[Federal Register: August 9, 2005 (Volume 70, Number 152)]
[Proposed Rules]
[Page 46116-46126]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au05-31]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Parts 174, 175, and 176
RIN 0790-AH91
Revitalizing Base Closure Communities and Addressing Impacts of
Realignment
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) proposes to consolidate parts
174
[[Page 46117]]
and 175, and amend part 176 of title 32, Code of Federal Regulations.
These parts provide rules for the disposal of property at installations
being closed and realigned and how to address the impacts of
realignment at receiving installations. The resulting part 174 also
contains amendments to address changes in the laws governing base
closure and realignment (BRAC) made since the current parts 174 and 175
were promulgated. In addition to the amendments to address changes in
law, additional amendments are proposed to reflect current DoD policy
and to address various environmental requirements not currently
addressed in parts 174 and 175. The amendment to part 176 is
ministerial to reflect the renumbering of parts 174 and 175.
DATES: Submit comments on or before October 11, 2005.
ADDRESSES: Address all comments concerning this proposed rule to--Attn:
BRAC Regulations, Deputy Under Secretary of Defense (Installations &
Environment), 3015 Defense Pentagon, Washington, DC 20301-3015.
FOR FURTHER INFORMATION CONTACT: Mr. Steven N. Kleiman at (703) 571-
9085.
SUPPLEMENTARY INFORMATION: This action is authorized by the Defense
Base Closure and Realignment Act of 1990, Title XXIX of the National
Defense Authorization Act for Fiscal Year 1991, Pub. L. 101-510; the
Base Closure Community Redevelopment and Homeless Assistance Act of
1994, Pub. L. 103-421; the Military Construction Authorization Act for
Fiscal Year 1994, Division B of Pub. L. 103-160; and 10 U.S.C. 113.
The Department of Defense engaged in four rounds of base closures
and realignments announced in 1988, 1991, 1993, and 1995. The Congress
has authorized another round of base closures and realignments in 2005
and the process for selecting installations for closure and realignment
is currently underway. In anticipation of the recommendations of the
2005 Defense Base Closure and Realignment Commission becoming law, the
DoD is revising its existing regulations on the disposal process to
ensure they reflect current law and policy and take advantage of
experience gained from the previous four rounds.
The current parts 174 and 175 reflect two separate DoD issuances:
DoD Directive 4165.66, Revitalizing Base Closure Communities and
Community Assistance, and DoD Instruction 4165.67, Revitalizing Base
Closure Communities--Base Closure Community Assistance. These two
issuances are being revised to become DoD Directive 4165.66,
Revitalizing Base Closure Communities and Addressing Impacts of
Realignment, and DoD Instruction 4165.67, Revitalizing Base Closure
Communities and Addressing Impacts of Realignment. The proposed part
174 will reflect these two revised DoD issuances. Because the
Instruction is tiered off of, and subservient to, the Directive, there
is no reason to continue with separate parts in title 32. Combining
these two DoD issuances, when published in the Code of Federal
Regulations, helps to clarify and consolidate the rules that the two
issuances jointly address.
Since the original publication of the current parts 174 and 175,
which directly reflect the formatting and style of the current DoDD
4165.66 and DoDI 4165.67, the Department of Defense has changed the
formatting and style of its issuances. This new formatting and style is
reflected in the proposed amendments, particularly with regard to the
proposed sections 174.1 through 174.5, which reflect the standardized
language now used in DoD issuances. Of immediate note is the division
of the material into separate sections based on subject, rather than
having most of the material of the current part 175 contained in a
single long section.
The proposed section 174.1 continues to authorize publication of a
DoD manual, DoD 4165.66-M, which is renamed the ``Base Redevelopment
and Realignment Manual''.
The proposed section 174.3 contains new and updated definitions,
relying, when appropriate, on adopting by reference definitions
contained in law.
The proposed section 174.4 contains updated policy statements. The
policy statements are reflective of current DoD policy and are similar
to the policy enunciated in the Secretary of Defense's recommendations
to the 2005 Defense Base Closure and Realignment Commission.
The proposed section 174.5 contains more expansive delegations and
re-delegations of authority. It does not include authority to select
installations for closure and realignment, since that is not the
subject of the proposed part. It also specifically excludes authority
under section 330 of the National Defense Authorization Act for Fiscal
Year 1993, because that authority has been delegated by the Secretary
of Defense to the General Counsel of the Department of Defense.
The proposed section 174.6 more closely tracks the statutory role
given the local redevelopment plan than does the current provision.
The proposed section 174.7 more closely tracks statutory provisions
by clarifying the process for transfer of property to other DoD
Components and Federal agencies. One goal is to expedite the process
for determining when excess real property will be transferred to
another Federal agency. Expediting this process should aid the Local
Redevelopment Authority (LRA) in formulating its redevelopment plan.
