67786 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

GENERAL SERVICES 

ADMINISTRATION 

41 CFR Parts 102–71, 102–72, 102–73, 

102–74, 102–75, 102–76, 102–77, 102– 

78, 102–79, 102–80, 102–81, 102–82, 

and 102–83 

[FMR Amendment 2005–03; FMR Case 

2005–102–8] 

RIN 3090–AI17 

Federal Management Regulation; Real 

Property Policies Update 

AGENCY: Office of Governmentwide 

Policy, General Services Administration 

(GSA). 

ACTION: Final rule. 

SUMMARY: The General Services 

Administration is amending the Federal 

Management Regulation (FMR) to 

update the legal citations to conform to 

Public Law 107–217 and to incorporate 

additional policy guidance. Public Law 

107–217, which was enacted on August 

21, 2002, revised, restated, and 

recodified, without substantive change, 

certain laws related to public buildings, 

property, and works in Title 40 of the 

United States Code. Accordingly, this 

final rule cancels and replaces in its 

entirety FMR Amendment C–1 issued 

December 13, 2002. In addition to 

updating the legal citations, this final 

rule implements new accessibility 

standards for Federal facilities and 

provides additional real property policy 

coverage on the integrated workplace, 

sustainable development, outleasing, 

telework, siting antennas on Federal 

property, seismic safety, screening of 

excess real property, and the National 

Environmental Policy Act of 1969 

(NEPA), as amended. The FMR and any 

corresponding documents may be 

accessed at GSA’s Web site at http:// 

www.gsa.gov/fmr. 

DATES: Effective Date: November 8, 

2005. 

FOR FURTHER INFORMATION CONTACT: The 

Regulatory Secretariat, Room 4035, GS 

Building, Washington, DC, 20405, (202) 

208–7312, for information pertaining to 

status or publication schedules. For 

clarification of content, contact Mr. 

Stanley C. Langfeld, Director, 

Regulations Management Division, 

Office of Governmentwide Policy, 

General Services Administration, at 

(202) 501–1737, or by e-mail at 

Stanley.langfeld@gsa.gov. Please cite 

FMR case 2005–102–8, Amendment 

2005–03. 

SUPPLEMENTARY INFORMATION: 

A. Background 

As part of GSA’s regulatory 

improvement initiative, GSA published 

a final rule that created FMR parts 102– 

71 through 102–82 (41 CFR parts 102– 

71 through 102–82), entitled ‘‘Real 

Property Policies,’’ in the Federal 

Register on January 18, 2001 (66 FR 

5358). On December 13, 2002, GSA 

published FMR Amendment C–1 as a 

final rule in the Federal Register (67 FR 

76820), which completed the transfer of 

coverage on real property policies from 

the Federal Property Management 

Regulation (FPMR) to the FMR and 

created a separate part, FMR Part 102– 

83, to deal specifically with updated 

policy concerning the location of space. 

Also, on December 13, 2002, GSA 

published FPMR Amendment D–99 as a 

final rule in the Federal Register (67 FR 

76882), which removed all real property 

policy coverage from the FPMR and 

provided cross-references that directs 

readers to the coverage in the FMR. 

B. Executive Order 12866 

The General Services Administration 

(GSA) has determined that this final 

rule is not a significant regulatory action 

for the purposes of Executive Order 

12866. 

C. Regulatory Flexibility Act 

This final rule is not required to be 

published in the Federal Register for 

comment. Therefore, the Regulatory 

Flexibility Act does not apply. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FMR do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501 et seq. 

E. Small Business Regulatory 

Enforcement Fairness Act 

This final rule is exempt from 

Congressional review under 5 U.S.C. 

801 since it relates solely to agency 

management and personnel. 

List of Subjects in 41 CFR Parts 102–71, 

102–72, 102–73, 102–74, 102–75, 102– 

76, 102–77, 102–78, 102–79, 102–80, 

102–81, 102–82, and 102–83 

Administrative practice and 

procedure, Blind, Concessions, Federal 

buildings and facilities, Fire prevention, 

Government property management, 

Homeless, Individuals with disabilities, 

Location of space, Occupational safety 

and health, Parking, Real property 

acquisition, Security measures, Surplus 

Government property, Utilities. 

Dated: August 24, 2005. 

Stephen A. Perry, 

Administrator of General Services. 

■ For the reasons set forth in the 

preamble, GSA amends 41 CFR chapter 

102 as set forth below: 

■ 1. Revise part 102–71 to read as 

follows: 

CHAPTER 102—FEDERAL MANAGEMENT 

REGULATION 

SUBCHAPTER C—REAL PROPERTY 

PART 102–71—GENERAL 

Sec. 

102–71.5 What is the scope and philosophy 

of the General Services Administration’s 

(GSA) real property policies? 

102–71.10 How are these policies 

organized? 

102–71.15 [Reserved] 

102–71.20 What definitions apply to GSA’s 

real property policies? 

102–71.25 Who must comply with GSA’s 

real property policies? 

102–71.30 How must these real property 

policies be implemented? 

102–71.35 Are agencies allowed to deviate 

from GSA’s real property policies? 

Authority: 40 U.S.C. 121(c). 

§ 102–71.5 What is the scope and 

philosophy of the General Services 

Administration’s (GSA) real property 

policies? 

GSA’s real property policies 

contained in this part and parts 102–72 

through 102–82 of this chapter apply to 

Federal agencies, including GSA’s 

Public Buildings Service (PBS), 

operating under, or subject to, the 

authorities of the Administrator of 

General Services. These policies cover 

the acquisition, management, 

utilization, and disposal of real property 

by Federal agencies that initiate and 

have decision-making authority over 

actions for real property services. The 

detailed guidance implementing these 

policies is contained in separate 

customer service guides. 

§ 102–71.10 How are these policies 

organized? 

GSA has divided its real property 

policies into the following functional 

areas: 

(a) Delegation of authority. 

(b) Real estate acquisition. 

(c) Facility management. 

(d) Real property disposal. 

(e) Design and construction. 

(f) Art-in-architecture. 

(g) Historic preservation. 

(h) Assignment and utilization of 

space. 

(i) Safety and environmental 

management. 

(j) Security. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67787 

(k) Utility services. 

(l) Location of space. 

§ 102–71.15 [Reserved] 

§ 102–71.20 What definitions apply to 

GSA’s real property policies? 

The following definitions apply to 

GSA’s real property policies: 

Airport means any area of land or 

water that is used, or intended for use, 

for the landing and takeoff of aircraft, 

and any appurtenant areas that are used, 

or intended for use, for airport buildings 

or other airport facilities or rights-ofway, together with all airport buildings 

and facilities located thereon. 

Alteration means remodeling, 

improving, extending, or making other 

changes to a facility, exclusive of 

maintenance repairs that are preventive 

in nature. The term includes planning, 

engineering, architectural work, and 

other similar actions. 

Carpool means a group of two or more 

people regularly using a motor vehicle 

for transportation to and from work on 

a continuing basis. 

Commercial activities, within the 

meaning of subpart D, part 102–74 of 

this chapter, are activities undertaken 

for the primary purpose of producing a 

profit for the benefit of an individual or 

organization organized for profit. 

(Activities where commercial aspects 

are incidental to the primary purpose of 

expression of ideas or advocacy of 

causes are not commercial activities for 

purposes of this part.) 

Cultural activities include, but are not 

limited to, films, dramatics, dances, 

musical presentations, and fine art 

exhibits, whether or not these activities 

are intended to make a profit. 

Decontamination means the complete 

removal or destruction by flashing of 

explosive powders; the neutralizing and 

cleaning-out of acid and corrosive 

materials; the removal, destruction, or 

neutralizing of toxic, hazardous or 

infectious substances; and the complete 

removal and destruction by burning or 

detonation of live ammunition from 

contaminated areas and buildings. 

Designated Official is the highest 

ranking official of the primary occupant 

agency of a Federal facility, or, 

alternatively, a designee selected by 

mutual agreement of occupant agency 

officials. 

Disabled employee means an 

employee who has a severe, permanent 

impairment that for all practical 

purposes precludes the use of public 

transportation, or an employee who is 

unable to operate a car as a result of 

permanent impairment who is driven to 

work by another. Priority may require 

certification by an agency medical unit, 

including the Department of Veterans 

Affairs or the Public Health Service. 

Disposal agency means the Executive 

agency designated by the Administrator 

of General Services to dispose of surplus 

real or personal property. 

Educational activities mean activities 

such as (but not limited to) the 

operation of schools, libraries, day care 

centers, laboratories, and lecture or 

demonstration facilities. 

Emergency includes bombings and 

bomb threats, civil disturbances, fires, 

explosions, electrical failures, loss of 

water pressure, chemical and gas leaks, 

medical emergencies, hurricanes, 

tornadoes, floods, and earthquakes. The 

term does not apply to civil defense 

matters such as potential or actual 

enemy attacks that are addressed by the 

U.S. Department of Homeland Security. 

Executive means a Government 

employee with management 

responsibilities who, in the judgment of 

the employing agency head or his/her 

designee, requires preferential 

assignment of parking privileges. 

Executive agency means an Executive 

department specified in section 101 of 

title 5; a military department specified 

in section 102 of such title; an 

independent establishment as defined 

in section 104(1) of such title; and a 

wholly owned Government corporation 

fully subject to the provisions of chapter 

91 of title 31. 

Federal agency means any Executive 

agency or any establishment in the 

legislative or judicial branch of the 

Government (except the Senate, the 

House of Representatives, and the 

Architect of the Capitol and any 

activities under his or her direction). 

Federal agency buildings manager 

means the buildings manager employed 

by GSA or a Federal agency that has 

been delegated real property 

management and operation authority 

from GSA. 

Federal Government real property 

services provider means any Federal 

Government entity operating under, or 

subject to, the authorities of the 

Administrator of General Services that 

provides real property services to 

Federal agencies. This definition also 

includes private sector firms under 

contract with Federal agencies that 

deliver real property services to Federal 

agencies. This definition excludes any 

entity operating under, or subject to, 

authorities other than those of the 

Administrator of General Services. 

Flame-resistant means meeting 

performance standards as described by 

the National Fire Protection Association 

(NFPA Standard No. 701). Fabrics 

labeled with the Underwriters 

Laboratories Inc., classification marking 

for flammability are deemed to be flame 

resistant for purposes of this part. 

Foot-candle is the illumination on a 

surface one square foot in area on which 

there is a uniformly distributed flux of 

one lumen, or the illuminance produced 

on a surface all points of which are at 

a distance of one foot from a 

directionally uniform point source of 

one candela. 

GSA means the U.S. General Services 

Administration, acting by or through the 

Administrator of General Services, or a 

designated official to whom functions 

under this part have been delegated by 

the Administrator of General Services. 

Highest and best use means the most 

likely use to which a property can be 

put, which will produce the highest 

monetary return from the property, 

promote its maximum value, or serve a 

public or institutional purpose. The 

highest and best use determination must 

be based on the property’s economic 

potential, qualitative values (social and 

environmental) inherent in the property 

itself, and other utilization factors 

controlling or directly affecting land use 

(e.g., zoning, physical characteristics, 

private and public uses in the vicinity, 

neighboring improvements, utility 

services, access, roads, location, and 

environmental and historical 

considerations). Projected highest and 

best use should not be remote, 

speculative, or conjectural. 

Indefinite quantity contract 

(commonly referred to as term contract) 

provides for the furnishing of an 

indefinite quantity, within stated limits, 

of specific property or services during a 

specified contract period, with 

deliveries to be scheduled by the timely 

placement of orders with the contractor 

by activities designated either 

specifically or by class. 

Industrial property means any real 

property and related personal property 

that has been used or that is suitable to 

be used for manufacturing, fabricating, 

or processing of products; mining 

operations; construction or repair of 

ships and other waterborne carriers; 

power transmission facilities; railroad 

facilities; and pipeline facilities for 

transporting petroleum or gas. 

Landholding agency means the 

Federal agency that has accountability 

for the property involved. For the 

purposes of this definition, 

accountability means that the Federal 

agency reports the real property on its 

financial statements and inventory 

records. 

Landing area means any land or 

combination of water and land, together 

with improvements thereon and 

necessary operational equipment used 

in connection therewith, which is used 

67788 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

for landing, takeoff, and parking of 

aircraft. The term includes, but is not 

limited to, runways, strips, taxiways, 

and parking aprons. 

Life cycle cost is the total cost of 

owning, operating, and maintaining a 

building over its useful life, including 

its fuel and energy costs, determined on 

the basis of a systematic evaluation and 

comparison of alternative building 

systems; except that in the case of 

leased buildings, the life cycle cost shall 

be calculated over the effective 

remaining term of the lease. 

Limited combustible means rigid 

materials or assemblies that have fire 

hazard ratings not exceeding 25 for 

flame spread and 150 for smoke 

development when tested in accordance 

with the American Society for Testing 

and Materials, Test E 84, Surface 

Burning Characteristics of Building 

Materials. 

Maintenance, for the purposes of part 

102–75, entitled ‘‘Real Property 

Disposal,’’ of this chapter, means the 

upkeep of property only to the extent 

necessary to offset serious deterioration; 

also such operation of utilities, 

including water supply and sewerage 

systems, heating, plumbing, and airconditioning equipment, as may be 

necessary for fire protection, the needs 

of interim tenants, and personnel 

employed at the site, and the 

requirements for preserving certain 

types of equipment. For the purposes of 

part 102–74, entitled ‘‘Facility 

Management,’’ of this chapter, 

maintenance means preservation by 

inspection, adjustment, lubrication, 

cleaning, and the making of minor 

repairs. Ordinary maintenance means 

routine recurring work that is incidental 

to everyday operations; preventive 

maintenance means work programmed 

at scheduled intervals. 

Management means the safeguarding 

of the Government’s interest in 

property, in an efficient and economical 

manner consistent with the best 

business practices. 

Nationally recognized standards 

encompasses any standard or 

modification thereof that—

(1) Has been adopted and 

promulgated by a nationally recognized 

standards-producing organization under 

procedures whereby those interested 

and affected by it have reached 

substantial agreement on its adoption; 

or 

(2) Was formulated through 

consultation by appropriate Federal 

agencies in a manner that afforded an 

opportunity for diverse views to be 

considered. 

No commercial value means real 

property, including related personal 

property, which has no reasonable 

prospect of producing any disposal 

revenues. 

Nonprofit organization means an 

organization identified in 26 U.S.C. 

501(c). 

Normally furnished commercially 

means consistent with the level of 

services provided by a commercial 

building operator for space of 

comparable quality and housing tenants 

with comparable requirements. Service 

levels are based on the effort required to 

service space for a five-day week, one 

eight-hour shift schedule. 

Occupancy Emergency Organization 

means the emergency response 

organization comprised of employees of 

Federal agencies designated to perform 

the requirements established by the 

Occupant Emergency Plan. 

Occupant agency means an 

organization that is assigned space in a 

facility under GSA’s custody and 

control. 

Occupant Emergency Plan means 

procedures developed to protect life and 

property in a specific federally occupied 

space under stipulated emergency 

conditions. 

Occupant Emergency Program means 

a short-term emergency response 

program. It establishes procedures for 

safeguarding lives and property during 

emergencies in particular facilities. 

Postal vehicle means a Governmentowned vehicle used for the 

transportation of mail, or a privately 

owned vehicle used under contract with 

the U.S. Postal Service for the 

transportation of mail. 

Protection means the provisions of 

adequate measures for prevention and 

extinguishment of fires, special 

inspections to determine and eliminate 

fire and other hazards, and necessary 

guards to protect property against 

thievery, vandalism, and unauthorized 

entry. 

Public area means any area of a 

building under the control and custody 

of GSA that is ordinarily open to 

members of the public, including 

lobbies, courtyards, auditoriums, 

meeting rooms, and other such areas not 

assigned to a lessee or occupant agency. 

Public body means any State of the 

United States, the District of Columbia, 

the Commonwealth of Puerto Rico, the 

Virgin Islands, or any political 

subdivision, agency, or instrumentality 

of the foregoing. 

Public building means: 

(1) Any building that is suitable for 

office and/or storage space for the use of 

one or more Federal agencies or mixedownership corporations, such as Federal 

office buildings, post offices, 

customhouses, courthouses, border 

inspection facilities, warehouses, and 

any such building designated by the 

President. It also includes buildings of 

this sort that are acquired by the Federal 

Government under the Administrator’s 

installment-purchase, lease-purchase, 

and purchase-contract authorities. 

(2) Public building does not include 

buildings: 

(i) On the public domain. 

(ii) In foreign countries. 

(iii) On Indian and native Eskimo 

properties held in trust by the United 

States. 

(iv) On lands used in connection with 

Federal programs for agricultural, 

recreational, and conservation purposes. 

(v) On or used in connection with 

river, harbor, flood control, reclamation 

or power projects, or for chemical 

manufacturing or development projects, 

or for nuclear production, research, or 

development projects. 

(vi) On or used in connection with 

housing and residential projects. 

(vii) On military installations. 

(viii) On Department of Veterans 

Affairs installations used for hospital or 

domiciliary purposes. 

(ix) Excluded by the President. 

Real property means: 

(1) Any interest in land, together with 

the improvements, structures, and 

fixtures located thereon (including 

prefabricated movable structures, such 

as Butler-type storage warehouses and 

Quonset huts, and house trailers with or 

without undercarriages), and 

appurtenances thereto, under the 

control of any Federal agency, except—

(i) The public domain; 

(ii) Lands reserved or dedicated for 

national forest or national park 

purposes; 

(iii) Minerals in lands or portions of 

lands withdrawn or reserved from the 

public domain that the Secretary of the 

Interior determines are suitable for 

disposition under the public land 

mining and mineral leasing laws; 

(iv) Lands withdrawn or reserved 

from the public domain but not 

including lands or portions of lands so 

withdrawn or reserved that the 

Secretary of the Interior, with the 

concurrence of the Administrator of 

General Services, determines are not 

suitable for return to the public domain 

for disposition under the general public 

land laws because such lands are 

substantially changed in character by 

improvements or otherwise; and 

(v) Crops when designated by such 

agency for disposition by severance and 

removal from the land. 

(2) Improvements of any kind, 

structures, and fixtures under the 

control of any Federal agency when 

designated by such agency for 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67789 

disposition without the underlying land 

(including such as may be located on 

the public domain, on lands withdrawn 

or reserved from the public domain, on 

lands reserved or dedicated for national 

forest or national park purposes, or on 

lands that are not owned by the United 

States) excluding, however, 

prefabricated movable structures, such 

as Butler-type storage warehouses and 

Quonset huts, and house trailers (with 

or without undercarriages). 

(3) Standing timber and embedded 

gravel, sand, or stone under the control 

of any Federal agency, whether 

designated by such agency for 

disposition with the land or by 

severance and removal from the land, 

excluding timber felled, and gravel, 

sand, or stone excavated by or for the 

Government prior to disposition. 

Recognized labor organization means 

a labor organization recognized under 

title VII of the Civil Service Reform Act 

of 1978 (Pub. L. 95–454), as amended, 

governing labor-management relations. 

Recreational activities include, but 

are not limited to, the operations of 

gymnasiums and related facilities. 

Regional Officer, within the meaning 

of part 102–74, subpart D of this 

chapter, means the Federal official 

designated to supervise the 

implementation of the occasional use 

provisions of 40 U.S.C. 581(h)(2). The 

Federal official may be an employee of 

GSA or a Federal agency that has 

delegated authority from GSA to 

supervise the implementation of the 

occasional use provisions of 40 U.S.C. 

581(h)(2). 

Related personal property means any 

personal property—

(1) That is an integral part of real 

property or is related to, designed for, or 

specially adapted to the functional or 

productive capacity of the real property 

and the removal of which would 

significantly diminish the economic 

value of the real property (normally 

common use items, including but not 

limited to general-purpose furniture, 

utensils, office machines, office 

supplies, or general-purpose vehicles, 

are not considered to be related personal 

property); or 

(2) That is determined by the 

Administrator of General Services to be 

related to the real property. 

Repairs means those additions or 

changes that are necessary for the 

protection and maintenance of property 

to deter or prevent excessive or rapid 

deterioration or obsolescence, and to 

restore property damaged by storm, 

flood, fire, accident, or earthquake. 

Ridesharing means the sharing of the 

commute to and from work by two or 

more people, on a continuing basis, 

regardless of their relationship to each 

other, in any mode of transportation, 

including, but not limited to, carpools, 

vanpools, buspools, and mass transit. 

State means the fifty States, political 

subdivisions thereof, the District of 

Columbia, the Commonwealths of 

Puerto Rico and Guam, and the 

territories and possessions of the United 

States. 

Unit price agreement provides for the 

furnishing of an indefinite quantity, 

within stated limits, of specific property 

or services at a specified price, during 

a specified contract period, with 

deliveries to be scheduled by the timely 

placement of orders upon the lessor by 

activities designated either specifically 

or by class. 

Unusual hours means work hours that 

are frequently required to be varied and 

do not coincide with any regular work 

schedule. This category includes time 

worked by individuals who regularly or 

frequently work significantly more than 

8 hours per day. Unusual hours does not 

include time worked by shift workers, 

by those on alternate work schedules, 

and by those granted exceptions to the 

normal work schedule (e.g., flex-time). 

Upon approval from GSA means 

when an agency either has a delegation 

of authority document from the 

Administrator of General Services or 

written approval from the Administrator 

or his/her designee before proceeding 

with a specified action. 

Vanpool means a group of at least 8 

persons using a passenger van or a 

commuter bus designed to carry 10 or 

more passengers. Such a vehicle must 

be used for transportation to and from 

work in a single daily round trip. 

Zonal allocations means the 

allocation of parking spaces on the basis 

of zones established by GSA in 

conjunction with occupant agencies. In 

metropolitan areas where this method is 

used, all agencies located in a 

designated zone will compete for 

available parking in accordance with 

instructions issued by GSA. In 

establishing this procedure, GSA will 

consult with all affected agencies. 

§ 102–71.25 Who must comply with GSA’s 

real property policies? 

Federal agencies operating under, or 

subject to, the authorities of the 

Administrator of General Services must 

comply with these policies. 

§ 102–71.30 How must these real property 

policies be implemented? 

Each Federal Government real 

property services provider must provide 

services that are in accord with the 

policies presented in parts 102–71 

through 102–82 of this chapter. Also, 

Federal agencies must make the 

provisions of any contract with private 

sector real property services providers 

conform to the policies in parts 102–71 

through 102–82 of this chapter. 

§ 102–71.35 Are agencies allowed to 

deviate from GSA’s real property policies? 

Yes, see §§ 102–2.60 through 102–

2.110 of this chapter to request a 

deviation from the requirements of these 

real property policies. 

■ 2. Revise part 102–72 to read as 

follows: 

PART 102–72—DELEGATION OF 

AUTHORITY 

Subpart A—General Provisions 

Sec. 

102–72.5 What is the scope of this part? 

102–72.10 What basic policy governs 

delegation of authority to Federal 

agencies? 

Subpart B—Delegation of Authority 

102–72.15 What criteria must a delegation 

meet? 

102–72.20 Are there limitations on this 

delegation of authority? 

102–72.25 What are the different types of 

delegations of authority? 

102–72.30 What are the different types of 

delegations related to real estate leasing? 

102–72.35 What are the requirements for 

obtaining an Administrative Contracting 

Officer (ACO) delegation from GSA? 

102–72.40 What are facility management 

delegations? 

102–72.45 What are the different types of 

delegations related to facility 

management? 

102–72.50 What are Executive agencies’

responsibilities under a delegation of 

real property management and operation 

authority from GSA? 

102–72.55 What are the requirements for 

obtaining a delegation of real property 

management and operation authority 

from GSA? 

102–72.60 What are Executive agencies’

responsibilities under a delegation of 

individual repair and alteration project 

authority from GSA? 

102–72.65 What are the requirements for 

obtaining a delegation of individual 

repair and alteration project authority 

from GSA? 

102–72.70 What are Executive agencies’

responsibilities under a delegation of 

lease management authority (contracting 

officer representative authority) from 

GSA? 

102–72.75 What are the requirements for 

obtaining a delegation of lease 

management authority (contracting 

officer representative authority) from 

GSA? 

102–72.80 What are Executive agencies’

responsibilities under a disposal of real 

property delegation of authority from 

GSA? 

102–72.85 What are the requirements for 

obtaining a disposal of real property 

delegation of authority from GSA? 

67790 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

102–72.90 What are Executive agencies’

responsibilities under a security 

delegation of authority from GSA? 

102–72.95 What are the requirements for 

obtaining a security delegation of 

authority from GSA? 

102–72.100 What are Executive agencies’

responsibilities under a utility service 

delegation of authority from GSA? 

102–72.105 What are the requirements for 

obtaining a utility services delegation of 

authority from GSA? 

Authority: 40 U.S.C. 121(c), (d) and (e). 

Subpart A—General Provisions 

§ 102–72.5 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. 

§ 102–72.10 What basic policy governs 

delegation of authority to Federal agencies? 

The Administrator of General Services 

may delegate and may authorize 

successive redelegations of the real 

property authority vested in the 

Administrator to any Federal agency. 

Subpart B—Delegation of Authority 

§ 102–72.15 What criteria must a 

delegation meet? 

Delegations must be in the 

Government’s best interest, which 

means that GSA must evaluate such 

factors as whether a delegation would 

be cost effective for the Government in 

the delivery of space. 

§ 102–72.20 Are there limitations on this 

delegation of authority? 

Federal agencies must exercise 

delegated real property authority and 

functions according to the parameters 

described in each delegation of 

authority document, and Federal 

agencies may only exercise the authority 

of the Administrator that is specifically 

provided within the delegation of 

authority document. 

§ 102–72.25 What are the different types of 

delegations of authority? 

The basic types of GSA Delegations of 

Authority are—

(a) Delegation of Leasing Authority; 

(b) Delegation of Real Property 

Management and Operation Authority; 

(c) Delegation of Individual Repair 

and Alteration Project Authority; 

(d) Delegation of Lease Management 

Authority (Contracting Office 

Representative Authority); 

(e) Delegation of Administrative 

Contracting Officer (ACO) Authority; 

(f) Delegation of Real Property 

Disposal Authority; 

(g) Security Delegation of Authority; 

and 

(h) Utility Services Delegation of 

Authority. 

§ 102–72.30 What are the different types of 

delegations related to real estate leasing? 

Delegations related to real estate 

leasing include the following: 

(a) Categorical space delegations and 

agency special purpose space 

delegations (see § 102–73.140 of this 

title). 

(b) The Administrator of General 

Services has issued a standing 

delegation of authority (under a program 

known as ‘‘Can’t Beat GSA Leasing’’) to 

the heads of all Federal agencies to 

accomplish all functions relating to 

leasing of general purpose space for 

terms of up to 20 years and below 

prospectus level requirements, 

regardless of geographic location. This 

delegation includes some conditions 

Federal agencies must meet when 

conducting the procurement 

themselves, such as training in lease 

contracting and reporting data to GSA. 

(c) An ACO delegation, in addition to 

lease management authority, provides 

Federal agencies with limited 

contracting officer authority to perform 

such duties as paying and withholding 

lessor rent and modifying lease 

provisions that do not change the lease 

term length or the amount of space 

under lease. 

§ 102–72.35 What are the requirements for 

obtaining an Administrative Contracting 

Officer (ACO) delegation from GSA? 

When Federal agencies do not 

exercise the delegation of authority for 

general purpose space mentioned in 

§ 102–72.30(b) of this part, GSA may 

consider granting an ACO delegation 

when Federal agencies—

(a) Occupy at least 90 percent of the 

building’s GSA-controlled space, or 

Federal agencies have the written 

concurrence of 100 percent of rentpaying occupants covered under the 

lease; and 

(b) Have the technical capability to 

perform the leasing function. 

§ 102–72.40 What are facility management 

delegations? 

Facility management delegations give 

Executive agencies authority to operate 

and manage buildings day to day, to 

perform individual repair and alteration 

projects, and manage real property 

leases. 

§ 102–72.45 What are the different types of 

delegations related to facility management? 

The principal types of delegations 

involved in the management of facilities 

are—

(a) Real property management and 

operation authority; 

(b) Individual repair and alteration 

project authority; and 

(c) Lease management authority 

(contracting officer representative 

authority). 

§ 102–72.50 What are Executive agencies’

responsibilities under a delegation of real 

property management and operation 

authority from GSA? 

With this delegation, Executive 

agencies have the authority to operate 

and manage buildings day to day. 

Delegated functions may include 

building operations, maintenance, 

recurring repairs, minor alterations, 

historic preservation, concessions, and 

energy management of specified 

buildings subject to the conditions in 

the delegation document. 

§ 102–72.55 What are the requirements for 

obtaining a delegation of real property 

management and operation authority from 

GSA? 

An Executive agency may be 

delegated real property management 

and operation authority when it—

(a) Occupies at least 90 percent of the 

space in the Government-controlled 

facility, or has the concurrence of 100 

percent of the rent-paying occupants to 

perform these functions; and 

(b) Demonstrates that it can perform 

the delegated real property management 

and operation responsibilities. 

§ 102–72.60 What are Executive agencies’

responsibilities under a delegation of 

individual repair and alteration project 

authority from GSA? 

With this delegation of authority, 

Executive agencies have the 

responsibility to perform individual 

repair and alterations projects. 

Executive agencies are delegated repair 

and alterations authority for 

reimbursable space alteration projects 

up to the simplified acquisition 

threshold, as specified in the GSA 

Customer Guide to Real Property. 

§ 102–72.65 What are the requirements for 

obtaining a delegation of individual repair 

and alteration project authority from GSA? 

Executive agencies may be delegated 

repair and alterations authority for other 

individual alteration projects when they 

demonstrate the ability to perform the 

delegated repair and alterations 

responsibilities and when such a 

delegation promotes efficiency and 

economy. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67791 

§ 102–72.70 What are Executive agencies’

responsibilities under a delegation of lease 

management authority (contracting officer 

representative authority) from GSA? 

When an Executive agency does not 

exercise the delegation of authority 

mentioned in § 102–72.30(b) to lease 

general purpose space itself, it may be 

delegated, upon request, lease 

management authority to manage the 

administration of one or more lease 

contracts awarded by GSA. 

§ 102–72.75 What are the requirements for 

obtaining a delegation of lease 

management authority (contracting officer 

representative authority) from GSA? 

An Executive agency may be 

delegated lease management authority 

when it—

(a) Occupies at least 90 percent of the 

building’s GSA-controlled space or has 

the written concurrence of 100 percent 

of rent-paying occupants covered under 

the lease to perform this function; and 

(b) Demonstrates the ability to 

perform the delegated lease 

management responsibilities. 

§ 102–72.80 What are Executive agencies’

responsibilities under a disposal of real 

property delegation of authority from GSA? 

With this delegation, Executive 

agencies have the authority to utilize 

and dispose of excess or surplus real 

and related personal property and to 

grant approvals and make 

determinations, subject to the 

conditions in the delegation document. 

§ 102–72.85 What are the requirements for 

obtaining a disposal of real property 

delegation of authority from GSA? 

While disposal delegations to 

Executive agencies are infrequent, GSA 

may delegate authority to them based on 

situations involving certain low-value 

properties and when they can 

demonstrate that they have the technical 

expertise to perform the disposition 

functions. GSA may grant special 

delegations of authority to Executive 

agencies for the utilization and disposal 

of certain real property through the 

procedures set forth in part 102–75, 

subpart F of this chapter. 

§ 102–72.90 What are Executive agencies’

responsibilities under a security delegation 

of authority from GSA? 

Law enforcement and related security 

functions were transferred to the 

Department of Homeland Security upon 

its establishment in 2002. The 

Homeland Security Act authorizes the 

Secretary of Homeland Security, in 

consultation with the Administrator of 

General Services, to issue regulations 

necessary for the protection and 

administration of property owned or 

occupied by the Federal Government 

and persons on the property. 

Notwithstanding the foregoing, GSA 

retained all powers, functions and 

authorities necessary for the operation, 

maintenance, and protection of 

buildings and grounds owned and 

occupied by the Federal Government 

and under the jurisdiction, custody, or 

control of GSA. 

§ 102–72.95 What are the requirements for 

obtaining a security delegation of authority 

from GSA? 

An Executive agency may request a 

security delegation from GSA by 

submitting a written request with the 

detailed basis for the requested 

delegation to the Assistant Regional 

Administrator, PBS, in the region where 

the building is located. A request for 

multiple buildings in multiple regions 

should be directed to the Commissioner 

of PBS. The delegation may be granted 

where the requesting agency 

demonstrates a compelling need for the 

delegated authority and the delegation 

is not inconsistent with the authorities 

of any other law enforcement agency. 

§ 102–72.100 What are Executive agencies’

responsibilities under a utility service 

delegation of authority from GSA? 

With this delegation, Executive 

agencies have the authority to negotiate 

and execute utility services contracts for 

periods over one year but not exceeding 

ten years for their use and benefit. 

Agencies also have the authority to 

intervene in utility rate proceedings to 

represent the consumer interests of the 

Federal Government, if so provided in 

the delegation of authority. 

§ 102–72.105 What are the requirements 

for obtaining a utility services delegation of 

authority from GSA? 

Executive agencies may be delegated 

utility services authority when they 

have the technical expertise and 

adequate staffing. 

■ 3. Revise part 102–73 to read as 

follows: 

PART 102–73—REAL ESTATE 

ACQUISITION 

Subpart A—General Provisions 

Sec. 

102–73.5 What is the scope of this part? 

102–73.10 What is the basic real estate 

acquisition policy? 

102–73.15 What real estate acquisition and 

related services may Federal agencies 

provide? 

United States Postal Service-Controlled 

Space 

102–73.20 Are Federal agencies required to 

give priority consideration to space in 

buildings under the custody and control 

of the United States Postal Service in 

fulfilling Federal agency space needs? 

Locating Federal Facilities 

102–73.25 What policies must Executive 

agencies comply with in locating Federal 

facilities? 

Historic Preservation 

102–73.30 What historic preservation 

provisions must Federal agencies comply 

with prior to acquiring, constructing, or 

leasing space? 

Prospectus Requirements 

102–73.35 Is a prospectus required for all 

acquisition, construction, or alteration 

projects? 

102–73.40 What happens if the dollar value 

of the project exceeds the prospectus 

threshold? 

Subpart B—Acquisition by Lease 

102–73.45 When may Federal agencies 

consider leases of privately owned land 

and buildings to satisfy their space 

needs? 

102–73.50 Are Federal agencies that 

possess independent statutory authority 

to acquire leased space subject to 

requirements of this part? 

102–73.55 On what basis must Federal 

agencies acquire leases? 

102–73.60 With whom may Federal 

agencies enter into lease agreements? 

102–73.65 Are there any limitations on 

leasing certain types of space? 

102–73.70 Are Executive agencies required 

to acquire leased space by negotiation? 

102–73.75 What functions must Federal 

agencies perform with regard to leasing 

building space? 

102–73.80 Who is authorized to contact 

lessors, offerors, or potential offerors 

concerning space leased or to be leased? 

102–73.85 Can agencies with independent 

statutory authority to lease space have 

GSA perform the leasing functions? 

102–73.90 What contingent fee policy must 

Federal agencies apply to the acquisition 

of real property by lease? 

102–73.95 How are Federal agencies 

required to assist GSA? 

Competition in Contracting Act of 1984 

102–73.100 Is the Competition in 

Contracting Act of 1984, as amended 

(CICA), applicable to lease acquisition? 

National Environmental Policy Act of 1969 

(NEPA) 

102–73.105 What policies must Federal 

agencies follow to implement the 

requirements of NEPA when acquiring 

real property by lease? 

Lease Construction 

102–73.110 What rules must Executive 

agencies follow when acquiring 

leasehold interests in buildings 

constructed for Federal Government use? 

Price Preference for Historic Properties 

102–73.115 Must Federal agencies offer a 

price preference to space in historic 

properties when acquiring leased space? 

102–73.120 How much of a price preference 

must Federal agencies give when 

acquiring leased space using the lowest 

67792 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

price technically acceptable source 

selection process? 

102–73.125 How much of a price preference 

must Federal agencies give when 

acquiring leased space using the best 

value tradeoff source selection process? 

Leases With Purchase Options 

102–73.130 When may Federal agencies 

consider acquiring leases with purchase 

options? 

Scoring Rules 

102–73.135 What scoring rules must 

Federal agencies follow when 

considering leases and leases with 

purchase options? 

Delegations of Leasing Authority 

102–73.140 When may agencies that do not 

possess independent leasing authority 

lease space? 

Categorical Space Delegations 

102–73.145 What is a categorical space 

delegation? 

102–73.150 What is the policy for 

categorical space delegations? 

102–73.155 What types of space can 

Federal agencies acquire with a 

categorical space delegation? 

Special Purpose Space Delegations 

102–73.160 What is an agency special 

purpose space delegation? 

102–73.165 What is the policy for agency 

special purpose space delegations? 

102–73.170 What types of special purpose 

space may the Department of Agriculture 

lease? 

102–73.175 What types of special purpose 

space may the Department of Commerce 

lease? 

102–73.180 What types of special purpose 

space may the Department of Defense 

lease? 

102–73.185 What types of special purpose 

space may the Department of Energy 

lease? 

102–73.190 What types of special purpose 

space may the Federal Communications 

Commission lease? 

102–73.195 What types of special purpose 

space may the Department of Health and 

Human Services lease? 

102–73.196 What types of special purpose 

space may the Department of Homeland 

Security lease? 

102–73.200 What types of special purpose 

space may the Department of the Interior 

lease? 

102–73.205 What types of special purpose 

space may the Department of Justice 

lease? 

102–73.210 What types of special purpose 

space may the Office of Thrift 

Supervision lease? 

102–73.215 What types of special purpose 

space may the Department of 

Transportation lease? 

102–73.220 What types of special purpose 

space may the Department of the 

Treasury lease? 

102–73.225 What types of special purpose 

space may the Department of Veterans 

Affairs lease? 

Limitations on the Use of Delegated 

Authority 

102–73.230 When must Federal agencies 

submit a prospectus to lease real 

property? 

102–73.235 What is the maximum lease 

term that a Federal agency may agree to 

when it has been delegated lease 

acquisition authority from GSA? 

102–73.240 What policy must Federal 

agencies follow to acquire official 

parking spaces? 

Subpart C—Acquisition by Purchase or 

Condemnation 

Buildings 

102–73.245 When may Federal agencies 

consider purchase of buildings? 

102–73.250 Are agencies required to adhere 

to the policies for locating Federal 

facilities when purchasing buildings? 

102–73.255 What factors must Executive 

agencies consider when purchasing 

sites? 

Land 

102–73.260 What land acquisition policy 

must Federal agencies follow? 

102–73.265 What actions must Federal 

agencies take to facilitate land 

acquisition? 

Just Compensation 

102–73.270 Are Federal agencies required 

to provide the owner with a written 

statement of the amount established as 

just compensation? 

102–73.275 What specific information must 

be included in the summary statement 

for the owner that explains the basis for 

just compensation? 

102–73.280 Where can Federal agencies 

find guidance on how to appraise the 

value of properties being acquired by the 

Federal Government? 

102–73.285 [Reserved] 

102–73.290 Are there any prohibitions 

when a Federal agency pays ‘‘just 

compensation’’ to a tenant? 

Expenses Incidental to Property Transfer 

102–73.295 What property transfer 

expenses must Federal agencies cover 

when acquiring real property? 

Litigation Expenses 

102–73.300 Are Federal agencies required 

to pay for litigation expenses incurred by 

a property owner because of a 

condemnation proceeding? 

Relocation Assistance Policy 

102–73.305 What relocation assistance 

policy must Federal agencies follow? 

Authority: 40 U.S.C. 121(c); Sec. 3(c), 

Reorganization Plan No. 18 of 1950 (40 

U.S.C. 301 note); Sec. 1–201(b), E.O. 12072, 

43 FR 36869, 3 CFR, 1978 Comp., p. 213. 

Subpart A—General Provisions 

§ 102–73.5 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. 

§ 102–73.10 What is the basic real estate 

acquisition policy? 

When seeking to acquire space, 

Federal agencies should first seek space 

in Government-owned and Governmentleased buildings. If suitable 

Government-controlled space is 

unavailable, Federal agencies must 

acquire real estate and related services 

in an efficient and cost effective 

manner. 

§ 102–73.15 What real estate acquisition 

and related services may Federal agencies 

provide? 

Federal agencies, upon approval from 

GSA, may provide real estate 

acquisition and related services, 

including leasing (with or without 

purchase options), building and/or site 

purchase, condemnation, and relocation 

assistance. For information on the 

design and construction of Federal 

facilities, see part 102–76 of this 

chapter. 

United States Postal Service-Controlled 

Space 

§ 102–73.20 Are Federal agencies required 

to give priority consideration to space in 

buildings under the custody and control of 

the United States Postal Service in fulfilling 

Federal agency space needs? 

Yes, after considering the availability 

of GSA-controlled space and 

determining that no such space is 

available to meet its needs, Federal 

agencies must extend priority 

consideration to available space in 

buildings under the custody and control 

of the United States Postal Service 

(USPS) in fulfilling Federal agency 

space needs, as specified in the 

‘‘Agreement Between General Services 

Administration and the United States 

Postal Service Covering Real and 

Personal Property Relationships and 

Associated Services,’’ dated July 1985. 

Locating Federal Facilities 

§ 102–73.25 What policies must Executive 

agencies comply with in locating Federal 

facilities? 

Executive agencies must comply with 

the location policies in this part and 

part 102–83 of this chapter. 

