical significance which are listed, or eligible for listing, in the National Register of Historic Places; or
(2) That a more than insignificant impact on the human environment is reasonably foreseeable as a result of the proposed action; or
(3) That the proposed Federal action could result in irreparable loss or destruction of archeologically significant items or data, HHS will, except as provided for in paragraph (d) of this section, prepare and distribute, or cause to be prepared or distributed, such notices and statements and obtain such approvals as are required by the Acts cited in paragraph (a) of this section.
(d) If a proposed action involves other Federal agencies in a sequence of actions, or a group of actions, directly related to each other because of their functional interdependence, HHS may enter into and support a lead agency agreement to designate a single lead agency which will assume primary responsibility for coordinating the assessment of environmental effects of proposed Federal actions, preparing and distributing such notices and statements, or obtaining such approvals, as are required by the Acts cited in paragraph (a) of this section. The procedures of the designated lead agency will be utilized in conducting the environmental assessment. In the event of disagreement between HHS and another Federal agency, HHS will reserve the right to abrogate the lead agency agreement with the other Federal agency.
§ 102-75.1175   What action must be taken if there is no expression of interest or approved application?
(a) At the end of the 30-day holding period described in § 102-75.1169(a), HHS will notify GSA, or the landholding agency, as appropriate, if an expression of interest has been received for a certain property. Where there is no expression of interest, GSA or the landholding agency, as appropriate, will proceed with disposal in accordance with applicable law.
(b) Upon notice from HHS that all applications have been disapproved, or if no initial applications have been received within 75 days after an expression of interest, or no final application has been received within 45 days after an approved initial application, disposal may proceed in accordance with applicable law.
§ 102-75.1176   What are the utilization and enforcement requirements for property transferred for use to assist the homeless?
(a) Sanctions. For instances of noncompliance relating to surplus property transfers, HHS may impose, after providing an opportunity to cure to the transferee, any or all of the following sanctions in its sole discretion, as applicable:
(1) Where property or any portion thereof was not used or is not being used for the purposes for which transferred, or is sold, leased or subleased, encumbered, disposed of, or used for purposes other than those in the approved program and plan of use, without the prior written consent of HHS, HHS may require the transferee to—
(i) Place the property into immediate use for an approved purpose and extend the period of restriction in the transfer document for an additional term as determined by HHS;
(ii) Hold in trust all revenues and the reasonable value of other benefits received by the transferee directly or indirectly from that use for the United States subject to the direction and control of HHS;
(iii) Return title to such property to the United States or to relinquish any leasehold interest therein;
(iv) Abrogate the conditions and restrictions of the transfer, as set forth in § 102-75.1178;
(v) Make cash payments to the United States, as directed by HHS, equivalent to the current fair market rental value of the surplus property, as transferred, for each month during which the program and plan of use has not been implemented and continues to not be implemented; or
(vi) Any other remedy that HHS determines appropriate or necessary.
(2) Where the transferee desires to place the property into temporary use to assist the homeless other than that for which the property was transferred, written approval from HHS must be obtained, and will be conditioned upon HHS's authority to permit the use and such terms as HHS may impose.
(3) If HHS or the landholding agency determines that a lessee or sublessee of a transferee is in noncompliance with a term or condition of the lease, or if the lessee voluntarily surrenders the premises, HHS may require termination of the lease and impose sanctions described in paragraph (a)(1) of this section, as appropriate.
(b) Reversion. When HHS recommends reversion of the property for noncompliance, HHS will seek GSA's concurrence. GSA will respond to HHS's concurrence request within 30 days of its receipt. If GSA concurs, GSA will work with HHS to complete the reversion of the property. If GSA does not concur to the reversion recommendation, GSA will issue, to HHS, a written determination: stating the reason(s) for the disapproval; and acknowledging that HHS has recommended reversion and, therefore, the property is no longer within HHS's Title V program. The Federal Government will implement a response to the noncompliance that is in its best interests.
§ 102-75.1177   What are the requirements for other uses of a transferred property?
(a) A transferee may permit the use of all or a portion of the surplus property by another eligible entity as described in § 102-75.1160 for homeless assistance purposes, only upon those terms and conditions HHS determines appropriate, if:
(1) The transferee submits a written request to HHS explaining the purpose of and need for another eligible entity's use of the property, program plan, and other relevant information requested by HHS;
(2) HHS determines that the proposed use would not substantially limit the program and plan of use by the transferee and that the use will not unduly burden the Federal Government;
(3) HHS's written consent is obtained by the transferee in advance;
(4) HHS approves the use instrument in advance and in writing;
(5) The transferee agrees to lengthen the period of restrictions as determined by HHS; and
(6) HHS advises GSA and there is no disapproval by GSA within thirty (30) days.
(b) A transferee that does not follow paragraph (a) of this section will be deemed to be not in compliance with the terms and conditions of the Title V program and subject to enforcement action, including reversion of the property.
§ 102-75.1178   What are the conditions of abrogation for property transferred to assist the homeless?
(a) HHS may abrogate the conditions and restrictions in the transfer document if:
(1) The transferee submits to HHS a written request that HHS abrogate the conditions and restrictions in the transfer document as to all or any portion of the surplus property;
(2) HHS determines the terms and conditions of the proposed abrogation and determines that the proposed abrogation is in the best interest of the United States; and
(3) HHS transmits the abrogation request to GSA and there is no disapproval by GSA within 30 days after notice is given. If GSA disapproves, GSA will state, in writing, to HHS the reason(s) for the disapproval.
(b) HHS abrogates the conditions and restrictions in the transfer document only upon receipt of the appropriate consideration, including cash payment, to the United States, as directed by HHS, which is based on the formula contained in the transfer document, and any other terms and conditions HHS deems appropriate to protect the interest of the United States.
§ 102-75.1179   What compliance inspections and reports are required?
Transferees are required to allow HHS to conduct compliance inspections and to submit such compliance reports and actions as are deemed necessary by HHS. At a minimum, the transferee will be required to submit an annual utilization report regarding the operation and maintenance of the property, including current images of the entire property and such information as HHS shall require.
§ 102-75.1180   Is there a right of administrative review for agency decisions within HHS?
There is no right to administrative review within HHS, including requests for reconsideration or appeal, of agency decisions on applications and other discretionary decisions.
§ 102-75.1181   May any requirement of this subpart be waived??
The Secretary of HUD may waive any requirement of this subpart (over which the Secretary of HUD has jurisdiction) that is not required by law, whenever it is determined that undue hardship would result from applying the requirement, or where application of the requirement would adversely affect the purposes of the program. Each waiver will be in writing and will be supported by documentation of the pertinent facts and grounds. The Secretary periodically will publish notice of granted waivers on the HUD website.
