7966 Federal Register / Vol. 62, No. 35 / Friday, February 21, 1997 / Proposed Rules

land reclamation program, at TAC

§§ 12.800 through 12.817. The

codification proposal includes

conforming Texas’ regulations to the

Texas Administrative Code formatting

syntax, correcting typographical errors,

and making other editorial changes.

III. Public Comment Procedures

In accordance with the provisions of

30 CFR 732.17(h), OSM is seeking

comments on whether the proposed

amendment satisfies the applicable

program approval criteria of 30 CFR

732.15. If the amendment is deemed

adequate, it will become part of the

Texas program.

Written Comments

Written comments should be specific,

pertain only to the issues proposed in

this rulemaking, and include

explanations in support of the

commenter’s recommendations.

Comments received after the time

indicated under DATES or at locations

other than the Tulsa Field Office will

not necessarily be considered in the

final rulemaking or included in the

Administrative Record.

Public Hearing

Persons wishing to speak at the public

hearing should contact the person listed

under FOR FURTHER INFORMATION

CONTACT by 4 p.m., c.s.t. on March 10,

1997. The location and time of the

hearing will be arranged with those

persons requesting the hearing. Any

disabled individual who has need for a

special accommodation to attend a

public hearing should contact the

individual listed under FOR FURTHER

INFORMATION CONTACT. If no one requests

an opportunity to speak at the public

hearing, the hearing will not be held.

Filing of a written statement at the

time of the hearing is requested as it

will greatly assist the transcriber.

Submission of written statements in

advance of the hearing will allow OSM

officials to prepare adequate responses

and appropriate questions.

The public hearing will continue on

the specified date until all persons

scheduled to speak have been heard.

Persons in the audience who have not

been scheduled to speak, and who wish

to do so, will be heard following those

who have been scheduled. The hearing

will end after all persons scheduled to

speak and persons present in the

audience who wish to speak have been

heard.

Public Meeting

If only one person requests an

opportunity to speak at a hearing, a

public meeting, rather than a public

hearing, may be held. Persons wishing

to meet with OSM representatives to

discuss the proposed amendment may

request a meeting by contacting the

person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings

will be open to the public and, if

possible, notices of meetings will be

posted at the locations listed under

ADDRESSES. A written summary of each

meeting will be made a part of the

Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that, to the extent allowed

by law, this rule meets the applicable

standards of subsections (a) and (b) of

that section. However, these standards

are not applicable to the actual language

of State regulatory programs and

program amendments since each such

program is drafted and promulgated by

a specific State, not by OSM. Under

sections 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and 30 CFR

730.11, 732.15, and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is

required for this rule since section

702(d) of SMCRA (30 U.S.C. 1292(d))

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

which is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 943

Intergovernmental relations, Surface

mining, Underground mining.

Dated: February 7, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional

Coordinating Center.

[FR Doc. 97–4340 Filed 2–20–97; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 175

Revitalizing Base Closure

Communities and Community

Assistance

AGENCY: Department of Defense, Office

of the Deputy Under Secretary of

Defense (Industrial Affairs and

Installations).

ACTION: Proposed rule.

SUMMARY: This part promulgates

policies and procedures for

implementing section 2837 of the

National Defense Authorization Act for

FY96 concerning the Federal agency

lease back of property transferred to

Local Redevelopment Authorities

(LRAs) at installations approved for

closure or realignment.

DATES: Comments must be received by

April 22, 1997.

ADDRESSES: Comments must be

forwarded to the Base Closure and

Community Reinvestment Office, 400

Army-Navy Drive, Suite 200, Arlington,
Federal Register / Vol. 62, No. 35 / Friday, February 21, 1997 / Proposed Rules 7967

VA 22202 (email: base—

reuseacq.osd.mil).

FOR FURTHER INFORMATION CONTACT:

Jennifer Atkin, Base Closure and

Community Reinvestment Office, 400

Army-Navy Drive, Suite 200, Arlington,

VA 22202, telephone (703) 604–2400.