Historic Preservation 

§ 102–73.30 What historic preservation 

provisions must Federal agencies comply 

with prior to acquiring, constructing, or 

leasing space? 

Prior to acquiring, constructing, or 

leasing space, Federal agencies must 

comply with the provisions of section 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67793 

110(a) of the National Historic 

Preservation Act of 1966, as amended 

(16 U.S.C. 470h–2(a)), regarding the use 

of historic properties. Federal agencies 

can find guidance on protecting, 

enhancing, and preserving historic and 

cultural property in part 102–78 of this 

chapter. 

Prospectus Requirements 

§ 102–73.35 Is a prospectus required for 

all acquisition, construction, or alteration 

projects? 

No, a prospectus is not required if the 

dollar value of a project does not exceed 

the prospectus threshold. 40 U.S.C. 

3307 establishes a prospectus threshold, 

applicable to Federal agencies operating 

under, or subject to, the authorities of 

the Administrator of General Services, 

for the construction, alteration, 

purchase, and acquisition of any 

building to be used as a public building, 

and establishes a prospectus threshold 

to lease any space for use for public 

purposes. The current prospectus 

threshold value for each fiscal year can 

be accessed by entering GSA’s Web site 

at http://www.gsa.gov and then inserting 

‘‘prospectus thresholds’’ in the search 

mechanism in the upper right-hand 

corner of the page. 

§ 102–73.40 What happens if the dollar 

value of the project exceeds the prospectus 

threshold? 

Projects require approval by the 

Senate and the House of Representatives 

if the dollar value of a project exceeds 

the prospectus threshold. To obtain this 

approval, the Administrator of General 

Services will transmit the proposed 

prospectuses to Congress for 

consideration by the Senate and the 

House of Representatives. Furthermore, 

as indicated in § 102–72.30(b), the 

general purpose lease delegation 

authority is restricted to below the 

prospectus threshold, and therefore, 

GSA must conduct all lease acquisitions 

over the threshold. 

Subpart B—Acquisition by Lease 

§ 102–73.45 When may Federal agencies 

consider leases of privately owned land and 

buildings to satisfy their space needs? 

Federal agencies may consider leases 

of privately owned land and buildings 

only when needs cannot be met 

satisfactorily in Government-controlled 

space and one or more of the following 

conditions exist: 

(a) Leasing is more advantageous to 

the Government than constructing a 

new building, or more advantageous 

than altering an existing Federal 

building. 

(b) New construction or alteration is 

unwarranted because demand for space 

in the community is insufficient, or is 

indefinite in scope or duration. 

(c) Federal agencies cannot provide 

for the completion of a new building 

within a reasonable time. 

§ 102–73.50 Are Federal agencies that 

possess independent statutory authority to 

acquire leased space subject to 

requirements of this part? 

No, Federal agencies possessing 

independent statutory authority to 

acquire leased space are not subject to 

GSA authority and, therefore, may not 

be subject to the requirements of this 

part. However, lease prospectus 

approval requirements of 40 U.S.C. 

Section 3307 may still apply 

appropriations to lease of space for 

public purposes under an agency’s 

independent leasing authority. 

§ 102–73.55 On what basis must Federal 

agencies acquire leases? 

Federal agencies must acquire leases 

on the most favorable basis to the 

Federal Government, with due 

consideration to maintenance and 

operational efficiency, and at charges 

consistent with prevailing market rates 

for comparable facilities in the 

community. 

§ 102–73.60 With whom may Federal 

agencies enter into lease agreements? 

Federal agencies, upon approval from 

GSA, may enter into lease agreements 

with any person, partnership, 

corporation, or other public or private 

entity, provided that such lease 

agreements do not bind the Government 

for periods in excess of twenty years (40 

U.S.C. 585(a)). Federal agencies may not 

enter into lease agreements with persons 

who are barred from contracting with 

the Federal Government (e.g., Members 

of Congress or debarred or suspended 

contractors). 

§ 102–73.65 Are there any limitations on 

leasing certain types of space? 

Yes, the limitations on leasing certain 

types of space are as follows: 

(a) In general, Federal agencies may 

not lease any space to accommodate 

computer and telecommunications 

operations; secure or sensitive activities 

related to the national defense or 

security; or a permanent courtroom, 

judicial chamber, or administrative 

office for any United States court, if the 

average annual net rental cost of leasing 

such space would exceed the prospectus 

threshold (40 U.S.C. 3307(f)(1)). 

(b) However, Federal agencies may 

lease such space if the Administrator of 

General Services first determines that 

leasing such space is necessary to meet 

requirements that cannot be met in 

public buildings, and then submits such 

determination to the Committee on 

Environment and Public Works of the 

Senate and the Committee on 

Transportation and Infrastructure of the 

House of Representatives in accordance 

with 40 U.S.C. 3307(f)(2). 

§ 102–73.70 Are Executive agencies 

required to acquire leased space by 

negotiation? 

Yes, Executive agencies must acquire 

leased space by negotiation, except 

where the sealed bid procedure is 

required by the Competition in 

Contracting Act, as amended (CICA) (41 

U.S.C. 253(a)). 

§ 102–73.75 What functions must Federal 

agencies perform with regard to leasing 

building space? 

Federal agencies, upon approval from 

GSA, must perform all functions of 

leasing building space, and land 

incidental thereto, for their use except 

as provided in this subpart. 

§ 102–73.80 Who is authorized to contact 

lessor, offerors, or potential offerors 

concerning space leased or to be leased? 

No one, except the Contracting Officer 

or his or her designee, may contact 

lessors, offerors, or potential offerors 

concerning space leased or to be leased 

for the purpose of making oral or 

written representation or commitments 

or agreements with respect to the terms 

of occupancy of particular space, tenant 

improvements, alterations and repairs, 

or payment for overtime services. 

§ 102–73.85 Can agencies with 

independent statutory authority to lease 

space have GSA perform the leasing 

functions? 

Yes, upon request, GSA may perform, 

on a reimbursable basis, all functions of 

leasing building space, and land 

incidental thereto, for Federal agencies 

possessing independent statutory 

authority to lease space. However, GSA 

reserves the right to accept or reject 

reimbursable leasing service requests on 

a case-by-case basis. 

§ 102–73.90 What contingent fee policy 

must Federal agencies apply to the 

acquisition of real property by lease? 

Federal agencies must apply the 

contingent fee policies in 48 CFR 3.4 to 

all negotiated and sealed bid contracts 

for the acquisition of real property by 

lease. Federal agencies must 

appropriately adapt the representations 

and covenants required by that subpart 

for use in leases of real property for 

Government use. 

§ 102–73.95 How are Federal agencies 

required to assist GSA? 

The heads of Federal agencies must—

67794 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

(a) Cooperate with and assist the 

Administrator of General Services in 

carrying out his responsibilities 

respecting office buildings and space; 

(b) Take measures to give GSA early 

notice of new or changing space 

requirements; 

(c) Seek to economize their 

requirements for space; and 

(d) Continuously review their needs 

for space in and near the District of 

Columbia, taking into account the 

feasibility of decentralizing services or 

activities that can be carried on 

elsewhere without excessive costs or 

significant loss of efficiency. 

Competition in Contracting Act of 1984 

§ 102–73.100 Is the Competition in 

Contracting Act of 1984, as amended 

(CICA), applicable to lease acquisition? 

Yes, Executive agencies must obtain 

full and open competition among 

suitable locations meeting minimum 

Government requirements, except as 

otherwise provided by CICA, 41 U.S.C. 

253. 

National Environmental Policy Act of 

1969 (NEPA) 

§ 102–73.105 What policies must Federal 

agencies follow to implement the 

requirements of NEPA when acquiring real 

property by lease? 

Federal agencies must follow the 

NEPA policies identified in §§ 102–

76.40 and 102–76.45 of this chapter. 

Lease Construction 

§ 102–73.110 What rules must Executive 

agencies follow when acquiring leasehold 

interests in buildings constructed for 

Federal Government use? 

When acquiring leasehold interests in 

buildings to be constructed for Federal 

Government use, Executive agencies 

must—

(a) Establish detailed building 

specifications before agreeing to a 

contract that will result in the 

construction of a building; 

(b) Use competitive procedures; 

(c) Inspect every building during 

construction to ensure that the building 

complies with the Government’s 

specifications; 

(d) Evaluate every building after 

completion of construction to determine 

that the building complies with the 

Government’s specifications; and 

(e) Ensure that any contract that will 

result in the construction of a building 

contains provisions permitting the 

Government to reduce the rent during 

any period when the building does not 

comply with the Government’s 

specifications. 

Price Preference for Historic Properties 

§ 102–73.115 Must Federal agencies offer 

a price preference to space in historic 

properties when acquiring leased space? 

Yes, Federal agencies must give a 

price preference to space in historic 

properties when acquiring leased space 

using either the lowest price technically 

acceptable or the best value tradeoff 

source selection processes. 

§ 102–73.120 How much of a price 

preference must Federal agencies give 

when acquiring leased space using the 

lowest price technically acceptable source 

selection process? 

Federal agencies must give a price 

evaluation preference to space in 

historic properties as follows: 

(a) First to suitable historic properties 

within historic districts, a 10 percent 

price preference. 

(b) If no suitable historic property 

within an historic district is offered, or 

the 10 percent preference does not 

result in such property being the lowest 

price technically acceptable offer, the 

Government will give a 2.5 percent 

price preference to suitable non-historic 

developed or undeveloped sites within 

historic districts. 

(c) If no suitable non-historic 

developed or undeveloped site within 

an historic district is offered, or the 2.5 

percent preference does not result in 

such property being the lowest price 

technically acceptable offer, the 

Government will give a 10 percent price 

preference to suitable historic properties 

outside of historic districts. 

(d) Finally, if no suitable historic 

property outside of historic districts is 

offered, no historic price preference will 

be given to any property offered. 

§ 102–73.125 How much of a price 

preference must Federal agencies give 

when acquiring leased space using the best 

value tradeoff source selection process? 

When award will be based on the best 

value tradeoff source selection process, 

which permits tradeoffs among price 

and non-price factors, the Government 

will give a price evaluation preference 

to historic properties as follows: 

(a) First to suitable historic properties 

within historic districts, a 10 percent 

price preference. 

(b) If no suitable historic property 

within an historic district is offered or 

remains in the competition, the 

Government will give a 2.5 percent 

price preference to suitable non-historic 

developed or undeveloped sites within 

historic districts. 

(c) If no suitable non-historic 

developed or undeveloped site within 

an historic district is offered or remains 

in the competition, the Government will 

give a 10 percent price preference to 

suitable historic properties outside of 

historic districts. 

(d) Finally, if no suitable historic 

property outside of historic districts is 

offered, no historic price preference will 

be given to any property offered. 

Leases With Purchase Options 

§ 102–73.130 When may Federal agencies 

consider acquiring leases with purchase 

options? 

Agencies may consider leasing with a 

purchase option at or below fair market 

value, consistent with the leasepurchase scoring rules, when one or 

more of the following conditions exist: 

(a) The purchase option offers 

economic and other advantages to the 

Government and is consistent with the 

Government’s goals. 

(b) The Government is the sole or 

major tenant of the building, and has a 

long-term need for the property. 

(c) Leasing with a purchase option is 

otherwise in the best interest of the 

Government. 

Scoring Rules 

§ 102–73.135 What scoring rules must 

Federal agencies follow when considering 

leases and leases with purchase options? 

All Federal agencies must follow the 

budget scorekeeping rules for leases, 

capital leases, and lease-purchases 

identified in appendices A and B of 

OMB Circular A–11. (For availability, 

see 5 CFR 1310.3.) 

Delegations of Leasing Authority 

§ 102–73.140 When may agencies that do 

not possess independent leasing authority 

lease space? 

Federal agencies may perform for 

themselves all functions necessary to 

acquire leased space in buildings and 

land incidental thereto when—

(a) The authority may be delegated 

(see § 102–72.30) on the different types 

of delegations related to real estate 

leasing); 

(b) The space may be leased for no 

rental, or for a nominal consideration of 

$1 per annum, and is limited to terms 

not to exceed 1 year; 

(c) Authority has been requested by 

an Executive agency and a specific 

delegation has been granted by the 

Administrator of General Services; 

(d) A categorical delegation has been 

granted by the Administrator of General 

Services for space to accommodate 

particular types of agency activities, 

such as military recruiting offices or 

space for certain county level 

agricultural activities (see § 102–73.155 

for a listing of categorical delegations); 

or 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67795 

(e) The required space is found by the 

Administrator of General Services to be 

wholly or predominantly utilized for the 

special purposes of the agency to 

occupy such space and is not generally 

suitable for use by other agencies. 

Federal agencies must obtain prior 

approval from the GSA regional office 

having jurisdiction for the proposed 

leasing action, before initiating a leasing 

action involving 2,500 or more square 

feet of such special purpose space. 

GSA’s approval must be based upon a 

finding that there is no vacant 

Government-owned or leased space 

available that will meet the agency’s 

requirements. Agency special purpose 

space delegations can be found in 

§§ 102–73.170 through 102–73.225. 

Categorical Space Delegations 

§ 102–73.145 What is a categorical space 

delegation? 

A categorical space delegation is a 

standing delegation of authority from 

the Administrator of General Services to 

a Federal agency to acquire a type of 

space identified in § 102–73.155, subject 

to limitations in this part. 

§ 102–73.150 What is the policy for 

categorical space delegations? 

Subject to the limitations cited in 

§§ 102–73.230 through 102–73.240, all 

Federal agencies are authorized to 

acquire the types of space listed in 

§ 102–73.155 and, except where 

otherwise noted, may lease space for 

terms, including all options, of up to 20 

years. 

§ 102–73.155 What types of space can 

Federal agencies acquire with a categorical 

space delegation? 

Federal agencies can use categorical 

space delegations to acquire—

(a) Space to house antennas, 

repeaters, or transmission equipment; 

(b) Depots, including, but not limited 

to, stockpiling depots and torpedo net 

depots; 

(c) Docks, piers, and mooring facilities 

(including closed storage space required 

in combination with such facilities); 

(d) Fumigation areas; 

(e) Garage space (may be leased only 

on a fiscal year basis); 

(f) Greenhouses; 

(g) Hangars and other airport 

operating facilities including, but not 

limited to, flight preparation space, 

aircraft storage areas, and repair shops; 

(h) Hospitals, including medical 

clinics; 

(i) Housing (temporary), including 

hotels (does not include quarters 

obtained pursuant to temporary duty 

travel or employee relocation); 

(j) Laundries; 

(k) Quarantine facilities for plants, 

birds, and other animals; 

(l) Ranger stations, i.e., facilities that 

typically include small offices staffed by 

one or more uniformed employees, and 

may include sleeping/family quarters, 

parking areas, garages, and storage 

space. Office space within ranger 

stations is minimal and does not 

comprise a majority of the space. (May 

also be referred to as guard stations, 

information centers, or kiosks); 

(m) Recruiting space for the armed 

forces (lease terms, including all 

options, limited to 5 years); 

(n) Schools directly related to the 

special purpose function(s) of an 

agency; 

(o) Specialized storage/depot 

facilities, such as cold storage; selfstorage units; and lumber, oil, gasoline, 

shipbuilding materials, and pesticide 

materials/equipment storage (general 

purpose warehouse type storage 

facilities not included); and 

(p) Space for short-term use (such as 

conferences and meetings, judicial 

proceedings, and emergency situations). 

Special Purpose Space Delegations 

§ 102–73.160 What is an agency special 

purpose space delegation? 

An agency special purpose space 

delegation is a standing delegation of 

authority from the Administrator of 

General Services to specific Federal 

agencies to lease their own special 

purpose space (identified in §§ 102–

73.170 through 102–73.225), subject to 

limitations in this part. 

§ 102–73.165 What is the policy for agency 

special purpose space delegations? 

Subject to the limitations on annual 

rental amounts, lease terms, and leases 

on parking spaces cited in §§ 102–

73.230 through 102–73.240, the agencies 

listed below are authorized to acquire 

special purpose space associated with 

that agency and, except where otherwise 

noted, may lease such space for terms, 

including all options, of up to 20 years. 

The agencies and types of space subject 

to special purpose space delegations are 

specified in §§ 102–73.170 through 102–

73.225. 

§ 102–73.170 What types of special 

purpose space may the Department of 

Agriculture lease? 

The Department of Agriculture is 

delegated the authority to lease the 

following types of special purpose 

space: 

(a) Cotton classing laboratories (lease 

terms, including all options, limited to 

5 years). 

(b) Land (if unimproved, may be 

leased only on a fiscal year basis). 

(c) Miscellaneous storage by cubic 

foot or weight basis. 

(d) Office space when required to be 

located in or adjacent to stockyards, 

produce markets, produce terminals, 

airports, and other ports (lease terms, 

including all options, limited to 5 

years). 

(e) Space for agricultural commodities 

stored in licensed warehouses and 

utilized under warehouse contracts. 

(f) Space utilized in cooperation with 

State and local governments or their 

instrumentalities (extension services) 

where the cooperating State or local 

government occupies a portion of the 

space and pays a portion of the rent. 

§ 102–73.175 What types of special 

purpose space may the Department of 

Commerce lease? 

The Department of Commerce is 

delegated authority to lease the 

following types of special purpose 

space: 

(a) Space required by the Census 

Bureau in connection with conducting 

the decennial census (lease terms, 

including all options, limited to 5 

years). 

(b) Laboratories for testing materials, 

classified or ordnance devices, 

calibration of instruments, and 

atmospheric and oceanic research (lease 

terms, including all options, limited to 

5 years). 

(c) Maritime training stations. 

(d) Radio stations. 

(e) Land (if unimproved, may be 

leased only on a fiscal year basis). 

(f) National Weather Service 

meteorological facilities. 

§ 102–73.180 What types of special 

purpose space may the Department of 

Defense lease? 

The Department of Defense is 

delegated authority to lease the 

following types of special purpose 

space: 

(a) Air Force—Civil Air Patrol Liaison 

Offices and land incidental thereto 

when required for use incidental to, in 

conjunction with, and in close 

proximity to airports, including aircraft 

and warning stations (if unimproved, 

land may be leased only on a fiscal year 

basis; for space, lease terms, including 

all options, limited to 5 years). 

(b) Armories. 

(c) Film library in the vicinity of 

Washington, DC. 

(d) Mess halls. 

(e) Ports of embarkation and 

debarkation. 

(f) Post exchanges. 

(g) Postal Concentration Center, Long 

Island City, NY. 

(h) Recreation centers. 

67796 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

(i) Reserve training space. 

(j) Service clubs. 

(k) Testing laboratories (lease terms, 

including all options, limited to 5 

years). 

§ 102–73.185 What types of special 

purpose space may the Department of 

Energy lease? 

The Department of Energy, as the 

successor to the Atomic Energy 

Commission, is delegated authority to 

lease facilities housing the special 

purpose or special location activities of 

the old Atomic Energy Commission. 

§ 102–73.190 What types of special 

purpose space may the Federal 

Communications Commission lease? 

The Federal Communications 

Commission is delegated authority to 

lease monitoring station sites. 

§ 102–73.195 What types of special 

purpose space may the Department of 

Health and Human Services lease? 

The Department of Health and Human 

Services is delegated authority to lease 

laboratories (lease terms, including all 

options, limited to 5 years). 

§ 102–73.196 What types of special 

purpose space may the Department of 

Homeland Security lease? 

The Department of Homeland 

Security is delegated authority to lease 

whatever space its organizational units 

or components had authority to lease 

prior to the creation of the Department 

of Homeland Security, including—

(a) Border patrol offices similar in 

character and utilization to police 

stations, involving the handling of 

prisoners, firearms, and motor vehicles, 

regardless of location (lease terms, 

including all options limited to 5 years); 

(b) Space for the U.S. Coast Guard 

oceanic unit, Woods Hole, MA; and 

(c) Space for the U.S. Coast Guard 

port security activities. 

§ 102–73.200 What types of special 

purpose space may the Department of the 

Interior lease? 

The Department of the Interior is 

delegated authority to lease the 

following types of special purpose 

space: 

(a) Space in buildings and land 

incidental thereto used by field crews of 

the Bureau of Reclamation, Bureau of 

Land Management, and the Geological 

Survey in areas where no other 

Government agencies are quartered 

(unimproved land may be leased only 

on a fiscal year basis). 

(b) National Parks/Monuments 

Visitors Centers consisting primarily of 

special purpose space (e.g., visitor 

reception, information, and rest room 

facilities) and not general office or 

administrative space. 

§ 102–73.205 What types of special 

purpose space may the Department of 

Justice lease? 

The Department of the Justice is 

delegated authority to lease the 

following types of special purpose 

space: 

(a) U.S. marshals office in any Alaska 

location (lease terms, including all 

options, limited to 5 years). 

(b) Space used for storage and 

maintenance of surveillance vehicles 

and seized property (lease terms, 

including all options, limited to 5 

years). 

(c) Space used for review and custody 

of records and other evidentiary 

materials (lease terms, including all 

options, limited to 5 years). 

(d) Space used for trial preparation 

where space is not available in Federal 

buildings, Federal courthouses, USPS 

facilities, or GSA-leased buildings (lease 

terms limited to not more than 1 year). 

§ 102–73.210 What types of special 

purpose space may the Office of Thrift 

Supervision lease? 

The Office of Thrift Supervision is 

delegated authority to lease space for 

field offices of Examining Divisions 

required to be located within Office of 

Thrift Supervision buildings or 

immediately adjoining or adjacent to 

such buildings (lease terms, including 

all options, limited to 5 years). 

§ 102–73.215 What types of special 

purpose space may the Department of 

Transportation lease? 

The Department of Transportation is 

delegated authority to lease the 

following types of special purpose space 

(or real property): 

(a) Land for the Federal Aviation 

Administration (FAA) at airports 

(unimproved land may be leased only 

on a fiscal year basis). 

(b) General purpose office space not 

exceeding 10,000 square feet for the 

FAA at airports in buildings under the 

jurisdiction of public or private airport 

authorities (lease terms, including all 

options, limited to 5 years). 

§ 102–73.220 What types of special 

purpose space may the Department of the 

Treasury lease? 

The Department of the Treasury is 

delegated authority to lease the 

following types of special purpose 

space: 

(a) Space and land incidental thereto 

for the use of the Comptroller of the 

Currency, as well as the operation, 

maintenance and custody thereof (if 

unimproved, land may be leased only 

on a fiscal year basis; lease term for 

space, including all options, limited to 

5 years). 

(b) Aerostat radar facilities necessary 

for U.S. Custom Service mission 

activities. 

§ 102–73.225 What types of special 

purpose space may the Department of 

Veterans Affairs lease? 

The Department of Veterans Affairs is 

delegated authority to lease the 

following types of special purpose 

space: 

(a) Guidance and training centers 

located at schools and colleges. 

(b) Space used for veterans hospitals, 

including outpatient and medicalrelated clinics, such as drug, mental 

health, and alcohol. 

Limitations on the Use of Delegated 

Authority 

§ 102–73.230 When must Federal agencies 

submit a prospectus to lease real property? 

In accordance with 40 U.S.C. 3307, 

Federal agencies must submit a 

prospectus to the Administrator of 

General Services for leases involving a 

net annual rental, excluding services 

and utilities, in excess of the prospectus 

threshold provided in 40 U.S.C. 3307. 

Agencies must be aware that prospectus 

thresholds are indexed and change each 

year. 

§ 102–73.235 What is the maximum lease 

term that a Federal agency may agree to 

when it has been delegated lease 

acquisition authority from GSA? 

Pursuant to GSA’s authority to enter 

into lease agreements contained in 40 

U.S.C. 585(a)(2), agencies delegated the 

authorities outlined herein may enter 

into leases for the term specified in the 

delegation. In those cases where agency 

special purposes space delegations 

include the authority to acquire 

unimproved land, the land may be 

leased only on a fiscal year basis. 

§ 102–73.240 What policy must Federal 

agencies follow to acquire official parking 

spaces? 

Federal agencies that need parking 

must utilize available Governmentowned or leased facilities. Federal 

agencies must make inquiries regarding 

availability of such Governmentcontrolled space to GSA regional offices 

and document such inquiries. If no 

suitable Government-controlled 

facilities are available, an agency may 

use its own procurement authority to 

acquire parking by service contract. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67797 

Subpart C—Acquisition by Purchase 

or Condemnation 

Buildings 

§ 102–73.245 When may Federal agencies 

consider purchase of buildings? 

A Federal agency may consider 

purchase of buildings on a case-by-case 

basis if it has landholding authority and 

when one or more of the following 

conditions exist: 

(a) It is economically more beneficial 

to own and manage the property. 

(b) There is a long-term need for the 

property. 

(c) The property is an existing 

building, or a building nearing 

completion, that can be purchased and 

occupied within a reasonable time. 

(d) When otherwise in the best 

interests of the Government. 

§ 102–73.250 Are agencies required to 

adhere to the policies for locating Federal 

facilities when purchasing buildings? 

Yes, when purchasing buildings, 

agencies must comply with the location 

policies in this part and part 102–83 of 

this chapter. 

§ 102–73.255 What factors must Executive 

agencies consider when purchasing sites? 

Agencies must locate proposed 

Federal buildings on sites that are most 

advantageous to the United States. 

Executive agencies must consider 

factors such as whether the site will 

contribute to economy and efficiency in 

the construction, maintenance, and 

operation of the individual building, 

and how the proposed site relates to the 

Government’s total space needs in the 

community. Prior to acquiring, 

constructing, or leasing buildings (or 

sites for such buildings), Federal 

agencies must use, to the maximum 

extent feasible, historic properties 

available to the agency. In site 

selections, Executive agencies must 

consider Executive Order 12072 (August 

16, 1978, 43 FR 36869) and Executive 

Order 13006 (40 U.S.C. 3306 note). In 

addition, Executive agencies must 

consider all of the following: 

(a) Maximum utilization of 

Government-owned land (including 

excess land) whenever it is adequate, 

economically adaptable to requirements 

and properly located, where such use is 

consistent with the provisions of part 

102–75, subpart B, of this chapter. 

(b) A site adjacent to or in the 

proximity of an existing Federal 

building that is well located and is to be 

retained for long-term occupancy. 

(c) The environmental condition of 

proposed sites prior to purchase. The 

sites must be free from contamination, 

unless it is otherwise determined to be 

in the best interests of the Government 

to purchase a contaminated site (e.g., 

reuse of a site under an established 

‘‘Brownfields’’ program). 

(d) Purchase options to secure the 

future availability of a site. 

(e) All applicable location policies in 

this part and part 102–83 of this 

chapter. 

Land 

§ 102–73.260 What land acquisition policy 

must Federal agencies follow? 

Federal agencies must follow the land 

acquisition policy in the Uniform 

Relocation Assistance and Real Property 

Acquisition Policies Act, as amended, 

42 U.S.C. 4651–4655, which—

(a) Encourages and expedites the 

acquisition of real property by 

agreements with owners; 

(b) Avoids litigation, including 

condemnation actions, where possible 

and relieves congestion in the courts; 

(c) Provides for consistent treatment 

of owners; and 

(d) Promotes public confidence in 

Federal land acquisition practices. 

§ 102–73.265 What actions must Federal 

agencies take to facilitate land acquisition? 

To facilitate land acquisition, Federal 

agencies must, among other things—

(a) Appraise the real property before 

starting negotiations and give the owner 

(or the owner’s representative) the 

opportunity to accompany the appraiser 

during the inspection; 

(b) Establish an amount estimated to 

be the just compensation before starting 

negotiations and promptly offer to 

acquire the property for this full 

amount; 

(c) Try to negotiate with owners on 

the price; 

(d) Pay the agreed purchase price to 

the property owner, or in the case of a 

condemnation, deposit payment in the 

registry of the court, for the benefit of 

the owner, before requiring the owner to 

surrender the property; and 

(e) Provide property owners (and 

occupants) at least 90 days’ notice of 

displacement before requiring anyone to 

move. If a Federal agency permits the 

owner to keep possession for a short 

time after acquiring the owner’s 

property, Federal agencies must not 

charge rent in excess of the property’s 

fair rental value to a short-term 

occupier. 

Just Compensation 

§ 102–73.270 Are Federal agencies 

required to provide the owner with a written 

statement of the amount established as just 

compensation? 

Yes, Federal agencies must provide 

the owner with a written statement of 

this amount and summarize the basis for 

it. When it is appropriate, Federal 

agencies must separately state the just 

compensation for the property to be 

acquired and damages to the remaining 

real property. 

§ 102–73.275 What specific information 

must be included in the summary statement 

for the owner that explains the basis for just 

compensation? 

The summary statement must—

(a) Identify the real property and the 

estate or interest the Federal agency is 

acquiring; 

(b) Identify the buildings, structures, 

and other improvements the Federal 

agency considers part of the real 

property for which just compensation is 

being offered; 

(c) State that the Federal agency based 

the estimate of just compensation on the 

Government’s estimate of the property’s 

fair market value. If only part of a 

property or less than a full interest is 

being acquired, Federal agencies must 

explain how they determined the just 

compensation for it; and 

(d) State that the Government’s 

estimate of just compensation is at least 

as much as the property’s approved 

appraisal value. 

§ 102–73.280 Where can Federal agencies 

find guidance on how to appraise the value 

of properties being acquired by the Federal 

Government? 

The Interagency Land Acquisition 

Conference has developed, 

promulgated, and adopted the Uniform 

Appraisal Standards for Federal Land 

Acquisitions, sometimes referred to as 

the ‘‘Yellow Book.’’ The Interagency 

Land Acquisition Conference, 

established on November 27, 1968, by 

invitation of the Attorney General, is a 

voluntary organization composed of the 

many Federal agencies engaged in the 

acquisition of real estate for public uses. 

The ‘‘Yellow Book’’ is published by the 

Appraisal Institute in cooperation with 

the U.S. Department of Justice and is 

available in hard copy or on the 

Department of Justice’s internet Web 

site at http://www.usdoj.gov/enrd/landack/. 

§ 102–73.285 [Reserved] 

§ 102–73.290 Are there any prohibitions 

when a Federal agency pays ‘‘just 

compensation’’ to a tenant? 

Yes, Federal agencies must not—

(a) Duplicate any payment to the 

tenant otherwise authorized by law; and 

(b) Pay a tenant unless the landowner 

disclaims all interests in the tenant’s 

improvements. In consideration for any 

such payment, the tenant must assign, 

transfer, and release to the Federal 

67798 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

agency all of its right, title, and interest 

in the improvements. The tenant may 

reject such payment under this subpart 

and obtain payment for its property 

interests according to other sections of 

applicable law. 

Expenses Incidental to Property 

Transfer 

§ 102–73.295 What property transfer 

expenses must Federal agencies cover 

when acquiring real property? 

Federal agencies must—

(a) Reimburse property owners for all 

reasonable expenses actually incurred 

for recording fees, transfer taxes, 

documentary stamps, evidence of title, 

boundary surveys, legal descriptions of 

the real property, and similar expenses 

needed to convey the property to the 

Federal Government; 

(b) Reimburse property owners for all 

reasonable expenses actually incurred 

for penalty costs and other charges to 

prepay any existing, recorded mortgage 

that a property owner entered into in 

good faith and that encumbers the real 

property; 

(c) Reimburse property owners for all 

reasonable expenses actually incurred 

for the prorated part of any prepaid real 

property taxes that cover the period 

after the Federal Government gets title 

to the property or effective possession of 

it, whichever is earlier; and 

(d) Whenever possible, directly pay 

the costs identified in this section, so 

property owners will not have to pay 

them and then seek reimbursement from 

the Government. 

Litigation Expenses 

§ 102–73.300 Are Federal agencies 

required to pay for litigation expenses 

incurred by a property owner because of a 

condemnation proceeding? 

Federal agencies must pay reasonable 

expenses for attorneys, appraisals, and 

engineering fees that a property owner 

incurs because of a condemnation 

proceeding, if any of the following are 

true: 

(a) The court’s final judgment is that 

the Federal agency cannot acquire the 

real property by condemnation. 

(b) The Federal agency abandons the 

condemnation proceeding other than 

under an agreed-on settlement. 

(c) The court renders a judgment in 

the property owner’s favor in an inverse 

condemnation proceeding or the Federal 

agency agrees to settle such proceeding. 

Relocation Assistance Policy 

§ 102–73.305 What relocation assistance 

policy must Federal agencies follow? 

Federal agencies, upon approval from 

GSA, must provide appropriate 

relocation assistance under the Uniform 

Relocation Assistance and Real Property 

Acquisition Policies Act, as amended, 

42 U.S.C. 4651–4655, to eligible owners 

and tenants of property purchased for 

use by Federal agencies in accordance 

with the implementing regulations 

found in 49 CFR part 24. Appropriate 

relocation assistance means that the 

Federal agency must pay the displaced 

person for actual—

(a) Reasonable moving expenses (in 

moving himself, his family, and 

business); 

(b) Direct losses of tangible personal 

property as a result of moving or 

discontinuing a business; 

(c) Reasonable expenses in searching 

for a replacement business or farm; and 

(d) Reasonable expenses necessary to 

reestablish a displaced farm, nonprofit 

organization, or small business at its 

new site, but not to exceed $10,000. 

■ 4. Revise part 102–74 to read as 

follows: 

PART 102–74—FACILITY 

MANAGEMENT 

Subpart A—General Provisions 

Sec. 

102–74.5 What is the scope of this part? 

102–74.10 What is the basic facility 

management policy? 

Subpart B—Facility Management 

102–74.15 What are the facility 

management responsibilities of occupant 

agencies? 

Occupancy Services 

102–74.20 What are occupancy services? 

102–74.25 What responsibilities do 

Executive agencies have regarding 

occupancy services? 

102–74.30 What standard in providing 

occupancy services must Executive 

agencies follow? 

102–74.35 What building services must 

Executive agencies provide? 

Concession Services 

102–74.40 What are concession services? 

102–74.45 When must Federal agencies 

provide concession services? 

102–74.50 Are Federal agencies required to 

give blind vendors priority in operating 

vending facilities? 

102–74.55 Are vending facilities authorized 

under the Randolph-Sheppard Act 

operated by permit or contract? 

102–74.60 Are Federal agencies required to 

give blind vendors priority in operating 

cafeterias? 

102–74.65 Are cafeterias authorized under 

the Randolph-Sheppard Act operated by 

permit or contract? 

102–74.70 Are commercial vendors and 

nonprofit organizations required to 

operate vending facilities by permit or 

contractual arrangement? 

102–74.75 May Federal agencies sell 

tobacco products in vending machines in 

Government-owned and leased space? 

102–74.80 [Reserved] 

102–74.85 [Reserved] 

102–74.90 [Reserved] 

102–74.95 [Reserved] 

Conservation Program 

102–74.100 What are conservation 

programs? 

Asset Services 

102–74.105 What are asset services? 

102–74.110 What asset services must 

Executive agencies provide? 

102–74.115 What standard in providing 

asset services must Executive agencies 

follow? 

102–74.120 Is a prospectus required to be 

submitted before emergency alterations 

can be performed? 

102–74.125 Are prospectuses required for 

reimbursable alteration projects? 

102–74.130 When a prospectus is required, 

can GSA prepare a prospectus for a 

reimbursable alteration project? 

102–74.135 Who selects construction and 

alteration projects that are to be 

performed? 

102–74.140 On what basis does the 

Administrator select construction and 

alteration projects? 

102–74.145 What information must a 

Federal agency submit to GSA after the 

agency has identified a need for 

construction or alteration of a public 

building? 

102–74.150 Who submits prospectuses for 

the construction or alteration of public 

buildings to the Congressional 

committees? 

Energy Conservation 

102–74.155 What energy conservation 

policy must Federal agencies follow in 

the management of facilities? 

102–74.160 What actions must Federal 

agencies take to promote energy 

conservation? 

102–74.165 What energy standards must 

Federal agencies follow for existing 

facilities? 

102–74.170 May exceptions to the energy 

conservation policies in this subpart be 

granted? 

102–74.175 Are Government-leased 

buildings required to conform with the 

policies in this subpart? 

102–74.180 What illumination levels must 

Federal agencies maintain on Federal 

facilities? 

102–74.185 What heating and cooling 

policy must Federal agencies follow in 

Federal facilities? 

102–74.190 Are portable heaters, fans, and 

other such devices allowed in 

Government-controlled facilities? 

102–74.195 What ventilation policy must 

Federal agencies follow? 

102–74.200 What information are Federal 

agencies required to report to the 

Department of Energy (DOE)? 

Ridesharing 

102–74.205 What Federal facility 

ridesharing policy must Executive 

agencies follow? 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67799 

102–74.210 What steps must Executive 

agencies take to promote ridesharing at 

Federal facilities? 

102–74.215 [Reserved] 

102–74.220 [Reserved] 

102–74.225 [Reserved] 

Occupant Emergency Program 

102–74.230 Who is responsible for 

establishing an occupant emergency 

program? 

102–74.235 Are occupant agencies required 

to cooperate with the Designated Official 

in the implementation of the emergency 

plans and the staffing of the emergency 

organization? 

102–74.240 What are Federal agencies’

occupant emergency responsibilities? 

102–74.245 Who makes the decision to 

activate the Occupant Emergency 

Organization? 

102–74.250 What information must the 

Designated Official use to make a 

decision to activate the Occupant 

Emergency Organization? 

102–74.255 How must occupant evacuation 

or relocation be accomplished when 

there is immediate danger to persons or 

property, such as fire, explosion, or the 

discovery of an explosive device (not 

including a bomb threat)? 

102–74.260 What action must the 

Designated Official initiate when there is 

advance notice of an emergency? 

Parking Facilities 

102–74.265 Who must provide for the 

regulation and policing of parking 

facilities? 

102–74.270 Are vehicles required to display 

parking permits in parking facilities? 

102–74.275 May Federal agencies authorize 

lessors or parking management 

contractors to manage, regulate, and 

police parking facilities? 

102–74.280 Are privately owned vehicles 

converted for propane carburetion 

permitted in underground parking 

facilities? 

102–74.285 How must Federal agencies 

assign priority to parking spaces in 

controlled areas? 

102–74.290 May Federal agencies allow 

employees to use parking spaces not 

required for official needs? 

102–74.295 Who determines the number of 

employee parking spaces for each 

facility? 

102–74.300 How must space available for 

employee parking be allocated among 

occupant agencies? 

102–74.305 How must Federal agencies 

assign available parking spaces to their 

employees? 

102–74.310 What measures must Federal 

agencies take to improve the utilization 

of parking facilities? 

Smoking 

102–74.315 What is the smoking policy for 

Federal facilities? 

102–74.320 Are there any exceptions to this 

smoking policy for Federal facilities? 

102–74.325 Who has the responsibility to 

determine which areas are to be smoking 

and which areas are to be nonsmoking 

areas? 

102–74.330 Who must evaluate the need to 

restrict smoking at doorways and in 

courtyards? 

102–74.335 Who is responsible for 

monitoring and controlling areas 

designated for smoking and identifying 

these areas with proper signage? 

102–74.340 Who is responsible for signs on 

or near building entrance doors? 

102–74.345 Does the smoking policy in this 

part apply to the judicial branch? 

102–74.350 Are agencies required to meet 

their obligations under the Federal 

Service Labor-Management Relations Act 

where there is an exclusive 

representative for the employees prior to 

implementing this smoking policy? 

Accident and Fire Prevention 

102–74.355 With what accident and fire 

prevention standards must Federal 

facilities comply? 

102–74.360 What are the specific accident 

and fire prevention responsibilities of 

occupant agencies? 

Subpart C—Conduct on Federal Property 

Applicability 

102–74.365 To whom does this subpart 

apply? 

Inspection 

102–74.370 What items are subject to 

inspection by Federal agencies? 

Admission to Property 

102–74.375 What is the policy on admitting 

persons to Government property? 

Preservation of Property 

102–74.380 What is the policy concerning 

the preservation of property? 

Conformity With Signs and Directions 

102–74.385 What is the policy concerning 

conformity with official signs and 

directions? 

Disturbances 

102–74.390 What is the policy concerning 

disturbances? 

Gambling 

102–74.395 What is the policy concerning 

gambling? 

Narcotics and Other Drugs 

102–74.400 What is the policy concerning 

the possession and use of narcotics and 

other drugs? 

Alcoholic Beverages 

102–74.405 What is the policy concerning 

the use of alcoholic beverages? 

Soliciting, Vending and Debt Collection 

102–74.410 What is the policy concerning 

soliciting, vending and debt collection? 

Posting and Distributing Materials 

102–74.415 What is the policy for posting 

and distributing materials? 

Photographs for News, Advertising or 

Commercial Purposes 

102–74.420 What is the policy concerning 

photographs for news, advertising or 

commercial purposes? 

Dogs and Other Animals 

102–74.425 What is the policy concerning 

dogs and other animals on Federal 

property? 

Breastfeeding 

102–74.426 May a woman breastfeed her 

child in a Federal building or on Federal 

property? 

Vehicular and Pedestrian Traffic 

102–74.430 What is the policy concerning 

vehicular and pedestrian traffic on 

Federal property? 

Explosives 

102–74.435 What is the policy concerning 

explosives on Federal property? 

Weapons 

102–74.440 What is the policy concerning 

weapons on Federal property? 

Nondiscrimination 

102–74.445 What is the policy concerning 

discrimination on Federal property? 

Penalties 

102–74.450 What are the penalties for 

violating any rule or regulation in this 

subpart? 

Impact on Other Laws or Regulations 

102–74.455 What impact do the rules and 

regulations in this subpart have on other 

laws or regulations? 