The proposed section 174.8 recognizes changes made in the law
governing disposal by referring the user to part 176, which contains
the current provisions governing disposal outside of the Federal
Government.
The proposed section 174.9 provides new language addressing
economic development conveyances (EDCs) to reflect changes in the law.
It deletes prior language that is now either inaccurate or unnecessary.
It recognizes the duty of the Secretary to seek to obtain fair market
value for EDCs. It recognizes the statutory purpose of job generation
for an EDC. It explicitly adopts the use of the Uniform Appraisal
Standards for Federal Land Acquisitions, published by the Appraisal
Institute in cooperation with the U.S. Department of Justice.
The proposed section 174.10 provides new language addressing
consideration for EDCs. It recognizes the statutory preference for
obtaining fair market value with the alternative of a no-cost EDC. The
changes from prior language track changes in the law.
The proposed section 174.11 changes prior language by emphasizing
that the purpose of leasing property to non-Federal entities is to
secure the final disposition of the real property.
The proposed section 174.12 provides new language to reflect
statutory changes in the leasing back by Federal agencies of
transferred real property. It clarifies when such leases with an LRA
can be used and when and how they can be terminated. In the past, such
leasing arrangements were referred to as ``leasebacks''.
The proposed section 174.13 reflects changes in the law dealing
with the disposal of personal property. It clarifies what constitutes
personal property, when and how an inventory will be conducted, and
when further action can be taken with regard to the personal property.
It more closely tracks the current law with regard to what qualifies as
personal property for purposes of an inventory. It explicitly states
that fixtures are not part of the personal property, it being the
common rule that fixtures are part of the real property. It clarifies
that only property owned by the United States can be considered under
the provision, since property belonging to the State or to
[[Page 46118]]
private individuals does not belong to the United States and cannot be
included for purposes of this provision.
The proposed section 174.14 revises language to reflect current law
relating to time limits on maintenance of property. It deletes prior
language that is no longer accurate.
The current rule does not address certain environmental matters
that the DoD has found, as a result of previous BRAC rounds, to be
central to the disposal and realignment process. The proposed changes
to the current rule address four issues: (1) Indemnification under
Section 330 of the National Defense Authorization Act for Fiscal Year
1993; (2) decontamination of potentially explosive materials; (3) the
National Environmental Policy Act (NEPA); and (4) historic
preservation.
The proposed section 174.15 is entirely new. It provides guidance
to DoD personnel regarding the application of section 330 of the
National Defense Authorization Act for Fiscal Year 1993. Because that
provision of law is handled under other procedures and by an office
other than the organizations applying the revised part 174, explicit
guidance is provided to the DoD Components to avoid attempting to apply
that provision of law in the process addressed by the revised part 174.
The proposed section 174.16 is entirely new. It provides direction
to DoD Components to ensure that restoration projects involving
contamination by potentially explosive materials are properly
coordinated with the DoD Explosives Safety Board in accordance with DoD
Directive 6055.9.
The proposed section 174.17 is entirely new. It provides direction
to DoD Components that when conducting environmental analysis pursuant
to the National Environmental Policy Act of 1969 (NEPA), the analysis
will be conducted in accordance with the regulations of the Military
Department exercising real property accountability for the
installation. This provision clarifies which NEPA regulation will
control when the DoD Component being realigned to an installation is
different from the Military Department that has jurisdiction over the
installation.
The proposed section 174.18 is entirely new. It provides guidance
and authority for use of what are generally referred to as preservation
easements when disposing of property that is eligible for listing on
the National Register under the National Historic Preservation Act.
Executive Order 12866
It has been determined that this rule is not a significant
regulatory action. This rule does not:
(1) Have an annual effect to the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligation of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
It has been certified that this part is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it would not,
if promulgated, have a significant economic impact on a substantial
number of small entities. The regulatory changes proposed in this
notice address the disposal of Government property, primarily to LRAs,
which are local governmental entities. The impacts on small entities
that result from base closure are due to the closure of installations,
which is not covered by these regulations. These regulations deal
primarily with the subsequent disposal of property.
It has been certified that this part does not impose any reporting
or recordkeeping requirements under the Paperwork Reduction Act of
1995.
List of Subjects in 32 CFR Parts 174, 175, and 176
Community development, Government employees, Military personnel,
Surplus Government property.
Accordingly, 32 CFR part 174 is revised, part 175 is removed, and
part 176 is amended to read as follows:
1. Part 174 is revised to read as follows:
PART 174--REVITALIZING BASE CLOSURE COMMUNITIES AND ADDRESSING
IMPACTS OF REALIGNMENT
Subpart A--General
Sec.