§ 102-75.1182   Are the provisions of this subpart severable?
Any provision of this subpart held to be invalid or unenforceable with respect to certain parties or circumstances shall be construed so as to continue to give the maximum effect to the provision permitted by law unless such holding is that the provision of this subpart is invalid and unenforceable in all circumstances, in which event the provision shall be severable from the remainder of this subpart and shall not affect the remainder thereof.
§§ 102-75.1183-102-75.1219   [Reserved]
§ 102-76.5   What is the scope of this part?
The real property policies contained in this part apply to Federal agencies, including GSA's Public Buildings Service (PBS), operating under, or subject to, the authorities of the Administrator of General Services. The accessibility standards in subpart C of this part apply to Federal agencies and other entities whose facilities are subject to the Architectural Barriers Act.
§ 102-76.10   What basic design and construction policy governs Federal agencies?
Federal agencies, upon approval from GSA, are bound by the following basic design and construction policies:
(a) Provide the highest quality services for designing and constructing new Federal facilities and for repairing and altering existing Federal facilities. These services must be timely, efficient, and cost effective.
(b) Use a distinguished architectural style and form in Federal facilities that reflects the dignity, enterprise, vigor and stability of the Federal Government.
(c) Follow nationally recognized model building codes and other applicable nationally recognized codes that govern Federal construction to the maximum extent feasible and consider local building code requirements. (See 40 U.S.C. 3310 and 3312.)
(d) Design Federal buildings to have a long life expectancy and accommodate periodic changes due to renovations.
(e) Make buildings cost effective, energy efficient, and accessible to and usable by the physically disabled.
(f) Provide for building service equipment that is accessible for maintenance, repair, or replacement without significantly disturbing occupied space.
(g) Consider ease of operation when selecting mechanical and electrical equipment.
(h) Agencies must follow the prospectus submission and approval policy identified in §§ 102-73.35 and 102-73.40 of this chapter.
§ 102-76.15   What are design and construction services?
Design and construction services are—
(a) Site planning and landscape design;
(b) Architectural and interior design; and
(c) Engineering systems design.
§ 102-76.20   What issues must Federal agencies consider in providing site planning and landscape design services?
In providing site planning and design services, Federal agencies must—
(a) Make the site planning and landscape design a direct extension of the building design;
(b) Make a positive contribution to the surrounding landscape;
(c) Consider requirements (other than procedural requirements) of local zoning laws and laws relating to setbacks, height, historic preservation, and aesthetic qualities of a building;
(d) Identify areas for future building expansion in the architectural and site design concept for all buildings where an expansion need is identified to exist;
(e) Create a landscape design that is a pleasant, dynamic experience for occupants and visitors to Federal facilities and, where appropriate, encourage public access to and stimulate pedestrian traffic around the facilities. Coordinate the landscape design with the architectural characteristics of the building;
(f) Comply with the requirements of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321 et seq., and the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470 et seq., for each project; and
(g) Consider the vulnerability of the facility as well as the security needs of the occupying agencies, consistent with the Interagency Security Committee standards and guidelines.
§ 102-76.25   What standards must Federal agencies meet in providing architectural and interior design services?
Federal agencies must design distinctive and high quality Federal facilities that meet all of the following standards:
(a) Reflect the local architecture in buildings through the use of building form, materials, colors, or detail. Express a quality of permanence in the building interior similar to the building exterior.
(b) Provide individuals with disabilities ready access to, and use of, the facilities in accordance with the standards in § 102-76.65.
(c) Use metric specifications in construction where the metric system is the accepted industry standard, and to the extent that such usage is economically feasible and practical.
(d) Provide for the design of security systems to protect Federal workers and visitors and to safeguard facilities against criminal activity and/or terrorist activity. Security design must support the continuity of Government operations during civil disturbances, natural disasters and other emergency situations.
(e) Design and construct facilities that meet or exceed the energy performance standards applicable to Federal buildings in 10 CFR part 435.
§ 102-76.30   What seismic safety standards must Federal agencies follow in the design and construction of Federal facilities?
Federal agencies must follow the seismic safety standards identified in § 102-80.45 of this chapter.
§ 102-76.35   What is the purpose of the National Environmental Policy Act of 1969, as amended (NEPA)?
The purpose of NEPA is to—
(a) Declare a national policy which will encourage productive and enjoyable harmony between man and his environment;
(b) Promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man;
(c) Enrich the understanding of the ecological systems and natural resources important to the Nation; and
(d) Establish a Council on Environmental Quality (CEQ).
§ 102-76.40   To which real property actions does NEPA apply?
NEPA applies to actions that may have an impact on the quality of the human environment, including leasing, acquiring, developing, managing and disposing of real property.
§ 102-76.45   What procedures must Federal agencies follow to implement the requirements of NEPA?
Federal agencies must follow the procedures identified in the Council on Environmental Quality's NEPA implementing regulations, 40 CFR 1500-1508. In addition, Federal agencies must follow the standards that they have promulgated to implement CEQ's regulations.
§ 102-76.50   What is sustainable development?
Sustainable development means integrating the decision-making process across the organization, so that every decision is made to promote the greatest long-term benefits. It means eliminating the concept of waste and building on natural processes and energy flows and cycles; and recognizing the interrelationship of our actions with the natural world.
§ 102-76.55   What sustainable development principles must Federal agencies apply to the siting, design, and construction of new facilities?
In keeping with the objectives of Executive Order 13123, “Greening of the Government Through Efficient Energy Management,” and Executive Order 13101, “Greening of the Government Through Waste Prevention, Recycling, and Federal Acquisition,” Federal agencies must apply sustainable development principles to the siting, design, and construction of new facilities, which include—
(a) Optimizing site potential;
(b) Minimizing non-renewable energy consumption;
(c) Using environmentally preferable products;
(d) Protecting and conserving water;
(e) Enhancing indoor environmental quality; and
(f) Optimizing operational and maintenance practices.
§ 102-76.60   To which facilities does the Architectural Barriers Act apply?
(a) The Architectural Barriers Act applies to any facility that is intended for use by the public or that may result in the employment or residence therein of individuals with disabilities, which is to be—
(1) Constructed or altered by, or on behalf of, the United States;
(2) Leased in whole or in part by the United States;
(3) Financed in whole or in part by a grant or loan made by the United States, if the building or facility is subject to standards for design, construction, or alteration issued under the authority of the law authorizing such a grant or loan; or
(4) Constructed under the authority of the National Capital Transportation Act of 1960, the National Capital Transportation Act of 1965, or Title III of the Washington Metropolitan Area Transit Regulation Compact.