Subpart D—Occasional Use of Public 

Buildings 

102–74.460 What is the scope of this 

subpart? 

Application for Permit 

102–74.465 Is a person or organization that 

wishes to use a public area required to 

apply for a permit from a Federal 

agency? 

102–74.470 What information must persons 

or organizations submit so that Federal 

agencies may consider their application 

for a permit? 

102–74.475 If an applicant proposes to use 

a public area to solicit funds, is the 

applicant required to make a 

certification? 

Permits 

102–74.480 How many days does a Federal 

agency have to issue a permit following 

receipt of a completed application? 

102–74.485 Is there any limitation on the 

length of time of a permit? 

102–74.490 What if more than one permit is 

requested for the same area and time? 

102–74.495 If a permit involves 

demonstrations or activities that may 

lead to civil disturbances, what action 

must a Federal agency take before 

approving such a permit application? 

Disapproval of Applications or Cancellation 

of Permits 

102–74.500 Can Federal agencies 

disapprove permit applications or cancel 

issued permits? 

102–74.505 What action must Federal 

agencies take after disapproving an 

67800 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

application or canceling an issued 

permit? 

Appeals 

102–74.510 How may the disapproval of a 

permit application or cancellation of an 

issued permit be appealed? 

102–74.515 Will the affected person or 

organization and the Federal agency 

buildings manager have an opportunity 

to state their positions on the issues? 

102–74.520 How much time does the 

Regional Officer have to affirm or reverse 

the Federal agency buildings manager’s 

decision after receiving the notification 

of appeal from the affected person or 

organization? 

Schedule of Use 

102–74.525 May Federal agencies reserve 

time periods for the use of public areas 

for official Government business or for 

maintenance, repair, and construction? 

Hours of Use 

102–74.530 When may public areas be 

used? 

Services and Costs 

102–74.535 What items may Federal 

agencies provide to permittees free of 

charge? 

102–74.540 What are the items for which 

permittees must reimburse Federal 

agencies? 

102–74.545 May permittees make 

alterations to the public areas? 

102–74.550 What items are permittees 

responsible for furnishing? 

Conduct 

102–74.555 What rules of conduct must all 

permittees observe while on Federal 

property? 

Non-affiliation With the Government 

102–74.560 May Federal agencies advise 

the public of the presence of any 

permittees and their non-affiliation with 

the Federal Government? 

Subpart E—Installing, Repairing, and 

Replacing Sidewalks 

102–74.565 What is the scope of this 

subpart? 

102–74.570 Are State and local 

governments required to fund the cost of 

installing, repairing, and replacing 

sidewalks? 

102–74.575 How do Federal agencies 

arrange for work on sidewalks? 

102–74.580 Who decides when to replace a 

sidewalk? 

Subpart F—Telework 

102–74.585 What Federal facility telework 

policy must Executive agencies follow? 

102–74.590 What steps must agencies take 

to implement these laws and policies? 

102–74.595 How can agencies obtain 

guidance, assistance, and oversight 

regarding alternative workplace 

arrangements from GSA? 

102–74.600 Should Federal agencies utilize 

telework centers? 

Appendix to Part 102–74—Rules and 

Regulations Governing Conduct on 

Federal Property 

Authority: 40 U.S.C. 121(c); Executive 

Order 12191, 45 FR 7997, 3 CFR, 1980 

Comp., p 138. 

Subpart A—General Provisions 

§ 102–74.5 What is the scope of this part? 

The real property policies contained 

in this part apply to Federal agencies, 

including the GSA’s Public Buildings 

Service (PBS), operating under, or 

subject to, the authorities of the 

Administrator of General Services. 

§ 102–74.10 What is the basic facility 

management policy? 

Executive agencies must manage, 

operate and maintain Governmentowned and leased buildings in a manner 

that provides for quality space and 

services consistent with their 

operational needs and accomplishes 

overall Government objectives. The 

management, operation and 

maintenance of buildings and building 

systems must—

(a) Be cost effective and energy 

efficient; 

(b) Be adequate to meet the agencies’

missions; 

(c) Meet nationally recognized 

standards; and 

(d) Be at an appropriate level to 

maintain and preserve the physical 

plant assets, consistent with available 

funding. 

Subpart B—Facility Management 

§ 102–74.15 What are the facility 

management responsibilities of occupant 

agencies? 

Occupants of facilities under the 

custody and control of Federal agencies 

must—

(a) Cooperate to the fullest extent with 

all pertinent facility procedures and 

regulations; 

(b) Promptly report all crimes and 

suspicious circumstances occurring on 

Federally controlled property first to the 

regional Federal Protective Service, and 

as appropriate, the local responding law 

enforcement authority; 

(c) Provide training to employees 

regarding protection and responses to 

emergency situations; and 

(d) Make recommendations for 

improving the effectiveness of 

protection in Federal facilities. 

Occupancy Services 

§ 102–74.20 What are occupancy 

services? 

Occupancy services are—

(a) Building services (see § 102–

74.35); 

(b) Concession services (see § 102–

74.40); and 

(c) Conservation programs (see § 102–

74.100). 

§ 102–74.25 What responsibilities do 

Executive agencies have regarding 

occupancy services? 

Executive agencies, upon approval 

from GSA, must manage, administer and 

enforce the requirements of agreements 

(such as Memoranda of Understanding) 

and contracts that provide for the 

delivery of occupancy services. 

§ 102–74.30 What standard in providing 

occupancy services must Executive 

agencies follow? 

Executive agencies must provide 

occupancy services that substantially 

conform to nationally recognized 

standards. As needed, Executive 

agencies may adopt other standards for 

buildings and services in Federally 

controlled facilities to conform to 

statutory requirements and to 

implement cost-reduction efforts. 

§ 102–74.35 What building services must 

Executive agencies provide? 

Executive agencies, upon approval 

from GSA, must provide—

(a) Building services such as 

custodial, solid waste management 

(including recycling), heating and 

cooling, landscaping and grounds 

maintenance, tenant alterations, minor 

repairs, building maintenance, 

integrated pest management, signage, 

parking, and snow removal, at 

appropriate levels to support Federal 

agency missions; and 

(b) Arrangements for raising and 

lowering the United States flags at 

appropriate times. In addition, agencies 

must display P.O.W. and M.I.A. flags at 

locations specified in 36 U.S.C. 902 on 

P.O.W./M.I.A. flag display days. 

Concession Services 

§ 102–74.40 What are concession 

services? 

Concession services are any food or 

snack services provided by a RandolphSheppard Act vendor, commercial 

contractor or nonprofit organization (see 

definition in § 102–71.20 of this 

chapter), in vending facilities such as—

(a) Vending machines; 

(b) Sundry facilities; 

(c) Prepackaged facilities; 

(d) Snack bars; and 

(e) Cafeterias. 

§ 102–74.45 When must Federal agencies 

provide concession services? 

Federal agencies, upon approval from 

GSA, must provide concession services 

where building population supports 

such services and when the availability 

of existing commercial services is 

insufficient to meet Federal agency 

needs. Prior to establishing concessions, 

Federal agencies must ensure that—

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67801 

(a) The proposed concession will be 

established and operated in 

conformance with applicable policies, 

safety, health and sanitation codes, 

laws, regulations, etc., and will not 

contravene the terms of any lease or 

other contractual arrangement; and 

(b) Sufficient funds are legally 

available to cover all costs for which the 

Government may be responsible. 

§ 102–74.50 Are Federal agencies required 

to give blind vendors priority in operating 

vending facilities? 

With certain exceptions, the 

Randolph-Sheppard Act (20 U.S.C. 107 

et seq.) requires that blind persons 

licensed by a State licensing agency 

under the provisions of the RandolphSheppard Act be authorized to operate 

vending facilities on Federal property, 

including leased buildings. The 

Department of Education (ED) is 

responsible for the administration of the 

Randolph-Sheppard Act as set forth at 

34 CFR part 395. The ED designates 

individual State licensing agencies with 

program administration responsibility. 

The Randolph-Sheppard Act and its 

implementing regulations require that 

Federal property managers give priority 

to and notify the State licensing 

agencies in writing of any opportunity. 

§ 102–74.55 Are vending facilities 

authorized under the Randolph-Sheppard 

Act operated by permit or contract? 

Vending facilities are authorized by 

permit. As set forth in 34 CFR part 395, 

the Federal property manager approves 

and signs State licensing agency permits 

that authorize States to license blind 

vendors to operate vending facilities 

(including vending machines) on 

Federal property. 

§ 102–74.60 Are Federal agencies required 

to give blind vendors priority in operating 

cafeterias? 

Yes. Federal agencies are required to 

give Randolph-Sheppard vendors 

priority in the operation of cafeterias 

when the State licensing agency is in 

the competitive range as set forth at 34 

CFR part 395. 

§ 102–74.65 Are cafeterias authorized 

under the Randolph-Sheppard Act operated 

by permit or contract? 

They are operated by contract. As set 

forth at 34 CFR part 395, the Federal 

property manager contracts with the 

State licensing agency to license blind 

vendors to operate cafeterias on Federal 

property. 

§ 102–74.70 Are commercial vendors and 

nonprofit organizations required to operate 

vending facilities by permit or contractual 

arrangement? 

Commercial vendors and nonprofit 

organizations must operate vending 

facilities, including cafeterias, under a 

contractual arrangement with Federal 

agencies. 

§ 102–74.75 May Federal agencies sell 

tobacco products in vending machines in 

Government-owned and leased space? 

No. Section 636 of Public Law 104–

52 prohibits the sale of tobacco products 

in vending machines in Governmentowned and leased space. The 

Administrator of GSA or the head of an 

Agency may designate areas not subject 

to the prohibition, if minors are 

prohibited and reports are made to the 

appropriate committees of Congress. 

§ 102–74.80 [Reserved] 

§ 102–74.85 [Reserved] 

§ 102–74.90 [Reserved] 

§ 102–74.95 [Reserved] 

Conservation Programs 

§ 102–74.100 What are conservation 

programs? 

Conservation programs are programs 

that improve energy and water 

efficiency and promote the use of solar 

and other renewable energy. These 

programs must promote and maintain 

an effective source reduction activity 

(reducing consumption of resources 

such as energy, water, and paper), 

resource recovery activity (obtaining 

materials from the waste stream that can 

be recycled into new products), and 

reuse activity (reusing same product 

before disposition, such as reusing 

unneeded memos for scratch paper). 

Asset Services 

§ 102–74.105 What are asset services? 

Asset services include repairs (other 

than those minor repairs identified in 

§ 102–74.35(a)), alterations and 

modernizations for real property assets. 

Typically, these are the types of repairs 

and alterations necessary to preserve or 

enhance the value of the real property 

asset. 

§ 102–74.110 What asset services must 

Executive agencies provide? 

Executive agencies, upon approval 

from GSA, must provide asset services 

such as repairs (in addition to those 

minor repairs identified in § 102–

74.35(a)), alterations, and 

modernizations for real property assets. 

For repairs and alterations projects for 

which the estimated cost exceeds the 

prospectus threshold, Federal agencies 

must follow the prospectus submission 

and approval policy identified in this 

part and part 102–73 of this chapter. 

§ 102–74.115 What standard in providing 

asset services must Executive agencies 

follow? 

Executive agencies must provide asset 

services that maintain continuity of 

Government operations, continue 

efficient building operations, extend the 

useful life of buildings and related 

building systems, and provide a quality 

workplace environment that enhances 

employee productivity. 

§ 102–74.120 Is a prospectus required to 

be submitted before emergency alterations 

can be performed? 

No. A prospectus does not need to be 

submitted before emergency alterations 

are performed, but GSA must submit a 

prospectus as soon as possible after the 

emergency. Federal agencies must 

immediately alter a building if the 

alteration protects people, buildings, or 

equipment, saves lives, and/or avoids 

further property damage. Federal 

agencies can take these actions in an 

emergency before GSA submits a 

prospectus on the alterations to the 

Senate Committee on Environment and 

Public Works and the House Committee 

on Transportation and Infrastructure. 

§ 102–74.125 Are prospectuses required 

for reimbursable alteration projects? 

A project that is to be financed in 

whole or in part from funds 

appropriated to the requesting agency 

may be performed without a prospectus 

if—

(a) Payment is made from agency 

appropriations that are not subject to 40 

U.S.C. 3307; and 

(b) GSA’s portion of the cost, if any, 

does not exceed the prospectus 

threshold. 

§ 102–74.130 When a prospectus is 

required, can GSA prepare a prospectus for 

a reimbursable alteration project? 

Yes, if requested by a Federal agency, 

GSA will prepare a prospectus for a 

reimbursable alteration project. 

§ 102–74.135 Who selects construction 

and alteration projects that are to be 

performed? 

The Administrator of General Services 

selects construction and alteration 

projects to be performed. 

§ 102–74.140 On what basis does the 

Administrator select construction and 

alteration projects? 

The Administrator selects projects 

based on a continuing investigation and 

survey of the public building needs of 

the Federal Government. These projects 

must be equitably distributed 

67802 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

throughout the United States, with due 

consideration given to each project’s 

comparative urgency. 

§ 102–74.145 What information must a 

Federal agency submit to GSA after the 

agency has identified a need for 

construction or alteration of a public 

building? 

Federal agencies identifying a need 

for construction or alteration of a public 

building must provide information, 

such as a description of the work, 

location, estimated maximum cost, and 

justification to the Administrator of 

General Services. 

§ 102–74.150 Who submits prospectuses 

for the construction or alteration of public 

buildings to the Congressional 

committees? 

The Administrator of General Services 

must submit prospectuses for public 

building construction or alteration 

projects to the Senate Committee on 

Environment and Public Works and the 

House Committee on Transportation 

and Infrastructure for approval. 

Energy Conservation 

§ 102–74.155 What energy conservation 

policy must Federal agencies follow in the 

management of facilities? 

Federal agencies must—

(a) Comply with the energy 

conservation guidelines in 10 CFR part 

436 (Federal Energy Management and 

Planning Programs); and 

(b) Observe the energy conservation 

policies cited in this part. 

§ 102–74.160 What actions must Federal 

agencies take to promote energy 

conservation? 

Federal agencies must—

(a) Turn off lights and equipment 

when not needed; 

(b) Not block or impede ventilation; 

and 

(c) Keep windows and other building 

accesses closed during the heating and 

cooling seasons. 

§ 102–74.165 What energy standards must 

Federal agencies follow for existing 

facilities? 

Existing Federal facilities must meet 

the energy standards prescribed by the 

American Society of Heating, 

Refrigerating, and Air Conditioning 

Engineers and the Illuminating 

Engineering Society of North American 

in ASHRAE/IES Standard 90A–1980, as 

amended by the Department of Energy. 

Federal agencies must apply these 

energy standards where they can be 

achieved through life cycle, cost 

effective actions. 

§ 102–74.170 May exceptions to the energy 

conservation policies in this subpart be 

granted? 

Yes, the Federal agency buildings 

manager may grant exceptions to the 

foregoing policies in this subpart to 

enable agencies to accomplish their 

missions more effectively and 

efficiently. 

§ 102–74.175 Are Government-leased 

buildings required to conform with the 

policies in this subpart? 

Yes, all new lease contracts must be 

in conformance with the policies 

prescribed in this subpart. Federal 

agencies must administer existing lease 

contracts in accordance with these 

policies to the maximum extent feasible. 

§ 102–74.180 What illumination levels 

must Federal agencies maintain on Federal 

facilities? 

Except where special circumstances 

exist, Federal agencies must maintain 

illumination levels at—

(a) 50 foot-candles at work station 

surfaces, measured at a height of 30 

inches above floor level, during working 

hours (for visually difficult or critical 

tasks, additional lighting may be 

authorized by the Federal agency 

buildings manager); 

(b) 30 foot-candles in work areas 

during working hours, measured at 30 

inches above floor level; 

(c) 10 foot-candles, but not less than 

1 foot-candle, in non-work areas, during 

working hours (normally this will 

require levels of 5 foot-candles at 

elevator boarding areas, minimum of 1 

foot-candle at the middle of corridors 

and stairwells as measured at the 

walking surface, 1 foot-candle at the 

middle of corridors and stairwells as 

measured at the walking surface, and 10 

foot-candles in storage areas); and 

(d) Levels essential for safety and 

security purposes, including exit signs 

and exterior lights. 

§ 102–74.185 What heating and cooling 

policy must Federal agencies follow in 

Federal facilities? 

Within the limitations of the building 

systems, Federal agencies must—

(a) Operate heating and cooling 

systems in the most overall energy 

efficient and economical manner; 

(b) Maintain temperatures to 

maximize customer satisfaction by 

conforming to local commercial 

equivalent temperature levels and 

operating practices; 

(c) Set heating temperatures no higher 

than 55 degrees Fahrenheit during nonworking hours; 

(d) Not provide air-conditioning 

during non-working hours, except as 

necessary to return space temperatures 

to a suitable level for the beginning of 

working hours; 

(e) Not permit reheating, 

humidification and simultaneous 

heating and cooling; and 

(f) Operate building systems as 

necessary during extreme weather 

conditions to protect the physical 

condition of the building. 

§ 102–74.190 Are portable heaters, fans 

and other such devices allowed in 

Government-controlled facilities? 

Federal agencies are prohibited from 

operating portable heaters, fans, and 

other such devices in Governmentcontrolled facilities unless authorized 

by the Federal agency buildings 

manager. 

§ 102–74.195 What ventilation policy must 

Federal agencies follow? 

During working hours in periods of 

heating and cooling, Federal agencies 

must provide ventilation in accordance 

with ASHRAE Standard 62, Ventilation 

for Acceptable Indoor Air Quality, 

where physically practical. Where not 

physically practical, Federal agencies 

must provide the maximum allowable 

amount of ventilation during periods of 

heating and cooling and pursue 

opportunities to increase ventilation up 

to current standards. ASHRAE Standard 

62 is available from ASHRAE 

Publications Sales, 1791 Tullie Circle 

NE, Atlanta, GA 30329–2305. 

§ 102–74.200 What information are Federal 

agencies required to report to the 

Department of Energy (DOE)? 

Federal agencies, upon approval of 

GSA, must report to the DOE the energy 

consumption in buildings, facilities, 

vehicles, and equipment within 45 

calendar days after the end of each 

quarter as specified in the DOE Federal 

Energy Usage Report DOE F 6200.2 

Instructions. 

Ridesharing 

§ 102–74.205 What Federal facility 

ridesharing policy must Executive agencies 

follow? 

(a) In accordance with Executive 

Order 12191, ‘‘Federal Facility 

Ridesharing Program’’ (3 CFR, 1980 

Comp., p. 138), Executive agencies must 

actively promote the use of ridesharing 

(carpools, vanpools, privately leased 

buses, public transportation, and other 

multi-occupancy modes of travel) by 

personnel working at Federal facilities 

to conserve energy, reduce congestion, 

improve air quality, and provide an 

economical way for Federal employees 

to commute to work. 

(b) In accordance with the Federal 

Employees Clean Air Incentives Act 

(Public Law 103–172), the Federal 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67803 

Government is required to take steps to 

improve the air quality, and to reduce 

traffic congestion by providing for the 

establishment of programs that 

encourage Federal employees to 

commute to work by means other than 

single-occupancy motor vehicles. 

(c) In accordance with the 

Transportation Equity Act for the 21st 

Century (Public Law 105–178), 

employers, including the Federal 

Government, are to offer employees 

transportation fringe benefits. 

§ 102–74.210 What steps must Executive 

agencies take to promote ridesharing at 

Federal facilities? 

(a) Under Executive Order 12191, 

‘‘Federal Facility Ridesharing Program,’’

agencies shall—

(1) Establish an annual ridesharing 

goal for each facility; and 

(2) Cooperate with State and local 

ridesharing agencies where such 

agencies exist. 

(b) Under the Federal Employees 

Clean Air Incentives Act (Public Law 

103–172), agencies shall—

(1) Issue transit passes or similar 

vouchers to exchange for transit passes; 

(2) Furnish space, facilities, and 

services to bicyclists; 

(3) Provide non-monetary incentives 

as provided by other provisions of law 

or other authority; and 

(4) Submit biennially to GSA (as 

directed in House of Representatives 

Report 103–356, dated November 10, 

1993) a report that covers—

(i) Agency programs offered under 

Public law 103–172; 

(ii) Description of each program; 

(iii) Extent of employee participation 

in, and costs to the Government 

associated with, each program; 

(iv) Assessment of environmental or 

other benefits realized from these 

programs; and 

(v) Other matters that may be 

appropriate under Public Law 103–172. 

(c) In accordance with the 

Transportation Equity Act for the 21st 

Century, agencies may (in lieu of or in 

combination with other commuter 

benefits) provide fringe benefits to 

qualified commuters, at no cost, by 

giving them a monthly pretax payroll 

deduction to support and encourage the 

use of mass transportation systems. 

§ 102–74.215 [Reserved] 

§ 102–74.220 [Reserved] 

§ 102–74.225 [Reserved] 

Occupant Emergency Program 

§ 102–74.230 Who is responsible for 

establishing an occupant emergency 

program? 

The Designated Official (as defined in 

§ 102–71.20 of this chapter) is 

responsible for developing, 

implementing and maintaining an 

Occupant Emergency Plan (as defined in 

§ 102–71.20 of this chapter). The 

Designated Official’s responsibilities 

include establishing, staffing and 

training an Occupant Emergency 

Organization with agency employees. 

Federal agencies, upon approval from 

GSA, must assist in the establishment 

and maintenance of such plans and 

organizations. 

§ 102–74.235 Are occupant agencies 

required to cooperate with the Designated 

Official in the implementation of the 

emergency plans and the staffing of the 

emergency organization? 

Yes, all occupant agencies of a facility 

must fully cooperate with the 

Designated Official in the 

implementation of the emergency plans 

and the staffing of the emergency 

organization. 

§ 102–74.240 What are Federal agencies’

occupant emergency responsibilities? 

Federal agencies, upon approval from 

GSA, must—

(a) Provide emergency program policy 

guidance; 

(b) Review plans and organizations 

annually; 

(c) Assist in training of personnel; 

(d) Otherwise provide for the proper 

administration of Occupant Emergency 

Programs (as defined in § 102–71.20 of 

this chapter); 

(e) Solicit the assistance of the lessor 

in the establishment and 

implementation of plans in leased 

space; and 

(f) Assist the Occupant Emergency 

Organization (as defined in § 102–71.20 

of this chapter) by providing technical 

personnel qualified in the operation of 

utility systems and protective 

equipment. 

§ 102–74.245 Who makes the decision to 

activate the Occupant Emergency 

Organization? 

The decision to activate the Occupant 

Emergency Organization must be made 

by the Designated Official, or by the 

designated alternate official. After 

normal duty hours, the senior Federal 

official present must represent the 

Designated Official or his/her alternates 

and must initiate action to cope with 

emergencies in accordance with the 

plans. 

§ 102–74.250 What information must the 

Designated Official use to make a decision 

to activate the Occupant Emergency 

Organization? 

The Designated Official must make a 

decision to activate the Occupant 

Emergency Organization based upon the 

best available information, including—

(a) An understanding of local 

tensions; 

(b) The sensitivity of target 

agency(ies); 

(c) Previous experience with similar 

situations; 

(d) Advice from the Federal agency 

buildings manager; 

(e) Advice from the appropriate 

Federal law enforcement official; and 

(f) Advice from Federal, State, and 

local law enforcement agencies. 

§ 102–74.255 How must occupant 

evacuation or relocation be accomplished 

when there is immediate danger to persons 

or property, such as fire, explosion or the 

discovery of an explosive device (not 

including a bomb threat)? 

The Designated Official must initiate 

action to evacuate or relocate occupants 

in accordance with the plan by 

sounding the fire alarm system or by 

other appropriate means when there is 

immediate danger to persons or 

property, such as fire, explosion or the 

discovery of an explosive device (not 

including a bomb threat). 

§ 102–74.260 What action must the 

Designated Official initiate when there is 

advance notice of an emergency? 

The Designated Official must initiate 

appropriate action according to the plan 

when there is advance notice of an 

emergency. 

Parking Facilities 

§ 102–74.265 Who must provide for the 

regulation and policing of parking facilities? 

Federal agencies, upon approval from 

GSA, must provide for any necessary 

regulation and policing of parking 

facilities, which may include—

(a) The issuance of traffic rules and 

regulations; 

(b) The installation of signs and 

markings for traffic control (Signs and 

markings must conform with the 

Manual on Uniform Traffic Control 

Devices published by the Department of 

Transportation); 

(c) The issuance of citations for 

parking violations; and 

(d) The immobilization or removal of 

illegally parked vehicles. 

67804 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

§ 102–74.270 Are vehicles required to 

display parking permits in parking 

facilities? 

When the use of parking space is 

controlled as in § 102–74.265, all 

privately owned vehicles other than 

those authorized to use designated 

visitor or service areas must display a 

parking permit. This requirement may 

be waived in parking facilities where 

the number of available spaces regularly 

exceeds the demand for such spaces. 

§ 102–74.275 May Federal agencies 

authorize lessors or parking management 

contractors to manage, regulate and police 

parking facilities? 

Yes, Federal agencies, upon approval 

from GSA, may authorize lessors or 

parking management contractors to 

manage, regulate and police parking 

facilities. 

§ 102–74.280 Are privately owned vehicles 

converted for propane carburetion 

permitted in underground parking facilities? 

Federal agencies must not permit 

privately owned vehicles converted for 

propane carburetion to enter 

underground parking facilities unless 

the owner provides to the occupant 

agency and the Federal agency buildings 

manager the installer’s certification that 

the installation methods and equipment 

comply with National Fire Protection 

Association (NFPA) Standard No. 58. 

§ 102–74.285 How must Federal agencies 

assign priority to parking spaces in 

controlled areas? 

Federal agencies must reserve official 

parking spaces, in the following order of 

priority, for—

(a) Official postal vehicles at 

buildings containing the U.S. Postal 

Service’s mailing operations; 

(b) Federally owned vehicles used to 

apprehend criminals, fight fires and 

handle other emergencies; 

(c) Private vehicles owned by 

Members of Congress (but not their 

staffs); 

(d) Private vehicles owned by Federal 

judges (appointed under Article III of 

the Constitution), which may be parked 

in those spaces assigned for the use of 

the Court, with priority for them set by 

the Administrative Office of the U.S. 

Courts; 

(e) Other Federally owned and leased 

vehicles, including those in motor pools 

or assigned for general use; 

(f) Service vehicles, vehicles used in 

child care center operations, and 

vehicles of patrons and visitors (Federal 

agencies must allocate parking for 

disabled visitors whenever an agency’s 

mission requires visitor parking); and 

(g) Private vehicles owned by 

employees, using spaces not needed for 

official business. 

However, in major metropolitan areas, 

Federal agencies may determine that 

allocations by zone would make parking 

more efficient or equitable, taking into 

account the priority for official parking 

set forth in this section. 

§ 102–74.290 May Federal agencies allow 

employees to use parking spaces not 

required for official needs? 

Yes, Federal agencies may allow 

employees to use parking spaces not 

required for official needs. 

§ 102–74.295 Who determines the number 

of employee parking spaces for each 

facility? 

The Federal agency buildings 

manager must determine the total 

number of spaces available for employee 

parking. Typically, Federal agencies 

must make a separate determination for 

each parking facility. However, in major 

metropolitan areas, Federal agencies 

may determine that allocations by zone 

would make parking more efficient or 

more equitably available. 

§ 102–74.300 How must space available for 

employee parking be allocated among 

occupant agencies? 

The Federal agency buildings 

manager must allocate space available 

for employee parking among occupant 

agencies on an equitable basis, such as 

by allocating such parking in proportion 

to each agency’s share of building space, 

office space or total employee 

population, as appropriate. In certain 

cases, Federal agencies may allow a 

third party, such as a board composed 

of representatives of agencies sharing 

space, to determine proper parking 

allocations among the occupant 

agencies. 

§ 102–74.305 How must Federal agencies 

assign available parking spaces to their 

employees? 

Federal agencies must assign available 

parking spaces to their employees using 

the following order of priority: 

(a) Severely disabled employees (see 

definition in § 102–71.20 of this 

chapter). 

(b) Executive personnel and persons 

who work unusual hours. 

(c) Vanpool/carpool vehicles. 

(d) Privately owned vehicles of 

occupant agency employees that are 

regularly used for Government business 

at least 12 days per month and that 

qualify for reimbursement of mileage 

and travel expenses under Government 

travel regulations. 

(e) Other privately owned vehicles of 

employees, on a space-available basis. 

(In locations where parking allocations 

are made on a zonal basis, GSA and 

affected agencies may cooperate to issue 

additional rules, as appropriate.) 

§ 102–74.310 What measures must Federal 

agencies take to improve the utilization of 

parking facilities? 

Federal agencies must take all feasible 

measures to improve the utilization of 

parking facilities, including—

(a) The conducting of surveys and 

studies; 

(b) The periodic review of parking 

space allocations; 

(c) The dissemination of parking 

information to occupant agencies; 

(d) The implementation of parking 

incentives that promote ridesharing; 

(e) The use of stack parking practices, 

where appropriate; and 

(f) The employment of parking 

management contractors and 

concessionaires, where appropriate. 

Smoking 

§ 102–74.315 What is the smoking policy 

for Federal facilities? 

Pursuant to Executive Order 13058, 

‘‘Protecting Federal Employees and the 

Public From Exposure to Tobacco 

Smoke in the Federal Workplace’’ (3 

CFR, 1997 Comp., p. 216), it is the 

policy of the Executive branch to 

establish a smoke-free environment for 

Federal employees and members of the 

public visiting or using Federal 

facilities. The smoking of tobacco 

products is prohibited in all interior 

space owned, rented or leased by the 

Executive branch of the Federal 

Government, and in any outdoor areas 

under Executive branch control in front 

of air intake ducts. 

§ 102–74.320 Are there any exceptions to 

this smoking policy for Federal facilities? 

Yes, this smoking policy does not 

apply in—

(a) Designated smoking areas that are 

enclosed and exhausted directly to the 

outside and away from air intake ducts, 

and are maintained under negative 

pressure (with respect to surrounding 

spaces) sufficient to contain tobacco 

smoke within the designated area. 

Agency officials must not require 

workers to enter such areas during 

business hours while smoking is 

ongoing; 

(b) Any residential accommodation 

for persons voluntarily or involuntarily 

residing, on a temporary or long-term 

basis, in a building owned, leased or 

rented by the Federal Government; 

(c) Portions of Federally owned 

buildings leased, rented or otherwise 

provided in their entirety to non-Federal 

parties; 

(d) Places of employment in the 

private sector or in other non-Federal 

governmental units that serve as the 

permanent or intermittent duty station 

of one or more Federal employees; and 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67805 

(e) Instances where an agency head 

establishes limited and narrow 

exceptions that are necessary to 

accomplish agency missions. Such 

exceptions must be in writing, approved 

by the agency head, and to the fullest 

extent possible provide protection of 

nonsmokers from exposure to 

environmental tobacco smoke. 

Authority to establish such exceptions 

may not be delegated. 

§ 102–74.325 Who has the responsibility to 

determine which areas are to be smoking 

and which areas are to be nonsmoking 

areas? 

Agency heads have the responsibility 

to determine which areas are to be 

smoking and which areas are to be 

nonsmoking areas. In exercising this 

responsibility, agency heads will give 

appropriate consideration to the views 

of the employees affected and/or their 

representatives and are to take into 

consideration the health issues 

involved. Nothing in this section 

precludes an agency from establishing 

more stringent guidelines. Agencies in 

multi-tenant buildings are encouraged 

to work together to identify designated 

smoking areas. 

§ 102–74.330 Who must evaluate the need 

to restrict smoking at doorways and in 

courtyards? 

Agency heads must evaluate the need 

to restrict smoking at doorways and in 

courtyards under Executive branch 

control to protect workers and visitors 

from environmental tobacco smoke, and 

may restrict smoking in these areas in 

light of this evaluation. 

§ 102–74.335 Who is responsible for 

monitoring and controlling areas 

designated for smoking and for identifying 

these areas with proper signage? 

Agency heads are responsible for 

monitoring and controlling areas 

designated for smoking and identifying 

these areas with proper signage. 

Suitable uniform signs reading 

‘‘Designated Smoking Area’’ must be 

furnished and installed by the occupant 

agency. 

§ 102–74.340 Who is responsible for signs 

on or near building entrance doors? 

Federal agency buildings managers 

must furnish and install suitable, 

uniform signs reading ‘‘No Smoking 

Except in Designated Areas’’ on or near 

entrance doors of buildings subject to 

this section. It is not necessary to 

display a sign in every room of each 

building. 

§ 102–74.345 Does the smoking policy in 

this part apply to the Judicial branch? 

This smoking policy applies to the 

Judicial branch when it occupies space 

in buildings controlled by the Executive 

branch. Furthermore, the Federal Chief 

Judge in a local jurisdiction may be 

deemed to be comparable to an agency 

head and may establish exceptions for 

Federal jurors and others as indicated in 

§ 102–74.320(e). 

§ 102–74.350 Are agencies required to 

meet their obligations under the Federal 

Service Labor-Management Relations Act 

where there is an exclusive representative 

for the employees prior to implementing 

this smoking policy? 

Yes. Where there is an exclusive 

representative for the employees, 

Federal agencies must meet their 

obligations under the Federal Service 

Labor-Management Relations Act (5 

U.S.C. 7101 et seq.) prior to 

implementing this section. In all other 

cases, agencies may consult directly 

with employees. 

Accident and Fire Prevention 

§ 102–74.355 With what accident and fire 

prevention standards must Federal facilities 

comply? 

To the maximum extent feasible, 

Federal agencies must manage facilities 

in accordance with the accident and fire 

prevention requirements identified in 

§ 102–80.80 of this chapter. 

§ 102–74.360 What are the specific 

accident and fire prevention responsibilities 

of occupant agencies? 

Each occupant agency must—

(a) Participate in at least one fire drill 

per year; 

(b) Maintain a neat and orderly 

facility to minimize the risk of 

accidental injuries and fires; 

(c) Keep all exits, accesses to exits and 

accesses to emergency equipment clear 

at all times; 

(d) Not bring hazardous, explosive or 

combustible materials into buildings 

unless authorized by appropriate agency 

officials and by GSA and unless 

protective arrangements determined 

necessary by GSA have been provided; 

(e) Use only draperies, curtains or 

other hanging materials that are made of 

non-combustible or flame-resistant 

fabric; 

(f) Use only freestanding partitions 

and space dividers that are limited 

combustible, and fabric coverings that 

are flame resistant; 

(g) Cooperate with GSA to develop 

and maintain fire prevention programs 

that provide the maximum safety for the 

occupants; 

(h) Train employees to use protective 

equipment and educate employees to 

take appropriate fire safety precautions 

in their work; 

(i) Keep facilities in the safest 

condition practicable, and conduct 

periodic inspections in accordance with 

Executive Order 12196 and 29 CFR part 

1960; 

(j) Immediately report accidents 

involving personal injury or property 

damage, which result from building 

system or maintenance deficiencies, to 

the Federal agency building manager; 

and 

(k) Appoint a safety, health and fire 

protection liaison to represent the 

occupant agency with GSA. 

Subpart C—Conduct on Federal 

Property 

Applicability 

§ 102–74.365 To whom does this subpart 

apply? 

The rules in this subpart apply to all 

property under the authority of GSA 

and to all persons entering in or on such 

property. Each occupant agency shall be 

responsible for the observance of these 

rules and regulations. Federal agencies 

must post the notice in the Appendix to 

this part at each public entrance to each 

Federal facility. 

Inspection 

§ 102–74.370 What items are subject to 

inspection by Federal agencies? 

Federal agencies may, at their 

discretion, inspect packages, briefcases 

and other containers in the immediate 

possession of visitors, employees or 

other persons arriving on, working at, 

visiting, or departing from Federal 

property. Federal agencies may conduct 

a full search of a person and the vehicle 

the person is driving or occupying upon 

his or her arrest. 

Admission to Property 

§ 102–74.375 What is the policy on 

admitting persons to Government property? 

Federal agencies must—

(a) Except as otherwise permitted, 

close property to the public during other 

than normal working hours. In those 

instances where a Federal agency has 

approved the after-normal-workinghours use of buildings or portions 

thereof for activities authorized by 

subpart D of this part, Federal agencies 

must not close the property (or affected 

portions thereof) to the public; 

(b) Close property to the public during 

working hours only when situations 

require this action to provide for the 

orderly conduct of Government 

business. The designated official under 

the Occupant Emergency Program may 

make such decision only after 

consultation with the buildings manager 

and the highest ranking representative 

of the law enforcement organization 

responsible for protection of the 

67806 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

property or the area. The designated 

official is defined in § 102–71.20 of this 

chapter as the highest ranking official of 

the primary occupant agency, or the 

alternate highest ranking official or 

designee selected by mutual agreement 

by other occupant agency officials; and 

(c) When property or a portion thereof 

is closed to the public, restrict 

admission to the property, or the 

affected portion, to authorized persons 

who must register upon entry to the 

property and must, when requested, 

display Government or other identifying 

credentials to Federal police officers or 

other authorized individuals when 

entering, leaving or while on the 

property. Failure to comply with any of 

the applicable provisions is a violation 

of these regulations. 

Preservation of Property 

§ 102–74.380 What is the policy 

concerning the preservation of property? 

All persons entering in or on Federal 

property are prohibited from—

(a) Improperly disposing of rubbish 

on property; 

(b) Willfully destroying or damaging 

property; 

(c) Stealing property; 

(d) Creating any hazard on property to 

persons or things; or 

(e) Throwing articles of any kind from 

or at a building or climbing upon 

statues, fountains or any part of the 

building. 

Conformity With Signs and Directions 

§ 102–74.385 What is the policy 

concerning conformity with official signs 

and directions? 

Persons in and on property must at all 

times comply with official signs of a 

prohibitory, regulatory or directory 

nature and with the lawful direction of 

Federal police officers and other 

authorized individuals. 

Disturbances 

§ 102–74.390 What is the policy 

concerning disturbances? 

All persons entering in or on Federal 

property are prohibited from loitering, 

exhibiting disorderly conduct or 

exhibiting other conduct on property 

that—

(a) Creates loud or unusual noise or a 

nuisance; 

(b) Unreasonably obstructs the usual 

use of entrances, foyers, lobbies, 

corridors, offices, elevators, stairways, 

or parking lots; 

(c) Otherwise impedes or disrupts the 

performance of official duties by 

Government employees; or 

(d) Prevents the general public from 

obtaining the administrative services 

provided on the property in a timely 

manner. 

Gambling 

§ 102–74.395 What is the policy 

concerning gambling? 

(a) Except for the vending or exchange 

of chances by licensed blind operators 

of vending facilities for any lottery set 

forth in a State law and authorized by 

section 2(a)(5) of the RandolphSheppard Act (20 U.S.C. 107 et seq.), all 

persons entering in or on Federal 

property are prohibited from—

(1) Participating in games for money 

or other personal property; 

(2) Operating gambling devices; 

(3) Conducting a lottery or pool; or 

(4) Selling or purchasing numbers 

tickets. 

(b) This provision is not intended to 

prohibit prize drawings for personal 

property at otherwise permitted 

functions on Federal property, provided 

that the game or drawing does not 

constitute gambling per se. Gambling 

per se means a game of chance where 

the participant risks something of value 

for the chance to gain or win a prize. 

Narcotics and Other Drugs 

§ 102–74.400 What is the policy 

concerning the possession and use of 

narcotics and other drugs? 

Except in cases where the drug is 

being used as prescribed for a patient by 

a licensed physician, all persons 

entering in or on Federal property are 

prohibited from—

(a) Being under the influence, using or 

possessing any narcotic drugs, 

hallucinogens, marijuana, barbiturates, 

or amphetamines; or 

(b) Operating a motor vehicle on the 

property while under the influence of 

alcoholic beverages, narcotic drugs, 

hallucinogens, marijuana, barbiturates, 

or amphetamines. 

Alcoholic Beverages 

§ 102–74.405 What is the policy 

concerning the use of alcoholic beverages? 

Except where the head of the 

responsible agency or his or her 

designee has granted an exemption in 

writing for the appropriate official use 

of alcoholic beverages, all persons 

entering in or on Federal property are 

prohibited from being under the 

influence or using alcoholic beverages. 

The head of the responsible agency or 

his or her designee must provide a copy 

of all exemptions granted to the 

buildings manager and the highest 

ranking representative of the law 

enforcement organization, or other 

authorized officials, responsible for the 

security of the property. 

Soliciting, Vending and Debt Collection 

§ 102–74.410 What is the policy 

concerning soliciting, vending and debt 

collection? 

All persons entering in or on Federal 

property are prohibited from soliciting 

alms (including money and nonmonetary items) or commercial or 

political donations, vending 

merchandise of all kinds, displaying or 

distributing commercial advertising, or 

collecting private debts, except for—

(a) National or local drives for funds 

for welfare, health or other purposes as 

authorized by 5 CFR part 950, entitled 

‘‘Solicitation Of Federal Civilian And 

Uniformed Service Personnel For 

Contributions To Private Voluntary 

Organizations,’’ and sponsored or 

approved by the occupant agencies; 

(b) Concessions or personal notices 

posted by employees on authorized 

bulletin boards; 

(c) Solicitation of labor organization 

membership or dues authorized by 

occupant agencies under the Civil 

Service Reform Act of 1978 (Pub. L. 95–

454); 

(d) Lessee, or its agents and 

employees, with respect to space leased 

for commercial, cultural, educational, or 

recreational use under 40 U.S.C. 581(h). 