174.1 Purpose
174.2 Applicability
174.3 Definitions
Subpart B--Policy
174.4 Policy
174.5 Responsibilities
Subpart C--Working with Communities and States
174.6 LRA and the Redevelopment Plan
Subpart D--Real Property
174.7 Retention for DoD Component use and transfer to other Federal
agencies
174.8 Screening for properties covered by the Base Closure Community
Redevelopment and Homeless Assistance Act of 1994, cross-reference
174.9 Economic development conveyances
174.10 Consideration for economic development conveyances
174.11 Leasing of real property to non-Federal entities
174.12 Leasing of transferred real property by Federal agencies
Subpart E--Personal Property
174.13 Personal property
Subpart F--Maintenance and Repair
174.14 Maintenance and repair
Subpart G--Environmental Matters
174.15 Indemnification under Section 330 of the National Defense
Authorization Act for Fiscal Year 1993
174.16 Decontamination of potentially explosive materials
174.17 NEPA
174.18 Historic preservation
Authority: 10 U.S.C. 113 and 10 U.S.C. 2687 note.
Subpart A--General
Sec. 174.1 Purpose.
This part:
(a) Establishes policy, assigns responsibilities, and implements
base closure laws and associated provisions of law relating to the
closure and the realignment of installations. It does not address the
process for selecting installations for closure or realignment.
(b) Authorizes the publication of DoD 4165.66-M ,\1\ ``Base
Redevelopment and Realignment Manual,'' in accordance with DoD 5025.1-M
,\2\ ``DoD Directive System Procedures,'' March 2003.
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\1\ Document scheduled for publication after completion of the
Directive.
\2\ Copies may be obtained at http://www.dtic.mil/whs/directives/corres/pub1.html
.
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Sec. 174.2 Applicability.
This part applies to:
(a) The Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff and the Joint
Staff, the Combatant Commands, the Office of the Inspector General of
the Department of Defense, the Defense Agencies, the DoD Field
Activities, and all other organizational entities in the Department of
Defense (hereafter referred to collectively as the ``DoD Components'').
[[Page 46119]]
(b) Installations in the United States selected for closure or
realignment under a base closure law.
(c) Federal agencies and non-Federal entities that seek to obtain
real or personal property on installations selected for closure or
realignment.
Sec. 174.3 Definitions.
(a) Base closure law. This term has the same meaning as provided in
10 U.S.C. 101(a)(17)(B) and (C).
(b) Closure. An action that ceases or relocates all current
missions of an installation and eliminates or relocates all current
personnel positions (military, civilian, and contractor), except for
personnel required for caretaking, conducting any ongoing environmental
cleanup, or property disposal. Retention of a small enclave, not
associated with the main mission of the base, is still a closure.
(c) Consultation. Explaining and discussing an issue, considering
objections, modifications, and alternatives; but without a requirement
to reach agreement.
(d) Date of approval. This term has the same meaning as provided in
section 2910(8) of the Defense Base Closure and Realignment Act of
1990, Pub. L. 101-510.
(e) Excess property. This term has the same meaning as provided in
40 U.S.C. 102(3).
(f) Installation. This term has the same meaning as provided in the
definition for ``military installation'' in section 2910(4) of the
Defense Base Closure and Realignment Act of 1990, Pub. L. 101-510.
(g) Local Redevelopment Authority (LRA). This term has the same
meaning as provided in the definition for ``redevelopment authority''
in section 2910(9) of the Defense Base Closure and Realignment Act of
1990, Pub. L. 101-510.
(h) Military Department. This term has the same meaning as provided
in 10 U.S.C. 101(a)(8).
(i) National Environmental Policy Act (NEPA). The National
Environmental Policy Act of 1969, Pub. L. 91-190, 42 U.S.C. 4321 et
seq., as amended.
(j) Realignment. This term has the same meaning as provided in
section 2910(5) of the Defense Base Closure and Realignment Act of
1990, Pub. L. 101-510.
(k) Secretary concerned. This term has the same meaning as provided
in 10 U.S.C. 101(a)(9) (A), (B), and (C).
(l) Surplus property. This term has the same meaning as provided in
40 U.S.C. 102(10).
(m) Transition coordinator. This term has the same meaning as used
in section 2915 of the National Defense Authorization Act for Fiscal
Year 1994, Public Law 103-160.
Subpart B--Policy
Sec. 174.4 Policy.
It is DoD policy to:
(a) Act expeditiously whether closing or realigning. Relocating
activities from installations designated for closure will, when
feasible, be accelerated to facilitate the transfer of real property
for community reuse. In the case of realignments, the Department will
pursue aggressive planning and scheduling of related facility
improvements at the receiving location.