SUPPLEMENTARY INFORMATION:

Background Information

Large parcels of surplus BRAC

property are frequently conveyed to an

LRA for use in accordance with the

LRA’s redevelopment plan. Because

Federal users have priority claim on this

property, small parcels or even

individual buildings within or adjacent

to the large parcel may be claimed by a

Federal entity. These Federal uses are

included as part of the LRA’s

redevelopment plan and are compatible

with the proposed use of the

surrounding property. Should the

Federal entity depart at some point in

the future, however, the property would

be disposed of by the General Service

Administration in accordance with the

Federal Real Property and

Administrative Services Act. This

subsequent Federal action could disrupt

local economic recovery efforts by

requiring the community to go through

another lengthy Federal real property

disposal process, and could result in

uses that are incompatible with the

community’s redevelopment plans.

Congress recognized that this

piecemeal approach could be harmful to

long-range planning and development

opportunities and changed the law to

enable more community control over

redevelopment while still allowing the

Federal government the ability to utilize

government property without additional

costs. Section 2837 of the National

Defense Authorization Act for FY 1996

(Pub. L. 104–106) amends the Defense

Base Closure and Realignment Act of

1990 (Pub. L. 101–510, 10 U.S.C. 2687

note) to allow base closure property that

is still needed by the Department of

Defense or another Federal agency to be

transferred to an LRA, provided the LRA

leases the property back to the Federal

entity. The lease cannot require rental

payments.

Applicability

The ‘‘leaseback’’ is a new authority,

not a new requirement. Ultimately, the

decision whether to transfer property

under this authority rests with the

military department keeping in mind

that the Department of Defense cannot

require Federal agencies to give up right

of ownership in order for the LRA to

take advantage of a leaseback of the

property. If a leaseback is requested by

the LRA, however, Federal agencies are

urged to give full consideration to

leasing instead of owning the property.

This authority can be used to transfer

property at BRAC 91, 93, and 95 sites.

In addition, it can be used to transfer

property needed by existing Federal

tenants or Federal departments or

agencies desiring to locate onto the

property. Military Departments can only

transfer property and then lease it back

if they are acting as an executive agent

on behalf of a Defense Agency or if the

Secretary of the Military Department

certifies that the transaction is in the

best interest of the Military Department

and consistent with the

recommendations of the Base Closure

Commission.

Lease Arrangements

If an LRA desires a leaseback of

property, it will be the responsibility of

the LRA to offer the Federal department

or agency lease arrangements that

encourage choosing the leaseback

option. The goal should be offer terms

that afford the Federal department or

agency rights as close to those

associated with ownership of the

property as is practicable. Subject to the

requirements outlined in this rule

(including a prohibition against

charging rental payments), the LRA and

Federal entity have significant latitude

to negotiate a lease that is beneficial to

both parties and are encouraged to be

creative in establishing the lease

parameters.

Conveyance Process

This rule establishes two options for

conveyance of leaseback property to an

LRA: (1) Conveyance as part of an

Economic Development Conveyance

(EDC) using the existing EDC

procedures, and (2) conveyance of

property not associated with an EDC

using procedures established in this

rule. In this case, the LRA will be

required to show how a leaseback is

necessary for the long-term economic

redevelopment of the installation

property.

Statement of Determination and

Certifications

Executive Order 12866, ‘‘Regulatory

Planning and Review’’

It has been determined that this rule

is not a significant regulatory action as

defined under section 3(f)(1) through

3(f)(4) of Executive Order 12866.

Public Law 96–354, ‘‘Regulatory

Flexibility Act’’ (5 U.S.C. 601)

It has been determined that this rule

will not have a significant economic

impact on a substantial number of small

entities.

Public Law 104–13, ‘‘Paperwork

Reduction Act of 1995’’ (44 U.S.C.

Chapter 35)

It has been certified that this rule does

not impose any reporting or

recordkeeping requirements.

List of Subjects in 32 CFR Part 175

Community development,

Government employees, Military

personnel, Surplus government

property.

Accordingly, 32 CFR part 175 is

proposed to be amended to read as

follows:

PART 175—[AMENDED]

1. The authority citation for 32 CFR

part 175 continues to read as follows:

Authority: 10 U.S.C. 2687 note.

2. Section 175.3 is proposed to be

amended by adding a new paragraph (l)

to read as follows:

§ 175.3 Definitions.

* * * * *

(1) Similar use. A use that is

comparable to or essentially the same as

the use under the original lease.

* * * * *

3. Sections 175.4, 175.5, and 175.6 are

proposed to be revised to read as

follows:

§ 175.4 Policy.