Public areas of GSA-controlled property 

may be used for other activities in 

accordance with subpart D of this part; 

(e) Collection of non-monetary items 

that are sponsored or approved by the 

occupant agencies; and 

(f) Commercial activities sponsored by 

recognized Federal employee 

associations and on-site child care 

centers. 

Posting and Distributing Materials 

§ 102–74.415 What is the policy for posting 

and distributing materials? 

All persons entering in or on Federal 

property are prohibited from—

(a) Distributing free samples of 

tobacco products in or around Federal 

buildings, as mandated by Section 636 

of Public Law 104–52; 

(b) Posting or affixing materials, such 

as pamphlets, handbills, or flyers, on 

bulletin boards or elsewhere on GSAcontrolled property, except as 

authorized in § 102–74.410, or when 

these displays are conducted as part of 

authorized Government activities; and 

(c) Distributing materials, such as 

pamphlets, handbills or flyers, unless 

conducted as part of authorized 

Government activities. This prohibition 

does not apply to public areas of the 

property as defined in § 102–71.20 of 

this chapter. However, any person or 

organization proposing to distribute 

materials in a public area under this 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67807 

section must first obtain a permit from 

the building manager as specified in 

subpart D of this part. Any such person 

or organization must distribute 

materials only in accordance with the 

provisions of subpart D of this part. 

Failure to comply with those provisions 

is a violation of these regulations. 

Photographs for News, Advertising or 

Commercial Purposes 

§ 102–74.420 What is the policy 

concerning photographs for news, 

advertising or commercial purposes? 

Except where security regulations, 

rules, orders, or directives apply or a 

Federal court order or rule prohibits it, 

persons entering in or on Federal 

property may take photographs of—

(a) Space occupied by a tenant agency 

for non-commercial purposes only with 

the permission of the occupying agency 

concerned; 

(b) Space occupied by a tenant agency 

for commercial purposes only with 

written permission of an authorized 

official of the occupying agency 

concerned; and 

(c) Building entrances, lobbies, foyers, 

corridors, or auditoriums for news 

purposes. 

Dogs and Other Animals 

§ 102–74.425 What is the policy 

concerning dogs and other animals on 

Federal property? 

No person may bring dogs or other 

animals on Federal property for other 

than official purposes. However, a 

disabled person may bring a seeing-eye 

dog, a guide dog, or other animal 

assisting or being trained to assist that 

individual. 

Breastfeeding 

§ 102–74.426 May a woman breastfeed her 

child in a Federal building or on Federal 

property? 

Yes. Public Law 108–199, Section 

629, Division F, Title VI (January 23, 

2004), provides that a woman may 

breastfeed her child at any location in 

a Federal building or on Federal 

property, if the woman and her child are 

otherwise authorized to be present at 

the location. 

Vehicular and Pedestrian Traffic 

§ 102–74.430 What is the policy 

concerning vehicular and pedestrian traffic 

on Federal property? 

All vehicle drivers entering or while 

on Federal property—

(a) Must drive in a careful and safe 

manner at all times; 

(b) Must comply with the signals and 

directions of Federal police officers or 

other authorized individuals; 

(c) Must comply with all posted traffic 

signs; 

(d) Must comply with any additional 

posted traffic directives approved by the 

GSA Regional Administrator, which 

will have the same force and effect as 

these regulations; 

(e) Are prohibited from blocking 

entrances, driveways, walks, loading 

platforms, or fire hydrants; and 

(f) Are prohibited from parking on 

Federal property without a permit. 

Parking without authority, parking in 

unauthorized locations or in locations 

reserved for other persons, or parking 

contrary to the direction of posted signs 

is prohibited. Vehicles parked in 

violation, where warning signs are 

posted, are subject to removal at the 

owner’s risk and expense. Federal 

agencies may take as proof that a motor 

vehicle was parked in violation of these 

regulations or directives as prima facie 

evidence that the registered owner was 

responsible for the violation. 

Explosives 

§ 102–74.435 What is the policy 

concerning explosives on Federal 

property? 

No person entering or while on 

Federal property may carry or possess 

explosives, or items intended to be used 

to fabricate an explosive or incendiary 

device, either openly or concealed, 

except for official purposes. 

Weapons 

§ 102–74.440 What is the policy 

concerning weapons on Federal property? 

Federal law prohibits the possession 

of firearms or other dangerous weapons 

in Federal facilities and Federal court 

facilities by all persons not specifically 

authorized by 18 U.S.C. 930. Violators 

will be subject to fine and/or 

imprisonment for periods up to five (5) 

years. 

Nondiscrimination 

§ 102–74.445 What is the policy 

concerning discrimination on Federal 

property? 

Federal agencies must not 

discriminate by segregation or otherwise 

against any person or persons because of 

race, creed, religion, age, sex, color, 

disability, or national origin in 

furnishing or by refusing to furnish to 

such person or persons the use of any 

facility of a public nature, including all 

services, privileges, accommodations, 

and activities provided on the property. 

Penalties 

§ 102–74.450 What are the penalties for 

violating any rule or regulation in this 

subpart? 

A person found guilty of violating any 

rule or regulation in this subpart while 

on any property under the charge and 

control of GSA shall be fined under title 

18 of the United States Code, 

imprisoned for not more than 30 days, 

or both. 

Impact on Other Laws or Regulations 

§ 102–74.455 What impact do the rules and 

regulations in this subpart have on other 

laws or regulations? 

No rule or regulation in this subpart 

may be construed to nullify any other 

Federal laws or regulations or any State 

and local laws and regulations 

applicable to any area in which the 

property is situated (40 U.S.C. 121 (c)). 

Subpart D—Occasional Use of Public 

Buildings 

§ 102–74.460 What is the scope of this 

subpart? 

This subpart establishes rules and 

regulations for the occasional use of 

public areas of public buildings for 

cultural, educational and recreational 

activities as provided by 40 U.S.C. 

581(h)(2). 

Application for Permit 

§ 102–74.465 Is a person or organization 

that wishes to use a public area required to 

apply for a permit from a Federal agency? 

Yes, any person or organization 

wishing to use a public area must file an 

application for a permit from the 

Federal agency buildings manager. 

§ 102–74.470 What information must 

persons or organizations submit so that 

Federal agencies may consider their 

application for a permit? 

Applicants must submit the following 

information: 

(a) Their full names, mailing 

addresses, and telephone numbers. 

(b) The organization sponsoring the 

proposed activity. 

(c) The individual(s) responsible for 

supervising the activity. 

(d) Documentation showing that the 

applicant has authority to represent the 

sponsoring organization. 

(e) A description of the proposed 

activity, including the dates and times 

during which it is to be conducted and 

the number of persons to be involved. 

§ 102–74.475 If an applicant proposes to 

use a public area to solicit funds, is the 

applicant required to make a certification? 

Yes, if an applicant proposes to use a 

public area to solicit funds, the 

applicant must certify, in writing, that—

67808 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

(a) The applicant is a representative of 

and will be soliciting funds for the sole 

benefit of a religion or religious group; 

or 

(b) The applicant’s organization has 

received an official ruling of tax-exempt 

status from the Internal Revenue Service 

under 26 U.S.C. 501; or, alternatively, 

that an application for such a ruling is 

still pending. 

Permits 

§ 102–74.480 How many days does a 

Federal agency have to issue a permit 

following receipt of a completed 

application? 

Federal agencies must issue permits 

within 10 working days following the 

receipt of the completed applications, 

unless the permit is disapproved in 

accordance with § 102–74.500. 

§ 102–74.485 Is there any limitation on the 

length of time of a permit? 

Yes, a permit may not be issued for 

a period of time in excess of 30 calendar 

days, unless specifically approved by 

the Regional Officer (as defined in 

§ 102–71.20 of this chapter). After the 

expiration of a permit, Federal agencies 

may issue a new permit upon 

submission of a new application. In 

such a case, applicants may incorporate 

by reference all required information 

filed with the prior application. 

§ 102–74.490 What if more than one permit 

is requested for the same area and time? 

Federal agencies will issue permits on 

a first-come, first-served, basis when 

more than one permit is requested for 

the same area and times. 

§ 102–74.495 If a permit involves 

demonstrations or activities that may lead 

to civil disturbances, what action must a 

Federal agency take before approving such 

a permit application? 

Before approving a permit 

application, Federal agencies must 

coordinate with their law enforcement 

organization if a permit involves 

demonstrations or activities that may 

lead to civil disturbances. 

Disapproval of Applications or 

Cancellation of Permits 

§ 102–74.500 Can Federal agencies 

disapprove permit applications or cancel 

issued permits? 

Yes, Federal agencies may disapprove 

any permit application or cancel an 

issued permit if—

(a) The applicant has failed to submit 

all information required under §§ 102–

74.470 and 102–74.475, or has falsified 

such information; 

(b) The proposed use is a commercial 

activity as defined in § 102–71.20 of this 

chapter; 

(c) The proposed use interferes with 

access to the public area, disrupts 

official Government business, interferes 

with approved uses of the property by 

tenants or by the public, or damages any 

property; 

(d) The proposed use is intended to 

influence or impede any pending 

judicial proceeding; 

(e) The proposed use is obscene 

within the meaning of obscenity as 

defined in 18 U.S.C. 1461–65; or 

(f) The proposed use violates the 

prohibition against political 

solicitations in 18 U.S.C. 607. 

§ 102–74.505 What action must Federal 

agencies take after disapproving an 

application or canceling an issued permit? 

Upon disapproving an application or 

canceling a permit, Federal agencies 

must promptly—

(a) Notify the applicant or permittee 

of the reasons for the action; and 

(b) Inform the applicant or permittee 

of his/her appeal rights under § 102–

74.510. 

Appeals 

§ 102–74.510 How may the disapproval of 

a permit application or cancellation of an 

issued permit be appealed? 

A person or organization may appeal 

the disapproval of an application or 

cancellation of an issued permit by 

notifying the Regional Officer (as 

defined in § 102–71.20 of this chapter), 

in writing, of the intent to appeal within 

5 calendar days of the notification of 

disapproval or cancellation. 

§ 102–74.515 Will the affected person or 

organization and the Federal agency 

buildings manager have an opportunity to 

state their positions on the issues? 

Yes, during the appeal process, the 

affected person or organization and the 

Federal agency buildings manager will 

have an opportunity to state their 

positions on the issues, both verbally 

and in writing. 

§ 102–74.520 How much time does the 

Regional Officer have to affirm or reverse 

the Federal agency buildings manager’s 

decision after receiving the notification of 

appeal from the affected person or 

organization? 

The Regional Officer must affirm or 

reverse the Federal agency buildings 

manager’s decision, based on the 

information submitted, within 10 

calendar days of the date on which the 

Regional Officer received notification of 

the appeal. If the decision is not 

rendered within 10 days, the 

application will be considered to be 

approved or the permit validly issued. 

The Regional Officer will promptly 

notify the applicant or permittee and the 

buildings manager of the decision and 

the reasons therefor. 

Schedule of Use 

§ 102–74.525 May Federal agencies 

reserve time periods for the use of public 

areas for official Government business or 

for maintenance, repair and construction? 

Yes, Federal agencies may reserve 

certain time periods for use of public 

areas—

(a) For official Government business; 

or 

(b) For maintenance, repair, and 

construction. 

Hours of Use 

§ 102–74.530 When may public areas be 

used? 

Permittees may use public areas 

during or after regular working hours of 

Federal agencies, provided that such 

uses will not interfere with Government 

business. When public areas are used by 

permittees after normal working hours, 

Federal agencies must lock, barricade or 

identify by signs, as appropriate, all 

adjacent areas not approved for such use 

to restrict permittees’ activities to 

approved areas. 

Services and Costs 

§ 102–74.535 What items may Federal 

agencies provide to permittees free of 

charge? 

Federal agencies may provide to 

permittees at no cost—

(a) Space; and 

(b) Services normally provided at the 

building in question during normal 

hours of building operation, such as 

security, cleaning, heating, ventilation, 

and air-conditioning. The Regional 

Officer must approve an applicant’s 

request to provide its own services, such 

as security and cleaning, prior to permit 

approval. 

§ 102–74.540 What are the items for which 

permittees must reimburse Federal 

agencies? 

Permittees must reimburse Federal 

agencies for services over and above 

those normally provided during normal 

business hours. Federal agencies may 

provide the services free of charge if the 

cost is insignificant and if it is in the 

public interest. 

§ 102–74.545 May permittees make 

alterations to the public areas? 

Permittees must not make alterations 

to public areas, except with the prior 

written approval of the Federal agency 

buildings manager. Federal agencies 

must not approve such alterations 

unless the Federal agency determines 

that the proposed alterations to a 

building should be made to encourage 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67809 

and aid in the proposed use. Permittees 

making alterations must ensure the 

safety of users and prevent damage to 

property. 

§ 102–74.550 What items are permittees 

responsible for furnishing? 

Permittees are responsible for 

furnishing items such as tickets, audiovisual equipment, and other items that 

are necessary for the proposed use. 

Conduct 

§ 102–74.555 What rules of conduct must 

all permittees observe while on Federal 

property? 

Permittees are subject to all rules and 

regulations governing conduct on 

Federal property as set forth in subpart 

C of this part. In addition, a permittee 

must—

(a) Not misrepresent his or her 

identity to the public; 

(b) Not conduct any activities in a 

misleading or fraudulent manner; 

(c) Not discriminate on the basis of 

race, creed, religion, age, color, 

disability, sex, or national origin in 

conducting activities; 

(d) Not distribute any item, nor post 

or otherwise affix any item, for which 

prior written approval under § 102–

74.415 has not been obtained; 

(e) Not leave leaflets or other 

materials unattended on the property; 

(f) Not engage in activities that would 

interfere with the preferences afforded 

blind licensees under the RandolphSheppard Act (20 U.S.C. 107); and 

(g) Display identification badges 

while on Federal property, if engaging 

in the solicitation of funds as authorized 

by § 102–74.475. Each badge must 

indicate the permittee’s name, address, 

telephone number, and organization. 

Non-affiliation With the Government 

§ 102–74.560 May Federal agencies advise 

the public of the presence of any permittees 

and their non-affiliation with the Federal 

Government? 

Yes, Federal agencies reserve the right 

to advise the public through signs or 

announcements of the presence of any 

permittees and of their non-affiliation 

with the Federal Government. 

Subpart E—Installing, Repairing, and 

Replacing Sidewalks 

§ 102–74.565 What is the scope of this 

subpart? 

In accordance with 40 U.S.C. 589, 

Federal agencies must comply with the 

real property policies in this subpart 

governing the installation, repair and 

replacement of sidewalks around 

buildings, installations, properties, or 

grounds under the control of Executive 

agencies and owned by the United 

States. 

§ 102–74.570 Are State and local 

governments required to fund the cost of 

installing, repairing, and replacing 

sidewalks? 

No, the Federal Government must 

fund the cost of installing, repairing, 

and replacing sidewalks. Funds 

appropriated to the agency for 

installation, repair, and maintenance, 

generally, must be available for 

expenditure to accomplish the purposes 

of this subpart. 

§ 102–74.575 How do Federal agencies 

arrange for work on sidewalks? 

Upon approval from GSA, Federal 

agencies may—

(a) Authorize the appropriate State or 

local government to install, repair and 

replace sidewalks, or arrange for this 

work, and reimburse them for this work; 

or 

(b) Contract or otherwise arrange and 

pay directly for installing, repairing 

and/or replacing sidewalks. 

§ 102–74.580 Who decides when to replace 

a sidewalk? 

Federal agencies, giving due 

consideration to State and local 

standards and specifications for 

sidewalks, decide when to install, repair 

or replace a sidewalk. However, Federal 

agencies may prescribe other standards 

and specifications for sidewalks 

whenever necessary to achieve 

architectural harmony and maintain 

facility security. 

Subpart F—Telework 

§ 102–74.585 What Federal facility 

telework policy must Executive agencies 

follow? 

Executive agencies must follow these 

telework policies: 

(a) In accordance with Section 359 of 

Public Law 106–346, each Executive 

agency must establish a policy under 

which eligible employees of the agency 

may participate in telecommuting to the 

maximum extent possible without 

diminished employee performance. 

Public 106–346 became effective on 

October 23, 2000, and required the 

Director of the Office of Personnel 

Management (OPM) to ensure the 

application and implementation of 

Section 359 to 25 percent of the Federal 

workforce by April 2001, and to an 

additional 25 percent of such workforce 

each year thereafter. Thus, the law 

provides that its requirements must be 

applied to 100 percent of the Federal 

workforce by April 2004. 

(b) In accordance with 40 U.S.C. 587, 

when considering whether to acquire 

any space, quarters, buildings, or other 

facilities for use by employees of any 

Executive agency, the head of that 

agency shall consider whether the need 

for the facilities can be met using 

alternative workplace arrangements. 

§ 102–74.590 What steps must agencies 

take to implement these laws and policies? 

(a) As interpreted by OPM 

Memorandum to agencies (February 9, 

2001), Public Law 106–346 instructs 

Federal agencies to—

(1) Review telework barriers, act to 

remove them, and increase actual 

participation; 

(2) Establish eligibility criteria; and 

(3) Subject to any applicable agency 

policies or bargaining obligations, allow 

employees who meet the criteria and 

want to participate the opportunity if 

they are satisfactory performers. 

(b) 40 U.S.C. 587 requires agencies 

considering the acquisition of facilities 

for use by Federal employees to 

consider whether the facility need can 

be met using alternative workplace 

arrangements, such as telecommuting, 

hoteling, virtual offices, and other 

distributive work arrangements. If the 

agency needs assistance in this 

investigation and/or subsequent 

application of alternative workplace 

arrangements, GSA will provide 

guidance, assistance, and oversight, as 

needed, regarding establishment and 

operation of alternative workplace 

arrangements. 

(c) Agencies evaluating alternative 

workplace arrangements should also 

make these evaluations in coordination 

with Integrated Workplace policies and 

strategies. See § 102–79.110. 

§ 102–74.595 How can agencies obtain 

guidance, assistance, and oversight 

regarding alternative workplace 

arrangements from GSA? 

Agencies may request assistance from 

the GSA/PBS regional office responsible 

for providing space in the geographic 

area under consideration. 

§ 102–74.600 Should Federal agencies 

utilize telework centers? 

Yes. In accordance with Public Law 

107–217 (August 21, 2002), each of the 

following departments and agencies, in 

each fiscal year, must make at least 

$50,000 available from amounts 

provided for salaries and expenses for 

carrying out a flexiplace work 

telecommuting program (i.e., to pay 

telework center program user fees): 

(a) Department of Agriculture. 

(b) Department of Commerce. 

(c) Department of Defense. 

(d) Department of Education. 

(e) Department of Energy. 

67810 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

(f) Department of Health and Human 

Services. 

(g) Department of Housing and Urban 

Development. 

(h) Department of the Interior. 

(i) Department of Justice. 

(j) Department of Labor. 

(k) Department of State. 

(l) Department of Transportation. 

(m) Department of the Treasury. 

(n) Department of Veterans Affairs. 

(o) Environmental Protection Agency. 

(p) General Services Administration. 

(q) Office of Personnel Management. 

(r) Small Business Administration. 

(s) Social Security Administration. 

(t) United States Postal Service. 

Appendix to Part 102–74—Rules and 

Regulations Governing Conduct on 

Federal Property 

Federal Management Regulations 

Title 41, Code of Federal Regulations, Part 

102–74, Subpart C 

Applicability (41 CFR 102–74.365). The 

rules in this subpart apply to all property 

under the authority of the U.S. General 

Services Administration and to all persons 

entering in or on such property. Each 

occupant agency shall be responsible for the 

observance of these rules and regulations. 

Federal agencies must post the notice in the 

Appendix to part 102–74 at each public 

entrance to each Federal facility. 

Inspection (41 CFR 102–74.370). Federal 

agencies may, at their discretion, inspect 

packages, briefcases and other containers in 

the immediate possession of visitors, 

employees or other persons arriving on, 

working at, visiting, or departing from 

Federal property. Federal agencies may 

conduct a full search of a person and the 

vehicle the person is driving or occupying 

upon his or her arrest. 

Admission to Property (41 CFR 102– 

74.375). Federal agencies must—

(a) Except as otherwise permitted, close 

property to the public during other than 

normal working hours. In those instances 

where a Federal agency has approved the 

after-normal-working-hours use of buildings 

or portions thereof for activities authorized 

by subpart D of this part, Federal agencies 

must not close the property (or affected 

portions thereof) to the public; 

(b) Close property to the public during 

working hours only when situations require 

this action to provide for the orderly conduct 

of Government business. The designated 

official under the Occupant Emergency 

Program may make such decision only after 

consultation with the buildings manager and 

the highest ranking representative of the law 

enforcement organization responsible for 

protection of the property or the area. The 

designated official is defined in § 102–71.20 

of this chapter as the highest ranking official 

of the primary occupant agency, or the 

alternate highest ranking official or designee 

selected by mutual agreement by other 

occupant agency officials; and 

(c) When property or a portion thereof is 

closed to the public, restrict admission to the 

property, or the affected portion, to 

authorized persons who must register upon 

entry to the property and must, when 

requested, display Government or other 

identifying credentials to Federal police 

officers or other authorized individuals when 

entering, leaving or while on the property. 

Failure to comply with any of the applicable 

provisions is a violation of these regulations. 

Preservation of Property (41 CFR 102– 

74.380). All persons entering in or on Federal 

property are prohibited from—

(a) Improperly disposing of rubbish on 

property; 

(b) Willfully destroying or damaging 

property; 

(c) Stealing property; 

(d) Creating any hazard on property to 

persons or things; and 

(e) Throwing articles of any kind from or 

at a building or the climbing upon statues, 

fountains or any part of the building. 

Conformity with Signs and Directions (41 

CFR 102–74.385). Persons in and on property 

must at all times comply with official signs 

of a prohibitory, regulatory or directory 

nature and with the lawful direction of 

Federal police officers and other authorized 

individuals. 

Disturbances (41 CFR 102–74.390). All 

persons entering in or on Federal property 

are prohibited from loitering, exhibiting 

disorderly conduct or exhibiting other 

conduct on property that—

(a) Creates loud or unusual noise or a 

nuisance; 

(b) Unreasonably obstructs the usual use of 

entrances, foyers, lobbies, corridors, offices, 

elevators, stairways, or parking lots; 

(c) Otherwise impedes or disrupts the 

performance of official duties by Government 

employees; or 

(d) Prevents the general public from 

obtaining the administrative services 

provided on the property in a timely manner. 

Gambling (41 CFR 102–74.395). Except for 

the vending or exchange of chances by 

licensed blind operators of vending facilities 

for any lottery set forth in a State law and 

authorized by section 2(a)(5) of the 

Randolph-Sheppard Act (20 U.S.C. 107 et 

seq.), all persons entering in or on Federal 

property are prohibited from—

(a) Participating in games for money or 

other personal property; 

(b) Operating gambling devices; 

(c) Conducting a lottery or pool; or 

(d) Selling or purchasing numbers tickets. 

Narcotics and Other Drugs (41 CFR 102– 

74.400). Except in cases where the drug is 

being used as prescribed for a patient by a 

licensed physician, all persons entering in or 

on Federal property are prohibited from—

(a) Being under the influence, using or 

possessing any narcotic drugs, hallucinogens, 

marijuana, barbiturates, or amphetamines; or 

(b) Operating a motor vehicle on the 

property while under the influence of 

alcoholic beverages, narcotic drugs, 

hallucinogens, marijuana, barbiturates, or 

amphetamines. 

Alcoholic Beverages (41 CFR 102–74.405). 

Except where the head of the responsible 

agency or his or her designee has granted an 

exemption in writing for the appropriate 

official use of alcoholic beverages, all persons 

entering in or on Federal property are 

prohibited from being under the influence or 

using alcoholic beverages. The head of the 

responsible agency or his or her designee 

must provide a copy of all exemptions 

granted to the buildings manager and the 

highest ranking representative of the law 

enforcement organization, or other 

authorized officials, responsible for the 

security of the property. 

Soliciting, Vending and Debt Collection (41 

CFR 102–74.410). All persons entering in or 

on Federal property are prohibited from 

soliciting alms (including money and nonmonetary items) or commercial or political 

donations; vending merchandise of all kinds; 

displaying or distributing commercial 

advertising, or collecting private debts, 

except for—

(a) National or local drives for funds for 

welfare, health or other purposes as 

authorized by 5 CFR part 950, entitled 

‘‘Solicitation of Federal Civilian And 

Uniformed Service Personnel For 

Contributions To Private Voluntary 

Organizations,’’ and sponsored or approved 

by the occupant agencies; 

(b) Concessions or personal notices posted 

by employees on authorized bulletin boards; 

(c) Solicitation of labor organization 

membership or dues authorized by occupant 

agencies under the Civil Service Reform Act 

of 1978 (Public Law 95–454); 

(d) Lessee, or its agents and employees, 

with respect to space leased for commercial, 

cultural, educational, or recreational use 

under the Public Buildings Cooperative Use 

Act of 1976 (40 U.S.C. 581(h)). Public areas 

of GSA-controlled property may be used for 

other activities in accordance with subpart D 

of this part; 

(e) Collection of non-monetary items that 

are sponsored or approved by the occupant 

agencies; and 

(f) Commercial activities sponsored by 

recognized Federal employee associations 

and on-site child care centers. 

Posting and Distributing Materials (41 CFR 

102–74.415). All persons entering in or on 

Federal property are prohibited from—

(a) Distributing free samples of tobacco 

products in or around Federal buildings, 

under Public Law 104–52, Section 636; 

(b) Posting or affixing materials, such as 

pamphlets, handbills, or flyers, on bulletin 

boards or elsewhere on GSA-controlled 

property, except as authorized in § 102–

74.410, or when these displays are conducted 

as part of authorized Government activities; 

and 

(c) Distributing materials, such as 

pamphlets, handbills, or flyers, unless 

conducted as part of authorized Government 

activities. This prohibition does not apply to 

public areas of the property as defined in 

§ 102–71.20 of this chapter. However, any 

person or organization proposing to 

distribute materials in a public area under 

this section must first obtain a permit from 

the building manager as specified in subpart 

D of this part. Any such person or 

organization must distribute materials only 

in accordance with the provisions of subpart 

D of this part. Failure to comply with those 

provisions is a violation of these regulations. 

Photographs for News, Advertising, or 

Commercial Purposes (41 CFR 102–74.420). 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67811 

Except where security regulations, rules, 

orders, or directives apply or a Federal court 

order or rule prohibits it, persons entering in 

or on Federal property may take photographs 

of—

(a) Space occupied by a tenant agency for 

non-commercial purposes only with the 

permission of the occupying agency 

concerned; 

(b) Space occupied by a tenant agency for 

commercial purposes only with written 

permission of an authorized official of the 

occupying agency concerned; and 

(c) Building entrances, lobbies, foyers, 

corridors, or auditoriums for news purposes. 

Dogs and Other Animals (41 CFR 102–

74.425). No person may bring dogs or other 

animals on Federal property for other than 

official purposes. However, a disabled person 

may bring a seeing-eye dog, a guide dog, or 

other animal assisting or being trained to 

assist that individual. 

Breastfeeding (41 CFR 102–74.426). Public 

Law 108–199, Section 629, Division F, Title 

VI (January 23, 2004), provides that a woman 

may breastfeed her child at any location in 

a Federal building or on Federal property, if 

the woman and her child are otherwise 

authorized to be present at the location. 

Vehicular and Pedestrian Traffic (41 CFR 

102–74.430). All vehicle drivers entering or 

while on Federal property—

(a) Must drive in a careful and safe manner 

at all times; 

(b) Must comply with the signals and 

directions of Federal police officers or other 

authorized individuals; 

(c) Must comply with all posted traffic 

signs; 

(d) Must comply with any additional 

posted traffic directives approved by the GSA 

Regional Administrator, which will have the 

same force and effect as these regulations; 

(e) Are prohibited from blocking entrances, 

driveways, walks, loading platforms, or fire 

hydrants; and 

(f) Are prohibited from parking on Federal 

property without a permit. Parking without 

authority, parking in unauthorized locations 

or in locations reserved for other persons, or 

parking contrary to the direction of posted 

signs is prohibited. Vehicles parked in 

violation, where warning signs are posted, 

are subject to removal at the owner’s risk and 

expense. Federal agencies may take as proof 

that a motor vehicle was parked in violation 

of these regulations or directives as prima 

facie evidence that the registered owner was 

responsible for the violation. 

Explosives (41 CFR 102–74.435). No person 

entering or while on property may carry or 

possess explosives, or items intended to be 

used to fabricate an explosive or incendiary 

device, either openly or concealed, except for 

official purposes. 

Weapons (41 CFR 102–74.440). Federal law 

prohibits the possession of firearms or other 

dangerous weapons in Federal facilities and 

Federal court facilities by all persons not 

specifically authorized by Title 18, United 

States Code, Section 930. Violators will be 

subject to fine and/or imprisonment for 

periods up to five (5) years. 

Nondiscrimination (41 CFR 102–74.445). 

Federal agencies must not discriminate by 

segregation or otherwise against any person 

or persons because of race, creed, religion, 

age, sex, color, disability, or national origin 

in furnishing or by refusing to furnish to such 

person or persons the use of any facility of 

a public nature, including all services, 

privileges, accommodations, and activities 

provided on the property. 

Penalties (41 CFR 102–74.450). A person 

found guilty of violating any rule or 

regulation in subpart C of this part while on 

any property under the charge and control of 

the U.S. General Services Administration 

shall be fined under title 18 of the United 

States Code, imprisoned for not more than 30 

days, or both. 

Impact on Other Laws or Regulations (41 

CFR 102–74.455). No rule or regulation in 

this subpart may be construed to nullify any 

other Federal laws or regulations or any State 

and local laws and regulations applicable to 

any area in which the property is situated (40 

U.S.C. 121 (c)). 

Warning—Weapons Prohibited 

Federal law prohibits the possession of 

firearms or other dangerous weapons in 

Federal facilities and Federal court facilities 

by all persons not specifically authorized by 

Title 18, United States Code, Section 930. 

Violators will be subject to fine and/or 

imprisonment for periods up to five (5) years. 

■ 5. Revise part 102–75 to read as 

follows: 

PART 102–75—REAL PROPERTY 

DISPOSAL 

Subpart A—General Provisions 

Sec. 

102–76.5 What is the scope of this part? 

102–75.10 What basic real property 

disposal policy governs disposal 

agencies? 

Real Property Disposal Services 

102–75.15 What real property disposal 

services must disposal agencies provide 

under a delegation of authority from 

GSA? 

102–75.20 How can Federal agencies with 

independent disposal authority obtain 

related disposal services? 

Subpart B—Utilization of Excess Real 

Property 

102–75.25 What are landholding agencies’

responsibilities concerning the 

utilization of excess property? 

102–75.30 What are disposal agencies’

responsibilities concerning the 

utilization of excess property? 

102–75.35 [Reserved] 

Standards 

102–75.40 What are the standards that each 

Executive agency must use to identify 

unneeded Federal real property? 

102–75.45 What does the term ‘‘Not 

utilized’’ mean? 

102–75.50 What does the term 

‘‘Underutilized’’ mean? 

102–75.55 What does the term ‘‘Not being 

put to optimum use’’ mean? 

Guidelines 

102–75.60 What are landholding agencies’

responsibilities concerning real property 

surveys? 

102–75.65 Why is it important for 

Executive agencies to notify the disposal 

agency of its real property needs? 

102–75.70 Are their any exceptions to this 

notification policy? 

102–75.75 What is the most important 

consideration in evaluating a proposed 

transfer of excess real property? 

102–75.80 What are an Executive agency’s 

responsibilities before requesting a 

transfer of excess real property? 

102–75.85 Can disposal agencies transfer 

excess real property to agencies for 

programs that appear to be scheduled for 

substantial curtailment or termination? 

102–75.90 How is excess real property 

needed for office, storage, and related 

purposes normally transferred to the 

requesting agency? 

102–75.95 Can Federal agencies that 

normally do not require real property 

(other than for office, storage, and related 

purposes) or that may not have statutory 

authority to acquire such property, 

obtain the use of excess real property? 

Land Withdrawn or Reserved From the 

Public Domain 

102–75.100 When an agency holds land 

withdrawn or reserved from the public 

domain and determines that it no longer 

needs this land, what must it do? 

102–75.105 What responsibility does the 

Department of the Interior have if it 

determines that minerals in the land are 

unsuitable for disposition under the 

public land mining and mineral leasing 

laws? 

Transfers Under Other Laws 

102–75.110 Can transfers of real property be 

made under authority of laws other than 

those codified in Title 40 of the United 

States Code? 

Reporting of Excess Real Property 

102–75.115 Must reports of excess real 

property and related personal property 

be prepared on specific forms? 

102–75.120 Is there any other information 

that needs to accompany (or be 

submitted with) the Report of Excess 

Real Property (Standard Form 118)? 

Title Report 

102–75.125 What information must 

agencies include in the title report? 

102–75.130 If hazardous substance activity 

took place on the property, what specific 

information must an agency include on 

the title report? 

102–75.135 If no hazardous substance 

activity took place on the property, what 

specific information must an agency 

include in the title report? 

Other Necessary Information 

102–75.140 In addition to the title report, 

and all necessary environmental 

information and certifications, what 

information must an Executive agency 

transmit with the Report of Excess Real 

Property (Standard Form 118)? 

67812 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

Examination for Acceptability 

102–75.145 Is GSA required to review each 

report of excess? 

102–75.150 What happens when GSA 

determines that the report of excess is 

adequate? 

102–75.155 What happens if GSA 

determines that the report of excess is 

insufficient? 

Designation as Personal Property 

102–75.160 Should prefabricated movable 

structures be designated real or personal 

property for disposition purposes? 

102–75.165 Should related personal 

property be designated real or personal 

property for disposition purposes? 

102–75.170 What happens to the related 

personal property in a structure 

scheduled for demolition? 

Transfers 

102–75.175 What are GSA’s responsibilities 

regarding transfer requests? 

102–75.180 May landholding agencies 

transfer excess real property without 

notifying GSA? 

102–75.185 In those instances where 

landholding agencies may transfer excess 

real property without notifying GSA, 

which policies must they follow? 

102–75.190 What amount must the 

transferee agency pay for the transfer of 

excess real property? 

102–75.195 If the transferor agency is a 

wholly owned Government corporation, 

what amount must the transferee agency 

pay? 

102–75.200 What amount must the 

transferee agency pay if property is being 

transferred for the purpose of upgrading 

the transferee agency’s facilities? 

102–75.205 Are transfers ever made 

without reimbursement by the transferee 

agency? 

102–75.210 What must a transferee agency 

include in its request for an exception 

from the 100 percent reimbursement 

requirement? 

102–75.215 Who must endorse requests for 

exception to the 100 percent 

reimbursement requirement? 

102–75.220 Where should an agency send a 

request for exception to the 100 percent 

reimbursement requirement? 

102–75.225 Who must review and approve 

a request for exception from the 100 

percent reimbursement requirement? 

102–75.230 Who is responsible for property 

protection and maintenance costs while 

the request for exception is being 

reviewed? 

102–75.235 May disposal agencies transfer 

excess property to the Senate, the House 

of Representatives, and the Architect of 

the Capitol? 

Temporary Utilization 

102–75.240 May excess real property be 

temporarily assigned/reassigned? 

Non-Federal Interim Use of Excess Property 

102–75.245 When can landholding agencies 

grant rights for non-Federal interim use 

of excess property reported to GSA? 

Subpart C—Surplus Real Property Disposal 

102–75.250 What general policy must the 

disposal agency follow concerning the 

disposal of surplus property? 

102–75.255 What are disposal agencies’

specific responsibilities concerning the 

disposal of surplus property? 

102–75.260 When may the disposal agency 

dispose of surplus real property by 

exchange for privately owned property? 

102–75.265 Are conveyance documents 

required to identify all agreements and 

representations concerning property 

restrictions and conditions? 

Applicability of Antitrust Laws 

102–75.270 Must antitrust laws be 

considered when disposing of property? 

102–75.275 Who determines whether the 

proposed disposal would create or 

maintain a situation inconsistent with 

antitrust laws? 

102–75.280 What information concerning a 

proposed disposal must a disposal 

agency provide to the Attorney General 

to determine the applicability of antitrust 

laws? 

102–75.285 Can a disposal agency dispose 

of real property to a private interest 

specified in § 102–75.270 before advice 

is received from the Attorney General? 

Disposals Under Other Laws 

102–75.290 Can disposals of real property 

be made under authority of laws other 

than Chapter 5 of Subtitle I of Title 40 

of the United States Code? 

Credit Disposals 

102–75.295 What is the policy on extending 

credit in connection with the disposal of 

surplus property? 

Designation of Disposal Agencies 

102–75.296 When may a landholding 

agency other than GSA be the disposal 

agency for real and related personal 

property? 

102–75.297 Are there any exceptions to 

when landholding agencies may serve as 

the disposal agency? 

102–75.298 Can agencies request that GSA 

be the disposal agency for real property 

and real property interests described in 

§ 102–75.296? 

102–75.299 What are landholding agencies’

responsibilities if GSA conducts the 

disposal? 

Appraisal 

102–75.300 Are appraisals required for all 

real property disposal transactions? 

102–75.305 What type of appraisal value 

must be obtained for real property 

disposal transactions? 

102–75.310 Who must agencies use to 

appraise the real property? 

102–75.315 Are appraisers authorized to 

consider the effect of historic covenants 

on the fair market value? 

102–75.320 Does appraisal information 

need to be kept confidential? 

Inspection 

102–75.325 What responsibility does the 

landholding agency have to provide 

persons the opportunity to inspect 

available surplus property? 

Submission of Offers To Purchase or Lease 

102–75.330 What form must all offers to 

purchase or lease be in? 

Provisions Relating to Asbestos 

102–75.335 Where asbestos is identified, 

what information must the disposal 

agency incorporate into the offer to 

purchase and the conveyance document? 

Provisions Relating to Hazardous Substance 

Activity 

102–75.340 Where hazardous substance 

activity has been identified on property 

proposed for disposal, what information 

must the disposal agency incorporate 

into the offer to purchase and the 

conveyance document? 

102–75.345 What is different about the 

statements in the offer to purchase and 

conveyance document if the sale is to a 

potentially responsible party with 

respect to the hazardous substance 

activity? 

Public Benefit Conveyances 

102–75.350 What are disposal agencies’

responsibilities concerning public 

benefit conveyances? 

102–75.351 May the disposal agency waive 

screening for public benefit 

conveyances? 

102–75.355 What clause must be in the 

offer to purchase and the conveyance 

documents for public benefit 

conveyances? 

102–75.360 What wording must be in the 

non-discrimination clause that is 

required in the offer to purchase and the 

conveyance document? 

Power Transmission Lines 

102–75.365 Do disposal agencies have to 

notify State entities and Government 

agencies that a surplus power 

transmission line and right-of-way is 

available? 

102–75.370 May a State, or any political 

subdivision thereof, certify to a disposal 

agency that it needs a surplus power 

transmission line and the right-of-way 

acquired for its construction to meet the 

requirements of a public or cooperative 

power project? 

102–75.375 What happens once a State, or 

political subdivision, certifies that it 

needs a surplus power transmission line 

and the right-of-way acquired for its 

construction to meet the requirements of 

a public or cooperative power project? 

102–75.380 May power transmission lines 

and rights-of-way be disposed of in other 

ways? 

Property for Public Airports 

102–75.385 Do disposal agencies have the 

responsibility to notify eligible public 

agencies that airport property has been 

determined to be surplus? 

102–75.390 What does the term ‘‘surplus 

airport property’’ mean? 

102–75.395 May surplus airport property be 

conveyed or disposed of to a State, 

political subdivision, municipality, or 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67813 

tax-supported institution for a public 

airport? 

102–75.400 Is industrial property located 

on an airport also considered to be 

‘‘airport property’’? 

102–75.405 What responsibilities does the 

Federal Aviation Administration (FAA) 

have after receiving a copy of the notice 

(and a copy of the Report of Excess Real 

Property (Standard Form 118)) given to 

eligible public agencies that there is 

surplus airport property? 

102–75.410 What action must the disposal 

agency take after an eligible public 

agency has submitted a plan of use and 

application to acquire property for a 

public airport? 

102–75.415 What happens after the 

disposal agency receives the FAA’s 

recommendation for disposal of the 

property for a public airport? 

102–75.420 What happens if the FAA 

informs the disposal agency that it does 

not recommend disposal of the property 

for a public airport? 

102–75.425 Who has sole responsibility for 

enforcing compliance with the terms and 

conditions of disposal for property 

disposed of for use as a public airport? 

102–75.430 What happens if property 

conveyed for use as a public airport is 

revested in the United States? 

102–75.435 Does the Airport and Airway 

Development Act of 1970, as amended 

(Airport Act of 1970) apply to the 

transfer of airports to State and local 

agencies? 

Property for Use as Historic Monuments 

102–75.440 Who must disposal agencies 

notify that surplus property is available 

for historic monument use? 

102–75.445 Who can convey surplus real 

and related personal property for historic 

monument use? 

102–75.450 What type of property is 

suitable or desirable for use as a historic 

monument? 

102–75.455 May historic monuments be 

used for revenue-producing activities? 

102–75.460 What information must 

disposal agencies furnish eligible public 

agencies? 

102–75.465 What information must eligible 

public agencies interested in acquiring 

real property for use as a historic 

monument submit to the appropriate 

regional or field offices of the National 

Park Service (NPS) of the Department of 

the Interior (DOI)? 