(b) The Architectural Barriers Act does not apply to any privately owned residential facility unless leased by the Government for subsidized housing programs, and any facility on a military reservation designed and constructed primarily for use by able bodied military personnel.
§ 102-76.65   What standards must facilities subject to the Architectural Barriers Act meet?
(a) GSA adopts appendices C and D to 36 CFR part 1191 (ABA Chapters 1 and 2, and Chapters 3 through 10) as the Architectural Barriers Act Accessibility Standard (ABAAS). Facilities subject to the Architectural Barriers Act (other than facilities described in paragraphs (b) and (c) of this section) must comply with ABAAS as set forth below:
(1) For construction or alteration of facilities subject to the Architectural Barriers Act (other than Federal lease-construction and other lease actions described in paragraphs (a)(2) and (3), respectively, of this section), compliance with ABAAS is required if the construction or alteration commenced after May 8, 2006. If the construction or alteration of such a facility commenced on or before May 8, 2006, compliance with the Uniform Federal Accessibility Standards (UFAS) is required.
(2) For Federal lease-construction actions subject to the Architectural Barriers Act, where the Government expressly requires new construction to meet its needs, compliance with ABAAS is required for all such leases awarded on or after June 30, 2006. UFAS compliance is required for all such leases awarded before June 30, 2006.
(3) For all other lease actions subject to the Architectural Barriers Act (other than those described in paragraph (a)(2) of this section), compliance with ABAAS is required for all such leases awarded pursuant to solicitations issued after February 6, 2007. UFAS compliance is required for all such leases awarded pursuant to solicitations issued on or before February 6, 2007.
(b) Residential facilities subject to the Architectural Barriers Act must meet the standards prescribed by the Department of Housing and Urban Development.
(c) Department of Defense and United States Postal Service facilities subject to the Architectural Barriers Act must meet the standards prescribed by those agencies.
§ 102-76.70   When are the costs of alterations to provide an accessible path of travel to an altered area containing a primary function disproportionate to the costs of the overall alterations for facilities subject to the standards in § 102-76.65(a)?
For facilities subject to the standards in § 102-76.65(a), the costs of alterations to provide an accessible path of travel to an altered area containing a primary function are disproportionate to the costs of the overall alterations when they exceed 20 percent of the costs of the alterations to the primary function area. If a series of small alterations are made to areas containing a primary function and the costs of any of the alterations considered individually would not result in providing an accessible path of travel to the altered areas, the total costs of the alterations made within the three year period after the initial alteration must be considered when determining whether the costs of alterations to provide an accessible path of travel to the altered areas are disproportionate. Facilities for which new leases are entered into must comply with F202.6 of the Architectural Barriers Act Accessibility Standard without regard to whether the costs of alterations to comply with F202.6 are disproportionate to the costs of the overall alterations.
§ 102-76.75   What costs are included in the costs of alterations to provide an accessible path of travel to an altered area containing a primary function for facilities subject to the standards in § 102-76.65(a)?
For facilities subject to the standards in § 102-76.65(a), the costs of alterations to provide an accessible path of travel to an altered area containing a primary function include the costs associated with—
(a) Providing an accessible route to connect the altered area and site arrival points, including but not limited to interior and exterior ramps, elevators and lifts, and curb ramps;
(b) Making entrances serving the altered area accessible, including but not limited to widening doorways and installing accessible hardware;
(c) Making restrooms serving the altered area accessible, including, but not limited to, enlarging toilet stalls, installing grab bars and accessible faucet controls, and insulating pipes under lavatories;
(d) Making public telephones serving the altered area accessible, including, but not limited to, placing telephones at an accessible height, and installing amplification devices and TTYs;
(e) Making drinking fountains serving the altered area accessible; and
(f) Making parking spaces serving the altered area accessible.
§ 102-76.80   What is required if the costs of alterations to provide an accessible path of travel to an altered area containing a primary function are disproportionate to the costs of the overall alterations for facilities subject to the standards in § 102-76.65(a)?
For facilities subject to the standards in § 102-76.65(a), if the costs of alterations to provide an accessible path of travel to an altered area containing a primary function are disproportionate to the costs of the overall alterations, the path of travel must be made accessible to the extent possible without exceeding 20 percent of the costs of the alterations to the primary function area. Priority should be given to those elements that will provide the greatest access in the following order:
(a) An accessible route and an accessible entrance;
(b) At least one accessible restroom for each sex or a single unisex restroom;
(c) Accessible telephones;
(d) Accessible drinking fountains; and
(e) Accessible parking spaces.
§ 102-76.85   What is a primary function area for purposes of providing an accessible route in leased facilities subject to the standards in § 102-76.65(a)?
For purposes of providing an accessible route in leased facilities subject to the standards in § 102-76.65(a), a primary function area is an area that contains a major activity for which the leased facility is intended. Primary function areas include areas where services are provided to customers or the public, and offices and other work areas in which the activities of the Federal agency using the leased facility are carried out.
§ 102-76.90   Who has the authority to waive or modify the standards in § 102-76.65(a)?
The Administrator of General Services has the authority to waive or modify the standards in § 102-76.65(a) on a case-by-case basis if the agency head or GSA department head submits a request for waiver or modification and the Administrator determines that the waiver or modification is clearly necessary.
§ 102-76.95   What recordkeeping responsibilities do Federal agencies have?
(a) The head of each Federal agency must ensure that documentation is maintained on each contract, grant or loan for the design, construction or alteration of a facility and on each lease for a facility subject to the standards in § 102-76.65(a) containing one of the following statements:
(1) The standards have been or will be incorporated in the design, the construction or the alteration.
(2) The grant or loan has been or will be made subject to a requirement that the standards will be incorporated in the design, the construction or the alteration.
(3) The leased facility meets the standards, or has been or will be altered to meet the standards.
(4) The standards have been waived or modified by the Administrator of General Services, and a copy of the waiver or modification is included with the statement.
(b) If a determination is made that a facility is not subject to the standards in § 102-76.65(a) because the Architectural Barriers Act does not apply to the facility, the head of the Federal agency must ensure that documentation is maintained to justify the determination.
§ 102-76.100   What definition applies to this part?
Public right-of-way means public land acquired for or dedicated to transportation purposes, or other land where there is a legally established right for use by the public for transportation purposes.
§ 102-76.105   What standard must public rights-of-way subject to the Architectural Barriers Act and covered under § 102-76.65(a) meet?