It is DoD policy to help communities

impacted by base closures and

realignments achieve rapid economic

recovery through effective reuse of the

assets of closing and realigning bases—

more quickly, more effectively, and in

ways based on local market conditions

and locally developed reuse plans. This

will be accomplished by quickly

ensuring that communities and the

Military Departments communicate

effectively and work together to

accomplish mutual goals of quick

property disposal and rapid job

generation. This part does not create any

rights or remedies and may not be relied

upon by any person, organization, or

other entity to allege a denial of any

rights or remedies other than those

provided by Title XXIX of Pub. L. 103–

160, Pub. L. 103–421, or Title XXVIII of

Pub. L. 104–106.

§ 175.5 Responsibilities.

(a) The Deputy Under Secretary of

Defense (Industrial Affairs and

Installations), after coordination with

the General Counsel of the Department

of Defense and other officials as

appropriate, may issue guidance
7968 Federal Register / Vol. 62, No. 35 / Friday, February 21, 1997 / Proposed Rules

11 Available from the Base Closure and

Community Reinvestment Office, 400 Army Navy

Drive, Suite 200, Arlington, VA 22202, email:

‘‘base—reuse@acq.osd.mil’’

2A Deputy Secretary of Defense memorandum of

May 15, 1996, ‘‘OUSD (Acquisition and Technology

Reorganization’’ disestablished the office of the

Assistant Secretary of Defense for Economic

Security and established the office of the Deputy

Under Secretary of Defense (Industrial Affairs and

Installations). Copies are available from the Base

Closure and Community Reinvestment Office, 400

Army Navy Drive, Suite 200, Arlington, VA 22202,

email: ‘‘base—reuse@acq.osde.mil’’

through the publication of a manual or

other such document as may be

necessary to implement laws, directives

and instructions on the retention or

disposal of real and personal property at

closing or realigning bases.

(b) The Heads of the DoD Components

shall ensure compliance with this part

and guidance issued by the Assistant

Secretary of Defense for Economic

Security and the Deputy Under

Secretary of Defense (Industrial Affairs

and Installations) on revitalizing base

closure communities.

§ 175.6 Delegations of authority.

(a) The authority provided by sections

202 and 203 of the Federal Property and

Administrative Services Act of 1949, as

amended (40 U.S.C. 483 and 484) for the

utilization and disposal of excess and

surplus property at closing and

realigning bases has been delegated by

the Administrator, GSA, to the Secretary

of Defense by delegations dated March

1, 1989; October 9, 1990; September 13,

1991; and, September 1, 1995.1

Authority under these delegations has

been previously delegated to the

Secretaries of the Military Departments,

who may delegate this authority further.

(b) Authorities delegated to the

Deputy Under Secretary of Defense

(Industrial Affairs and Installations) 2 by

§ 174.5 are hereby redelegated to the

Secretaries of the Military Departments,

unless otherwise provided within this

part or other DoD directive, instruction,

manual, or regulation. These authorities

may be delegated further.

4. Section 175.7 is proposed to be

amended by revising paragraphs

(a)(13)(i), (d)(3)(i), and by adding

paragraph (k) to read as follows:

§ 175.7 Procedures.

* * * * *

(a) * * *

(13) * * *

(i) In unusual circumstances,

extensions beyond six months can be

granted by the Deputy Under Secretary

of Defense (Industrial Affairs and

Installations).

* * * * *

(d) * * *

(3) * * *

(i) In the event there is no LRA

recognized by DoD and/or if a

redevelopment plan is not received from

the LRA within 15 months from the

determination of surplus under

paragraph (a)(13) of this section, (unless

an extension of time has been granted

by the Deputy Under Secretary of

Defense (Industrial Affairs and

Installations)), the applicable Military

Department shall proceed with the

disposal of property under applicable

property disposal and environmental

laws and regulations.

* * * * *

(k) Leaseback of property at base

closure and realignment sites. (1) 10

U.S.C. 2687 note (BRAC 1990), as added

by section 2837 of Pub. L. 104–106,

gives the Secretary of Defense the

authority to transfer property that is still

needed by a Federal Department or

Agency to an LRA provided the LRA

agrees to lease the property back to the

Federal Department or Agency in

accordance with all statutory and

regulatory guidance. The purpose of this

authority, hereinafter referred to as a

‘‘leaseback’’, is to enable the LRA to

obtain ownership of the property

pursuant to the BRAC process while

still ensuring that the Federal need for

use of the property is accommodated.