102–75.470 What action must NPS take 

after an eligible public agency has 

submitted an application for conveyance 

of surplus property for use as a historic 

monument? 

102–75.475 What happens after the 

disposal agency receives the Secretary of 

the Interior’s determination for disposal 

of the surplus property for a historic 

monument and compatible revenueproducing activities? 

102–75.480 Who has the responsibility for 

enforcing compliance with the terms and 

conditions of disposal for surplus 

property conveyed for use as a historic 

monument? 

102–75.485 What happens if property that 

was conveyed for use as a historic 

monument is revested in the United 

States? 

Property for Educational and Public Health 

Purposes 

102–75.490 Who must notify eligible public 

agencies that surplus real property for 

educational and public health purposes 

is available? 

102–75.495 May the Department of 

Education (ED) or the Department of 

Health and Human Services (HHS) notify 

nonprofit organizations that surplus real 

property and related personal property is 

available for educational and public 

health purposes? 

102–75.500 Which Federal agencies may 

the head of the disposal agency (or his 

or her designee) assign for disposal 

surplus real property to be used for 

educational and public health purposes? 

102–75.505 Is the request for educational or 

public health use of a property by an 

eligible nonprofit institution contingent 

upon the disposal agency’s approval? 

102–75.510 When must the Department of 

Education and the Department of Health 

and Human Services notify the disposal 

agency that an eligible applicant is 

interested in acquiring the property? 

102–75.515 What action must the disposal 

agency take after an eligible public 

agency has submitted a plan of use for 

property for an educational or public 

health requirement? 

102–75.520 What must the Department of 

Education or the Department of Health 

and Human Services address in the 

assignment recommendation that is 

submitted to the disposal agency? 

102–75.525 What responsibilities do 

landholding agencies have concerning 

properties to be used for educational and 

public health purposes? 

102–75.530 What happens if the 

Department of Education or the 

Department of Health and Human 

Services does not approve any 

applications for conveyance of the 

property for educational or public health 

purposes? 

102–75.535 What responsibilities does the 

Department of Education or the 

Department of Health and Human 

Services have after receiving the disposal 

agency’s assignment letter? 

102–75.540 Who is responsible for 

enforcing compliance with the terms and 

conditions of the transfer for educational 

or public health purposes? 

102–75.545 What happens if property that 

was transferred to meet an educational or 

public health requirement is revested in 

the United States for noncompliance 

with the terms of sale, or other cause? 

Property for Providing Self-Help Housing or 

Housing Assistance 

102–75.550 What does ‘‘self-help housing 

or housing assistance’’ mean? 

102–75.555 Which Federal agency receives 

the property assigned for self-help 

housing or housing assistance for lowincome individuals or families? 

102–75.560 Who notifies eligible public 

agencies that real property to be used for 

self-help housing or housing assistance 

purposes is available? 

102–75.565 Is the requirement for self-help 

housing or housing assistance use of the 

property by an eligible public agency or 

nonprofit organization contingent upon 

the disposal agency’s approval of an 

assignment recommendation from the 

Department of Housing and Urban 

Development (HUD)? 

102–75.570 What happens if the disposal 

agency does not approve the assignment 

recommendation? 

102–75.575 Who notifies nonprofit 

organizations that surplus real property 

and related personal property to be used 

for self-help housing or housing 

assistance purposes is available? 

102–75.580 When must HUD notify the 

disposal agency that an eligible applicant 

is interested in acquiring the property? 

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? 

102–75.590 What does the assignment 

recommendation contain? 

102–75.595 What responsibilities do 

landholding agencies have concerning 

properties to be used for self-help 

housing or housing assistance use? 

102–75.600 What happens if HUD does not 

approve any applications for self-help 

housing or housing assistance use? 

102–75.605 What responsibilities does HUD 

have after receiving the disposal agency’s 

assignment letter? 

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? 

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? 

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? 

Property for Use as Public Park or 

Recreation Areas 

102–75.625 Which Federal agency is 

assigned surplus real property for public 

park or recreation purposes? 

102–75.630 Who must disposal agencies 

notify that real property for public park 

or recreation purposes is available? 

102–75.635 What information must the 

Department of the Interior (DOI) furnish 

eligible public agencies? 

102–75.640 When must DOI notify the 

disposal agency that an eligible applicant 

is interested in acquiring the property? 

102–75.645 What responsibilities do 

landholding agencies have concerning 

properties to be used for public park or 

recreation purposes? 

102–75.650 When must DOI request 

assignment of the property? 

102–75.655 What does the assignment 

recommendation contain? 

67814 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

102–75.660 What happens if DOI does not 

approve any applications or does not 

submit an assignment recommendation? 

102–75.665 What happens after the 

disposal agency receives the assignment 

recommendation from DOI? 

102–75.670 What responsibilities does DOI 

have after receiving the disposal agency’s 

assignment letter? 

102–75.675 What responsibilities does the 

grantee or recipient of the property have 

in accomplishing or completing the 

transfer? 

102–75.680 What information must be 

included in the deed of conveyance of 

any surplus property transferred for 

public park or recreation purposes? 

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? 

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? 

Property for Displaced Persons 

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? 

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? 

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? 

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? 

102–75.715 When can a Federal agency 

request transfer of the property to the 

selected State agency? 

102–75.720 Is there a specific or preferred 

format for the transfer request and who 

should receive it? 

102–75.725 What does the transfer request 

contain? 

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? 

102–75.735 What happens after the 

disposal agency receives the transfer 

request from the Federal agency? 

102–75.740 Does the State agency have any 

responsibilities in helping to accomplish 

the transfer of the property? 

102–75.745 What happens if the property 

transfer request is not approved by the 

disposal agency? 

Property for Correctional Facility, Law 

Enforcement, or Emergency Management 

Response Purposes 

102–75.750 Who is eligible to receive 

surplus real and related personal 

property for correctional facility, law 

enforcement, or emergency management 

response 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? 

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? 

102–75.765 What does the term ‘‘law 

enforcement’’ mean? 

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? 

102–75.775 Is the disposal agency required 

to approve a determination by FEMA 

that identifies surplus 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? 

102–75.785 What specifically must DOJ or 

FEMA address in the assignment request 

or recommendation that is submitted to 

the disposal agency? 

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? 

102–75.795 What happens after the 

disposal agency receives the assignment 

request by DOJ or FEMA? 

102–75.800 What information must be 

included in the deed of conveyance? 

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? 

102–75.810 What responsibilities do OJP or 

FEMA have if they discover any 

information indicating a change in 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? 

Property for Port Facility Use 

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? 

102–75.825 Who must the disposal agency 

notify when surplus real and related 

personal property is available for port 

facility use? 

102–75.830 What does the surplus notice 

contain? 

102–75.835 When must DOT notify the 

disposal agency that an eligible applicant 

is interested in acquiring the property? 

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? 

102–75.845 What must DOT address in the 

assignment recommendation submitted 

to the disposal agency? 

102–75.850 What responsibilities do 

landholding agencies have concerning 

properties to be used in the development 

or operation of a port facility? 

102–75.855 What happens if DOT does not 

submit an assignment recommendation? 

102–75.860 What happens after the 

disposal agency receives the assignment 

recommendation from DOT? 

102–75.865 What responsibilities does DOT 

have after receiving the disposal agency’s 

assignment letter? 

102–75.870 Who is responsible for 

enforcing compliance with the terms and 

conditions of the port facility 

conveyance? 

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? 

Negotiated Sales 

102–75.880 When may Executive agencies 

conduct negotiated sales? 

102–75.885 What are the disposal agency’s 

responsibilities concerning negotiated 

sales? 

102–75.890 What clause must be in the 

offer to purchase and conveyance 

documents for negotiated sales to public 

agencies? 

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? 

102–75.900 What is a negotiated sale for 

economic development purposes? 

Explanatory Statements for Negotiated Sales 

102–75.905 When must the disposal agency 

prepare an explanatory statement? 

102–75.910 Are there any exceptions to this 

policy of preparing explanatory 

statements? 

102–75.915 Do disposal agencies need to 

retain a copy of the explanatory 

statement? 

102–75.920 Where is the explanatory 

statement sent? 

102–75.925 Is GSA required to furnish the 

disposal agency with the explanatory 

statement’s transmittal letter sent to 

Congress? 

102–75.930 What happens if there is no 

objection by an appropriate committee or 

subcommittee of Congress concerning 

the proposed negotiated sale? 

Public Sales 

102–75.935 What are disposal agencies’

responsibilities concerning public sales? 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67815 

Disposing of Easements 

102–75.936 When can an agency dispose of 

an easement? 

102–75.937 Can an easement be released or 

disposed of at no cost? 

102–75.938 May the easement and the land 

that benefited from the easement 

(dominant estate) be disposed of 

separately? 

Granting Easements 

102–75.939 When can agencies grant 

easements? 

102–75.940 Can agencies grant easements at 

no cost? 

102–75.941 Does an agency retain 

responsibility for the easement? 

102–75.942 What must agencies consider 

when granting easements? 

102–75.943 What happens if granting an 

easement will reduce the value of the 

property? 

Non-Federal Interim Use of Surplus 

Property 

102–75.944 Can landholding agencies 

outlease surplus real property for nonFederal interim use? 

Subpart D—Management of Excess and 

Surplus Real 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? 

Taxes and Other Obligations 

102–75.950 Who has the responsibility for 

paying property-related obligations 

pending transfer or disposal of the 

property? 

Decontamination 

102–75.955 Who is responsible for 

decontaminating excess and surplus real 

property? 

Improvements or Alterations 

102–75.960 May landholding agencies 

make improvements or alterations to 

excess or surplus property in those cases 

where disposal is otherwise not feasible? 

Protection and Maintenance 

102–75.965 Who must perform the 

protection and maintenance of excess 

and surplus real property pending 

transfer to another Federal agency or 

disposal? 

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? 

102–75.975 What happens if the property is 

not conveyed or disposed of during this 

time frame? 

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? 

Assistance in Disposition 

102–75.985 Is the landholding agency 

required to assist the disposal agency in 

the disposition process? 

Subpart E—Abandonment, Destruction, or 

Donation to Public Bodies 

102–75.990 May Federal agencies abandon, 

destroy, or donate to public bodies real 

property? 

Dangerous Property 

102–75.995 May Federal agencies dispose 

of dangerous property? 

Determinations 

102–75.1000 How is the decision made to 

abandon, destroy, or donate property? 

102–75.1005 Who can make the 

determination within the Federal agency 

on whether a property can be 

abandoned, destroyed, or donated? 

102–75.1010 When is a reviewing authority 

required to approve the determination 

concerning a property that is to be 

abandoned, destroyed, or donated? 

Restrictions 

102–75.1015 Are there any restrictions on 

Federal agencies concerning property 

donations to public bodies? 

Disposal Costs 

102–75.1020 Are public bodies ever 

required to pay the disposal costs 

associated with donated property? 

Abandonment and Destruction 

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? 

102–75.1030 May Federal agencies abandon 

or destroy property in any manner they 

decide? 

102–75.1035 Are there any restrictions on 

Federal agencies concerning the 

abandonment or destruction of 

improvements on land or related 

personal property? 

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? 

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? 

102–75.1050 Is there any property for 

which this subpart does not apply? 

Subpart F—Delegations 

Delegation to the Department of Defense 

(DoD) 

102–75.1055 What is the policy governing 

delegations of real property disposal 

authority to the Secretary of Defense? 

102–75.1060 What must the Secretary of 

Defense do before determining that DoDcontrolled excess real property and 

related personal property is not required 

for the needs of any Federal agency and 

prior to disposal? 

102–75.1065 When using a delegation of 

real property disposal authority under 

this subpart, is DoD required to report 

excess property to GSA? 

102–75.1070 Can this delegation of 

authority to the Secretary of Defense be 

redelegated? 

Delegation to the Department of Agriculture 

(USDA) 

102–75.1075 What is the policy governing 

delegations of real property disposal 

authority to the Secretary of Agriculture? 

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? 

102–75.1085 When using a delegation of 

real property disposal authority under 

this subpart, is the USDA required to 

report excess property to GSA? 

102–75.1090 Can this delegation of 

authority to the Secretary of Agriculture 

be redelegated? 

Delegation to the Department of the Interior 

102–75.1095 What is the policy governing 

delegations of authority to the Secretary 

of the Interior? 

102–75.1100 Can this delegation of 

authority to the Secretary of the Interior 

be redelegated? 

102–75.1105 What other responsibilities 

does the Secretary of the Interior have 

under this delegation of authority? 

Native American-Related Delegations 

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 Americanrelated functions? 

102–75.1115 Are there any limitations or 

restrictions on this delegation of 

authority? 

102–75.1120 Does the property have to be 

Federally screened? 

102–75.1125 Can the transfer/retransfer 

under this delegation be at no cost or 

without consideration? 

102–75.1130 What action must the 

Secretary requesting the transfer take 

where funds were not programmed and 

appropriated for acquisition of the 

property? 

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? 

Subpart G—Conditional Gifts of Real 

Property to Further the Defense Effort 

102–75.1140 What is the policy governing 

the acceptance or rejection of a 

conditional gift of real property for a 

particular defense purpose? 

102–75.1145 What action must the Federal 

agency receiving an offer of a conditional 

gift take? 

102–75.1150 What happens to the gift if 

GSA determines it to be acceptable? 

102–75.1155 May an acceptable gift of 

property be converted to money? 

67816 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

Subpart H—Use of Federal Real Property to 

Assist the Homeless 

Definitions 

102–75.1160 What definitions apply to this 

subpart? 

Applicability 

102–75.1165 What is the applicability of 

this subpart? 

Collecting the Information 

102–75.1170 How will information be 

collected? 

Suitability Determination 

102–75.1175 Who issues the suitability 

determination? 

Real Property Reported Excess to GSA 

102–75.1180 For the purposes of this 

subpart, what is the policy concerning 

real property reported excess to GSA? 

Suitability Criteria 

102–75.1185 What are suitability criteria? 

Determination of Availability 

102–75.1190 What is the policy concerning 

determination of availability statements? 

Public Notice of Determination 

102–75.1195 What is the policy concerning 

making public the notice of 

determination? 

Application Process 

102–75.1200 How may representatives of 

the homeless apply for the use of 

properties to assist the homeless? 

Action on Approved Applications 

102–75.1205 What action must be taken on 

approved applications? 

Unsuitable Properties 

102–75.1210 What action must be taken on 

properties determined unsuitable for 

homeless assistance? 

No Applications Approved 

102–75.1215 What action must be taken if 

there is no expression of interest? 

Subpart I—Screening Excess Federal Real 

Property 

102–75.1220 How do landholding agencies 

find out if excess Federal real property 

is available? 

102–75.1225 What details are provided in 

the ‘‘Notice of Availability’’? 

102–75.1230 How long does an agency have 

to indicate its interest in the property? 

102–75.1235 Where should an agency send 

its written response to the ‘‘Notice of 

Availability’’? 

102–75.1240 Who, from the interested 

landholding agency, should submit the 

written response to GSA’s ‘‘Notice of 

Availability’’? 

102–75.1245 What happens after the 

landholding agency properly responds to 

a ‘‘Notice of Availability’’? 

102–75.1250 What if the agency is not quite 

sure it wants the property and needs 

more time to decide? 

102–75.1255 What happens when more 

than one agency has a valid interest in 

the property? 

102–75.1260 Does GSA conduct Federal 

screening on every property reported as 

excess real property? 

102–75.1265 Are extensions granted to the 

Federal screening and response 

timeframes? 

102–75.1270 How does an agency request a 

transfer of Federal real property? 

102–75.1275 Does a requesting agency have 

to pay for excess real property? 

102–75.1280 What happens if the property 

has already been declared surplus and an 

agency discovers a need for it? 

102–75.1285 How does GSA transfer excess 

real property to the requesting agency? 

102–75.1290 What happens if the 

landholding agency requesting the 

property does not promptly accept 

custody and accountability? 

Authority: 40 U.S.C. 121(c), 521–523, 541–

559; E.O. 12512, 50 FR 18453, 3 CFR, 1985 

Comp., p. 340. 

Subpart A—General Provisions 

§ 102–75.5 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. 

Federal agencies with authority to 

dispose of real property under 

Subchapter III of Chapter 5 of Title 40 

of the United States Code will be 

referred to as ‘‘disposal agencies’’ in this 

part. Except in rare instances where 

GSA delegates disposal authority to a 

Federal agency, the ‘‘disposal agency’’

as used in this part refers to GSA. 

§ 102–75.10 What basic real property 

disposal policy governs disposal agencies? 

Disposal agencies must provide, in a 

timely, efficient, and cost effective 

manner, the full range of real estate 

services necessary to support their real 

property utilization and disposal needs. 

Landholding agencies must survey the 

real property under their custody or 

control to identify property that is not 

utilized, underutilized, or not being put 

to optimum use. Disposal agencies must 

have adequate procedures in place to 

promote the effective utilization and 

disposal of such real property. 

Real Property Disposal Services 

§ 102–75.15 What real property disposal 

services must agencies provide under a 

delegation of authority from GSA? 

Disposal agencies must provide real 

property disposal services for real 

property assets under their custody and 

control, such as the utilization of excess 

property, surveys, and the disposal of 

surplus property, which includes public 

benefit conveyances, negotiated sales, 

public sales, related disposal services, 

and appraisals. 

§ 102–75.20 How can Federal agencies 

with independent disposal authority obtain 

related disposal services? 

Federal agencies with independent 

disposal authority are encouraged to 

obtain utilization, disposal, and related 

services from those agencies with 

expertise in real property disposal, such 

as GSA, as allowed by 31 U.S.C. 1535 

(the Economy Act), so that they can 

remain focused on their core mission. 

Subpart B—Utilization of Excess Real 

Property 

§ 102–75.25 What are landholding 

agencies’ responsibilities concerning the 

utilization of excess property? 

Landholding agencies’ responsibilities 

concerning the utilization of excess 

property are to—

(a) Achieve maximum use of their real 

property, in terms of economy and 

efficiency, to minimize expenditures for 

the purchase of real property; 

(b) Increase the identification and 

reporting of their excess real property; 

and 

(c) Fulfill its needs for real property, 

so far as practicable, by utilization of 

real property determined excess by 

other agencies, pursuant to the 

provision of this part, before it 

purchases non-Federal real property. 

§ 102–75.30 What are disposal agencies’

responsibilities concerning the utilization of 

excess property? 

Disposal agencies’ responsibilities 

concerning the utilization of excess 

property are to—

(a) Provide for the transfer of excess 

real property among Federal agencies, to 

mixed-ownership Government 

corporations, and to the municipal 

government of the District of Columbia; 

and 

(b) Resolve conflicting requests for 

transferring real property that the 

involved agencies cannot resolve. 

§ 102–75.35 [Reserved] 

Standards 

§ 102–75.40 What are the standards that 

each Executive agency must use to identify 

unneeded Federal real property? 

Each Executive agency must identify 

unneeded Federal property using the 

following standards: 

(a) Not utilized. 

(b) Underutilized. 

(c) Not being put to optimum use. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67817 

§ 102–75.45 What does the term ‘‘Not 

utilized’’ mean? 

Not utilized means an entire property 

or portion thereof, with or without 

improvements, not occupied for current 

program purposes of the accountable 

Executive agency, or occupied in 

caretaker status only. 

§ 102–75.50 What does the term 

‘‘Underutilized’’ mean? 

Underutilized means an entire 

property or portion thereof, with or 

without improvements, which is used—

(a) Irregularly or intermittently by the 

accountable Executive agency for 

current program purposes of that 

agency; or 

(b) For current program purposes that 

can be satisfied with only a portion of 

the property. 

§ 102–75.55 What does the term ‘‘Not 

being put to optimum use’’ mean? 

Not being put to optimum use means 

an entire property or portion thereof, 

with or without improvements, which—

(a) Even though used for current 

program purposes, the nature, value, or 

location of the property is such that it 

could be utilized for a different and 

significantly higher and better purpose; 

or 

(b) The costs of occupying are 

substantially higher than other suitable 

properties that could be made available 

through transfer, purchase, or lease with 

total net savings to the Government, 

after considering property values, costs 

of moving, occupancy, operational 

efficiency, environmental effects, 

regional planning, and employee 

morale. 

Guidelines 

§ 102–75.60 What are landholding 

agencies’ responsibilities concerning real 

property surveys? 

A landholding agency’s 

responsibilities concerning real property 

utilization surveys are to—

(a) Survey real property under its 

control (i.e., property reported on its 

financial statements) at least annually to 

identify property that is not utilized, 

underutilized, or not being put to 

optimum use. When other needs for the 

property are identified or recognized, 

the agency must determine whether 

continuation of the current use or 

another use would better serve the 

public interest, considering both the 

Federal agency’s needs and the 

property’s location. In conducting 

annual reviews of their property 

holdings, the GSA Customer Guide to 

Real Property Disposal can provide 

guidelines for Executive agencies to 

consider in identifying unneeded 

Federal real property; 

(b) Maintain its inventory of real 

property at the absolute minimum 

consistent with economical and efficient 

conduct of the affairs of the agency; and 

(c) Promptly report to GSA real 

property that it has determined to be 

excess. 

§ 102–75.65 Why is it important for 

Executive agencies to notify the disposal 

agency of its real property needs? 

It is important that each Executive 

agency notify the disposal agency of its 

real property needs to determine 

whether the excess or surplus property 

of another agency is available that 

would meet its need and prevent the 

unnecessary purchase or lease of real 

property. 

§ 102–75.70 Are there any exceptions to 

this notification policy? 

Yes, Executive agencies are not 

required to notify the disposal agency 

when an agency’s proposed acquisition 

of real property is dictated by such 

factors as exact geographical location, 

topography, engineering, or similar 

characteristics that limit the possible 

use of other available property. For 

example, Executive agencies are not 

required to notify disposal agencies 

concerning the acquisition of real 

property for a dam site, reservoir area, 

or the construction of a generating plant 

or a substation, since specific lands are 

needed, which limit the possible use of 

other available property. Therefore, no 

useful purpose would be served by 

notifying the disposal agency. 

§ 102–75.75 What is the most important 

consideration in evaluating a proposed 

transfer of excess real property? 

In every case of a proposed transfer of 

excess real property, the most important 

consideration is the validity and 

appropriateness of the requirement 

upon which the proposal is based. Also, 

a proposed transfer must not establish a 

new program that has never been 

reflected in any previous budget 

submission or congressional action. 

Additionally, a proposed transfer must 

not substantially increase the level of an 

agency’s existing programs beyond that 

which has been contemplated in the 

President’s budget or by the Congress. 

(Note: See Subpart I—Screening of 

Excess Federal Real Property (§§ 102–

75.1220 through 102–75.1290) for 

information on screening and transfer 

requests.) 

§ 102–75.80 What are an Executive 

agency’s responsibilities before requesting 

a transfer of excess real property? 

Before requesting a transfer of excess 

real property, an Executive agency 

must—

(a) Screen its own property holdings 

to determine whether the new 

requirement can be met through 

improved utilization of existing real 

property; however, the utilization must 

be for purposes that are consistent with 

the highest and best use of the property 

under consideration; 

(b) Review all real property under its 

accountability that has been permitted 

or outleased and terminate the permit or 

lease for any property, or portion 

thereof, suitable for the proposed need, 

if termination is not prohibited by the 

terms of the permit or lease; 

(c) Utilize property that is or can be 

made available under § 102–75.80(a) or 

(b) for the proposed need in lieu of 

requesting a transfer of excess real 

property and reassign the property, 

when appropriate; 

(d) Confirm that the appraised fair 

market value of the excess real property 

proposed for transfer will not 

substantially exceed the probable 

purchase price of other real property 

that would be suitable for the intended 

purpose; 

(e) Limit the size and quantity of 

excess real property to be transferred to 

the actual requirements and separate, if 

possible, other portions of the excess 

installation for possible disposal to 

other agencies or to the public; and 

(f) Consider the design, layout, 

geographic location, age, state of repair, 

and expected maintenance costs of 

excess real property proposed for 

transfer; agencies must be able to 

demonstrate that the transfer will be 

more economical over a sustained 

period of time than the acquisition of a 

new facility specifically planned for the 

purpose. 

§ 102–75.85 Can disposal agencies 

transfer excess real property to agencies 

for programs that appear to be scheduled 

for substantial curtailment or termination? 

Yes, but only on a temporary basis 

with the condition that the property will 

be released for further Federal 

utilization or disposal as surplus 

property at an agreed upon time when 

the transfer is arranged. 

§ 102–75.90 How is excess real property 

needed for office, storage, and related 

purposes normally transferred to the 

requesting agency? 

GSA may temporarily assign or direct 

the use of such excess real property to 

the requesting agency. See § 102–75.240. 

67818 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

§ 102–75.95 Can Federal agencies that 

normally do not require real property (other 

than for office, storage, and related 

purposes) or that may not have statutory 

authority to acquire such property, obtain 

the use of excess real property? 

Yes, GSA can authorize the use of 

excess real property for an approved 

program. See § 102–75.240. 

Land Withdrawn or Reserved From the 

Public Domain 

§ 102–75.100 When an agency holds land 

withdrawn or reserved from the public 

domain and determines that it no longer 

needs this land, what must it do? 

An agency holding unneeded land 

withdrawn or reserved from the public 

domain must submit to the appropriate 

GSA Regional Office a Report of Excess 

Real Property (Standard Form 118), with 

appropriate Schedules A, B, and C, only 

when—

(a) It has filed a notice of intention to 

relinquish with the Department of the 

Interior (43 CFR part 2372 et seq.) and 

sent a copy of the notice to the 

appropriate GSA Regional Office; 

(b) The Department of the Interior has 

notified the agency that the Secretary of 

the Interior has determined that the 

lands are not suitable for return to the 

public domain for disposition under the 

general public land laws because the 

lands are substantially changed in 

character by improvements or 

otherwise; and 

(c) The Department of the Interior 

provides a report identifying whether or 

not any other agency claims primary, 

joint, or secondary jurisdiction over the 

lands and whether its records show that 

the lands are encumbered by rights or 

privileges under the public land laws. 

§ 102–75.105 What responsibility does the 

Department of the Interior have if it 

determines that minerals in the land are 

unsuitable for disposition under the public 

land mining and mineral leasing laws? 

In such cases, the Department of the 

Interior must—

(a) Notify the appropriate GSA 

Regional Office of such a determination; 

and 

(b) Authorize the landholding agency 

to identify in the Standard Form 118 

any minerals in the land that the 

Department of the Interior determines to 

be unsuitable for disposition under the 

public land mining and mineral leasing 

laws. 

Transfers Under Other Laws 

§ 102–75.110 Can transfers of real 

property be made under authority of laws 

other than those codified in Title 40 of the 

United States Code? 

Yes, the provisions of this section 

shall not apply to transfers of real 

property authorized to be made by 40 

U.S.C. 113(e) or by any special statute 

that directs or requires an Executive 

agency to transfer or convey specifically 

described real property in accordance 

with the provisions of that statute. 

Transfers of real property must be made 

only under the authority of Title 40 of 

the United States Code, unless the 

independent authority granted to such 

agency specifically exempts the 

authority from the requirements of Title 

40. 

Reporting of Excess Real Property 

§ 102–75.115 Must reports of excess real 

property and related personal property be 

prepared on specific forms? 

Yes, landholding agencies must 

prepare reports of excess real property 

and related personal property on—

(a) Standard Form 118, Report of 

Excess Real Property, and 

accompanying Standard Form 118a, 

Buildings Structures, Utilities, and 

Miscellaneous Facilities, Schedule A; 

(b) Standard Form 118b, Land, 

Schedule B; and 

(c) Standard Form 118c, Related 

Personal Property, Schedule C. 

§ 102–75.120 Is there any other 

information that needs to accompany (or be 

submitted with) the Report of Excess Real 

Property (Standard Form 118)? 

Yes, in all cases where Governmentowned land is reported excess, 

Executive agencies must include a title 

report, prepared or approved by a 

qualified employee of the landholding 

agency, documenting the Government’s 

title to the property. 

Title Report 

§ 102–75.125 What information must 

agencies include in the title report? 

When completing the title report, 

agencies must include—

(a) The description of the property; 

(b) The date title vested in the United 

States; 

(c) All exceptions, reservations, 

conditions, and restrictions, relating to 

the title; 

(d) Detailed information concerning 

any action, thing, or circumstance that 

occurred from the date the United States 

acquired the property to the date of the 

report that in any way affected or may 

have affected the United States’ right, 

title, or interest in and to the real 

property (including copies of legal 

comments or opinions discussing the 

manner in which and the extent to 

which such right, title, or interest may 

have been affected). In the absence of 

any such action, thing, or circumstance, 

a statement to that effect must be made 

a part of the report; 

(e) The status of civil and criminal 

jurisdiction over the land that is 

peculiar to the property by reason of it 

being Government-owned land. In the 

absence of any special circumstances, a 

statement to that effect must be made a 

part of the report; 

(f) Detailed information regarding any 

known flood hazards or flooding of the 

property, and, if the property is located 

in a flood-plain or on wetlands, a listing 

of restricted uses (along with the 

citations) identified in Federal, State, or 

local regulations as required by 

Executive Orders 11988 and 11990 of 

May 24, 1977; 

(g) The specific identification and 

description of fixtures and related 

personal property that have possible 

historic or artistic value; 

(h) The historical significance of the 

property and whether the property is 

listed, is eligible for, or has been 

nominated for listing in the National 

Register of Historic Places or is in 

proximity to a property listed in the 

National Register. If the landholding 

agency is aware of any effort by the 

public to have the property listed in the 

National Register, it must also include 

this information; 

(i) A description of the type, location, 

and condition of asbestos incorporated 

in the construction, repair, or alteration 

of any building or improvement on the 

property (e.g., fire-proofing, pipe 

insulation, etc.) and a description of any 

asbestos control measures taken for the 

property. Agencies must also provide to 

GSA any available indication of costs 

and/or time necessary to remove all or 

any portion of the asbestos-containing 

materials. Agencies are not required to 

conduct any specific studies and/or 

tests to obtain this information. (The 

provisions of this subpart do not apply 

to asbestos on Federal property that is 

subject to section 120(h) of the 

Superfund Amendments and 

Reauthorization Act of 1986, Public Law 

99–499); 

(j) A statement indicating whether or 

not lead-based paint is present on the 

property. Additionally, if the property is 

target housing (all housing except 

housing for the elderly or persons with 

disabilities or any zero bedroom 

dwelling) constructed prior to 1978, 

provide a risk assessment and paint 

inspection report that details all leadbased paint hazards; and 

(k) A statement indicating whether or 

not, during the time the property was 

owned by the United States, any 

hazardous substance activity, as defined 

by regulations issued by the U.S. 

Environmental Protection Agency (EPA) 

at 40 CFR part 373, took place on the 

property. Hazardous substance activity 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67819 

includes situations where any 

hazardous substance was stored for one 

year or more, known to have been 

released, or disposed of on the property. 

Agencies reporting such property must 

review the regulations issued by EPA at 

40 CFR part 373 for details on the 

information required and must comply 

with these requirements. In addition, 

agencies reporting such property shall 

review and comply with the regulations 

for the utilization and disposal of 

hazardous materials and certain 

categories of property set forth at 41 

CFR part 101–42. 

§ 102–75.130 If hazardous substance 

activity took place on the property, what 

specific information must an agency 

include in the title report? 

If hazardous substance activity took 

place on the property, the reporting 

agency must include information on the 

type and quantity of such hazardous 

substance and the time at which such 

storage, release, or disposal took place. 

The reporting agency must also advise 

the disposal agency if all remedial 

action necessary to protect human 

health and the environment with 

respect to any such hazardous substance 

activity was taken before the date the 

property was reported excess. If such 

action was not taken, the reporting 

agency must advise the disposal agency 

when such action will be completed or 

how the agency expects to comply with 

the Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) in the disposal. See 

§§ 102–75.340 and 102–75.345. 

§ 102–75.135 If no hazardous substance 

activity took place on the property, what 

specific information must an agency 

include in the title report? 

If no hazardous substance activity 

took place, the reporting agency must 

include the following statement: 

The (reporting agency) has determined, in 

accordance with regulations issued by EPA at 

40 CFR part 373, that there is no evidence 

indicating that hazardous substance activity 

took place on the property during the time 

the property was owned by the United States. 

Other Necessary Information 

§ 102–75.140 In addition to the title report, 

and all necessary environmental 

information and certifications, what 

information must an Executive agency 

transmit with the Report of Excess Real 

Property (Standard Form 118)? 

Executive agencies must provide—

(a) A legible, reproducible copy of all 

instruments in possession of the agency 

that affect the United States’ right, title, 

or interest in the property reported or 

the use and operation of such property 

(including agreements covering and 

licenses to use, any patents, processes, 

techniques, or inventions). If it is 

impracticable to transmit the abstracts 

of title and related title evidence, 

agencies must provide the name and 

address of the custodian of such 

documents in the title report referred to 

in § 102–75.120; 

(b) Any appraisal reports indicating or 

providing the fair market value or the 

fair annual rental of the property, if 

requested by the disposal agency; and 

(c) A certification by a responsible 

person that the property does or does 

not contain polychlorinated biphenyl 

(PCB) transformers or other equipment 

regulated by EPA under 40 CFR part 

761, if requested by the disposal agency. 

If the property does contain any 

equipment subject to EPA regulation 

under 40 CFR part 761, the certification 

must include the landholding agency’s 

assurance that each piece of equipment 

is now and will continue to be in 

compliance with the EPA regulations 

until disposal of the property. 

Examination for Acceptability 

§ 102–75.145 Is GSA required to review 

each report of excess? 

Yes, GSA must review each report of 

excess to ascertain whether the report 

was prepared according to the 

provisions of this part. GSA must notify 

the landholding agency, in writing, 

whether the report is acceptable or other 

information is needed within 15 

calendar days after receipt of the report. 

§ 102–75.150 What happens when GSA 

determines that the report of excess is 

adequate? 

When GSA determines that a report is 

adequate, GSA will accept the report 

and inform the landholding agency of 

the acceptance date. However, the 

landholding agency must, upon request, 

promptly furnish any additional 

information or documents relating to the 

property required by GSA to accomplish 

a transfer or a disposal. 

§ 102–75.155 What happens if GSA 

determines that the report of excess is 

insufficient? 

Where GSA determines that a report 

is insufficient, GSA will return the 

report and inform the landholding 

agency of the facts and circumstances 

that make the report insufficient. The 

landholding agency must promptly take 

appropriate action to submit an 

acceptable report to GSA. If the 

landholding agency is unable to submit 

an acceptable report, the property will 

no longer be considered as excess 

property and the disposal agency will 

cease activity for the disposal of the 

property. However, GSA may accept the 

report of excess on a conditional basis 

and identify what deficiencies in the 

report must be corrected in order for the 

report to gain full acceptance. 

Designation as Personal Property 

§ 102–75.160 Should prefabricated 

movable structures be designated real or 

personal property for disposition 

purposes? 

Prefabricated movable structures such 

as Butler-type storage warehouses, 

Quonset huts, and house trailers (with 

or without undercarriages) reported to 

GSA along with the land on which they 

are located may, at GSA’s discretion, be 

designated for disposition as personal 

property for off-site use or as real 

property for disposal with the land. 

§ 102–75.165 Should related personal 

property be designated real or personal 

property for disposition purposes? 

Related personal property may, at the 

disposal agency’s discretion, be 

designated as personal property for 

disposal purposes. However, for fine 

artwork and sculptures, GSA’s policy is 

that artwork specifically created for a 

Federal building is considered as a 

fixture of the building. This also applies 

to sculptures created for a Federal 

building or a public park. Disposal 

agencies must follow the policies and 

guidance for disposal of artwork and 

sculptures developed by the GSA Office 

of the Chief Architect, Center for Design 

Excellence and the Arts, and the 

Bulletin dated March 26, 1934, entitled 

‘‘Legal Title to Works Produced under 

the Public Works of Art Project.’’

§ 102–75.170 What happens to the related 

personal property in a structure scheduled 

for demolition? 

When a structure is to be demolished, 

any fixtures or related personal property 

therein may, at the disposal agency’s 

discretion, be designated for disposition 

as personal property where a ready 

disposition can be made of these items. 

As indicated in § 102–75.165, particular 

consideration should be given to 

designating items having possible 

historical or artistic value as personal 

property. 

Transfers 

§ 102–75.175 What are GSA’s 

responsibilities regarding transfer 

requests? 

Before property can be transferred 

among Federal agencies, to mixedownership Government corporations, 

and to the municipal government of the 

District of Columbia, GSA must 

determine that—

(a) The transfer is in the best interest 

of the Government; 

67820 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

(b) The requesting agency is the 

appropriate agency to hold the property; 

and 

(c) The proposed land use will 

maximize use of the real property, in 

terms of economy and efficiency, to 

minimize expenditures for the purchase 

of real property. 

(Note: See Subpart I—Screening of 

Excess Federal Real Property (§§ 102–

75.1220 through 102–75.1290) for 

information on screening and transfer 

requests.) 

§ 102–75.180 May landholding agencies 

transfer excess real property without 

notifying GSA? 

Landholding agencies may, without 

notifying GSA, transfer excess real 

property that they use, occupy, or 

control under a lease, permit, license, 

easement, or similar instrument when—

(a) The lease or other instrument is 

subject to termination by the grantor or 

owner of the premises within nine 

months; 

(b) The remaining term of the lease or 

other instrument, including renewal 

rights, will provide for less than nine 

months of use and occupancy; or 

(c) The lease or other instrument 

provides for use and occupancy of space 

for office, storage, and related facilities, 

which does not exceed a total of 2,500 

square feet. 

§ 102–75.185 In those instances where 

landholding agencies may transfer excess 

real property without notifying GSA, which 

policies must they follow? 

In those instances, landholding 

agencies must transfer property 

following the policies in this subpart. 

§ 102–75.190 What amount must the 

transferee agency pay for the transfer of 

excess real property? 

The transferee agency must pay an 

amount equal to the property’s fair 

market value (determined by the 

Administrator)—

(a) Where the transferor agency has 

requested the net proceeds of the 

transfer pursuant to 40 U.S.C. 574; or 

(b) Where either the transferor or 

transferee agency (or organizational unit 

affected) is subject to the Government 

Corporation Control Act (31 U.S.C. 841), 

is a mixed-ownership Government 

corporation, or the municipal 

government of the District of Columbia. 

§ 102–75.195 If the transferor agency is a 

wholly owned Government corporation, 

what amount must the transferee agency 

pay? 

As may be agreed upon by GSA and 

the corporation, the transferee agency 

must pay an amount equal to—

(a) The estimated fair market value of 

the property; or 

(b) The corporation’s book value of 

the property. 

§ 102–75.200 What amount must the 

transferee agency pay if property is being 

transferred for the purpose of upgrading 

the transferee agency’s facilities? 

Where the transfer is for the purpose 

of upgrading facilities (i.e., for the 

purpose of replacing other property of 

the transferee agency, which because of 

the location, nature, or condition 

thereof, is less efficient for use), the 

transferee must pay an amount equal to 

the difference between the fair market 

value of the property to be replaced and 

the fair market value of the property 

requested, as determined by the 

Administrator. 

§ 102–75.205 Are transfers ever made 

without reimbursement by the transferee 

agency? 

Transfers may be made without 

reimbursement by the transferee agency 

only if—

(a) Congress has specifically 

authorized the transfer without 

reimbursement, or 

(b) The Administrator, with the 

approval of the Director of the Office of 

Management and Budget (OMB), has 

approved a request for an exception 

from the 100 percent reimbursement 

requirement. 

§ 102–75.210 What must a transferee 

agency include in its request for an 

exception from the 100 percent 

reimbursement requirement? 

The request must include an 

explanation of how granting the 

exception would further essential 

agency program objectives and at the 

same time be consistent with Executive 

Order 12512, Federal Real Property 

Management, dated April 29, 1985. The 

transferee agency must attach the 

explanation to the Request for Transfer 

of Excess Real and Related Personal 

Property (GSA Form 1334) prior to 

submitting the form to GSA. The 

unavailability of funds alone is not 

sufficient to justify an exception. 

§ 102–75.215 Who must endorse requests 

for exception to the 100 percent 

reimbursement requirement? 

Agency heads must endorse requests 

for exceptions to the 100 percent 

reimbursement requirement. 

§ 102–75.220 Where should an agency 

send a request for exception to the 100 

percent reimbursement requirement? 

Agencies must submit all requests for 

exception from the 100 percent 

reimbursement requirement to the 

appropriate GSA regional property 

disposal office. 

§ 102–75.225 Who must review and 

approve a request for exception from the 

100 percent reimbursement requirement? 

The Administrator must review all 

requests for exception from the 100 

percent reimbursement requirement. If 

the Administrator approves the request, 

it is then submitted to OMB for final 

concurrence. If OMB approves the 

request, then GSA may complete the 

transfer. 

§ 102–75.230 Who is responsible for 

property protection and maintenance costs 

while the request for exception is being 

reviewed? 

The agency requesting the property 

will assume responsibility for protection 

and maintenance costs not more than 40 

days from the date of the 

Administrator’s letter to OMB 

requesting concurrence for an exception 

to the 100 percent reimbursement 

requirement. If the request is denied, the 

requesting agency may pay the fair 

market value for the property or 

withdraw its request. If the request is 

withdrawn, responsibility for protection 

and maintenance cost will return to the 

landholding agency at that time. 

§ 102–75.235 May disposal agencies 

transfer excess property to the Senate, the 

House of Representatives, and the Architect 

of the Capitol? 