(a) GSA adopts the appendix to 36 CFR part 1190 without additions or modification as the accessibility standard for pedestrian facilities in the public right-of-way. Pedestrian facilities in the public right-of-way subject to the Architectural Barriers Act (other than facilities in paragraphs (b) and (c) of this section) must meet the accessibility standard for pedestrian facilities in the public right-of-way so that pedestrian facilities located in the public right-of-way are readily accessible to and usable by pedestrians with disabilities. Compliance with this accessibility standard is mandatory; provided, however, that this standard does not address existing pedestrian facilities in the public right-of-way under the Architectural Barriers Act unless the pedestrian facilities are altered at the discretion of a covered entity.
(b) Residential public rights-of-way subject to the Architectural Barriers Act must meet the standards prescribed by the Department of Housing and Urban Development.
(c) Department of Defense and United States Postal Service public rights-of-way subject to the Architectural Barriers Act must meet the standards prescribed by those agencies.
§ 102-76.110   Where pedestrian facilities subject to the standard in § 102-76.105(a) are altered, must an alteration to a pedestrian facility be connected by a compliant pedestrian access route to an existing pedestrian circulation path?
Yes, pedestrian facilities in public rights-of-way subject to the standard in § 102-76.105(a) that are altered must always be connected by a compliant pedestrian access route to an existing pedestrian circulation path.
§ 102-76.115   Who has the authority to waive or modify the standards in § 102-76.105(a)?
The Administrator of General Services has the authority to waive or modify the accessibility standards for buildings and facilities covered by the Architectural Barriers Act (ABA) in § 102-76.105(a) on a case-by-case basis if an agency head or a GSA department head submits a request for waiver or modification and the Administrator determines that the waiver or modification is clearly necessary. The Administrator of General Services must consult with the Access Board to ensure that the waiver or modification is based on findings of fact and not inconsistent with the ABA.
§ 102-76.120   What recordkeeping responsibilities do Federal agencies have?
(a) The head of each Federal agency must ensure that documentation is maintained on each contract, grant or loan for the design, construction, or alteration of a pedestrian facility in a public right-of-way subject to the standard in § 102-76.105(a) containing one of the following statements:
(1) The standard has been or will be incorporated in the design, the construction, or the alteration.
(2) The grant or loan has been or will be made subject to a requirement that the standard will be incorporated in the design, the construction, or the alteration.
(3) The standard has been waived or modified by the Administrator of General Services, and a copy of the waiver or modification is included with the statement.
(b) If a determination is made that a pedestrian facility in a public right-of-way is not subject to the standard in § 102-76.105(a) because the Architectural Barriers Act does not apply to the facility, the head of the Federal agency must ensure that documentation is maintained to justify the determination.
§ 102-76.125   What portions of this subpart are severable?
All provisions included in this subpart are separate and severable from one another. If any provision is stayed or determined to be invalid, it is GSA's intention that the remaining provisions will continue in effect.
§ 102-77.5   What is the scope of this part?
The real property policies contained in this part apply to Federal agencies, including GSA's Public Buildings Service, operating under, or subject to, the authorities of the Administrator of General Services.
§ 102-77.10   What definition applies to this part?
Visual art means works, including, but not limited to, painting, sculpture, architectural or environmental art, time-based media, and works on paper.
§ 102-77.15   What basic Art in Architecture policy governs Federal agencies?
Federal agencies must incorporate visual art as an integral part of the total building concept when designing new Federal buildings and when making substantial repairs and alterations to existing Federal buildings, as appropriate. The commissioned art must reflect the national, regional, or local cultural heritages, or any combination of the foregoing, within the United States, and emphasize the work of living American artists, including those in underserved communities.
§ 102-77.20   Who funds the Art in Architecture efforts?
To the extent not prohibited by law, Federal agencies must fund the Art in Architecture efforts by allocating a portion of the estimated cost of constructing or purchasing new Federal buildings or of completing major repairs and alterations of existing buildings. Funding for qualifying projects, including new construction, building acquisitions, and prospectus-level repairs and alterations, must be in a range determined by the Administrator of General Services.
§ 102-77.25   With whom should Federal agencies collaborate when commissioning visual art for Federal buildings?
To the maximum extent practicable, Federal agencies should seek the support and involvement of local citizens in commissioning a work of visual art. Federal agencies should collaborate with the chosen artist to commission works of visual art that reflect the cultural, intellectual, and historic interests and values of the community in which the art is to be located. In addition, Federal agencies should work collaboratively with the architect of the building and art professionals in commissioning visual art for Federal buildings. Federal agencies should commission a work of visual art that is diverse in style and media and no official style or media are mandated.
§ 102-77.30   Do Federal agencies have responsibilities to provide national, regional, and local visibility for Art in Architecture?
Yes. Federal agencies should provide Art in Architecture that receives appropriate national, regional, and local visibility to encourage participation by a large, diverse, and equitable group of artists representing a wide variety of types of visual art.
§ 102-78.5   What is the scope of this part?
The real property policies contained in this part apply to Federal agencies, including GSA's Public Buildings Service (PBS), operating under, or subject to, the authorities of the Administrator of General Services. The policies in this part are in furtherance of GSA's preservation program under section 110 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470) and apply to properties under the jurisdiction or control of the Administrator and to any Federal agencies operating, maintaining or protecting such properties under a delegation of authority from the Administrator.
§ 102-78.10   What basic historic preservation policy governs Federal agencies?
To protect, enhance and preserve historic and cultural property under their control, Federal agencies must consider the effects of their undertakings on historic and cultural properties and give the Advisory Council on Historic Preservation (Advisory Council), the State Historic Preservation Officer (SHPO), and other consulting parties a reasonable opportunity to comment regarding the proposed undertakings.
§ 102-78.15   What are historic properties?
Historic properties are those that are included in, or eligible for inclusion in, the National Register of Historic Places (National Register) as more specifically defined at 36 CFR 800.16.
§ 102-78.20   Are Federal agencies required to identify historic properties?
Yes, Federal agencies must identify all National Register or National Register-eligible historic properties under their control. In addition, Federal agencies must apply National Register Criteria (36 CFR part 63) to properties that have not been previously evaluated for National Register eligibility and that may be affected by the undertakings of Federally sponsored activities.
§ 102-78.25   What is an undertaking?
The term undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those—
(a) Carried out by or on behalf of the agency;
(b) Carried out with Federal financial assistance; or
(c) Requiring a Federal permit, license, or approval.
§ 102-78.30   Who are consulting parties?
As more particularly described in 36 CFR 800.2(c), consulting parties are those parties having consultative roles in the Section 106 process (i.e., Section 106 of the National Historic Preservation Act), which requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings. Specifically, consulting parties include the State Historic Preservation Officer; the Tribal Historic Preservation Officer; Indian tribes and Native Hawaiian organizations; representatives of local governments; applicants for Federal assistance, permits, licenses, and other approvals; other individuals and organizations with a demonstrated interest in the undertaking; and the Advisory Council (if it elects to participate in the consultation).