(2) Subject to BRAC 1990 and this

part, the decision whether to transfer

property pursuant to a leaseback rests

with the relevant military department.

However, a military department may

only transfer property via a leaseback if

the Federal entity that needs the

property agrees to the leaseback

arrangement.

(3) If for any reason property cannot

be transferred pursuant to a leaseback

(e.g., the relevant Federal Agency

prefers ownership, the LRA and the

Federal entity cannot agree on terms of

the lease, or the military department

determines that a leaseback would not

be in the Federal interest), such

property shall remain in Federal

ownership unless and until the relevant

landholding entity determines that it is

surplus pursuant to the Federal Property

Management Regulations.

(4) If a building or structure is

proposed for transfer under this

authority, that which is leased back to

the Federal Department or Agency may

be all or a portion of that building or

structure.

(5) The leaseback authority may be

used at all installations approved for

closure or realignment under BRAC

1990.

(6) Transfers under this authority

must be to an LRA.

(7) Transfers under this authority may

be by lease in furtherance of conveyance

or deed. A lease in furtherance of

conveyance is appropriate only in those

circumstances where deed transfer

cannot be accomplished because the

requirements of the Comprehensive

Environmental Response,

Compensation, and Liability Act

(CERCLA) (42 U.S.C. 9601, et seq.) for

such transfer have not been met. The

lease in furtherance of conveyance or

accompanying contract shall include a

provision stating that the LRA agrees to

take title to the property when

requirements for the transfer have been

satisfied.

(8) The leaseback authority can be

used to transfer property that is needed

either by existing Federal tenants or by

Federal Departments or Agencies

desiring to locate onto the property after

operational closure. The Military

Department that is closing or realigning

the installation may not transfer

property to an LRA under this authority

and lease it back unless:

(i) The Military Department is acting

in an Executive Agent capacity on

behalf of a Defense Agency that certifies

that a leaseback is in the interest of that

Defense Agency; or,

(ii) The Secretary of the Military

Department certifies that a leaseback is

in the best interest of the Military

Department and that use of the property

by the Military Department is consistent

with the obligation to close or realign

the installation in accordance with the

recommendations of the Defense Base

Closure and Realignment Commission.

(9) Property eligible for a leaseback is

not surplus because it is still needed by

a Federal entity. However,

notwithstanding that the property is not

surplus and that the LRA would not

otherwise have to include such property

in its redevelopment plan, the LRA

should include the proposed leaseback

of property in its redevelopment plan,

taking into account the planned Federal

use of such property.

(10) The terms of the LRA’s lease to

the Federal entity should afford the

Federal Department or Agency rights as

close to those associated with

ownership of the property as is

practicable. The requirements of the

General Services Acquisition Regulation

(GSAR) (48 CFR part 570) are not

applicable to the lease, but provisions in

the GSAR may be used to the extent

they are consistent with this Part. The

terms of the lease are negotiable subject

to the following:

(i) The lease shall be for a term of no

more than 50 years, but may provide for

options for renewal or extension of the

term at the request of the Federal
Federal Register / Vol. 62, No. 35 / Friday, February 21, 1997 / Proposed Rules 7969

Department or Agency concerned. The

lease term should be based on the needs

of the Federal entity.

(ii) The lease, or any renewals or

extensions thereof, shall not require

rental payments.

(iii) The lease shall not require the

Federal Government to pay the LRA or

other local government entity for

municipal services including fire and

police protection.

(iv) The Federal Department or

Agency concerned may be responsible

for services such as janitorial, grounds

keeping, utilities, capital maintenance,

and other services normally provided by

a landlord. Acquisition of such services

by the Federal Department or Agency is

to be accomplished through the use of

Federal Acquisition Regulation

procedures or otherwise in accordance

with applicable statutory and regulatory

requirements.

(v) The lease shall include a provision

prohibiting the LRA from transferring

ownership rights to another entity

during the term of the lease, other than

one of the political jurisdictions that

comprise the LRA, without the written

consent of the Federal Department or

Agency occupying the leaseback

property.

(vi) The lease shall include a

provision specifying that if the Federal

Department or Agency concerned no

longer needs the property before the

expiration of the term of the lease, the

remainder of the lease term may be

satisfied by the same or another Federal

Department or Agency using the leased

property for a use similar to the use

under the lease.

(A) The General Services

Administration shall assist with

identifying other Federal interest in

leasing the property.