Yes, disposal agencies may transfer 

excess property to the Senate, the House 

of Representatives, and the Architect of 

the Capitol and any activities under his 

or her direction, pursuant to the 

provisions of 40 U.S.C. 113(d). The 

amount of reimbursement for such 

transfer must be the same as would be 

required for a transfer of excess property 

to an Executive agency under similar 

circumstances. 

Temporary Utilization 

§ 102–75.240 May excess real property be 

temporarily assigned/reassigned? 

Yes, whenever GSA determines that it 

is more advantageous to assign property 

temporarily rather than permanently, it 

may do so. If the space is for office, 

storage, or related facilities, GSA will 

determine the length of the assignment/ 

reassignment. Agencies are required to 

reimburse the landholding agency (or 

GSA, if GSA has become responsible for 

seeking an appropriation for protection 

and maintenance expenses) (see § 102–

75.970) for protection and maintenance 

expenses. GSA may also temporarily 

assign/reassign excess real property for 

uses other than storage, office or related 

facilities. In such cases, the agency 

receiving the temporary assignment may 

be required to pay a rental or users 

charge based upon the fair market value 

of the property, as determined by GSA. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67821 

If the property will be required by the 

agency for a period of more than 1 year, 

it may be transferred on a conditional 

basis, with an understanding that the 

property will be reported excess at an 

agreed upon time (see § 102–75.85). The 

requesting agency is responsible for 

protection and maintenance expenses. 

Non-Federal Interim Use of Excess 

Property 

§ 102–75.245 When can landholding 

agencies grant rights for non-Federal 

interim use of excess property reported to 

GSA? 

Landholding agencies, upon approval 

from GSA, may grant rights for nonFederal interim use of excess property 

reported to GSA, when it is determined 

that such excess property is not required 

for the needs of any Federal agency and 

when the interim use will not impair 

the ability to dispose of the property. 

Subpart C—Surplus Real Property 

Disposal 

§ 102–75.250 What general policy must the 

disposal agency follow concerning the 

disposal of surplus property? 

The disposal agency must dispose of 

surplus real property—

(a) In the most economical manner 

consistent with the best interests of the 

Government; and 

(b) Ordinarily for cash, consistent 

with the best interests of the 

Government. 

§ 102–75.255 What are disposal agencies’

specific responsibilities concerning the 

disposal of surplus property? 

The disposal agency must determine 

that there is no further Federal need or 

requirement for the excess real property 

and the property is surplus to the needs 

of the Federal Government. After 

reaching this determination, the 

disposal agency must expeditiously 

make the surplus property available for 

acquisition by State and local 

governmental units and non-profit 

institutions (see § 102–75.350) or for 

sale by public advertising, negotiation, 

or other disposal action. The disposal 

agency must consider the availability of 

real property for public purposes on a 

case-by-case basis, based on highest and 

best use and estimated fair market 

value. Where hazardous substance 

activity is identified, see §§ 102–75.340 

and 102–75.345 for required 

information that the disposal agency 

must incorporate into the offer to 

purchase and conveyance document. 

§ 102–75.260 When may the disposal 

agency dispose of surplus real property by 

exchange for privately owned property? 

The disposal agency may dispose of 

surplus real property by exchange for 

privately owned property for property 

management considerations such as 

boundary realignment or for providing 

access. The disposal agency may also 

dispose of surplus real property by 

exchange for privately owned property 

where authorized by law, when the 

requesting Federal agency receives 

approval from the Office of Management 

and Budget and the appropriate 

oversight committees, and where the 

transaction offers substantial economic 

or unique program advantages not 

otherwise obtainable by any other 

acquisition method. 

§ 102–75.265 Are conveyance documents 

required to identify all agreements and 

representations concerning property 

restrictions and conditions? 

Yes, conveyance documents must 

identify all agreements and 

representations concerning restrictions 

and conditions affecting the property’s 

future use, maintenance, or transfer. 

Applicability of Antitrust Laws 

§ 102–75.270 Must antitrust laws be 

considered when disposing of property? 

Yes, antitrust laws must be 

considered in any case in which there 

is contemplated a disposal to any 

private interest of—

(a) Real and related personal property 

that has an estimated fair market value 

of $3 million or more; or 

(b) Patents, processes, techniques, or 

inventions, irrespective of cost. 

§ 102–75.275 Who determines whether the 

proposed disposal would create or maintain 

a situation inconsistent with antitrust laws? 

The Attorney General determines 

whether the proposed disposal would 

create or maintain a situation 

inconsistent with antitrust laws. 

§ 102–75.280 What information concerning 

a proposed disposal must a disposal 

agency provide to the Attorney General to 

determine the applicability of antitrust 

laws? 

The disposal agency must promptly 

provide the Attorney General with 

notice of any such proposed disposal 

and the probable terms or conditions, as 

required by 40 U.S.C. 559. If notice is 

given by any disposal agency other than 

GSA, a copy of the notice must also be 

provided simultaneously to the GSA 

Regional Office in which the property is 

located. Upon request, a disposal agency 

must furnish information that the 

Attorney General believes to be 

necessary in determining whether the 

proposed disposition or any other 

disposition of surplus real property 

violates or would violate any of the 

antitrust laws. 

§ 102–75.285 Can a disposal agency 

dispose of real property to a private interest 

specified in § 102–75.270 before advice is 

received from the Attorney General? 

No, advice from the Attorney General 

must be received before disposing of 

real property. 

Disposals Under Other Laws 

§ 102–75.290 Can disposals of real 

property be made under authority of laws 

other than Chapter 5 of Subtitle I of Title 40 

of the United States Code? 

Except for disposals specifically 

authorized by special legislation, 

disposals of real property must be made 

only under the authority of Chapter 5 of 

Subtitle I of Title 40 of the United States 

Code. However, the Administrator of 

General Services can evaluate, on a 

case-by-case basis, the disposal 

provisions of any other law to determine 

consistency with the authority conferred 

by Title 40. The provisions of this 

section do not apply to disposals of real 

property authorized to be made by 40 

U.S.C. 113 or by any special statute that 

directs or requires an Executive agency 

named in the law to transfer or convey 

specifically described real property in 

accordance with the provisions of that 

statute. 

Credit Disposals 

§ 102–75.295 What is the policy on 

extending credit in connection with the 

disposal of surplus property? 

The disposal agency—

(a) May extend credit in connection 

with any disposal of surplus property 

when it determines that credit terms are 

necessary to avoid reducing the 

salability of the property and potential 

obtainable price and, when below 

market rates are extended, confer with 

the Office of Management and Budget to 

determine if the Federal Credit Reform 

Act of 1990 is applicable to the 

transaction; 

(b) Must administer and manage the 

credit disposal and any related security; 

(c) May enforce, adjust, or settle any 

right of the Government with respect to 

extending credit in a manner and with 

terms that are in the best interests of the 

Government; and 

(d) Must include provisions in the 

conveyance documents that obligate the 

purchaser, where a sale is made upon 

credit, to obtain the disposal agency’s 

prior written approval before reselling 

or leasing the property. The purchaser’s 

credit obligations to the United States 

must be fulfilled before the disposal 

67822 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

agency may approve the resale of the 

property. 

Designation of Disposal Agencies 

§ 102–75.296 When may a landholding 

agency other than GSA be the disposal 

agency for real and related personal 

property? 

A landholding agency may be the 

disposal agency for real and related 

personal property when—

(a) The agency has statutory authority 

to dispose of real and related personal 

property; 

(b) The agency has delegated 

authority from GSA to dispose of real 

and related personal property; or 

(c) The agency is disposing of—

(1) Leases, licenses, permits, 

easements, and other similar real estate 

interests held by agencies in nonGovernment-owned real property; 

(2) Government-owned 

improvements, including fixtures, 

structures, and other improvements of 

any kind as long as the underlying land 

is not being disposed; or 

(3) Standing timber, embedded gravel, 

sand, stone, and underground water, 

without the underlying land. 

§ 102–75.297 Are there any exceptions to 

when landholding agencies can serve as 

the disposal agency? 

Yes, landholding agencies may not 

serve as the disposal agency when—

(a) Either the landholding agency or 

GSA determines that the Government’s 

best interests are served by disposing of 

leases, licenses, permits, easements and 

similar real estate interests together with 

other property owned or controlled by 

the Government that has been or will be 

reported to GSA, or 

(b) Government-owned machinery 

and equipment being used by a 

contractor-operator will be sold to a 

contractor-operator. 

§ 102–75.298 Can agencies request that 

GSA be the disposal agency for real 

property and real property interests 

described in § 102–75.296? 

Yes. If requested, GSA, at its 

discretion, may be the disposal agency 

for such real property and real property 

interests. 

§ 102–75.299 What are landholding 

agencies’ responsibilities if GSA conducts 

the disposal? 

Landholding agencies are and remain 

responsible for all rental/lease payments 

until the lease expires or is terminated. 

Landholding agencies are responsible 

for paying any restoration or other direct 

costs incurred by the Government 

associated with termination of a lease, 

and for paying any demolition and 

removal costs not offset by the sale of 

the property. (See also § 102–75.965.) 

Appraisal 

§ 102–75.300 Are appraisals required for 

all real property disposal transactions? 

Generally, yes, appraisals are required 

for all real property disposal 

transactions, except when—

(a) An appraisal will serve no useful 

purpose ( e.g., legislation authorizes 

conveyance without monetary 

consideration or at a fixed price). This 

exception does not apply to negotiated 

sales to public agencies intending to use 

the property for a public purpose not 

covered by any of the special disposal 

provisions in subpart C of this part; or 

(b) The estimated fair market value of 

property to be offered on a competitive 

sale basis does not exceed $300,000. 

§ 102–75.305 What type of appraisal value 

must be obtained for real property disposal 

transactions? 

For all real property transactions 

requiring appraisals, agencies must 

obtain, as appropriate, an appraisal of 

either the fair market value or the fair 

annual rental value of the property 

available for disposal. 

§ 102–75.310 Who must agencies use to 

appraise the real property? 

Agencies must use only experienced 

and qualified real estate appraisers 

familiar with the types of property to be 

appraised when conducting the 

appraisal. When an appraisal is required 

for negotiation purposes, the same 

standard applies. However, agencies 

may authorize other methods of 

obtaining an estimate of the fair market 

value or the fair annual rental when the 

cost of obtaining that data from a 

contract appraiser would be out of 

proportion to the expected recoverable 

value of the property. 

§ 102–75.315 Are appraisers authorized to 

consider the effect of historic covenants on 

the fair market value? 

Yes, appraisers are authorized to 

consider the effect of historic covenants 

on the fair market value, if the property 

is in or eligible for listing in the 

National Register of Historic Places. 

§ 102–75.320 Does appraisal information 

need to be kept confidential? 

Yes, appraisals, appraisal reports, 

appraisal analyses, and other predecisional appraisal documents are 

confidential and can only be used by 

authorized Government personnel who 

can substantiate the need to know this 

information. Appraisal information 

must not be divulged prior to the 

delivery and acceptance of the deed. 

Any persons engaged to collect or 

evaluate appraisal information must 

certify that—

(a) They have no direct or indirect 

interest in the property; and 

(b) The report was prepared and 

submitted without bias or influence. 

Inspection 

§ 102–75.325 What responsibility does the 

landholding agency have to provide 

persons the opportunity to inspect available 

surplus property? 

Landholding agencies should provide 

all persons interested in acquiring 

available surplus property with the 

opportunity to make a complete 

inspection of the property, including 

any available inventory records, plans, 

specifications, and engineering reports 

that relate to the property. These 

inspections are subject to any necessary 

national security restrictions and are 

subject to the disposal agency’s rules. 

(See §§ 102–75.335 and 102–75.985.) 

Submission of Offers To Purchase or 

Lease 

§ 102–75.330 What form must all offers to 

purchase or lease be in? 

All offers to purchase or lease must be 

in writing, accompanied by any 

required earnest money deposit, using 

the form prescribed by the disposal 

agency. In addition to the financial 

terms upon which the offer is 

predicated, the offer must set forth the 

willingness of the offeror to abide by the 

terms, conditions, reservations, and 

restrictions upon which the property is 

offered, and must contain such other 

information as the disposal agency may 

request. 

Provisions Relating to Asbestos 

§ 102–75.335 Where asbestos is identified, 

what information must the disposal agency 

incorporate into the offer to purchase and 

the conveyance document? 

Where the existence of asbestos on the 

property has been brought to the 

attention of the disposal agency by the 

Report of Excess Real Property 

(Standard Form 118) information 

provided (see § 102–75.125), the 

disposal agency must incorporate this 

information (less any cost or time 

estimates to remove the asbestoscontaining materials) into any offer to 

purchase and conveyance document 

and include the following wording: 

Notice of the Presence of Asbestos—

Warning! 

(a) The Purchaser is warned that the 

property offered for sale contains asbestoscontaining materials. Unprotected or 

unregulated exposures to asbestos in product 

manufacturing, shipyard, and building 

construction workplaces have been 

associated with asbestos-related diseases. 

Both the U.S. Occupational Safety and Health 

Administration (OSHA) and the U.S. 

Environmental Protection Agency (EPA) 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67823 

regulate asbestos because of the potential 

hazards associated with exposure to airborne 

asbestos fibers. Both OSHA and EPA have 

determined that such exposure increases the 

risk of asbestos-related diseases, which 

include certain cancers and which can result 

in disability or death. 

(b) Bidders (offerors) are invited, urged and 

cautioned to inspect the property to be sold 

prior to submitting a bid (offer). More 

particularly, bidders (offerors) are invited, 

urged and cautioned to inspect the property 

as to its asbestos content and condition and 

any hazardous or environmental conditions 

relating thereto. The disposal agency will 

assist bidders (offerors) in obtaining any 

authorization(s) that may be required in order 

to carry out any such inspection(s). Bidders 

(offerors) shall be deemed to have relied 

solely on their own judgment in assessing the 

overall condition of all or any portion of the 

property including, without limitation, any 

asbestos hazards or concerns. 

(c) No warranties either express or implied 

are given with regard to the condition of the 

property including, without limitation, 

whether the property does or does not 

contain asbestos or is or is not safe for a 

particular purpose. The failure of any bidder 

(offeror) to inspect, or to be fully informed as 

to the condition of all or any portion of the 

property offered, will not constitute grounds 

for any claim or demand for adjustment or 

withdrawal of a bid or offer after its opening 

or tender. 

(d) The description of the property set forth 

in the Invitation for Bids (Offer to Purchase) 

and any other information provided therein 

with respect to said property is based on the 

best information available to the disposal 

agency and is believed to be correct, but an 

error or omission, including, but not limited 

to, the omission of any information available 

to the agency having custody over the 

property and/or any other Federal agency, 

shall not constitute grounds or reason for 

nonperformance of the contract of sale, or 

any claim by the Purchaser against the 

Government including, without limitation, 

any claim for allowance, refund, or 

deduction from the purchase price. 

(e) The Government assumes no liability 

for damages for personal injury, illness, 

disability, or death, to the Purchaser, or to 

the Purchaser’s successors, assigns, 

employees, invitees, or any other person 

subject to Purchaser’s control or direction, or 

to any other person, including members of 

the general public, arising from or incident 

to the purchase, transportation, removal, 

handling, use, disposition, or other activity 

causing or leading to contact of any kind 

whatsoever with asbestos on the property 

that is the subject of this sale, whether the 

Purchaser, its successors or assigns has or 

have properly warned or failed properly to 

warn the individual(s) injured. 

(f) The Purchaser further agrees that, in its 

use and occupancy of the property, it will 

comply with all Federal, State, and local laws 

relating to asbestos. 

Provisions Relating to Hazardous 

Substance Activity 

§ 102–75.340 Where hazardous substance 

activity has been identified on property 

proposed for disposal, what information 

must the disposal agency incorporate into 

the offer to purchase and the conveyance 

document? 

Where the existence of hazardous 

substance activity has been brought to 

the attention of the disposal agency by 

the Report of Excess Real Property 

(Standard Form 118) information 

provided (see §§ 102–75.125 and 102–

75.130), the disposal agency must 

incorporate this information into any 

offer to purchase and conveyance 

document. In any offer to purchase and 

conveyance document, disposal 

agencies, generally, must also address 

the following (specific recommended 

language that addresses the following 

issues can be found in the GSA 

Customer Guide to Real Property 

Disposal): 

(a) Notice of all hazardous substance 

activity identified as a result of a 

complete search of agency records by 

the landholding agency. 

(b) A statement, certified by a 

responsible landholding agency official 

in the Report of Excess Real Property, 

that all remedial actions necessary to 

protect human health and the 

environment with regard to such 

hazardous substance activity have been 

taken (this is not required in the offer to 

purchase or conveyance document in 

the case of a transfer of property under 

the authority of section 120(h)(3)(C) of 

CERCLA, or the Early Transfer 

Authority, or a conveyance to a 

‘‘potentially responsible party’’, as 

defined by CERCLA (see 102–75.345)). 

(c) A commitment, on behalf of the 

United States, to return to correct any 

hazardous condition discovered after 

the conveyance that results from 

hazardous substance activity prior to the 

date of conveyance. 

(d) A reservation by the United States 

of a right of access in order to 

accomplish any further remedial actions 

required in the future. 

§ 102–75.345 What is different about the 

statements in the offer to purchase and 

conveyance document if the sale is to a 

potentially responsible party with respect to 

the hazardous substance activity? 

In the case where the purchaser or 

grantee is a potentially responsible party 

(PRP) with respect to hazardous 

substance activity on the property under 

consideration, the United States is no 

longer under a general obligation to 

certify that the property has been 

successfully remediated, or to commit to 

return to the property to address 

contamination that is discovered in the 

future. Therefore, the statements of 

responsibility and commitments on 

behalf of the United States referenced in 

§ 102–75.340 should not be used. 

Instead, language should be included in 

the offer to purchase and conveyance 

document that is consistent with any 

agreement that has been reached 

between the landholding agency and the 

PRP with regard to prior hazardous 

substance activity. 

Public Benefit Conveyances 

§ 102–75.350 What are disposal agencies’

responsibilities concerning public benefit 

conveyances? 

Based on a highest and best use 

analysis, disposal agencies may make 

surplus real property available to State 

and local governments and certain nonprofit institutions or organizations at up 

to 100 percent public benefit discount 

for public benefit purposes. Some 

examples of such purposes are 

education, health, park and recreation, 

the homeless, historic monuments, 

public airports, highways, correctional 

facilities, ports, and wildlife 

conservation. The implementing 

regulations for these conveyances are 

found in this subpart. 

§ 102–75.351 May the disposal agency 

waive screening for public benefit 

conveyances? 

All properties, consistent with the 

highest and best use analysis, will 

normally be screened for public benefit 

uses. However, the disposal agency may 

waive public benefit screening, with the 

exception of the mandatory McKinneyVento homeless screening, for specific 

property disposal considerations, e.g., 

when a property has been reported 

excess for exchange purposes. 

§ 102–75.355 What clause must be in the 

offer to purchase and the conveyance 

documents for public benefit conveyances? 

Executive agencies must include in 

the offer to purchase and conveyance 

documents the non-discrimination 

clause in § 102–75.360 for public benefit 

conveyances. 

§ 102–75.360 What wording must be in the 

non-discrimination clause that is required 

in the offer to purchase and in the 

conveyance document? 

The wording of the nondiscrimination clause must be as 

follows: 

The Grantee covenants for itself, its heirs, 

successors, and assigns and every successor 

in interest to the property hereby conveyed, 

or any part thereof, that the said Grantee and 

such heirs, successors, and assigns shall not 

discriminate upon the basis of race, creed, 

color, religion, sex, disability, age, or national 

origin in the use, occupancy, sale, or lease of 

67824 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

the property, or in their employment 

practices conducted thereon. This covenant 

shall not apply, however, to the lease or 

rental of a room or rooms within a family 

dwelling unit; nor shall it apply with respect 

to religion to premises used primarily for 

religious purposes. The United States of 

America shall be deemed a beneficiary of this 

covenant without regard to whether it 

remains the owner of any land or interest 

therein in the locality of the property hereby 

conveyed and shall have the sole right to 

enforce this covenant in any court of 

competent jurisdiction. 

Power Transmission Lines 

§ 102–75.365 Do disposal agencies have to 

notify State entities and Government 

agencies that a surplus power transmission 

line and right-of-way is available? 

Yes, disposal agencies must notify 

State entities and Government agencies 

of the availability of a surplus power 

transmission line and right-of-way. 

§ 102–75.370 May a State, or any political 

subdivision thereof, certify to a disposal 

agency that it needs a surplus power 

transmission line and the right-of-way 

acquired for its construction to meet the 

requirements of a public or cooperative 

power project? 

Yes, section 13(d) of the Surplus 

Property Act of 1944 (50 U.S.C. App. 

1622(d)) allows any State or political 

subdivision, or any State or Government 

agency or instrumentality to certify to 

the disposal agency that a surplus 

power transmission line and the rightof-way acquired for its construction is 

needed to meet the requirements of a 

public or cooperative power project. 

§ 102–75.375 What happens once a State, 

or political subdivision, certifies that it 

needs a surplus power transmission line 

and the right-of-way acquired for its 

construction to meet the requirements of a 

public or cooperative power project? 

Generally, once a State or political 

subdivision certifies that it needs a 

surplus power transmission line and the 

right-of-way, the disposal agency may 

sell the property to the state, or political 

subdivision thereof, at the fair market 

value. However, if a sale of a surplus 

transmission line cannot be 

accomplished because of the price to be 

charged, or other reasons, and the 

certification by the State or political 

subdivision is not withdrawn, the 

disposal agency must report the facts 

involved to the Administrator of 

General Services, to determine what 

further action will or should be taken to 

dispose of the property. 

§ 102–75.380 May power transmission 

lines and rights-of-way be disposed of in 

other ways? 

Yes, power transmission lines and 

rights-of-way not disposed of by sale for 

fair market value may be disposed of 

following other applicable provisions of 

this part, including, if appropriate, 

reclassification by the disposal agency. 

Property for Public Airports 

§ 102–75.385 Do disposal agencies have 

the responsibility to notify eligible public 

agencies that airport property has been 

determined to be surplus? 

Yes, the disposal agency must notify 

eligible public agencies that property 

currently used as or suitable for use as 

a public airport under the Surplus 

Property Act of 1944, as amended, has 

been determined to be surplus. A copy 

of the landholding agency’s Report of 

Excess Real Property (Standard Form 

118, with accompanying schedules) 

must be transmitted with the copy of the 

surplus property notice sent to the 

appropriate regional office of the 

Federal Aviation Administration (FAA). 

The FAA must furnish an application 

form and instructions for the 

preparation of an application to eligible 

public agencies upon request. 

§ 102–75.390 What does the term ‘‘surplus 

airport property’’ mean? 

For the purposes of this part, surplus 

airport property is any surplus real 

property including improvements and 

personal property included as a part of 

the operating unit that the 

Administrator of FAA deems is—

(a) Essential, suitable, or desirable for 

the development, improvement, 

operation, or maintenance of a public 

airport, as defined in the Federal 

Airport Act, as amended (49 U.S.C. 

1101); or 

(b) Reasonably necessary to fulfill the 

immediate and foreseeable future 

requirements of the grantee for the 

development, improvement, operation, 

or maintenance of a public airport, 

including property needed to develop 

sources of revenue from non-aviation 

businesses at a public airport. Approval 

for non-aviation revenue-producing 

areas may only be given for such areas 

as are anticipated to generate net 

proceeds that do not exceed expected 

deficits for operation of the aviation area 

applied for at the airport. 

§ 102–75.395 May surplus airport property 

be conveyed or disposed of to a State, 

political subdivision, municipality, or taxsupported institution for a public airport? 

Yes, section 13(g) of the Surplus 

Property Act of 1944 (49 U.S.C. § 47151) 

authorizes the disposal agency to 

convey or dispose of surplus airport 

property to a State, political 

subdivision, municipality, or taxsupported institution for use as a public 

airport. 

§ 102–75.400 Is industrial property located 

on an airport also considered to be ‘‘airport 

property’’? 

No, if the Administrator of General 

Services determines that a property’s 

highest and best use is industrial, then 

the property must be classified as such 

for disposal without regard to the public 

benefit conveyance provisions of this 

subpart. 

§ 102–75.405 What responsibilities does 

the Federal Aviation Administration (FAA) 

have after receiving a copy of the notice 

(and a copy of the Report of Excess Real 

Property (Standard Form 118)) given to 

eligible public agencies that there is 

surplus airport property? 

As soon as possible after receiving the 

copy of the surplus notice, the FAA 

must inform the disposal agency of its 

determination. Then, the FAA must 

provide assistance to any eligible public 

agency known to have a need for the 

property for a public airport, so that the 

public agency may develop a 

comprehensive and coordinated plan of 

use and procurement for the property. 

§ 102–75.410 What action must the 

disposal agency take after an eligible public 

agency has submitted a plan of use and 

application to acquire property for a public 

airport? 

After an eligible public agency 

submits a plan of use and application, 

the disposal agency must transmit two 

copies of the plan and two copies of the 

application to the appropriate FAA 

regional office. The FAA must promptly 

submit a recommendation to the 

disposal agency for disposal of the 

property for a public airport or must 

inform the disposal agency that no such 

recommendation will be submitted. 

§ 102–75.415 What happens after the 

disposal agency receives the FAA’s 

recommendation for disposal of the 

property for a public airport? 

The head of the disposal agency, or 

his or her designee, may convey 

property approved by the FAA for use 

as a public airport to the eligible public 

agency, subject to the provisions of the 

Surplus Property Act of 1944, as 

amended. 

§ 102–75.420 What happens if the FAA 

informs the disposal agency that it does not 

recommend disposal of the property for a 

public airport? 

Any airport property that the FAA 

does not recommend for disposal as a 

public airport must be disposed of in 

accordance with other applicable 

provisions of this part. However, the 

disposal agency must first notify the 

landholding agency of its inability to 

dispose of the property for use as a 

public airport. In addition, the disposal 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67825 

agency must allow the landholding 

agency 30 days to withdraw the 

property from surplus or to waive any 

future interest in the property for public 

airport use. 

§ 102–75.425 Who has sole responsibility 

for enforcing compliance with the terms 

and conditions of disposal for property 

disposed of for use as a public airport? 

The Administrator of the FAA has the 

sole responsibility for enforcing 

compliance with the terms and 

conditions of disposals to be used as a 

public airport. The FAA is also 

responsible for reforming, correcting, or 

amending any disposal instruments; 

granting releases; and any action 

necessary for recapturing the property, 

using the provisions of 49 U.S.C. 47101 

et seq. 

§ 102–75.430 What happens if property 

conveyed for use as a public airport is 

revested in the United States? 

If property that was conveyed for use 

as a public airport is revested in the 

United States for noncompliance with 

the terms of the disposal, or other cause, 

the Administrator of the FAA must be 

accountable for the property and must 

report the property to GSA as excess 

property following the provisions of this 

part. 

§ 102–75.435 Does the Airport and Airway 

Development Act of 1970, as amended 

(Airport Act of 1970), apply to the transfer 

of airports to State and local agencies? 

No, the Airport and Airway 

Development Act of 1970, as amended 

(49 U.S.C. 47101–47131) (Airport Act of 

1970), does not apply to the transfer of 

airports to State and local agencies. The 

transfer of airports to State and local 

agencies may be made only under 

section 13(g) of the Surplus Property 

Act of 1944 (49 U.S.C. 47151–47153). 

Only property that the landholding 

agency determines cannot be reported 

excess to GSA for disposal under Title 

40, but nevertheless may be made 

available for use by a State or local 

public body as a public airport without 

being inconsistent with the Federal 

program of the landholding agency, may 

be conveyed under the Airport Act of 

1970. In the latter instance, the Airport 

Act of 1970 may be used to transfer nonexcess land for airport development 

purposes provided it does not constitute 

an entire airport. An entire, existing and 

established airport can only be disposed 

of to a State or eligible local government 

under section 13(g) of the Surplus 

Property Act of 1944. 

Property for Use as Historic 

Monuments 

§ 102–75.440 Who must disposal agencies 

notify that surplus property is available for 

historic monument use? 

Disposal agencies must notify State 

and area wide clearinghouses and 

eligible public agencies that property 

that may be conveyed for use as a 

historic monument has been determined 

to be surplus. A copy of the landholding 

agency’s Report of Excess Real Property 

(Standard Form 118) with 

accompanying schedules must be 

transmitted with the copy of each notice 

that is sent to the appropriate regional 

or field offices of the National Park 

Service (NPS) of the Department of the 

Interior (DOI). 

§ 102–75.445 Who can convey surplus real 

and related personal property for historic 

monument use? 

A disposal agency may convey 

surplus real and related personal 

property for use as a historic monument, 

without monetary consideration, to any 

State, political subdivision, 

instrumentality thereof, or municipality, 

for the benefit of the public, provided 

the Secretary of the Interior has 

determined that the property is suitable 

and desirable for such use. 

§ 102–75.450 What type of property is 

suitable or desirable for use as a historic 

monument? 

Only property conforming with the 

recommendation of the Advisory Board 

on National Parks, Historic Sites, 

Buildings, and Monuments shall be 

determined to be suitable or desirable 

for use as a historic monument. 

§ 102–75.455 May historic monuments be 

used for revenue-producing activities? 

The disposal agency may authorize 

the use of historic monuments conveyed 

under 40 U.S.C. 550(h) or the Surplus 

Property Act of 1944, as amended, for 

revenue-producing activities, if the 

Secretary of the Interior—

(a) Determines that the activities, 

described in the applicant’s proposed 

program of use, are compatible with the 

use of the property for historic 

monument purposes; 

(b) Approves the grantee’s plan for 

repair, rehabilitation, restoration, and 

maintenance of the property; 

(c) Approves the grantee’s plan for 

financing the repair, rehabilitation, 

restoration, and maintenance of the 

property. DOI must not approve the 

plan unless it provides that all income 

in excess of costs of repair, 

rehabilitation, restoration, maintenance, 

and a specified reasonable profit or 

payment that may accrue to a lessor, 

sublessor, or developer in connection 

with the management, operation, or 

development of the property for revenue 

producing activities, is used by the 

grantee, lessor, sublessor, or developer, 

only for public historic preservation, 

park, or recreational purposes; and 

(d) Examines and approves the 

grantee’s accounting and financial 

procedures for recording and reporting 

on revenue-producing activities. 

§ 102–75.460 What information must 

disposal agencies furnish eligible public 

agencies? 

Upon request, the disposal agency 

must furnish eligible public agencies 

with adequate preliminary property 

information and, with the landholding 

agency’s cooperation, provide assistance 

to enable public agencies to obtain 

adequate property information. 

§ 102–75.465 What information must 

eligible public agencies interested in 

acquiring real property for use as a historic 

monument submit to the appropriate 

regional or field offices of the National Park 

Service (NPS) of the Department of the 

Interior (DOI)? 

Eligible public agencies must submit 

the original and two copies of the 

completed application to acquire real 

property for use as a historic monument 

to the appropriate regional or field 

offices of NPS, which will forward one 

copy of the application to the 

appropriate regional office of the 

disposal agency. 

§ 102–75.470 What action must NPS take 

after an eligible public agency has 

submitted an application for conveyance of 

surplus property for use as a historic 

monument? 

NPS must promptly—

(a) Submit the Secretary of the 

Interior’s determination to the disposal 

agency; or 

(b) Inform the disposal agency that no 

such recommendation will be 

submitted. 

§ 102–75.475 What happens after the 

disposal agency receives the Secretary of 

the Interior’s determination for disposal of 

the surplus property for a historic 

monument and compatible revenueproducing activities? 

The head of the disposal agency or his 

or her designee may convey to an 

eligible public agency surplus property 

determined by the Secretary of the 

Interior to be suitable and desirable for 

use as a historic monument for the 

benefit of the public and for compatible 

revenue-producing activities subject to 

the provisions of 40 U.S.C. 550(h). 

67826 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

§ 102–75.480 Who has the responsibility 

for enforcing compliance with the terms 

and conditions of disposal for surplus 

property conveyed for use as a historic 

monument? 

The Secretary of the Interior has the 

responsibility for enforcing compliance 

with the terms and conditions of such 

a disposal. DOI is also responsible for 

reforming, correcting, or amending any 

disposal instrument; granting releases; 

and any action necessary for recapturing 

the property using the provisions of 40 

U.S.C. 550(b). The actions are subject to 

the approval of the head of the disposal 

agency. 

§ 102–75.485 What happens if property 

that was conveyed for use as a historic 

monument is revested in the United States? 

In such a case, DOI must notify the 

appropriate GSA Public Buildings 

Service (PBS) Regional Office 

immediately by letter when title to the 

historic property is to be revested in the 

United States for noncompliance with 

the terms and 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, including 

any improvements constructed since the 

original conveyance to the grantee. After 

receiving a statement 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 

Report of Excess Real Property, 

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 of the property until the 

title reverts to the Federal Government, 

including the period of 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. 

Property for Educational and Public 

Health Purposes 

§ 102–75.490 Who must notify eligible 

public agencies that surplus real property 

for educational and public health purposes 

is available? 

The disposal agency must notify 

eligible public agencies that surplus 

property is available for educational 

and/or public health purposes. The 

notice must require that any plans for an 

educational or public health use, 

resulting from the development of the 

comprehensive and coordinated plan of 

use and procurement for the property, 

must be coordinated with the 

Department of Education (ED) or the 

Department of Health and Human 

Services (HHS), as appropriate. The 

notice must also let eligible public 

agencies know where to obtain the 

applications, instructions for preparing 

them, and where to submit the 

application. The requirement for 

educational or public health use of the 

property by an eligible public agency is 

contingent upon the disposal agency’s 

approval, under § 102–75.515, of a 

recommendation for assignment of 

Federal surplus real property received 

from ED or HHS. Further, any 

subsequent transfer is subject to the 

approval of the head of the disposal 

agency as stipulated under 40 U.S.C. 

550(c) or (d) and referenced in § 102–

75.535. 

§ 102–75.495 May the Department of 

Education (ED) or the Department of Health 

and Human Services (HHS) notify nonprofit 

organizations that surplus real property and 

related personal property is available for 

educational and public health purposes? 

Yes, ED or HHS may notify eligible 

non-profit institutions that such 

property has been determined to be 

surplus. Notices to eligible non-profit 

institutions must require eligible nonprofit institutions to coordinate any 

request for educational or public health 

use of the property with the appropriate 

public agency responsible for 

developing and submitting a 

comprehensive and coordinated plan of 

use and procurement for the property. 

§ 102–75.500 Which Federal agencies may 

the head of the disposal agency (or his or 

her designee) assign for disposal surplus 

real property to be used for educational and 

public health purposes? 

The head of the disposal agency or his 

designee may—

(a) Assign to the Secretary of ED for 

disposal under 40 U.S.C. 550(c) surplus 

real property, including buildings, 

fixtures, and equipment, as 

recommended by the Secretary as being 

needed for school, classroom, or other 

educational use; or 

(b) Assign to the Secretary of HHS for 

disposal under 40 U.S.C. 550 (d) such 

surplus real property, including 

buildings, fixtures, and equipment 

situated thereon, as recommended by 

the Secretary as being needed for use in 

the protection of public health, 

including research. 

§ 102–75.505 Is the request for educational 

or public health use of a property by an 

eligible nonprofit institution contingent 

upon the disposal agency’s approval? 

Yes, eligible non-profit organizations 

will only receive surplus real property 

for an educational or public health use 

if the disposal agency approves or grants 

the assignment request from either ED 

or HHS. The disposal agency will also 

consider other uses for available surplus 

real property, taking into account the 

highest and best use determination. Any 

subsequent transfer is subject to the 

approval of the head of the disposal 

agency as stipulated under 40 U.S.C. 

550(c) or (d) and referenced in this part. 

§ 102–75.510 When must the Department 

of Education and the Department of Health 

and Human Services notify the disposal 

agency that an eligible applicant is 

interested in acquiring the property? 

ED and HHS must notify the disposal 

agency if it has an eligible applicant 

interested in acquiring the property 

within 30 calendar days after the date of 

the surplus notice. Then, after the 30- 

day period expires, ED or HHS has 30 

calendar days to review and approve an 

application and request assignment of 

the property, or inform the disposal 

agency that no assignment request will 

be forthcoming. 

§ 102–75.515 What action must the 

disposal agency take after an eligible public 

agency has submitted a plan of use for 

property for an educational or public health 

requirement? 

When an eligible public agency 

submits a plan of use for property for an 

educational or public health 

requirement, the disposal agency must 

transmit two copies of the plan to the 

regional office of ED or HHS, as 

appropriate. The ED or HHS 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 ED or HHS, as appropriate, 

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 ED or 

HHS. If, after considering other uses for 

the property, the disposal agency 

approves the assignment 

recommendation from ED or HHS, it 

must assign the property by letter or 

other document to the Secretary of ED 

or HHS, as appropriate. 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 appropriate 

Department. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67827 

§ 102–75.520 What must the Department of 

Education or the Department of Health and 

Human Services address in the assignment 

recommendation that is submitted to the 

disposal agency? 

Any assignment recommendation that 

ED or HHS submits to the disposal 

agency must provide complete 

information concerning the educational 

or public health use, including—

(a) Identification of the property; 

(b) The name of the applicant and the 

size and nature of its program; 

(c) The specific use planned; 

(d) The intended public benefit 

allowance; 

(e) The 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. 

§ 102–75.525 What responsibilities do 

landholding agencies have concerning 

properties to be used for educational and 

public health purposes? 

Landholding agencies must cooperate 

to the fullest extent possible with 

representatives of ED or HHS in their 

inspection of such property and in 

furnishing information relating to the 

property. 

§ 102–75.530 What happens if the 

Department of Education or the Department 

of Health and Human Services does not 

approve any applications for conveyance of 

the property for educational or public health 

purposes? 

In the absence of an approved 

application from ED or HHS to convey 

the property for educational or public 

health purposes, which must be 

received within the 30 calendar day 

time limit, the disposal agency will 

proceed with other disposal actions. 

§ 102–75.535 What responsibilities does 

the Department of Education or the 

Department of Health and Human Services 

have after receiving the disposal agency’s 

assignment letter? 

After receiving the disposal agency’s 

assignment letter, ED or HHS 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 days of receiving the Notice of 

Proposed Transfer, ED or HHS may 

prepare the transfer documents and 

proceed with the transfer. ED or HHS 

must take all necessary actions to 

accomplish the transfer within 15–

calendar days beginning when the 

disposal agency approves the transfer. 

ED or HHS must furnish the disposal 

agency two conformed copies of deeds, 

leases or other instruments conveying 

the property under 40 U.S.C. 550(c) or 

(d) and all related documents containing 

restrictions or conditions regulating the 

future use, maintenance or transfer of 

the property. 

§ 102–75.540 Who is responsible for 

enforcing compliance with the terms and 

conditions of the transfer for educational or 

public health purposes? 

ED or HHS, as appropriate, is 

responsible for enforcing compliance 

with the terms and conditions of 

transfer. ED or HHS is also responsible 

for reforming, correcting, or amending 

any transfer instruments; granting 

releases; and for taking any necessary 

actions for recapturing the property 

using or following the provisions of 40 

U.S.C. 550(b). These actions are subject 

to the approval of the head of the 

disposal agency. ED or HHS must notify 

the disposal agency of its intent to take 

any actions 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. 

§ 102–75.545 What happens if property 

that was transferred to meet an educational 

or public health requirement is revested in 

the United States for noncompliance with 

the terms of sale, or other cause? 

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, ED or 

HHS must, prior to repossession or 

reversion of title, provide the 

appropriate GSA regional property 

disposal 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 ED or HHS that the 

property is proposed for revesting, GSA 

will review the statement and determine 

if title should be revested. If GSA, in 

conjunction with ED or HHS, 

determines that the property should be 

revested, ED or HHS 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. 

Property for Providing Self-Help 

Housing or Housing Assistance 

§ 102–75.550 What does ‘‘self-help 

housing or housing assistance’’ mean? 

Property for self-help housing or 

housing assistance (which is separate 

from the program under Title V of the 

McKinney-Vento Homeless Assistance 

Act covered in subpart H of this part) is 

property for low-income housing 

opportunities through the construction, 

rehabilitation, or refurbishment of 

housing, under terms that require that—

(a) Any individual or family receiving 

housing or housing assistance must 

contribute a significant amount of labor 

toward the construction, rehabilitation, 

or refurbishment; and 

(b) Dwellings constructed, 

rehabilitated, or refurbished must be 

quality dwellings that comply with local 

building and safety codes and standards 

and must be available at prices below 

prevailing market prices. 

§ 102–75.555 Which Federal agency 

receives the property assigned for self-help 

housing or housing assistance for lowincome individuals or families? 

The head of the disposal agency, or 

designee, may assign, at his/her 

discretion, surplus real property, 

including buildings, fixtures, and 

equipment to the Secretary of the 

Department of Housing and Urban 

Development (HUD). 

§ 102–75.560 Who notifies eligible public 

agencies that real property to be used for 

self-help housing or housing assistance 

purposes is available? 

The disposal agency must notify 

eligible public agencies that surplus 

property is available. The notice must 

require that any plans for self-help 

housing or housing assistance use 

resulting from the development of the 

comprehensive and coordinated plan of 

use and procurement for the property 

must be coordinated with HUD. Eligible 

public agencies may obtain an 

application form and instructions for 

preparing and submitting the 

application from HUD. 

§ 102–75.565 Is the requirement for selfhelp 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. 

67828 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

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 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67829 

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. 