§ 102-78.35   Are Federal agencies required to involve consulting parties in their historic preservation activities?
Yes, Federal agencies must solicit information from consulting parties to carry out their responsibilities under historic and cultural preservation laws and regulations. Federal agencies must invite the participation of consulting parties through their normal public notification processes.
§ 102-78.40   What responsibilities do Federal agencies have when an undertaking adversely affects a historic or cultural property?
Federal agencies must not perform an undertaking that could alter, destroy, or modify an historic or cultural property until they have consulted with the SHPO and the Advisory Council. Federal agencies must minimize all adverse impacts of their undertakings on historic or cultural properties to the extent that it is feasible and prudent to do so. Federal agencies must follow the specific guidance on the protection of historic and cultural properties in 36 CFR part 800.
§ 102-78.45   What are Federal agencies' responsibilities concerning nomination of properties to the National Register?
Federal agencies must nominate to the National Register all properties under their control determined eligible for inclusion in the National Register.
§ 102-78.50   What historic preservation services must Federal agencies provide?
Federal agencies must provide the following historic preservation services:
(a) Prepare a Historic Building Preservation Plan for each National Register or National Register-eligible property under their control. When approved by consulting parties, such plans become a binding management plan for the property.
(b) Investigate for historic and cultural factors all proposed sites for direct and leased construction.
§ 102-78.55   For which properties must Federal agencies assume historic preservation responsibilities?
Federal agencies must assume historic preservation responsibilities for real property assets under their custody and control. Federal agencies occupying space in buildings under the custody and control of other Federal agencies must obtain approval from the agency having custody and control of the building.
§ 102-78.60   When leasing space, are Federal agencies able to give preference to space in historic properties or districts?
Yes, Executive Order 13006 requires Federal agencies that have a mission requirement to locate in an urban area to give first consideration to space in historic buildings and districts inside central business areas. Agencies may give a price preference of up to 10 percent to space in historic buildings and districts, in accordance with §§ 102-73.120 and 102-73.125 of this chapter.
§ 102-78.65   What are Federal agencies' historic preservation responsibilities when disposing of real property under their control?
Federal agencies must—
(a) To the extent practicable, establish and implement alternatives for historic properties, including adaptive use, that are not needed for current or projected agency purposes. Agencies are required to get the Secretary of the Interior's approval of the plans of transferees of surplus Federally-owned historic properties; and
(b) Review all proposed excess actions to identify any properties listed in or eligible for listing in the National Register. Federal agencies must not perform disposal actions that could result in the alteration, destruction, or modification of an historic or cultural property until Federal agencies have consulted with the SHPO and the Advisory Council.
§ 102-78.70   What are an agency's historic preservation responsibilities when disposing of another Federal agency's real property?
Federal agencies must not accept property declared excess by another Federal agency nor act as an agent for transfer or sale of such properties until the holding agency provides evidence that the Federal agency has met its National Historic Preservation Act responsibilities.
§ 102-79.5   What is the scope of this part?
The real property policies contained in this part apply to Federal agencies, including GSA's Public Buildings Service (PBS), operating under, or subject to, the authorities of the Administrator of General Services.
§ 102-79.10   What basic assignment and utilization of space policy governs an Executive agency?
Executive agencies must provide a quality workplace environment that supports program operations, preserves the value of real property assets, meets the needs of the occupant agencies, and provides child care and physical fitness facilities in the workplace when adequately justified. An Executive agency must promote maximum utilization of Federal workspace, consistent with mission requirements, to maximize its value to the Government.
§ 102-79.15   What objectives must an Executive agency strive to meet in providing assignment and utilization of space services?
Executive agencies must provide assignment and utilization services that will maximize the value of Federal real property resources and improve the productivity of the workers housed therein.
§ 102-79.20   What standard must Executive agencies promote when assigning space?
Executive agencies must promote the optimum use of space for each assignment at an economical cost to the Government, provide quality workspace that is delivered and occupied in a timely manner, and assign space based on mission requirements.
§ 102-79.25   May Federal agencies allot space in Federal buildings for the provision of child care services?
Yes, in accordance with 40 U.S.C. 590, Federal agencies can allot space in Federal buildings to individuals or entities who will provide child care services to Federal employees if such—
(a) Space is available;
(b) Agency determines that such space will be used to provide child care services to children of whom at least 50 percent have one parent or guardian who is a Federal Government employee; and
(c) Agency determines that such individual or entity will give priority for available child care services in such space to Federal employees.
§ 102-79.30   May Federal agencies allot space in Federal buildings for establishing fitness centers?
Yes, in accordance with 5 U.S.C. 7901, Federal agencies can allot space in Federal buildings for establishing fitness programs.
§ 102-79.35   What elements must Federal agencies address in their planning effort for establishing fitness programs?
Federal agencies must address the following elements in their planning effort for establishing fitness programs:
(a) A survey indicating employee interest in the program.
(b) A three-to five-year implementation plan demonstrating long-term commitment to physical fitness/health for employees.
(c) A health related orientation, including screening procedures, individualized exercise programs, identification of high-risk individuals, and appropriate follow-up activities.
(d) Identification of a person skilled in prescribing exercise to direct the fitness program.
(e) An approach that will consider key health behavior related to degenerative disease, including smoking and nutrition.
(f) A modest facility that includes only the essentials necessary to conduct a program involving cardiovascular and muscular endurance, strength activities, and flexibility.
(g) Provision for equal opportunities for men and women, and all employees, regardless of grade level.
§ 102-79.40   Can Federal agencies allot space in Federal buildings to Federal credit unions?
Yes, in accordance with 12 U.S.C. 1770, Federal agencies may allot space in Federal buildings to Federal credit unions without charge for rent or services if—
(a) At least 95 percent of the membership of the credit union to be served by the allotment of space is composed of persons who either are presently Federal employees or were Federal employees at the time of admission into the credit union, and members of their families; and
(b) Space is available.
§ 102-79.45   What type of services may Federal agencies provide without charge to Federal credit unions?
Federal agencies may provide without charge to Federal credit union services such as—
(a) Lighting;
(b) Heating and cooling;
(c) Electricity;
(d) Office furniture;
(e) Office machines and equipment;
(f) Telephone service (including installation of lines and equipment and other expenses associated with telephone service); and
(g) Security systems (including installation and other expenses associated with security systems).
§ 102-79.50   What standard must Executive agencies promote in their utilization of space?