(B) Prior to exercising such provision,

the Federal Department or Agency shall

consult with the LRA concerned, or the

elected body with jurisdiction over the

property if the LRA no longer exists.

(vii) The terms of the lease shall

provide that the Federal Department or

Agency may repair, improve, and

maintain the property at its expense

without the approval of the LRA.

(11) Conveyance to an LRA under this

authority shall be in one of the

following ways:

(i) Lease back property that is to be

conveyed under an Economic

Development Conveyance (EDC) shall

be conveyed as part of the EDC in

accordance with the existing EDC

procedures and § 175.7(k)(11)(ii)(B)(4).

The LRA shall submit the following in

addition to the application requirements

outlined in § 175.7(e)(5):

(A) A description of the parcel or

parcels the LRA proposes to have

transferred to it and then to lease back

to a Federal Department or Agency;

(B) A written statement signed by an

authorized representative of the Federal

entity that it agrees to accept a leaseback

of the property; and,

(C) A statement explaining why a

leaseback is necessary for the long-term

economic redevelopment of the

installation property.

(ii) Leaseback property not associated

with property to be conveyed under an

EDC shall be conveyed in accordance

with the following procedures:

(A) As soon as possible after the

LRA’s submission of its redevelopment

plan to the DoD and HUD, the LRA shall

submit a request for a leaseback to the

Military Department. The Military

Department may impose additional

requirements as necessary, but at a

minimum, the request shall contain the

following:

(1) A description of the parcel or

parcels the LRA proposes to have

transferred to it and then to lease back

to a Federal Department or Agency;

(2) A written statement signed by an

authorized representative of the Federal

entity that it agrees to accept a leaseback

of the property; and,

(3) A statement explaining why a

leaseback is necessary for the long-term

economic redevelopment of the

installation property.

(B) The transfer may be for

consideration at or below the estimated

present fair market value. In those

instances in which the property is

conveyed for consideration below the

estimated present fair market value, the

Military Department shall prepare a

written explanation of why the

estimated present fair market value was

not obtained.

(1) In a rural area, the transfer shall

comply with § 175.7(f)(5).

(2) Payment may be in cash or inkind.

(3) The Military Department shall

determine the estimated present fair

market value of the property before

transfer under this authority.

(4) The exact amount of

consideration, or the formula to be used

to determine that consideration, as well

as the schedule for payment of

consideration must be agreed upon in

writing before transfer under this

authority.

Dated: February 18, 1997.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 97–4333 Filed 2–20–97; 8:45 am]

BILLING CODE 5000–04–M

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 100

[CGD 05–97–007]

RIN 2115–AE46

Special Local Regulations for Marine

Events; Norfolk Harbor, Elizabeth

River, Norfolk, Virginia and

Portsmouth, Virginia

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Coast Guard proposes to

amend permanent special local

regulations established for marine

events held in the Norfolk Harbor,

Elizabeth River, between Norfolk and

Portsmouth, Virginia by identifying

specific annual events for which the

regulated area will be in effect. This

action is intended to update the

regulation in order to enhance the safety

of life and property during the events.

DATES: Comments must be received on

or before April 22, 1997.

ADDRESSES: Comments may be mailed to

Commander (Aosr), Fifth Coast Guard

District, 431 Crawford Street,

Portsmouth, Virginia 23704–5004, or

hand delivered to Room 516 at the same

address between 7:30 a.m. and 5 p.m.,

Monday through Friday, except Federal

holidays. The telephone number is (757)

398–6204. Comments will become part

of this docket and will be available for

inspection and copying at the above

address.

FOR FURTHER INFORMATION CONTACT:

S.L. Phillips, Project Manager, Search

and Rescue Branch, at (757) 398-6204.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages

interested persons to participate in this

rulemaking by submitting written views,

data, or arguments. Persons submitting

comment should include their names

and addresses, identify this rulemaking

(CGD 05–97–007) and the specific

section of this proposal to which each

comment applies, and give the reason

for each comment. Please submit two

copies of all comments and attachments

in an unbound format, no larger than

81⁄2 by 11 inches, suitable for copying

and electronic filing. Persons wanting

acknowledgement of receipt of

comments should enclose stamped, selfaddressed postcards or envelopes. The

Coast Guard will consider all comments

received during the comment period. It

may change this proposal in view of the

comments.