Property for Use as Public Park or 

Recreation Areas 

§ 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-ofpocket 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 

67830 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

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. 

Property for Displaced Persons 

§ 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. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67831 

§ 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. 

Property for Correctional Facility, Law 

Enforcement, or Emergency 

Management Response Purposes 

§ 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. 

67832 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

§ 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. 

Property for Port Facility Use 

§ 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, 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67833 

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. 

Negotiated Sales 

§ 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 

67834 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

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. 

Explanatory Statements for Negotiated 

Sales 

§ 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. 

Public Sales 

§ 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. 

Disposing of Easements 

§ 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. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67835 

§ 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. 

Granting Easements 

§ 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. 

Non-Federal Interim Use of Surplus 

Property 

§ 102–75.944 Can landholding agencies 

outlease surplus real property for nonFederal 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. 

Subpart D—Management of Excess 

and Surplus Real 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. 

Taxes and Other Obligations 

§ 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. 

Decontamination 

§ 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. 

Improvements or Alterations 

§ 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. 

Protection and Maintenance 

§ 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 

67836 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

(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. 

Assistance in Disposition 

§ 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. 

Subpart E—Abandonment, 

Destruction, or Donation to Public 

Bodies 

§ 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 Governmentowned improvements and related 

personal property located on privatelyowned 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. 

Dangerous Property 

§ 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. 

Determinations 

§ 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. 

Restrictions 

§ 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. 

Disposal Costs 

§ 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. 

Abandonment and Destruction 

§ 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 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67837 

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). 

Subpart F—Delegations 

Delegation to the Department of Defense 

(DoD) 

§ 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 DoDcontrolled 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. 

Delegation to the Department of 

Agriculture (USDA) 

§ 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. 

Delegation to the Department of the 

Interior 

§ 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 

67838 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

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. 

Native American-Related Delegations 

§ 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 Americanrelated 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 retransfer 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. 

Subpart G—Conditional Gifts of Real 

Property to Further the Defense Effort 

§ 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. 

Subpart H—Use of Federal Real 

Property to Assist the Homeless 

Definitions 

§ 102–75.1160 What definitions apply to 

this subpart? 

Applicant means any representative 

of the homeless that has submitted an 

application to the Department of Health 

and Human Services to obtain use of a 

particular suitable property to assist the 

homeless. 

Checklist or property checklist means 

the form developed by HUD for use by 

landholding agencies to report the 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67839 

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, 

unit of local government, or a private, 

non-profit organization that provides 

assistance to the homeless, and that is 

authorized by its charter or by State law 

to enter into an agreement with the 

Federal Government for use of real 

property for the purposes of this 

subpart. Representatives of the homeless 

interested in receiving a deed for a 

particular piece of surplus Federal 

property must be section 501(c)(3) tax 

exempt. 

Excess property means any property 

under the control of any Executive 

agency that is not required for the 

agency’s needs or the discharge of its 

responsibilities, as determined by the 

head of the agency pursuant to 40 U.S.C. 

524. 

GSA means the United States General 

Services Administration. 

HHS means the United States 

Department of Health and Human 

Services. 

Homeless means—

(1) An individual or family that lacks 

a fixed, regular, and adequate nighttime 

residence; or 

(2) An individual or family that has a 

primary nighttime residence that is—

(i) A supervised publicly or privately 

operated shelter designed to provide 

temporary living accommodations 

(including welfare hotels, congregate 

shelters, and transitional housing for the 

mentally ill); 

(ii) An institution that provides a 

temporary residence for individuals 

intended to be institutionalized; or 

(iii) A public or private place not 

designed for, or ordinarily used as, a 

regular sleeping accommodation for 

human beings. This term does not 

include any individual imprisoned or 

otherwise detained under an Act of 

Congress or a State law. 

HUD means the United States 

Department of Housing and Urban 

Development. 

ICH means the Interagency Council on 

the Homeless. 

Landholding agency means a Federal 

department or agency with statutory 

authority to control real property. 

Lease means an agreement between 

either HHS for surplus property, or 

landholding agencies in the case of nonexcess properties or properties subject 

to the Base Closure and Realignment 

Act (Pub. L. 100–526, 10 U.S.C. 2687), 

and the applicant, giving rise to the 

relationship of lessor and lessee for the 

use of Federal real property for a term 

of at least one year under the conditions 

set forth in the lease document. 

Non-profit organization means an 

organization, 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 under terms and 

conditions determined by the 

landholding agency. 

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. 

Regional Homeless Coordinator 

means a regional coordinator of the 

Interagency Council on the Homeless. 

Representative of the Homeless means 

a State or local government agency, or 

private non-profit organization that 

provides, or proposes to provide, 

services to the homeless. 

Screen means the process by which 

GSA surveys Federal agencies, or State, 

local and non-profit entities, to 

determine if any such entity has an 

interest in using excess Federal property 

to carry out a particular agency mission 

or a specific public use. 

State Homeless Coordinator means a 

State contact person designated by a 

State to receive and disseminate 

information and communications 

received from the Interagency Council 

on the Homeless in accordance with the 

McKinney–Vento Homeless Assistance 

Act of 1987, as amended (42 U.S.C. 

11320). 

Suitable property means that HUD has 

determined that a particular property 

satisfies the criteria listed in § 102–

75.1185. 

Surplus property means any excess 

real property not required by any 

Federal landholding agency for its needs 

or the discharge of its responsibilities, 

as determined by the Administrator of 

GSA. 

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 

§ 102–75.1185. 

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. 

Applicability 

§ 102–75.1165 What is the applicability of 

this subpart? 

(a) This part applies to Federal real 

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 McKinneyVento Homeless Assistance 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) Machinery and equipment. 

(2) Government-owned, contractoroperated machinery, equipment, land, 

and other facilities reported excess for 

sale only to the using contractor and 

subject to a continuing military 

requirement. 

(3) Properties subject to special 

legislation directing a particular action. 

(4) Properties subject to a court order. 

(5) Property not subject to survey 

requirements of Executive Order 12512 

(April 29, 1985). 

(6) Mineral rights interests. 

(7) Air Space interests. 

(8) Indian Reservation land subject to 

40 U.S.C. 523. 

(9) Property interests subject to 

reversion. 

(10) Easements. 

(11) 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 

part. 

Collecting the Information 

§ 102–75.1170 How will information be 

collected? 

(a) Canvass of landholding agencies. 

On a quarterly basis, HUD will canvass 

landholding agencies to collect 

information about property described as 

unutilized, underutilized, excess, or 

surplus in surveys conducted by the 

agencies under 40 U.S.C. 524, Executive 

Order 12512, and subpart H of this part. 

67840 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

Each canvass will collect information on 

properties not previously reported and 

about property reported previously the 

status or classification of which has 

changed or for which any of the 

information reported on the property 

checklist has changed. 

(1) HUD will request descriptive 

information on properties sufficient to 

make a reasonable determination, under 

the criteria described below, of the 

suitability of a property for use as a 

facility to assist the homeless. 

(2) HUD will direct landholding 

agencies to respond to requests for 

information within 25 days of receipt of 

such requests. 

(b) Agency annual report. By 

December 31 of each year, each 

landholding agency must notify HUD 

regarding 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, 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 

make a new determination of suitability 

and, if it differs from the previous 

determination, republish the property 

information in the Federal Register. For 

example, property determined 

unsuitable for national security 

concerns may no longer be subject to 

security restrictions, or property 

determined suitable may subsequently 

be found to be contaminated. 

Suitability Determination 

§ 102–75.1175 Who issues the suitability 

determination? 

(a) Suitability determination. Within 

30 days after the receipt of information 

from landholding agencies regarding 

properties that were reported pursuant 

to the canvass described in § 102–

75.1170(a), HUD will determine, under 

criteria set forth in § 102–75.1185, 

which properties are suitable for use as 

facilities 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, except that properties 

subject to the Base Closure and 

Realignment Act may be reviewed up to 

eighteen 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 as a facility 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–

75.1185. 

(d) Written record of suitability 

determination. HUD will assign an 

identification number to each property 

reviewed for suitability. HUD will 

maintain a written 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 § 102–75.1190(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 in 

the Federal Register of a notice of 

unsuitability to allow for review of the 

determination at the request of a 

representative of the homeless. 

(f) Procedures for appealing 

unsuitability determinations. (1) To 

request review of a determination of 

unsuitability, a representative of the 

homeless must contact HUD within 20 

days of publication of notice in the 

Federal Register that a property is 

unsuitable. Requests may be submitted 

to HUD in writing or by calling 1–800–

927–7588 (Toll Free). Written requests 

must be received no later than 20 days 

after notice of unsuitability is published 

in the Federal Register. 

(2) Requests for review of a 

determination of unsuitability may be 

made only by representatives of the 

homeless, as defined in § 102–75.1160. 

(3) The request for review must 

specify the grounds on which it is 

based, i.e., that HUD has improperly 

applied the criteria or that 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 that 

such a request has been made, request 

that the agency respond with any 

information pertinent to the review, and 

advise the agency that it should refrain 

from initiating disposal procedures until 

HUD has completed its reconsideration 

regarding unsuitability. 

(i) HUD will act on all requests for 

review within 30 days of receipt of the 

landholding agency’s response and will 

notify the representative of the homeless 

and the landholding agency 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 

determination of availability pursuant to 

§ 102–75.1190(a), upon receipt of which 

HUD will promptly publish the 

determination in the Federal Register. If 

the determination of unsuitability 

stands, HUD will inform the 

representative of the homeless of its 

decision. 

Real Property Reported Excess to GSA 

§ 102–75.1180 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 a 

property to GSA that has been reviewed 

by HUD for homeless assistance 

suitability and HUD determined the 

property suitable, GSA will screen the 

property pursuant to § 102–75.1180(g) 

and will advise HUD of the availability 

of the property for use by the homeless 

as provided in § 102–75.1180(e). In lieu 

of the above, GSA may submit a new 

checklist to HUD and follow the 

procedures in § 102–75.1180(c) through 

§ 102–75.1180(g). 

(c) If a landholding agency reports a 

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 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67841 

reflect any change in classification, i.e., 

from unutilized or underutilized to 

excess. 

(d) Within 30 days after GSA’s 

submission, HUD will advise GSA of the 

suitability determination. 

(e) When GSA receives a letter from 

HUD listing suitable excess properties 

in GSA’s inventory, GSA will transmit 

to HUD within 45 days a response that 

includes 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 an excess property is 

determined suitable and available and 

notice is published in the Federal 

Register, GSA will concurrently notify 

HHS, HUD, State and local government 

units, known homeless assistance 

providers that have expressed interest in 

the particular property, and other 

organizations, as appropriate, 

concerning suitable properties. 

(g) 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 nonprofit organizations to determine 

interest in the property in accordance 

with current regulations. (See GSA 

Customer Guide to Real Property 

Disposal.) 

(h) 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. 

Suitability Criteria 

§ 102–75.1185 What are suitability criteria? 

(a) All properties, buildings, and land 

will be determined suitable unless a 

property’s characteristics include one or 

more of the following conditions: 

(1) National security concerns. A 

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) will 

be determined unsuitable. Where 

alternative access can be provided for 

the public without compromising 

national security, the property will not 

be determined unsuitable on this basis. 

(2) Property containing flammable or 

explosive materials. A property located 

within 2,000 feet of an industrial, 

commercial, or Federal facility handling 

flammable or explosive material 

(excluding underground storage) will be 

determined unsuitable. Above ground 

containers with a capacity of 100 

gallons or less, or larger containers that 

provide the heating or power source for 

the property, and that meet local safety, 

operation, and permitting standards, 

will not affect whether a particular 

property is determined suitable or 

unsuitable. Underground storage, 

gasoline stations, and tank trucks are 

not included in this category, and their 

presence will not be the basis of an 

unsuitability determination unless there 

is evidence of a threat to personal safety 

as provided in paragraph (a)(5) of this 

section. 

(3) Runway clear zone and military 

airfield clear zone. A property located 

within an airport runway clear zone or 

military airfield clear zone will be 

determined unsuitable. 

(4) Floodway. A property located in 

the floodway of a 100-year floodplain 

will be determined unsuitable. If the 

floodway has been contained or 

corrected, or if only an incidental 

portion of the property not affecting the 

use of the remainder of the property is 

in the floodway, the property will not be 

determined unsuitable. 

(5) Documented deficiencies. A 

property with a documented and 

extensive condition(s) that represents a 

clear threat to personal physical safety 

will be determined unsuitable. Such 

conditions may include, but are not 

limited to, contamination, structural 

damage, extensive deterioration, friable 

asbestos, PCBs, natural hazardous 

substances such as radon, periodic 

flooding, sinkholes, or earth slides. 

(6) Inaccessible. A property that is 

inaccessible will be determined 

unsuitable. An inaccessible property is 

one that is not accessible by road 

(including property on small off-shore 

islands) or is land locked (e.g., can be 

reached only by crossing private 

property and there is no established 

right or means of entry). 

(b) [Reserved] 

Determination of Availability 

§ 102–75.1190 What is the policy 

concerning determination of availability 

statements? 

(a) Within 45 days after receipt of a 

letter from HUD pursuant to § 102–

75.1170(a), each landholding agency 

must transmit to HUD a statement of 

one of the following: 

(1) In the case of unutilized or 

underutilized property—

(i) An intention to declare the 

property excess; 

(ii) An intention to make the property 

available for use to assist the homeless; 

or 

(iii) The reasons why the property 

cannot be declared excess or made 

available for use to assist the homeless. 

The reasons given must be different 

than those listed as suitability criteria in 

§ 102–75.1185. 

(2) In the case of excess property that 

had previously been reported to GSA—

(i) A statement that there is no 

compelling Federal need for the 

property and that, therefore, the 

property will be determined surplus; or 

(ii) A statement that there is a 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. 

(b) [Reserved] 

Public Notice of Determination 

§ 102–75.1195 What is the policy 

concerning making public the notice of 

determination? 

(a) No later than 15 days after the 

last–45 day period has elapsed for 

receiving responses from the 

landholding agencies regarding 

availability, HUD will publish in the 

Federal Register 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) Information about specific 

properties can be obtained by contacting 

HUD at the following toll free number: 

1–800–927–7588. 

(c) HUD will transmit to the ICH a 

copy of the list of all properties 

published in the Federal Register. The 

ICH will immediately distribute to all 

state and regional homeless 

coordinators area-relevant portions of 

the list. The ICH 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 reported 

pursuant to § 102–75.1170(b). 

(e) HUD will publish an annual list of 

properties determined suitable, but that 

agencies reported unavailable, including 

the reasons such properties are not 

available. 

(f) Copies of the lists published in the 

Federal Register will be available for 

67842 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

review by the public in the HUD 

headquarters building library (room 

8141); area-relevant portions of the lists 

will be available in the HUD regional 

offices and in major field offices. 

Application Process 

§ 102–75.1200 How may representatives of 

the homeless apply for the use of 

properties to assist the homeless? 

(a) Holding period. (1) Properties 

published as available for application 

for use to assist the homeless shall not 

be available for any other purpose for a 

period of 60 days beginning on the date 

of publication. Any representative of the 

homeless interested in any 

underutilized, unutilized, excess or 

surplus Federal property for use as a 

facility to assist the homeless must send 

to HHS a written expression of interest 

in that property within 60 days after the 

property has been published in the 

Federal Register. 

(2) If a written expression of interest 

to apply for suitable property for use to 

assist the homeless is received by HHS 

within the 60-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. 

(3) The expression of interest should 

identify the specific property, briefly 

describe the proposed use, the name of 

the organization, and indicate whether 

it is a public body or a private, nonprofit organization. The expression of 

interest must be sent to the Division of 

Health Facilities Planning (DHFP) of the 

Department of Health and Human 

Services at the following address: 

Director, Division of Health Facilities 

Planning, Public Health Service, Room 

17A–10, Parklawn Building, 5600 

Fishers Lane, Rockville, Maryland 

20857. 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 

particular property. 

(4) An expression of interest may be 

sent to HHS any time after the 60-day 

holding period has expired. In such a 

case, an application submitted pursuant 

to this expression of interest may be 

approved for use by the homeless if—

(i) No application or written 

expression of interest has been made 

under any law for use of the property for 

any purpose; and 

(ii) 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. 

(b) Application requirements. Upon 

receipt of an expression of interest, 

DHFP will send an application packet to 

the interested entity. The application 

packet requires the applicant to provide 

certain information, including the 

following: 

(1) Description of the applicant 

organization. The applicant must 

document that it satisfies the definition 

of a ‘‘representative of the homeless,’’ as 

specified in § 102–75.1160. The 

applicant must document its authority 

to hold real property. Private, non-profit 

organizations applying for deeds must 

document that they are section 501(c)(3) 

tax-exempt. 

(2) Description of the property 

desired. The applicant must describe 

the property desired and indicate that 

any modifications made to the property 

will conform to local use restrictions, 

except for, in the case of leasing the 

property, local zoning regulations. 

(3) Description of the proposed 

program. The applicant must fully 

describe the proposed program and 

demonstrate how the program will 

address the needs of the homeless 

population to be assisted. The applicant 

must fully describe what modifications 

will be made to the property before the 

program becomes operational. 

(4) Ability to finance and operate the 

proposed program. The applicant must 

specifically describe all anticipated 

costs and sources of funding for the 

proposed program. The applicant must 

indicate that it can assume care, 

custody, and maintenance of the 

property and that it has the necessary 

funds or the ability to obtain such funds 

to carry out the approved program of 

use for the property. 

(5) Compliance with nondiscrimination requirements. Each 

applicant and lessee under this part 

must certify in writing that it will 

comply with the requirements of the 

Fair Housing Act (42 U.S.C. 3601–3619) 

and implementing regulations; and as 

applicable, Executive Order 11063 

(Equal Opportunity in Housing) and 

implementing regulations; Title VI of 

the Civil Rights Act of 1964 (42 U.S.C. 

2000d to d–4) (Nondiscrimination in 

Federally-Assisted Programs) and 

implementing regulations; 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; and the prohibitions against 

otherwise qualified individuals with 

handicaps under section 504 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

794) and implementing regulations. The 

applicant must state that it will not 

discriminate on the basis of race, color, 

national origin, religion, sex, age, 

familial status, or disability in the use 

of the property, and will maintain the 

required records to demonstrate 

compliance with Federal laws. 

(6) Insurance. The applicant must 

certify that it will insure the property 

against loss, damage, or destruction in 

accordance with the requirements of 45 

CFR § 12.9. 

(7) Historic preservation. Where 

applicable, the applicant must provide 

information that will enable HHS to 

comply with Federal historic 

preservation requirements. 

(8) 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. 

(9) Local government notification. The 

applicant must indicate that it has 

informed, in writing, the applicable unit 

of general local government responsible 

for providing sewer, water, police, and 

fire services of its proposed program. 

(10) Zoning and local use restrictions. 

The applicant must indicate that it will 

comply with all local use restrictions, 

including local building code 

requirements. Any applicant applying 

for a lease or permit for a particular 

property is not required to comply with 

local zoning requirements. Any 

applicant applying for a deed of a 

particular property, pursuant to § 102–

75.1200(b)(3), must comply with local 

zoning requirements, as specified in 45 

CFR part 12. 

(c) Scope of evaluations. Due to the 

short time frame imposed for evaluating 

applications, HHS’ evaluation will, 

generally, be limited to the information 

contained in the application. 

(d) Deadline. Completed applications 

must be received by DHFP, at the above 

address, within 90 days after an 

expression of interest is received from a 

particular applicant for that property. 

Upon written request from the 

applicant, HHS may grant extensions, 

provided that the appropriate 

landholding agency concurs with the 

extension. Because each applicant will 

have a different deadline based on the 

date the applicant submitted an 

expression of interest, applicants should 

contact the individual landholding 

agency to confirm that a particular 

property remains available prior to 

submitting an application. 

(e) Evaluations. (1) Upon receipt of an 

application, HHS will review it for 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67843 

completeness and, if incomplete, may 

return it or ask the applicant to furnish 

any missing or additional required 

information prior to final evaluation of 

the application. 

(2) HHS will evaluate each completed 

application within 25 days of receipt 

and will promptly advise the applicant 

of its decision. Applications are 

evaluated on a first-come, first-serve 

basis. HHS will notify all organizations 

that have submitted expressions of 

interest for a particular property 

regarding whether the first application 

received for that property has been 

approved or disapproved. All 

applications will be reviewed on the 

basis of the following elements, which 

are listed in descending order of 

priority, except that paragraphs (e)(2)(iv) 

and (e)(2)(v) of this section are of equal 

importance: 

(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 and the degree to which the 

available property will be fully utilized. 

(iii) Implementation time. The 

amount of time necessary for the 

proposed program to become 

operational. 

(iv) Experience. Demonstrated prior 

success in operating similar programs 

and recommendations attesting to that 

fact by Federal, State, and local 

authorities. 

(v) Financial ability. The adequacy of 

funding that will likely be available to 

run the program fully and properly and 

to operate the facility. 

(3) Additional evaluation factors may 

be added as deemed necessary by HHS. 

If additional factors are added, the 

application packet will be revised to 

include a description of these additional 

factors. 

(4) If HHS receives one or more 

competing applications for a property 

within 5 days of the first application, 

HHS will evaluate all completed 

applications simultaneously. HHS will 

rank approved applications based on the 

elements listed in § 102–75.1200(e)(2) 

and notify the landholding agency, or 

GSA, as appropriate, of the relative 

ranks. 

Action on Approved Applications 

§ 102–75.1205 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. (Leases and permits 

will be for a period of at least one year, 

unless the applicant requests a shorter 

term.) 

(ii) Whether to grant use of the 

property pursuant to a lease or permit. 

(iii) The terms and conditions of the 

lease or permit document. 

(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 

leasing. Upon receipt of the assignment, 

HHS will execute a lease in accordance 

with the procedures and requirements 

set out in 45 CFR part 12. In accordance 

with § 102–75.965, custody and 

accountability of the property will 

remain throughout the lease term with 

the agency that initially reported the 

property as excess. 

(2) Prior to assignment to HHS, GSA 

may consider other Federal uses and 

other important national needs; 

however, in deciding the disposition of 

surplus real property, GSA will 

generally give priority of consideration 

to uses to assist the homeless. GSA may 

consider any competing request for the 

property made under 40 U.S.C. 550 

(education, health, public park or 

recreation, and historic monument uses) 

that is so meritorious and compelling 

that it outweighs the needs of the 

homeless, and HHS may likewise 

consider any competing request made 

under 40 U.S.C. 550(c) or (d) (education 

and health uses). 

(3) Whenever GSA or HHS decides in 

favor of a competing request over a 

request for property for homeless 

assistance use as provided in paragraph 

(b)(2) of this section, the agency making 

the decision will transmit to the 

appropriate committees of the Congress 

an explanatory statement that 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. 

(4) Deeds. Surplus property may be 

conveyed to representatives of the 

homeless pursuant to 40 U.S.C. 550, and 

section 501(f) of the McKinney-Vento 

Homeless Assistance Act, as amended, 

42 U.S.C. 11411. Representatives of the 

homeless must complete the application 

packet pursuant to the requirements of 

§ 102–75.1200 and in accordance with 

the requirements of 45 CFR part 12. 

(c) Completion of lease term and 

reversion of title. Lessees and grantees 

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 Federal 

Government, the lessee or grantee will 

be responsible for removing any 

improvements made to the property and 

will be responsible for restoration of the 

property. If such improvements are not 

removed, they will become the property 

of the Federal Government. GSA or the 

landholding agency, as appropriate, will 

assume responsibility for protection and 

maintenance of a property when the 

lease terminates or title reverts. 

Unsuitable Properties 

§ 102–75.1210 What action must be taken 

on properties determined unsuitable for 

homeless assistance? 

The landholding agency will defer, for 

20 days after the date that notice of a 

property is published in the Federal 

Register, action to dispose of properties 

determined unsuitable for homeless 

assistance. HUD will inform 

landholding agencies or GSA, if a 

representative of the homeless files an 

appeal of unsuitability pursuant to 

§ 102–75.1175(f)(4). HUD will advise the 

agency that it should 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. 

No Applications Approved 

§ 102–75.1215 What action must be taken 

if there is no expression of interest? 

(a) At the end of the 60-day holding 

period described in § 102–75.1200(a), 

HHS will notify GSA, or the 

landholding agency, as appropriate, if 

an expression of interest has been 

received for a particular 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 advice from HHS that all 

applications have been disapproved, or 

if no completed applications or requests 

for extensions have been received by 

HHS within 90 days from the date of the 

last expression of interest, disposal may 

proceed in accordance with applicable 

law. 

67844 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

Subpart I—Screening of Federal Real 

Property 

§ 102–75.1220 How do landholding 

agencies find out if excess Federal real 

property is available? 

If agencies report excess real and 

related personal property to GSA, GSA 

conducts a ‘‘Federal screening’’ for the 

property. Federal screening consists of 

developing a ‘‘Notice of Availability’’

and circulating the ‘‘Notice’’ among all 

Federal landholding agencies for a 

maximum of 30 days. 

§ 102–75.1225 What details are provided in 

the ‘‘Notice of Availability’’? 

The ‘‘Notice of Availability’’ describes 

the physical characteristics of the 

property; it also provides information 

on location, hazards or restrictions, 

contact information, and a date by 

which an interested Federal agency 

must respond in writing to indicate a 

definite or potential need for the 

property. 

§ 102–75.1230 How long does an agency 

have to indicate its interest in the property? 

Generally, agencies have 30 days to 

express written interest in the property. 

However, sometimes GSA has cause to 

conduct an expedited screening of the 

real property and the time allotted for 

responding is less than 30 days. The 

Notice of Availability always contains a 

‘‘respond by’’ date. 

§ 102–75.1235 Where should an agency 

send its written response to the ‘‘Notice of 

Availability’’? 

Look for the contact information 

provided in the Notice of Availability. 

Most likely, an agency will be directed 

to contact one of GSA’s regional offices. 

§ 102–75.1240 Who, from the interested 

landholding agency, should submit the 

written response to GSA’s ‘‘Notice of 

Availability’’? 

An authorized official of the 

landholding agency must sign the 

written response to the Notice of 

Availability. An ‘‘authorized official’’ is 

one who is responsible for acquisition 

and/or disposal decisions (e.g., head of 

the agency or official designee). 

§ 102–75.1245 What happens after the 

landholding agency properly responds to a 

‘‘Notice of Availability’’? 

The landholding agency has 60 days 

(from the expiration date of the ‘‘Notice 

of Availability’’) to submit a formal 

transfer request for the property. Absent 

a formal request for transfer within the 

prescribed 60 days, GSA may, at its 

discretion, pursue other disposal 

options. 

§ 102–75.1250 What if the agency is not 

quite sure it wants the property and needs 

more time to decide? 

If the written response to the ‘‘Notice 

of Availability’’ indicates a potential 

need, then the agency has an additional 

30 days (from the expiration date of the 

‘‘Notice of Availability’’) to determine 

whether or not its has a definite 

requirement for the property, and then 

60 days to submit a transfer request. 

§ 102–75.1255 What happens when more 

than one agency has a valid interest in the 

property? 

GSA will attempt to facilitate an 

equitable solution between the agencies 

involved. However, the Administrator 

has final decision making authority in 

determining which requirement aligns 

with the Federal Government’s best 

interests. 

§ 102–75.1260 Does GSA conduct Federal 

screening on every property reported as 

excess real property? 

No. GSA may waive the Federal 

screening for excess real property when 

it determines that doing so is in the best 

interest of the Federal Government. 

Below is a sample list of some of the 

factors GSA may consider when making 

the decision to waive Federal screening. 

This list is a representative sample and 

is not all-inclusive: 

(a) There is a known Federal need; 

(b) The property is located within the 

boundaries of tribal lands; 

(c) The property has known disposal 

limitations precluding further Federal 

use (e.g., title and/or utilization 

restrictions; reported excess specifically 

for participation in the Relocation 

Program; reported excess for transfer to 

the current operating contractor who 

will continue production according to 

the terms of the disposal documents; 

directed for disposal by law or special 

legislation); 

(d) The property will be transferred to 

a ‘‘potentially responsible party’’ (PRP) 

that stored, released, or disposed of 

hazardous substances at the 

Government-owned facility; 

(e) The property is an easement; 

(f) The excess property is actually a 

leasehold interest where there are 

Government-owned improvements with 

substantial value and cannot be easily 

removed; 

(g) Government-owned improvements 

on Government-owned land, where the 

land is neither excess nor expected to 

become excess; or 

(h) Screening for public benefit uses, 

except for the McKinney-Vento 

homeless screening, for specific 

property disposal considerations (see 

§ 102–75.351). 

§ 102–75.1265 Are extensions granted to 

the Federal screening and response 

timeframes? 

Generally, no. GSA believes the 

timeframes are sufficient for agencies to 

make a decision and respond. Requests 

for extensions must be strongly justified 

and approved by the appropriate GSA 

Regional Administrator. For example, 

agencies may request an extension of 

time to submit their formal transfer 

request if they are not promptly 

provided GSA’s estimate of FMV after 

submission of the initial expression of 

interest. Agencies requesting extensions 

must also submit an agreement 

accepting responsibility for providing 

and funding protection and 

maintenance for the requested property 

during the period of the extension until 

the property is transferred to the 

requesting agency or the requesting 

agency notifies GSA that it is no longer 

interested in the property. This 

assumption of protection and 

maintenance responsibility also applies 

to extensions associated with a 

requesting agency’s request for an 

exception from the 100 percent 

reimbursement requirement (see § 102–

75.205). 

§ 102–75.1270 How does an agency 

request a transfer of Federal real property? 

Agencies must use GSA Form 1334, 

Request for Transfer of Excess Real and 

Related Personal Property. 

§ 102–75.1275 Does a requesting agency 

have to pay for excess real property? 

Yes. GSA is required by law to obtain 

full fair market value (as determined by 

the Administrator) for all real property 

(see § 102–75.190), except when a 

transfer without reimbursement has 

been authorized (see § 102–75.205). 

GSA, upon receipt of a valid expression 

of interest, will promptly provide each 

interested landholding agency with an 

estimate of fair market value for the 

property. GSA may transfer property 

without reimbursement, if directed to 

do so by law or special legislation and 

for the following purposes: 

(a) Migratory Bird Management under 

Pub. L. 80–537, as amended by Pub. L. 

92–432. 

(b) Wildlife Conservation under Pub. 

L. 80–537. 

(c) Federal Correctional facilities. 

(d) Joint Surveillance System. 

§ 102–75.1280 What happens if the 

property has already been declared surplus 

and an agency discovers a need for it? 

GSA can redesignate surplus property 

as excess property, if the agency 

requests the property for use in direct 

support of its mission and GSA is 

satisfied that this transfer would be in 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67845 

the best interests of the Federal 

Government. 

§ 102–75.1285 How does GSA transfer 

excess real property to the requesting 

agency? 

GSA transfers the property via letter 

assigning ‘‘custody and accountability’’

for the property to the requesting 

agency. Title to the property is held in 

the name of the United States; however, 

the requesting agency becomes the 

landholding agency and is responsible 

for providing and funding protection 

and maintenance for the property. 

§ 102–75.1290 What happens if the 

landholding agency requesting the property 

does not promptly accept custody and 

accountability? 

(a) The requesting agency must 

assume protection and maintenance 

responsibilities for the property within 

30 days of the date of the letter 

assigning custody and accountability for 

the property. 

(b) After notifying the requesting 

agency, GSA may, at its discretion, 

pursue other disposal options. 

■ 6. Revise part 102–76 to read as 

follows: 

PART 102–76—DESIGN AND 

CONSTRUCTION 

Subpart A—General Provisions 

Sec. 

102–76.5 What is the scope of this part? 

102–76.10 What basic design and 

construction policy governs Federal 

agencies? 

Subpart B—Design and Construction 

102–76.15 What are design and 

construction services? 

102–76.20 What issues must Federal 

agencies consider in providing site 

planning and landscape design services? 

102–76.25 What standards must Federal 

agencies meet in providing architectural 

and interior design services? 

102–76.30 What seismic safety standards 

must Federal agencies follow in the 

design and construction of Federal 

facilities? 

National Environmental Policy Act of 1969 

102–76.35 What is the purpose of the 

National Environmental Policy Act of 

1969, as amended (NEPA)? 

102–76.40 To which real property actions 

does NEPA apply? 

102–76.45 What procedures must Federal 

agencies follow to implement the 

requirements of NEPA? 

Sustainable Development 

102–76.50 What is sustainable 

development? 

102–76.55 What sustainable development 

principles must Federal agencies apply 

to the siting, design, and construction of 

new facilities? 

Subpart C—Architectural Barriers Act 

102–76.60 To which facilities does the 

Architectural Barriers Act Apply? 

102–76.65 What standards must facilities 

subject to the Architectural Barriers Act 

meet? 

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)? 

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)? 

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)? 

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)? 

102–76.90 Who has the authority to waive 

or modify the standards in § 102–

76.65(a)? 

102–76.95 What recordkeeping 

responsibilities do Federal agencies 

have? 

Authority: 40 U.S.C. 121(c) (in furtherance 

of the Administrator’s authorities under 40 

U.S.C. 3301–3315 and elsewhere as included 

under 40 U.S.C. 581 and 583; E.O. 12411, 48 

FR 13391, 3 CFR, 1983 Comp., p. 155; E.O. 

12512, 50 FR 18453, 3 CFR, 1985 Comp., p. 

340). 

Subpart A—General Provisions 

§ 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. 

§ 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. 

Subpart B—Design and Construction 

§ 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 

67846 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

(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. 

National Environmental Policy Act of 

1969 

§ 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. 

Sustainable Development 

§ 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. 

Subpart C—Architectural Barriers Act 

§ 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. Facilities subject to the 

Architectural Barriers Act (other than 

facilities in 102–76.65(b) and (c)) must 

meet the Architectural Barriers Act 

Accessibility Standard if the 

construction or alteration commences, 

or the lease is entered into after May 8, 

2006. If the construction or alteration 

commences, or the lease is entered into 

before May 8, 2006, the facility must 

meet the Uniform Federal Accessibility 

Standards. The construction or 

alteration of a facility for which plans 

and specifications were completed or 

substantially completed on or before 

May 8, 2006, is permitted to meet the 

Uniform Federal Accessibility 

Standards if the construction or 

alteration is commenced by May 8, 

2008. The Architectural Barriers Act 

Accessibility Standard and the Uniform 

Federal Accessibility Standards are 

available at www.access-board.gov. 

(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. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67847 

§ 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 caseby-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. 

■ 7. Revise part 102–77 to read as 

follows: 

PART 102–77—ART-INARCHITECTURE 

Subpart A—General Provisions 

Sec. 

102–77.5 What is the scope of this part? 

102–77.10 What basic Art-in-Architecture 

policy governs Federal agencies? 

Subpart B—Art-in-Architecture 

102–77.15 Who funds the Art-inArchitecture efforts? 

102–77.20 With whom should Federal 

agencies collaborate when 

commissioning and selecting art for 

Federal buildings? 

102–77.25 Do Federal agencies have 

responsibilities to provide national 

visibility for Art-in-Architecture? 

Authority: 40 U.S.C. 121 and 3306. 

Subpart A—General Provisions 

§ 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 (PBS), operating under, or 

subject to, the authorities of the 

Administrator of General Services. 

§ 102–77.10 What basic Art-in-Architecture 

policy governs Federal agencies? 

Federal agencies must incorporate 

fine arts 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 selected fine arts, 

including painting, sculpture, and 

artistic work in other media, must 

reflect the national cultural heritage and 

emphasize the work of living American 

artists. 

67848 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

Subpart B—Art-in-Architecture 

§ 102–77.15 Who funds the Art-inArchitecture efforts? 

To the extent not prohibited by law, 

Federal agencies must fund the Art-inArchitecture 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 purchases, other building 

acquisition, or prospectus-level repair 

and alteration projects, must be in a 

range determined by the Administrator 

of General Services. 

§ 102–77.20 With whom should Federal 

agencies collaborate with when 

commissioning and selecting art for Federal 

buildings? 

To the maximum extent practicable, 

Federal agencies should seek the 

support and involvement of local 

citizens in selecting appropriate 

artwork. Federal agencies should 

collaborate with the artist and 

community to produce works of art that 

reflect the cultural, intellectual, and 

historic interests and values of a 

community. In addition, Federal 

agencies should work collaboratively 

with the architect of the building and art 

professionals, when commissioning and 

selecting art for Federal buildings. 

Federal agencies should commission 

artwork that is diverse in style and 

media. 

§ 102–77.25 Do Federal agencies have 

responsibilities to provide national visibility 

for Art-in-Architecture? 

Yes, Federal agencies should provide 

Art-in-Architecture that receives 

appropriate national and local visibility 

to facilitate participation by a large and 

diverse group of artists representing a 

wide variety of types of artwork. 

■ 8. Revise part 102–78 to read as 

follows: 

PART 102–78—HISTORIC 

PRESERVATION 

Subpart A—General Provisions 

Sec. 

102–78.5 What is the scope of this part? 

102–78.10 What basic historic preservation 

policy governs Federal agencies? 

Subpart B—Historic Preservation 

102–78.15 What are historic properties? 

102–78.20 Are Federal agencies required to 

identify historic properties? 

102–78.25 What is an undertaking? 

102–78.30 Who are consulting parties? 

102–78.35 Are Federal agencies required to 

involve consulting parties in their 

historic preservation activities? 

102–78.40 What responsibilities do Federal 

agencies have when an undertaking 

adversely affects an historic or cultural 

property? 

102–78.45 What are Federal agencies’

responsibilities concerning nomination 

of properties to the National Register? 

102–78.50 What historic preservation 

services must Federal agencies provide? 

102–78.55 For which properties must 

Federal agencies provide historic 

preservation services? 

102–78.60 When leasing space, are Federal 

agencies able to give preference to space 

in historic properties or districts? 

102–78.65 What are Federal agencies’

historic preservation responsibilities 

when disposing of real property under 

their control? 

102–78.70 What are an agency’s historic 

preservation responsibilities when 

disposing of another Federal agency’s 

real property? 

Authority: 16 U.S.C. 470h–2; 40 U.S.C. 

121(c) and 581. 

Subpart A—General Provisions 

§ 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. 

Subpart B—Historic Preservation 

§ 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 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67849 

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. 

■ 9. Revise part 102–79 to read as 

follows: 

PART 102–79—ASSIGNMENT AND 

UTILIZATION OF SPACE 

Subpart A—General Provisions 

Sec. 

102–79.5 What is the scope of this part? 

102–79.10 What basic assignment and 

utilization of space policy governs an 

Executive agency? 

Subpart B—Assignment and Utilization of 

Space 

102–79.15 What objectives must an 

Executive agency strive to meet in 

providing assignment and utilization of 

space services? 

Assignment of Space 

102–79.20 What standard must Executive 

agencies promote when assigning space? 

Child Care 

102–79.25 May Federal agencies allot space 

in Federal buildings for the provision of 

child care services? 

Fitness Centers 

102–79.30 May Federal agencies allot space 

in Federal buildings for establishing 

fitness centers? 

102–79.35 What elements must Federal 

agencies address in their planning effort 

for establishing fitness programs? 

Federal Credit Unions 

102–79.40 Can Federal agencies allot space 

in Federal buildings to Federal credit 

unions? 

102–79.45 What type of services may 

Federal agencies provide without charge 

to Federal credit unions? 

Utilization of Space 

102–79.50 What standard must Executive 

agencies promote in their utilization of 

space? 

102–79.55 Is there a general hierarchy of 

consideration that agencies must follow 

in their utilization of space? 

102–79.60 Are agencies required to use 

historic properties available to the 

agency? 

Outleasing 

102–79.65 May Executive agencies outlease 

space on major public access levels, 

courtyards and rooftops of public 

buildings? 

Siting Antennas on Federal Property 

102–79.70 May Executive agencies assess 

fees against other Executive agencies for 

antenna placements and supporting 

services? 

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? 

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? 

102–79.85 What policy must Executive 

agencies follow concerning the 

placement of commercial antennas on 

Federal property? 

102–79.90 What criteria must Executive 

agencies consider when evaluating 

antenna siting requests? 

102–79.95 Who is responsible for the costs 

associated with providing access to 

antenna sites? 

102–79.100 What must Federal agencies do 

with antenna siting fees that they 

collect? 

Integrated Workplace 

102–79.105 What is the Integrated 

Workplace? 

102–79.110 What Integrated Workplace 

policy must Federal agencies strive to 

promote? 

102–79.111 Where may Executive agencies 

find additional information on Integrated 

Workplace concepts? 

Public Access Defibrillation Programs 

102–79.115 What guidelines must an 

agency follow if it elects to establish a 

public access defibrillation program in a 

Federal facility? 

Authority: 40 U.S.C. 121(c); E.O. 12411, 48 

FR 13391, 3 CFR, 1983 Comp., p. 155; and 

E.O. 12512, 50 FR 18453, 3 CFR, 1985 Comp., 

p. 340. 

Subpart A—General Provisions 

§ 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 

67850 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

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. 

Subpart B—Assignment and Utilization 

of Space 

§ 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. 

Assignment of Space 

§ 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. 

Child Care 

§ 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. 

Fitness Centers 

§ 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. 

Federal Credit Unions 

§ 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). 

Utilization of Space 

§ 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 Governmentowned and Government-leased 

buildings; and 

(b) If there is no suitable space in 

Government-owned and Governmentleased 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). 

Outleasing 

§ 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 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67851 

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. 

Siting Antennas on Federal Property 

§ 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 GSAcontrolled 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 

67852 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

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. 