Executive agencies, when acquiring or utilizing Federally owned or leased space under Title 40 of the United States Code, must promote efficient utilization of space. Where there is no Federal agency space need, Executive agencies must make every effort to maximize the productive use of vacant space through the issuance of permits, licenses or leases to non-Federal entities to the extent authorized by law. (For vacant property determined excess to agency needs, refer to part 102-75, Real Property Disposal.)
§ 102-79.55   Is there a general hierarchy of consideration that agencies must follow in their utilization of space?
Yes, Federal agencies must—
(a) First utilize space in Government-owned and Government-leased buildings; and
(b) If there is no suitable space in Government-owned and Government-leased buildings, utilize space in buildings under the custody and control of the U.S. Postal Service; and
(c) If there is no suitable space in buildings under the custody and control of the U.S. Postal Service, agencies may acquire real estate by lease, purchase, or construction, as specified in part 102-73 of this chapter.
§ 102-79.60   Are agencies required to use historic properties available to the agency?
Yes, Federal agencies must assume responsibility for the preservation of the historic properties they own or control. Prior to acquiring, constructing or leasing buildings, agencies must use, to the maximum extent feasible, historic properties already owned or leased by the agency (16 U.S.C. 470h-2).
§ 102-79.65   May Executive agencies outlease space on major public access levels, courtyards and rooftops of public buildings?
Yes. Authority to execute such outleases may be delegated by the Administrator based on authorities provided by the Public Buildings Cooperative Use Act (40 U.S.C. § 581(h)), the proceeds of which are to be deposited into GSA's Federal Buildings Fund. Using such authority, Executive agencies, upon approval from GSA, may—
(a) Enter into leases of space on major public access levels, courtyards and rooftops of any public building with persons, firms, or organizations engaged in commercial, cultural, educational, or recreational activities (as defined in 40 U.S.C. 3306);
(b) Establish rental rates for such leased space equivalent to the prevailing commercial rate for comparable space devoted to a similar purpose in the vicinity of the building; and
(c) Use leases that contain terms and conditions that the Administrator deems necessary to promote competition and protect the public interest.
§ 102-79.70   May Executive agencies assess fees against other Executive agencies for antenna placements and supporting services?
Yes. Executive agencies, upon approval from GSA, may assess fees for placement of antennas and supporting services against other agencies (that own these antennas) under 40 U.S.C. 586(c) and 40 U.S.C. 121(e). Unless a differing rate has been approved by the Administrator, such fees or charges must approximate commercial charges for comparable space and services (i.e., market rates). The proceeds from such charges or fees must be credited to the appropriation or fund initially charged for providing the space or services. Any amounts in excess of actual operating and maintenance costs must be credited to miscellaneous receipts unless otherwise provided by law. The charges or fees assessed by the Administrator for the placement of antennas and supporting services in GSA-controlled space are generally credited to GSA's Federal Buildings Fund.
§ 102-79.75   May Executive agencies assess fees for antenna placements against public service organizations for antenna site outleases on major pedestrian access levels, courtyards, and rooftops of public buildings?
Yes. Executive agencies in GSA-controlled space, upon approval from GSA, may assess fees for antenna placements against public service organizations under 40 U.S.C. 581(h) and 40 U.S.C. 121(e). Such fees or rental rates must be equivalent to the prevailing commercial rate for comparable space devoted to commercial antenna placements in the vicinity of the public building and the proceeds from such charges or fees must be credited to GSA's Federal Buildings Fund.
§ 102-79.80   May Executive agencies assess fees for antenna placements against telecommunication service providers for antenna site outleases on major pedestrian access levels, courtyards, and rooftops of public buildings?
Yes. GSA, or other Executive agencies, upon approval from GSA, may charge fees based on market value to telecommunication service providers for antenna placements in public buildings. Market value should be equivalent to the prevailing commercial rate for comparable space for commercial antenna placements in the vicinity of the public building. Such fees must be credited to GSA's Federal Buildings Fund.
§ 102-79.85   What policy must Executive agencies follow concerning the placement of commercial antennas on Federal property?
Executive agencies will make antenna sites available on a fair, reasonable, and nondiscriminatory basis. Collocation of antennas should be encouraged where there are multiple antenna siting requests for the same location. In cases where this is not feasible and space availability precludes accommodating all antenna siting applicants, competitive procedures may be used. This should be done in accordance with applicable Federal, State and local laws and regulations, and consistent with national security concerns. In making antenna sites available, agencies must avoid electromagnetic intermodulations and interferences. To the maximum extent practicable, when placing antennas for the provision of telecommunication services to the Federal Government, agencies should use redundant and physically separate entry points into the building and physically diverse local network facilities in accordance with guidance issued by the Office of Management and Budget.
§ 102-79.90   What criteria must Executive agencies consider when evaluating antenna siting requests?
When evaluating antenna siting requests, Executive agencies must consider issues such as—
(a) Public health and safety with respect to the antenna installation and maintenance;
(b) Aesthetics;
(c) Effects on historic districts, sites, buildings, monuments, structures, or other objects pursuant to the National Historic Preservation Act of 1966, as amended, and implementing regulations;
(d) Protection of natural and cultural resources (e.g., National Parks and Wilderness areas, National Wildlife Refuge systems);
(e) Compliance with the appropriate level of review and documentation as necessary under the National Environmental Policy Act of 1969, as amended, and implementing regulations of each Federal department and agency responsible for the antenna siting project, and the Federal Aviation Administration, the National Telecommunications and Information Administration, and other relevant departments and agencies;
(f) Compliance with the Federal Communications Commission's (FCC) guidelines for radiofrequency exposure, ET Docket No. 93-62, entitled “Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation,” issued August 1, 1996, and any other order on reconsideration relating to radiofrequency guidelines and their enforcement. These are updated guidelines for meeting health concerns that reflect the latest scientific knowledge in this area, and are supported by Federal health and safety agencies such as the Environmental Protection Agency and the Food and Drug Administration; and
(g) Any requirements of the Federal agency managing the facility, FCC, Federal Aviation Administration, National Telecommunications and Information Administration, and other relevant departments and agencies. To the maximum extent practicable, when placing antennas for the provision of telecommunication services to the Federal Government, agencies should use redundant and physically separate entry points into the building and physically diverse local network facilities in accordance with guidance issued by the Office of Management and Budget. In addition, the National Capital Planning Commission should be consulted for siting requests within the Washington, D.C. metropolitan area.
§ 102-79.95   Who is responsible for the costs associated with providing access to antenna sites?
The telecommunications service provider is responsible for any reasonable costs to Federal agencies associated with providing access to antenna sites, including obtaining appropriate clearance of provider personnel for access to buildings or land deemed to be security sensitive as is done with service contractor personnel. OMB Circular A-25, entitled “User Charges,” revised July 8, 1993, provides guidelines that agencies should use to assess fees for Government services and for the sale or use of Government property or resources. For antenna sites on non-GSA property, see also the Department of Commerce Report on “Improving Rights-of-Way Management Across Federal Lands: A Roadmap for Greater Broadband Deployment” (April 2004) beginning at page 26. Under 40 U.S.C. 1314, GSA is covered in granting easements and permits to support the installation of antennas and cabling across raw land in support of constructing new and improving existing telecommunication infrastructures provided that such installation does not negatively impact on the Government.
§ 102-79.100   What must Federal agencies do with antenna siting fees that they collect?
The account into which an antenna siting fee is to be deposited depends on the authority under which the antenna site is made available and the fee assessed. For GSA-controlled property outleased under 40 U.S.C. 581(h) or section 412 of Division H of public law 108-447, the fee is to be deposited into GSA's Federal Building Fund. For surplus property outleased under 40 U.S.C. 543, the fee is to be deposited in accordance with the provisions of Subchapter IV of Chapter 5 of Subtitle I of Title 40 of the United States Code. For siting fees collected under other statutory authorities, the fees might be deposited into miscellaneous receipts, an account of the landholding agency, or as otherwise provided by law. Federal agencies should consult with their agency's legal advisors before depositing antenna proceed from sites on agency-controlled Federal property.
§ 102-79.105   What is the Integrated Workplace?
The Integrated Workplace, developed by the GSA Office of Governmentwide Policy, is a comprehensive, multidisciplinary approach to developing workspace and work strategies that best support an organization's strategic business goals and work processes, and have the flexibility to accommodate the changing needs of the occupants and the organization. Integrated Workplace concepts support the objectives of Executive Order 13327, “Federal Real Property Asset Management,” which calls for the enhancement of Federal agency productivity through an improved working environment.
§ 102-79.110   What Integrated Workplace policy must Federal agencies strive to promote?
Federal agencies must strive to design work places that—
(a) Are developed using sustainable development concepts (see § 102-76.55);
(b) Align with the organization's mission and strategic plan;
(c) Serve the needs and work practices of the occupants;
(d) Can be quickly and inexpensively adjusted by the user to maximize his or her productivity and satisfaction;
(e) Are comfortable, efficient, and technologically advanced and allow people to accomplish their work in the most efficient way;
(f) Meet the office's needs and can justify its cost through the benefits gained;
(g) Are developed with an integrated building systems approach;
(h) Are based on a life cycle cost analysis that considers both facility and human capital costs over a substantial time period; and
(i) Support alternative workplace arrangements, including telecommuting, hoteling, virtual offices, and other distributive work arrangements (see part 102-74, subpart F—Telework).
§ 102-79.111   Where may Executive agencies find additional information on Integrated Workplace concepts?
The GSA Office of Governmentwide Policy provides additional guidance in its publication entitled “Innovative Workplace Strategies.”
§ 102-79.115   What guidelines must an agency follow if it elects to establish a public access defibrillation program in a Federal facility?
Federal agencies electing to establish a public access defibrillation program in a Federal facility must follow the guidelines, entitled “Guidelines for Public Access Defibrillation Programs in Federal Facilities,” which can be obtained from the Office of Governmentwide Policy, Office of Real Property (MP), General Services Administration, 1800 F Street, NW, Washington, DC 20405.
§ 102-80.5   What is the scope of this part?
The real property policies contained in this part apply to Federal agencies, including GSA's Public Buildings Service (PBS), operating under, or subject to, the authorities of the Administrator of General Services. The responsibilities for safety and environmental management under this part are intended to apply to GSA or those Federal agencies operating in GSA space pursuant to a GSA delegation of authority.
§ 102-80.10   What are the basic safety and environmental management policies for real property?
The basic safety and environmental management policies for real property are that Federal agencies must—
(a) Provide for a safe and healthful work environment for Federal employees and the visiting public;
(b) Protect Federal real and personal property;
(c) Promote mission continuity;
(d) Provide reasonable safeguards for emergency forces if an incident occurs;
(e) Assess risk;
(f) Make decision makers aware of risks; and
(g) Act promptly and appropriately in response to risk.
§ 102-80.15   What are Federal agencies' responsibilities concerning the assessment and management of asbestos?
Federal agencies have the following responsibilities concerning the assessment and management of asbestos:
(a) Inspect and assess buildings for the presence and condition of asbestos-containing materials. Space to be leased must be free of all asbestos containing materials, except undamaged asbestos flooring in the space or undamaged boiler or pipe insulation outside the space, in which case an asbestos management program conforming to U.S. Environmental Protection Agency (EPA) guidance must be implemented.
(b) Manage in-place asbestos that is in good condition and not likely to be disturbed.
(c) Abate damaged asbestos and asbestos likely to be disturbed. Federal agencies must perform a pre-alteration asbestos assessment for activities that may disturb asbestos.
(d) Not use asbestos in new construction, renovation/modernization or repair of their owned or leased space. Unless approved by GSA, Federal agencies must not obtain space with asbestos through purchase, exchange, transfer, or lease, except as identified in paragraph (a) of this section.
(e) Communicate all written and oral asbestos information about the leased space to tenants.
§ 102-80.20   What are Federal agencies' responsibilities concerning the abatement of radon?
Federal agencies have the following responsibilities concerning the abatement of radon in space when radon levels exceed current EPA standards:
(a) Retest abated areas and make lessors retest, as required, abated areas to adhere to EPA standards.
(b) Test non-public water sources (in remote areas for projects such as border stations) for radon according to EPA guidance. Radon levels that exceed current applicable EPA standards must be mitigated. Federal agencies must retest, as required, to adhere to EPA standards.
§ 102-80.25   What are Federal agencies' responsibilities concerning the management of indoor air quality?
Federal agencies must assess indoor air quality of buildings as part of their safety and environmental facility assessments. Federal agencies must respond to tenant complaints on air quality and take appropriate corrective action where air quality does not meet applicable standards.
§ 102-80.30   What are Federal agencies' responsibilities concerning lead?
Federal agencies have the following responsibilities concerning lead in buildings:
(a) Test space for lead-based paint in renovation projects that require sanding, welding or scraping painted surfaces.
(b) Not remove lead based paint from surfaces in good condition.
(c) Test all painted surfaces for lead in proposed or existing child care centers.
(d) Abate lead-based paint found in accordance with U.S. Department of Housing and Urban Development (HUD) Lead-Based Paint Guidelines, available by writing to HUD USER, P.O. Box 6091, Rockville, MD 20850.
(e) Test potable water for lead in all drinking water outlets.