Integrated Workplace 

§ 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.’’

Public Access Defibrillation Programs 

§ 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. 

■ 10. Revise part 102–80 to read as 

follows: 

PART 102–80—SAFETY AND 

ENVIRONMENTAL MANAGEMENT 

Subpart A—General Provisions 

Sec. 

102–80.5 What is the scope of this part? 

102–80.10 What are the basic safety and 

environmental management policies for 

real property? 

Subpart B—Safety and Environmental 

Management 

Asbestos 

102–80.15 What are Federal agencies’

responsibilities concerning the 

assessment and management of asbestos? 

Radon 

102–80.20 What are Federal agencies’

responsibilities concerning the 

abatement of radon? 

Indoor Air Quality 

102–80.25 What are Federal agencies’

responsibilities concerning the 

management of indoor air quality? 

Lead 

102–80.30 What are Federal agencies’

responsibilities concerning lead? 

Hazardous Materials and Wastes 

102–80.35 What are Federal agencies’

responsibilities concerning the 

monitoring of hazardous materials and 

wastes? 

Underground Storage Tanks 

102–80.40 What are Federal agencies’

responsibilities concerning the 

management of underground storage 

tanks? 

Seismic Safety 

102–80.45 What are Federal agencies’

responsibilities concerning seismic 

safety in Federal facilities? 

Risks and Risk Reduction Strategies 

102–80.50 Are Federal agencies responsible 

for identifying/estimating risks and for 

appropriate risk reduction strategies? 

102–80.55 Are Federal agencies responsible 

for managing the execution of risk 

reduction projects? 

Facility Assessments 

102–80.60 Are Federal agencies responsible 

for performing facility assessments? 

Incident Investigation 

102–80.65 What are Federal agencies’

responsibilities concerning the 

investigation of incidents, such as fires, 

accidents, injuries, and environmental 

incidents? 

Responsibility for Informing Tenants 

102–80.70 Are Federal agencies responsible 

for informing their tenants of the 

condition and management of their 

facility safety and environment? 

Assessment of Environmental Issues 

102–80.75 Who assesses environmental 

issues in Federal construction and lease 

construction projects? 

Subpart C—Accident and Fire Prevention 

102–80.80 With what general accident and 

fire prevention policy must Federal 

agencies comply? 

State and Local Codes 

102–80.85 Are Federally owned and leased 

buildings exempt from State and local 

code requirements in fire protection? 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67853 

Fire Administration Authorization Act of 

1992 

102–80.90 Is the Fire Administration 

Authorization Act of 1992 (Pub. L. 102–

522) relevant to fire protection 

engineering? 

102–80.95 Is the Fire Administration 

Authorization Act of 1992 applicable to 

all Federal agencies? 

Automatic Sprinkler Systems 

102–80.100 What performance objective 

should an automatic sprinkler system be 

capable of meeting? 

Equivalent Level of Safety Analysis 

102–80.105 What information must be 

included in an equivalent level of safety 

analysis? 

102–80.110 What must an equivalent level 

of safety analysis indicate? 

102–80.115 Is there more than one option 

for establishing that an equivalent level 

of safety exists? 

102–80.120 What analytical and empirical 

tools should be used to support the life 

safety equivalency evaluation? 

102–80.125 Who has the responsibility for 

determining the acceptability of each 

equivalent level of safety analysis? 

102–80.130 Who must perform the 

equivalent level of safety analysis? 

102–80.135 Who is a qualified fire 

protection engineer? 

Room of Origin 

102–80.140 What is meant by ‘‘room of 

origin’’? 

Flashover 

102–80.145 What is meant by ‘‘flashover’’? 

Reasonable Worst Case Fire Scenario 

102–80.150 What is meant by ‘‘reasonable 

worst case fire scenario’’? 

Authority: 40 U.S.C. 121(c) and 581–593. 

Subpart A—General Provisions 

§ 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. 

Subpart B—Safety and Environmental 

Management 

Asbestos 

§ 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 asbestoscontaining 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. 

Radon 

§ 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. 

Indoor Air Quality 

§ 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. 

Lead 

§ 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. 

Hazardous Materials and Wastes 

§ 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. 

67854 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

Underground Storage Tanks 

§ 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. 

Seismic Safety 

§ 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. 

Risks and Risk Reduction Strategies 

§ 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. 

Facility Assessments 

§ 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. 

Incident Investigation 

§ 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. 

Responsibility for Informing Tenants 

§ 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. 

Assessment of Environmental Issues 

§ 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. 

Subpart C—Accident and Fire 

Prevention 

§ 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. 

State and Local Codes 

§ 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. 

Fire Administration Authorization Act 

of 1992 

§ 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. 

Automatic Sprinkler Systems 

§ 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. 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67855 

Equivalent Level of Safety Analysis 

§ 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. 

§ 102–80.115 Is there more than one 

option for establishing that an equivalent 

level of safety exists? 

Yes, the following are three options 

for establishing that an equivalent level 

of safety exists: 

(a) In the first option, the margin of 

safety provided by various alternatives 

is compared to that obtained for a code 

complying building with complete 

sprinkler protection. The margin of 

safety is the difference between the 

available safe egress time and the 

required safe egress time. Available safe 

egress time is the time available for 

evacuation of occupants to an area of 

safety prior to the onset of untenable 

conditions in occupied areas or the 

egress pathways. The required safe 

egress time is the time required by 

occupants to move from their positions 

at the start of the fire to areas of safety. 

Available safe egress times would be 

developed based on analysis of a 

number of assumed reasonable worst 

case fire scenarios including assessment 

of a code complying fully sprinklered 

building. Additional analysis would be 

used to determine the expected required 

safe egress times for the various 

scenarios. If the margin of safety plus an 

appropriate safety factor is greater for an 

alternative than for the fully sprinklered 

building, then the alternative should 

provide an equivalent level of safety. 

(b) A second alternative is applicable 

for typical office and residential 

scenarios. In these situations, complete 

sprinkler protection can be expected to 

prevent flashover in the room of fire 

origin, limit fire size to no more than 1 

megawatt (950 Btu/sec), and prevent 

flames from leaving the room of origin. 

The times required for each of these 

conditions to occur in the area of 

interest must be determined. The 

shortest of these three times would 

become the time available for escape. 

The difference between the minimum 

time available for escape and the time 

required for evacuation of building 

occupants would be the target margin of 

safety. Various alternative protection 

strategies would have to be evaluated to 

determine their impact on the times at 

which hazardous conditions developed 

in the spaces of interest and the times 

required for egress. If a combination of 

fire protection systems provides a 

margin of safety equal to or greater than 

the target margin of safety, then the 

combination could be judged to provide 

an equivalent level of safety. 

(c) As a third option, other technical 

analysis procedures, as approved by the 

responsible agency head, can be used to 

show equivalency. 

§ 102–80.120 What analytical and empirical 

tools should be used to support the life 

safety equivalency evaluation? 

Analytical and empirical tools, 

including fire models and grading 

schedules such as the Fire Safety 

Evaluation System (Alternative 

Approaches to Life Safety, NEPA 101A) 

should be used to support the life safety 

equivalency evaluation. If fire modeling 

is used as part of an analysis, an 

assessment of the predictive capabilities 

of the fire models must be included. 

This assessment should be conducted in 

accordance with the American Society 

for Testing and Materials Standard 

Guide for Evaluating the Predictive 

Capability of Fire Models (ASTM E 

1355). 

§ 102–80.125 Who has the responsibility 

for determining the acceptability of each 

equivalent level of safety analysis? 

The head of the agency responsible 

for physical improvements in the 

facility or providing Federal assistance 

or a designated representative will 

determine the acceptability of each 

equivalent level of safety analysis. The 

determination of acceptability must 

include a review of the fire protection 

engineer’s qualifications, the 

appropriateness of the fire scenarios for 

the facility, and the reasonableness of 

the assumed maximum probable loss. 

Agencies should maintain a record of 

each accepted equivalent level of safety 

analysis and provide copies to fire 

departments or other local authorities 

for use in developing pre-fire plans. 

§ 102–80.130 Who must perform the 

equivalent level of safety analysis? 

A qualified fire protection engineer 

must perform the equivalent level of 

safety analysis. 

§ 102–80.135 Who is a qualified fire 

protection engineer? 

A qualified fire protection engineer is 

defined as an individual with a 

thorough knowledge and understanding 

of the principles of physics and 

chemistry governing fire growth, spread, 

and suppression, meeting one of the 

following criteria: 

(a) An engineer having an 

undergraduate or graduate degree from 

a college or university offering a course 

of study in fire protection or fire safety 

engineering, plus a minimum of 4 years 

work experience in fire protection 

engineering. 

(b) A professional engineer (P.E. or 

similar designation) registered in Fire 

Protection Engineering. 

(c) A professional engineer (P.E. or 

similar designation) registered in a 

related engineering discipline and 

holding Member grade status in the 

International Society of Fire Protection 

Engineers. 

Room of Origin 

§ 102–80.140 What is meant by ‘‘room of 

origin’’? 

Room of origin means an area of a 

building where a fire can be expected to 

start. Typically, the size of the area will 

be determined by the walls, floor, and 

ceiling surrounding the space. However, 

this could lead to unacceptably large 

areas in the case of open plan office 

space or similar arrangements. 

Therefore, the maximum allowable fire 

area should be limited to 200 m2 (2000 

ft2), including intervening spaces. In the 

case of residential units, an entire 

apartment occupied by one tenant could 

be considered as the room of origin to 

the extent it did not exceed the 200 m2 

(2000 ft2) limitation. 

67856 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

Flashover 

§ 102–80.145 What is meant by 

‘‘flashover’’? 

Flashover means fire conditions in a 

confined area where the upper gas layer 

temperature reaches 600 °C (1100 °F) 

and the heat flux at floor level exceeds 

20 kW/m2 (1.8 Btu/ft2/sec). 

Reasonable Worst Case Fire Scenario 

§ 102–80.150 What is meant by 

‘‘reasonable worst case fire scenario’’? 

Reasonable worst case fire scenario 

means a combination of an ignition 

source, fuel items, and a building 

location likely to produce a fire that 

would have a significant adverse impact 

on the building and its occupants. The 

development of reasonable worst case 

scenarios must include consideration of 

types and forms of fuels present (e.g., 

furniture, trash, paper, chemicals), 

potential fire ignition locations (e.g., 

bedroom, office, closet, corridor), 

occupant capabilities (e.g., awake, 

intoxicated, mentally or physically 

impaired), numbers of occupants, 

detection and suppression system 

adequacy and reliability, and fire 

department capabilities. A quantitative 

analysis of the probability of occurrence 

of each scenario and combination of 

events will be necessary. 

■ 11. Revise part 102–81 to read as 

follows: 

PART 102–81—SECURITY 

Subpart A—General Provisions 

Sec. 

102–81.5 What is the scope of this part? 

102–81.10 What basic security policy 

governs Federal agencies? 

Subpart B—Security 

102–81.15 Who is responsible for upgrading 

and maintaining security standards in 

each existing Federally owned and 

leased facility? 

102–81.20 Are the security standards for 

new Federally owned and leased 

facilities the same as the standards for 

existing Federally owned and leased 

facilities? 

102–81.25 Do the Interagency Security 

Committee Security Design Criteria 

apply to all new Federally owned and 

leased facilities? 

102–81.30 What information must job 

applicants at child care centers reveal? 

Authority: 40 U.S.C. 121(c), 581–593, and 

1315. 

Subpart A—General Provisions 

§ 102–81.5 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. 

§ 102–81.10 What basic security policy 

governs Federal agencies? 

Federal agencies on Federal property 

under the charge and control of the 

Administrator and having a security 

delegation of authority from the 

Secretary of the Department of 

Homeland Security must provide for the 

security and protection of the real estate 

they occupy, including the protection of 

persons within the property. 

Subpart B—Security 

§ 102–81.15 Who is responsible for 

upgrading and maintaining security 

standards in each existing Federally owned 

and leased facility? 

In a June 28, 1995, Presidential Policy 

Memorandum for Executive 

Departments and Agencies, entitled 

‘‘Upgrading Security at Federal 

Facilities’’ (see the Weekly Compilation 

of Presidential Documents, vol. 31, p. 

1148), the President directed that 

Executive agencies must, where feasible, 

upgrade and maintain security in 

facilities they own or lease under their 

own authority to the minimum 

standards specified in the Department of 

Justice’s June 28, 1995, study entitled 

‘‘Vulnerability Assessment of Federal 

Facilities.’’ The study may be obtained 

by writing to the Superintendent of 

Documents, P.O. Box 371954, 

Pittsburgh, PA 15250–7954. 

§ 102–81.20 Are the security standards for 

new Federally owned and leased facilities 

the same as the standards for existing 

Federally owned and leased facilities? 

No, the minimum standards specified 

in the Department of Justice’s June 28, 

1995, study entitled ‘‘Vulnerability 

Assessment of Federal Facilities’’

identifies the minimum-security 

standards that agencies must adhere to 

for all existing owned and leased 

Federal facilities. As specified in § 102–

81.25, new Federally owned and leased 

facilities must be designed to meet the 

standards identified in the document 

entitled ‘‘Interagency Security 

Committee Security Design Criteria for 

New Federal Office Buildings and Major 

Modernization Projects,’’ dated May 28, 

2001. The security design criteria for 

new facilities takes into consideration 

technology developments, new cost 

consideration, the experience of 

practitioners applying the criteria, and 

the need to balance security 

requirements with public building 

environments that remain lively, open, 

and accessible. 

§ 102–81.25 Do the Interagency Security 

Committee Security Design Criteria apply to 

all new Federally owned and leased 

facilities? 

No, the Interagency Security 

Committee Security Design Criteria—

(a) Apply to new construction of 

general purpose office buildings and 

new or lease-construction of 

courthouses occupied by Federal 

employees in the United States and not 

under the jurisdiction and/or control of 

the Department of Defense. The criteria 

also apply to lease-construction projects 

being submitted to Congress for 

appropriations or authorization. Where 

prudent and appropriate, the criteria 

apply to major modernization projects; 

and 

(b) Do not apply to airports, prisons, 

hospitals, clinics, and ports of entry, or 

to unique facilities such as those 

classified by the Department of Justice 

Vulnerability Assessment Study as 

Level V. Nor will the criteria overrule 

existing Federal laws and statutes, and 

other agency standards that have been 

developed for special facilities, such as 

border stations and child care centers. 

§ 102–81.30 What information must job 

applicants at child care centers reveal? 

Anyone who applies for employment 

(including volunteer positions) at a 

child care facility, located on Federally 

controlled property (including Federally 

leased property), must reveal any arrests 

and convictions on the job application. 

Employment at a child care facility 

means any position that involves work 

with minor children, such as a teacher, 

daycare worker, or school administrator. 

■ 12. Revise part 102–82 to read as 

follows: 

PART 102–82—UTILITY SERVICES 

Subpart A—General Provisions 

Sec. 

102–82.5 What is the scope of this part? 

102–82.10 What basic utility services policy 

govern Executive agencies? 

Subpart B—Utility Services 

102–82.15 What utility services must 

Executive agencies provide? 

102ndash;82.20 What are Executive 

agencies’ rate intervention 

responsibilities? 

102–82.25 What are Executive agencies’

responsibilities concerning the 

procurement of utility services? 

Authority: 40 U.S.C. 121(c) and 501. 

Subpart A—General Provisions 

§ 102–82.5 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 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67857 

subject to, the authorities of the 

Administrator of General Services. 

§ 102–82.10 What basic utility services 

policy govern Executive agencies? 

Executive agencies procuring, 

managing or supplying utility services 

under Title 40 of the United States Code 

must provide or procure services that 

promote economy and efficiency with 

due regard to the mission 

responsibilities of the agencies 

concerned. 

Subpart B—Utility Services 

§ 102–82.15 What utility services must 

Executive agencies provide? 

Executive agencies must negotiate 

with public utilities to procure utility 

services and, where appropriate, 

provide rate intervention services in 

proceedings (see §§ 102–72.100 and 

102–72.105 of this chapter) before 

Federal and State utility regulatory 

bodies. 

§ 102–82.20 What are Executive agencies’

rate intervention responsibilities? 

Where the consumer interests of the 

Federal Government will be 

significantly affected and upon 

receiving a delegation of authority from 

GSA, Executive agencies must provide 

representation in proceedings involving 

utility services before Federal and State 

regulatory bodies. Specifically, these 

responsibilities include instituting 

formal or informal action before Federal 

and State regulatory bodies to contest 

the level, structure, or applicability of 

rates or service terms of utility 

suppliers. The Secretary of Defense is 

independently authorized to take such 

actions without a delegation from GSA, 

when the Secretary determines such 

actions to be in the best interests of 

national security. 

§ 102–82.25 What are Executive agencies’

responsibilities concerning the 

procurement of utility services? 

Executive agencies, operating under a 

utility services delegation from GSA, or 

the Secretary of Defense, when the 

Secretary determines it to be in the best 

interests of national security, must 

provide for the procurement of utility 

services (such as commodities and 

utility rebate programs), as required, 

and must procure from sources of 

supply that are the most advantageous 

to the Federal Government in terms of 

economy, efficiency, reliability, or 

quality of service. Executive agencies, 

upon receiving a delegation of authority 

from GSA, may enter into contracts for 

utility services for periods not 

exceeding ten years (40 U.S.C. 

501(b)(1)(B)). 

■ 13. Revise part 102–83 to read as 

follows: 

PART 102–83—LOCATION OF SPACE 

Subpart A—General Provisions 

Sec. 

102–83.5 What is the scope of this part? 

102–83.10 What basic location of space 

policy governs an Executive agency? 

102–83.15 Is there a general hierarchy of 

consideration that agencies must follow 

in their utilization of space? 

Subpart B—Location of Space 

Delineated Area 

102–83.20 What is a delineated area? 

102–83.25 Who is responsible for 

identifying the delineated area within 

which a Federal agency wishes to locate 

specific activities? 

102–83.30 In addition to its mission and 

program requirements, are there any 

other issues that Federal agencies must 

consider in identifying the delineated 

area? 

102–83.35 Are Executive agencies required 

to consider whether the central business 

area will provide for adequate 

competition when acquiring leased 

space? 

102–83.40 Who must approve the final 

delineated area? 

102–83.45 Where may Executive agencies 

find guidance on appealing GSA’s 

decisions and recommendations 

concerning delineated areas? 

Rural Areas 

102–83.50 What is the Rural Development 

Act of 1972? 

102–83.55 What is a rural area? 

102–83.60 What is an urbanized area? 

102–83.65 Are Executive agencies required 

to give first priority to the location of 

new offices and other facilities in rural 

areas? 

Urban Areas 

102–83.70 What is Executive Order 12072? 

102–83.75 What is Executive Order 13006? 

102–83.80 What is an urban area? 

102–83.85 What is a central business area? 

102–83.90 Do Executive Orders 12072 and 

13006 apply to rural areas? 

102–83.95 After an agency has identified 

that its geographic service area and 

delineated area are in an urban area, 

what is the next step for an agency? 

102–83.100 Why must agencies consider 

available space in properties under the 

custody and control of the U.S. Postal 

Service? 

102–83.105 What happens if there is no 

available space in non-historic buildings 

under the custody and control of the U.S. 

Postal Service? 

102–83.110 When an agency’s mission and 

program requirements call for the 

location in an urban area, are Executive 

agencies required to give first 

consideration to central business areas? 

102–83.115 What is a central city? 

102–83.120 What happens if an agency has 

a need to be in a specific urban area that 

is not a central city in a metropolitan 

area? 

Preference to Historic Properties 

102–83.125 Are Executive agencies 

required to give preference to historic 

properties when acquiring leased space? 

Application of Socioeconomic 

Considerations 

102–83.130 When must agencies consider 

the impact of a location decision on lowand moderate-income employees? 

102–83.135 With whom must agencies 

consult in determining the availability of 

low- and moderate-income housing? 

Appendix to Part 102–83—Memorandum of 

Understanding Between the Department 

of Housing and Urban Development and 

the General Services Administration 

Concerning Low- and Moderate-Income 

Housing 

Authority: 40 U.S.C. 121(c); E.O. 12072; 

and E.O. 13006. 

Subpart A—General Provisions 

§ 102–83.5 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. 

§ 102–83.10 What basic location of space 

policy governs an Executive agency? 

Each Executive agency is responsible 

for identifying its geographic service 

area and the delineated area within 

which it wishes to locate specific 

activities, consistent with its mission 

and program requirements, and in 

accordance with all applicable statutes, 

regulations and policies. 

§ 102–83.15 Is there a general hierarchy of 

consideration that agencies must follow in 

their utilization of space? 

Yes, Federal agencies must follow the 

hierarchy of consideration identified in 

§ 102–79.55 of this chapter. 

Subpart B—Location of Space 

Delineated Area 

§ 102–83.20 What is a delineated area? 

Delineated area means the specific 

boundaries within which space will be 

obtained to satisfy an agency space 

requirement. 

§ 102–83.25 Who is responsible for 

identifying the delineated area within which 

a Federal agency wishes to locate specific 

activities? 

Each Federal agency is responsible for 

identifying the delineated area within 

which it wishes to locate specific 

activities, consistent with its mission 

and program requirements, and in 

accordance with all applicable laws, 

regulations, and Executive Orders. 

67858 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

§ 102–83.30 In addition to its mission and 

program requirements, are there any other 

issues that Federal agencies must consider 

in identifying the delineated area? 

Yes, Federal agencies must also 

consider real estate, labor, and other 

operational costs and applicable local 

incentives, when identifying the 

delineated area. 

§ 102–83.35 Are Executive agencies 

required to consider whether the central 

business area will provide for adequate 

competition when acquiring leased space? 

In accordance with the Competition 

in Contracting Act of 1984, as amended 

(41 U.S.C. 253(a)), Executive agencies 

must consider whether restricting the 

delineated area for obtaining leased 

space to the central business area (CBA) 

will provide for adequate competition 

when acquiring leased space. Where an 

Executive agency determines that the 

delineated area must be expanded 

beyond the CBA to provide adequate 

competition, the agency may expand the 

delineated area in consultation with 

local officials. Executive agencies must 

continue to include the CBA in such 

expanded areas. 

§ 102–83.40 Who must approve the final 

delineated area? 

Federal agencies conducting the 

procurement must approve the final 

delineated area for site acquisitions and 

lease actions and must confirm that the 

final delineated area complies with the 

requirements of all applicable laws, 

regulations, and Executive Orders. 

§ 102–83.45 Where may Executive 

agencies find guidance on appealing GSA’s 

decisions and recommendations 

concerning delineated areas? 

GSA’s PBS provides guidance in its 

Customer Guide to Real Property on the 

process for appealing GSA’s decisions 

and recommendations concerning 

delineated areas. 

Rural Areas 

§ 102–83.50 What is the Rural 

Development Act of 1972? 

The Rural Development Act of 1972, 

as amended (7 U.S.C. 2204b–1), directs 

Federal agencies to develop policies and 

procedures to give first priority to the 

location of new offices and other 

Federal facilities in rural areas. The 

intent of the Rural Development Act is 

to revitalize and develop rural areas and 

to help foster a balance between rural 

and urban America. 

§ 102–83.55 What is a rural area? 

As defined in 7 U.S.C. 1991(a)(13)(A), 

rural area means any area other than—

(a) A city or town that has a 

population of greater than 50,000 

inhabitants; and 

(b) The urbanized area contiguous and 

adjacent to such a city or town. 

§ 102–83.60 What is an urbanized area? 

An urbanized area is a statistical 

geographic area defined by the Census 

Bureau, consisting of a central place(s) 

and adjacent densely settled territory 

that together contain at least 50,000 

people, generally with an overall 

population density of at least 1,000 

people per square mile. 

§ 102–83.65 Are Executive agencies 

required to give first priority to the location 

of new offices and other facilities in rural 

areas? 

Yes, Executive agencies must give 

first priority to the location of new 

offices and other facilities in rural areas 

in accordance with the Rural 

Development Act (7 U.S.C. 2204b–1), 

unless their mission or program 

requirements call for locations in an 

urban area. First priority to the location 

of new offices and other facilities in 

rural areas must be given in accordance 

with the hierarchy specified in § 102–

79.55 of this chapter. 

Urban Areas 

§ 102–83.70 What is Executive Order 

12072? 

Executive Order 12072, entitled 

‘‘Federal Space Management,’’ requires 

all Executive agencies that have a 

mission requirement to locate in an 

urban area to give first consideration to 

locating Federal facilities in central 

business areas, and/or adjacent areas of 

similar character, to use them to make 

downtowns attractive places to work, 

conserve existing resources, and 

encourage redevelopment. It also directs 

Executive agencies to consider 

opportunities for locating cultural, 

educational, recreational, or commercial 

activities within the proposed facility. 

§ 102–83.75 What is Executive Order 

13006? 

Executive Order 13006, entitled 

‘‘Locating Federal Facilities on Historic 

Properties in Our Nation’s Central 

Cities,’’ requires all Executive agencies 

that have a mission requirement to 

locate in an urban area to give first 

consideration to locating Federal 

facilities in historic buildings and 

districts within central business areas. It 

also directs Executive agencies to 

remove regulatory barriers, review their 

policies, and build new partnerships 

with the goal of enhancing participation 

in the National Historic Preservation 

program. 

§ 102–83.80 What is an urban area? 

Urban area means any metropolitan 

area (MA) as defined by the Office of 

Management and Budget (OMB) in OMB 

Bulletin No. 99–04, or succeeding OMB 

Bulletin, that does not meet the 

definition of rural area in § 102–83.55. 

§ 102–83.85 What is a central business 

area? 

Central business area (CBA) means 

the centralized community business 

area and adjacent areas of similar 

character, including other specific areas 

that may be recommended by local 

officials in accordance with Executive 

Order 12072. The CBAs are designated 

by local government and not by Federal 

agencies. 

§ 102–83.90 Do Executive Orders 12072 

and 13006 apply to rural areas? 

No, Executive Orders 12072 and 

13006 only apply to agencies looking for 

space in urban areas. 

§ 102–83.95 After an agency has identified 

that its geographic service area and 

delineated area are in an urban area, what 

is the next step for an agency? 

After an agency identifies its 

geographic service area and delineated 

area within which it wishes to locate 

specific activities are in an urban area 

(i.e., determined that the agency’s 

mission requirements dictate a need to 

locate its facility in an urban area), 

Federal agencies must seek space in 

historic properties already under agency 

control, in accordance with section 110 

of the National Historic Preservation 

Act. The National Historic Preservation 

Act provides that prior to purchasing, 

constructing or leasing new space, 

Federal agencies must—

(a) Consider agency-controlled 

historic properties within historic 

districts inside CBAs when locating 

Federal operations, in accordance with 

Executive Order 13006 (which, by 

reference, also incorporates the 

requirements in Executive Order 12072 

and the Rural Development Act of 

1972); 

(b) Then consider agency-controlled 

developed or undeveloped sites within 

historic districts, if no suitable agencycontrolled historic property specified in 

paragraph (a) of this section is available; 

(c) Then consider agency-controlled 

historic properties outside of historic 

districts, if no suitable agencycontrolled site exists within a historic 

district as specified in paragraph (b) of 

this section; 

(d) Then consider non-historic 

agency-controlled properties, if no 

suitable agency-controlled historic 

properties outside of historic districts 

Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 67859 

exist as specified in paragraph (c) of this 

section; 

(e) Then consider historic properties 

under the custody and control of the 

U.S. Postal Service, if there is no 

available space in non-historic agencycontrolled properties specified in 

paragraph (d) of this section. 

(f) Then consider non-historic 

properties under the custody and 

control of the U.S. Postal Service, if 

there is no available space in historic 

properties under the custody and 

control of the U.S. Postal Service 

specified in paragraph (e) of this 

section. 

§ 102–83.100 Why must agencies consider 

available space in properties under the 

custody and control of the U.S. Postal 

Service? 

See § 102–73.20 of this chapter. 

§ 102–83.105 What happens if there is no 

available space in non-historic buildings 

under the custody and control of the U.S. 

Postal Service? 

If no suitable space in non-historic 

buildings under the custody and control 

of the U.S. Postal Service is available, 

agencies may then acquire real estate by 

purchase, lease, or construction, in 

accordance with FMR part 102–73. 

§ 102–83.110 When an agency’s mission 

and program requirements call for the 

location in an urban area, are Executive 

agencies required to give first 

consideration to central business areas? 

Yes, if an agency has a specific 

location need to be in an urban area, 

then Executive Orders 12072 and 13006 

require that agencies should give first 

consideration to locating in a historic 

building in a historic district in the CBA 

of a central city of the appropriate 

metropolitan area. If no such space is 

available, agencies must give 

consideration to locating in a nonhistoric building in a historic district in 

the CBA of a central city of the 

appropriate metropolitan area. If no 

such space is available, agencies must 

give consideration to locating in a 

historic building outside of a historic 

district in the CBA of a central city of 

the appropriate metropolitan area. If no 

such space is available, agencies should 

give consideration to locating in a nonhistoric building outside of a historic 

district in the CBA of a central city of 

the appropriate metropolitan area. 

§ 102–83.115 What is a central city? 

Central cities are those central cities 

defined by OMB in OMB Bulletin No. 

99–04, or succeeding OMB Bulletin. 

§ 102–83.120 What happens if an agency 

has a need to be in a specific urban area 

that is not a central city in a metropolitan 

area? 

If an agency has a need to be in a 

specific urban area that is not a central 

city in a metropolitan area, then the 

agency must give first consideration to 

locating in a historic building in a 

historic district in the CBA of the 

appropriate metropolitan area. If no 

such space is available, agencies must 

give consideration to locating in a nonhistoric building in a historic district in 

the CBA of the appropriate metropolitan 

area. If no such space is available, 

agencies must give consideration to 

locating in a historic building outside of 

a historic district in the CBA of the 

appropriate metropolitan area. If no 

such space is available, agencies should 

give consideration to locating in a nonhistoric building outside of a historic 

district in the CBA of the appropriate 

metropolitan area. 

Preference to Historic Properties 

§ 102–83.125 Are Executive agencies 

required to give preference to historic 

properties when acquiring leased space? 

Yes, Federal agencies must give a 

price preference when acquiring space 

using either the lowest price technically 

acceptable or the best value tradeoff 

source selection process. See part 102–

73 of this chapter for additional 

guidance. 

Application of Socioeconomic 

Considerations 

§ 102–83.130 When must agencies 

consider the impact of location decisions 

on low- and moderate-income employees? 

Federal agencies proposing locations 

for Federal construction or major lease 

actions involving the relocation of a 

major work force must consider the 

impact on employees with low and 

moderate incomes. 

§ 102–83.135 With whom must agencies 

consult in determining the availability of 

low- and moderate-income housing? 

Federal agencies must consult with 

the U.S. Department of Housing and 

Urban Development (HUD) in 

accordance with the Memorandum of 

Understanding (MOU) between HUD 

and GSA. The text of the HUD-GSA 

MOU is located in the Appendix to this 

part. 

APPENDIX TO PART 102–83—

MEMORANDUM OF UNDERSTANDING 

BETWEEN THE DEPARTMENT OF 

HOUSING AND URBAN DEVELOPMENT 

AND THE GENERAL SERVICES 

ADMINISTRATION CONCERNING LOWAND MODERATE-INCOME HOUSING 

Purpose. The purpose of the memorandum 

of understanding is to provide an effective, 

systematic arrangement under which the 

Federal Government, acting through HUD 

and GSA, will fulfill its responsibilities 

under law, and as a major employer, in 

accordance with the concepts of good 

management, to assure for its employees the 

availability of low- and moderate-income 

housing without discrimination because of 

race, color, religion, or national origin, and 

to consider the need for development and 

redevelopment of areas and the development 

of new communities and the impact on 

improving social and economic conditions in 

the area, whenever Federal Government 

facilities locate or relocate at new sites, and 

to use its resources and authority to aid in 

the achievement of these objectives. 

1. Title VIII of the Civil Rights Act of 1968 

(42 U.S.C. 3601) states, in section 801, that 

‘‘It is the policy of the United States to 

provide, within constitutional limitations, for 

fair housing throughout the United States.’’

Section 808(a) places the authority and 

responsibility for administering the Act in 

the Secretary of Housing and Urban 

Development. Section 808(d) requires all 

Executive departments and agencies to 

administer their programs and activities 

relating to housing and urban development 

in a manner affirmatively to further the 

purposes of title VIII (fair housing) and to 

cooperate with the Secretary to further such 

purposes. Section 808(e)(5) provides that the 

Secretary of HUD shall administer the 

programs and activities relating to housing 

and urban development in a manner 

affirmatively to further the policies of title 

VIII. 

2. Section 2 of the Housing Act of 1949 (42 

U.S.C. 1441) declares the national policy of 

‘‘* * * the realization as soon as feasible of 

the goal of a decent home and a suitable 

living environment for every American 

family * * *.’’ This goal was reaffirmed in 

the Housing and Urban Development Act of 

1968 (sections 2 and 1601; 12 U.S.C. 1701t 

and 42 U.S.C. 1441a). 

3. By virtue of the Public Buildings Act of 

1959, as amended; the Federal Property and 

Administrative Services Act of 1949, as 

amended; and Reorganization Plan No. 18 of 

1950, the Administrator of General Services 

is given certain authority and responsibility 

in connection with planning, developing, 

and constructing Government-owned public 

buildings for housing Federal agencies, and 

for acquiring leased space for Federal agency 

use. 

4. Executive Order 11512, February 27, 

1970, sets forth the policies by which the 

Administrator of General Services and the 

heads of Executive agencies will be guided in 

the acquisition of both federally owned and 

leased office buildings and space. 

5. While Executive Order No. 11512 

provides that material consideration will be 

given to the efficient performance of the 

67860 Federal Register / Vol. 70, No. 215 / Tuesday, November 8, 2005 / Rules and Regulations 

missions and programs of the Executive 

agencies and the nature and functions of the 

facilities involved, there are six other 

guidelines set forth, including: 

•The need for development and 

redevelopment of areas and the development 

of new communities, and the impact a 

selection will have on improving social and 

economic conditions in the area; and 

•The availability of adequate low- and 

moderate-income housing, adequate access 

from other areas of the urban center, and 

adequacy of parking. 

6. General Services Administration (GSA) 

recognizes its responsibility, in all its 

determinations with respect to the 

construction of Federal buildings and the 

acquisition of leased space, to consider to the 

maximum possible extent the availability of 

low- and moderate-income housing without 

discrimination because of race, color, 

religion, or national origin, in accordance 

with its duty affirmatively to further the 

purposes of title VIII of the Civil Rights Act 

of 1968 and with the authorities referred to 

in paragraph 2 above, and the guidelines 

referred to in paragraph 5 above, and 

consistent with the authorities cited in 

paragraphs 3 and 4 above. In connection with 

the foregoing statement, it is recognized that 

all the guidelines must be considered in each 

case, with the ultimate decision to be made 

by the Administrator of General Services 

upon his determination that such decision 

will improve the management and 

administration of governmental activities and 

services, and will foster the programs and 

policies of the Federal Government. 

7. In addition to its fair housing 

responsibilities, the responsibilities of HUD 

include assisting in the development of the 

Nation’s housing supply through programs of 

mortgage insurance, home ownership and 

rental housing assistance, rent supplements, 

below market interest rates, and low-rent 

public housing. Additional HUD program 

responsibilities which relate or impinge upon 

housing and community development 

include comprehensive planning assistance, 

metropolitan area planning coordination, 

new communities, relocation, urban renewal, 

model cities, rehabilitation loans and grants, 

neighborhood facilities grants, water and 

sewer grants, open space, public facilities 

loans, Operation BREAKTHROUGH, code 

enforcement, workable programs, and others. 

8. In view of its responsibilities described 

in paragraphs 1 and 7 above, HUD possesses 

the necessary expertise to investigate, 

determine, and report to GSA on the 

availability of low- and moderate-income 

housing on a nondiscriminatory basis and to 

make findings as to such availability with 

respect to proposed locations for a federallyconstructed building or leased space which 

would be consistent with such reports. HUD 

also possesses the necessary expertise to 

advise GSA and other Federal agencies with 

respect to actions which would increase the 

availability of low- and moderate-income 

housing on a nondiscriminatory basis, once 

a site has been selected for a federallyconstructed building or a lease executed for 

space, as well as to assist in increasing the 

availability of such housing through its own 

programs such as those described in 

paragraph 7 above. 

9. HUD and GSA agree that: 

(a) GSA will pursue the achievement of 

low- and moderate-income housing 

objectives and fair housing objectives, in 

accordance with its responsibilities 

recognized in paragraph 6 above, in all 

determinations, tentative and final, with 

respect to the location of both federally 

constructed buildings and leased buildings 

and space, and will make all reasonable 

efforts to make this policy known to all 

persons, organizations, agencies and others 

concerned with federally owned and leased 

buildings and space in a manner which will 

aid in achieving such objectives. 

(b) In view of the importance to the 

achievement of the objectives of this 

memorandum of agreement of the initial 

selection of a city or delineation of a general 

area for location of public buildings or leased 

space, GSA will provide the earliest possible 

notice to HUD of information with respect to 

such decisions so that HUD can carry out its 

responsibilities under this memorandum of 

agreement as effectively as possible. 

(c) Government-owned Public Buildings 

Projects. (1) In the planning for each new 

public buildings project under the Public 

Buildings Act of 1959, during the survey 

preliminary to the preparation and 

submission of a project development report, 

representatives of the regional office of GSA 

in which the project is proposed will consult 

with, and receive advice from, the regional 

office of HUD, and local planning and 

housing authorities concerning the present 

and planned availability of low- and 

moderate-income housing on a 

nondiscriminatory basis in the area where 

the project is to be located. Such advice will 

constitute the principal basis for GSA’s 

consideration of the availability of such 

housing in accordance with paragraphs 6 and 

9(a). A copy of the prospectus for each 

project which is authorized by the 

Committees on Public Works of the Congress 

in accordance with the requirements of 

section 7(a) of the Public Buildings Act of 

1959, will be provided to HUD. 

(2) When a site investigation for an 

authorized public buildings project is 

conducted by regional representatives of GSA 

to identify a site on which the public 

building will be constructed, a representative 

from the regional office of HUD will 

participate in the site investigation for the 

purposes of providing a report on the 

availability of low- and moderate-income 

housing on a nondiscriminatory basis in the 

area of the investigation. Such report will 

constitute the principal basis for GSA’s 

consideration of the availability of such 

housing in accordance with paragraphs 6 and 

9(a). 

(d) Major lease actions having a significant 

socioeconomic impact on a community: At 

the time GSA and the agencies who will 

occupy the space have tentatively delineated 

the general area in which the leased space 

must be located in order that the agencies 

may effectively perform their missions and 

programs, the regional representative of HUD 

will be consulted by the regional 

representative of GSA who is responsible for 

the leasing action to obtain advice from HUD 

concerning the availability of low- and 

moderate-income housing on a 

nondiscriminatory basis to the delineated 

area. Such advice will constitute the 

principal basis for GSA’s consideration of the 

availability of such housing in accordance 

with paragraphs 6 and 9(a). Copies of leaseconstruction prospectuses approved by the 

Committees on Public Works of the Congress 

in conformity with the provisions of the 

Independent Offices and Department of 

Housing and Urban Development 

appropriation acts, will be provided to HUD. 

(e) GSA and HUD will each issue internal 

operating procedures to implement this 

memorandum of understanding within a 

reasonable time after its execution. These 

procedures shall recognize the right of HUD, 

in the event of a disagreement between HUD 

and GSA representatives at the area or 

regional level, to bring such disagreement to 

the attention of GSA officials at headquarters 

in sufficient time to assure full consideration 

of HUD’s views, prior to the making of a 

determination by GSA. 

(f) In the event a decision is made by GSA 

as to the location of a federally constructed 

building or leased space, and HUD has made 

findings, expressed in the advice given or a 

report made to GSA, that the availability to 

such location of low- and moderate-income 

housing on a nondiscriminatory basis is 

inadequate, the GSA shall provide the DHUD 

with a written explanation why the location 

was selected. 

(g) Whenever the advice or report provided 

by HUD in accordance with paragraph 

9(c)(1), 9(c)(2), or 9(d) with respect to an area 

or site indicates that the supply of low-and 

moderate-income housing on a 

nondiscriminatory basis is inadequate to 

meet the needs of the personnel of the agency 

involved, GSA and HUD will develop an 

affirmative action plan designed to insure 

that an adequate supply of such housing will 

be available before the building or space is 

to be occupied or within a period of 6 

months thereafter. The plan should provide 

for commitments from the community 

involved to initiate and carry out all feasible 

efforts to obtain a sufficient quantity of lowand moderate-income housing available to 

the agency’s personnel on a 

nondiscriminatory basis with adequate 

access to the location of the building or 

space. It should include commitments by the 

local officials having the authority to remove 

obstacles to the provision of such housing, 

when such obstacles exist, and to take 

effective steps to assure its provision. The 

plan should also set forth the steps proposed 

by the agency to develop and implement a 

counseling and referral service to seek out 

and assist its personnel to obtain such 

housing. As part of any plan during, as well 

as after its development, HUD agrees to give 

priority consideration to applications for 

assistance under its housing programs for the 

housing proposed to be provided in 

accordance with the plan. 

10. This memorandum will be reviewed at 

the end of one year, and modified to 

incorporate any provision necessary to 

improve its effectiveness in light of actual 

experience. 

[FR Doc. 05–21644 Filed 11–7–05; 8:45 am] 

BILLING CODE 6820–RH–S