(f) Take corrective action when lead levels exceed the HUD Guidelines.
§ 102-80.35   What are Federal agencies' responsibilities concerning the monitoring of hazardous materials and wastes?
Federal agencies' responsibilities concerning the monitoring of hazardous materials and wastes are as follows:
(a) Monitor the transport, use, and disposition of hazardous materials and waste in buildings to provide for compliance with GSA, Occupational Safety and Health Administration (OSHA), Department of Transportation, EPA, and applicable State and local requirements. In addition to those operating in GSA space pursuant to a delegation of authority, tenants in GSA space must comply with these requirements.
(b) In leased space, include in all agreements with the lessor requirements that hazardous materials stored in leased space are kept and maintained according to applicable Federal, State, and local environmental regulations.
§ 102-80.40   What are Federal agencies' responsibilities concerning the management of underground storage tanks?
Federal agencies have the following responsibilities concerning the management of underground storage tanks in real property:
(a) Register, manage and close underground storage tanks, including heating oil and fuel oil tanks, in accordance with GSA, EPA, and applicable State and local requirements.
(b) Require the party responsible for tanks they use but do not own to follow these requirements and to be responsible for the cost of compliance.
§ 102-80.45   What are Federal agencies' responsibilities concerning seismic safety in Federal facilities?
Federal agencies must follow the standards issued by the Interagency Committee on Seismic Safety in Construction (ICSSC) as the minimum level acceptable for use by Federal agencies in assessing the seismic safety of their owned and leased buildings and in mitigating unacceptable seismic risks in those buildings.
§ 102-80.50   Are Federal agencies responsible for identifying/estimating risks and for appropriate risk reduction strategies?
Yes, Federal agencies must identify and estimate safety and environmental management risks and appropriate risk reduction strategies for buildings. Federal agencies occupying as well as operating buildings must identify any safety and environmental management risks and report or correct the situation, as appropriate. Federal agencies must use the applicable national codes and standards as a guide for their building operations.
§ 102-80.55   Are Federal agencies responsible for managing the execution of risk reduction projects?
Yes, Federal agencies must manage the execution of risk reduction projects in buildings they operate. Federal agencies must identify and take appropriate action to eliminate hazards and regulatory noncompliance.
§ 102-80.60   Are Federal agencies responsible for performing facility assessments?
Yes, Federal agencies must evaluate facilities to comply with GSA's safety and environmental program and applicable Federal, State and local environmental laws and regulations. Federal agencies should conduct these evaluations in accordance with schedules that are compatible with repair and alteration and leasing operations.
§ 102-80.65   What are Federal agencies' responsibilities concerning the investigation of incidents, such as fires, accidents, injuries, and environmental incidents?
Federal agencies have the following responsibilities concerning the investigation of incidents, such as fires, accidents, injuries, and environmental incidents in buildings they operate:
(a) Investigate all incidents regardless of severity.
(b) Form Boards of Investigation for incidents resulting in serious injury, death, or significant property losses.
§ 102-80.70   Are Federal agencies responsible for informing their tenants of the condition and management of their facility safety and environment?
Yes, Federal agencies must inform their tenants of the condition and management of their facility safety and environment. Agencies operating GSA buildings must report any significant facility safety or environmental concerns to GSA.
§ 102-80.75   Who assesses environmental issues in Federal construction and lease construction projects?
Federal agencies must assess required environmental issues throughout planning and project development so that the environmental impacts of a project are considered during the decision making process.
§ 102-80.80   With what general accident and fire prevention policy must Federal agencies comply?
Federal agencies must—
(a) Comply with the occupational safety and health standards established in the Occupational Safety and Health Act of 1970 (Pub. L. 91-596); Executive Order 12196; 29 CFR part 1960; and applicable safety and environmental management criteria identified in this part;
(b) Not expose occupants and visitors to unnecessary risks;
(c) Provide safeguards that minimize personal harm, property damage, and impairment of Governmental operations, and that allow emergency forces to accomplish their missions effectively;
(d) Follow accepted fire prevention practices in operating and managing buildings;
(e) To the maximum extent feasible, comply with one of the nationally recognized model building codes and with other nationally-recognized codes in their construction or alteration of each building in accordance with 40 U.S.C. 3312; and
(f) Use the applicable national codes and standards as a guide for their building operations.
§ 102-80.85   Are Federally owned and leased buildings exempt from State and local code requirements in fire protection?
Federally owned buildings are generally exempt from State and local code requirements in fire protection; however, in accordance with 40 U.S.C. 3312, each building constructed or altered by a Federal agency must be constructed or altered, to the maximum extent feasible, in compliance with one of the nationally recognized model building codes and with other nationally recognized codes. Leased buildings are subject to local code requirements and inspection.
§ 102-80.90   Is the Fire Administration Authorization Act of 1992 (Public Law 102-522) relevant to fire protection engineering?
Yes, the Fire Administration Authorization Act of 1992 (Pub. L. 102-522) requires sprinklers or an equivalent level of safety in certain types of Federal employee office buildings, Federal employee housing units, and Federally assisted housing units (15 U.S.C. 2227).
§ 102-80.95   Is the Fire Administration Authorization Act of 1992 applicable to all Federal agencies?
Yes, the Fire Administration Authorization Act applies to all Federal agencies and all Federally owned and leased buildings in the United States.
§ 102-80.100   What performance objective should an automatic sprinkler system be capable of meeting?
The performance objective of the automatic sprinkler system is that it must be capable of protecting human lives. Sprinklers should be capable of controlling the spread of fire and its effects beyond the room of origin. A functioning sprinkler system should activate prior to the onset of flashover.
§ 102-80.105   What information must be included in an equivalent level of safety analysis?
The equivalent level of life safety evaluation is to be performed by a qualified fire protection engineer. The analysis should include a narrative discussion of the features of the building structure, function, operational support systems and occupant activities that impact fire protection and life safety. Each analysis should describe potential reasonable worst case fire scenarios and their impact on the building occupants and structure. Specific issues that must be addressed include rate of fire growth, type and location of fuel items, space layout, building construction, openings and ventilation, suppression capability, detection time, occupant notification, occupant reaction time, occupant mobility, and means of egress.
§ 102-80.110   What must an equivalent level of safety analysis indicate?
To be acceptable, the analysis must indicate that the existing and/or proposed safety systems in the building provide a period of time equal to or greater than the amount of time available for escape in a similar building complying with the Fire Administration Authorization Act. In conducting these analyses, the capability, adequacy, and reliability of all building systems impacting fire growth, occupant knowledge of the fire, and time required to reach a safety area will have to be examined. In particular, the impact of sprinklers on the development of hazardous conditions in the area of interest will have to be assessed.