(b) Fully utilize all appropriate means to transfer property.
Federal law provides the Department with an array of legal authorities,
including public benefit transfers, economic development conveyances at
cost and no cost, negotiated sales to state or local government,
conservation conveyances, and public sales, by which to transfer
property on closed or realigned installations. Recognizing that the
variety of types of facilities available for civilian reuse and the
unique circumstances of the surrounding communities does not lend
itself to a single universal solution, the Department will use this
array of authorities in a way that considers individual circumstances.
(c) Rely on and leverage market forces. Community redevelopment
plans and military conveyance plans should be integrated to the extent
practical and should take account of any anticipated demand for surplus
military land and facilities.
(d) Collaborate effectively. Experience suggests that collaboration
is the linchpin to successful installation redevelopment. Only by
collaborating with the local community can the Department close and
transfer property in a timely manner and provide a foundation for solid
economic redevelopment.
(e) Speak with one voice. The Department of Defense, acting through
the DoD Components, will provide clear and timely information and will
encourage affected communities to do the same.
(f) Work with communities to address growth. If installation growth
is substantial, the Department will work with the surrounding community
so that the public and private sectors can provide the services and
facilities needed to accommodate new personnel and their families. The
Department recognizes that installation commanders and local officials
need to integrate elements of their growth planning so that appropriate
off-base facilities and services are available for arriving personnel
and their families.
Sec. 174.5 Responsibilities.
(a) The Under Secretary of Defense for Acquisition, Technology, and
Logistics shall issue DoD Instructions as necessary to further
implement applicable public laws affecting installation closure and
realignment implementation and shall monitor compliance with this part.
All authorities and responsibilities of the Secretary of Defense--
(1) Vested in the Secretary of Defense by a base closure law, but
excluding those provisions relating to the process for selecting
installations for closure or realignment;
(2) Delegated from the Administrator of General Services relating
to base closure and realignment matters;
(3) Vested in the Secretary of Defense by any other provision
relating to base closure and realignment in a national defense
authorization act, a Department of Defense appropriations act, or a
military construction appropriations act, but excluding section 330 of
the National Defense Authorization Act for Fiscal Year 1993; or
(4) Vested in the Secretary of Defense by Executive Order or
regulation and relating to base closure and realignment, are hereby
delegated to the Under Secretary of Defense for Acquisition,
Technology, and Logistics.
(b) The authorities and responsibilities of the Secretary of
Defense delegated to the Under Secretary of Defense for Acquisition,
Technology, and Logistics under subsection (a) of this section are
hereby re-delegated to the Deputy Under Secretary of Defense
(Installations and Environment).
(c) The Heads of the DoD Components shall ensure compliance with
this part and any implementing guidance.
(d) Subject to the delegations in paragraphs (a) and (b) of this
section, the Secretaries concerned shall exercise those authorities and
responsibilities specified in subparts C through G of this part.
(e) The cost of recording deeds and other transfer documents is the
responsibility of the transferee.
Subpart C--Working With Communities and States
Sec. 174.6 LRA and the Redevelopment Plan.
(a) The LRA should have broad-based membership, including, but not
limited to, representatives from those jurisdictions with zoning
authority over
[[Page 46120]]
the property. Generally, there will be one recognized LRA per
installation.
(b) The LRA should focus primarily on developing a comprehensive
redevelopment plan based upon local needs. The plan should recommend
land uses based upon an exploration of feasible reuse alternatives. If
applicable, the plan should consider notices of interest received under
a base closure law. This section shall not be construed to require a
plan that is enforceable under state and local land use laws, nor is it
intended to create any exemption from such laws.
(c)(1) The Secretary concerned will develop a disposal plan and, to
the extent practicable, complete the appropriate environmental
documentation no later than 12 months after receipt of the
redevelopment plan. The redevelopment plan will be used as part of the
proposed Federal action in conducting environmental analyses required
under NEPA.
(2) In the event there is no LRA recognized by DoD or if a
redevelopment plan is not received from the LRA within 9 months from
the date referred to in section 2905(b)(7)(F)(iv) of Pub. L. 101-510
(unless an extension of time has been granted by the Deputy Under
Secretary of Defense (Installations and Environment)), the Secretary
concerned shall, after required consultation with the governor and
heads of local governments, proceed with the disposal of property under
applicable property disposal and environmental laws and regulations.
Subpart D--Real Property
Sec. 174.7 Retention for DoD Component use and transfer to other
Federal agencies.
(a) To speed the economic recovery of communities affected by
closures and realignments, the Department of Defense will identify DoD
and Federal interests in real property at closing and realigning
installations as quickly as possible. The Secretary concerned shall
identify such interests. The Secretary concerned will keep the LRA
informed of these interests. This section establishes a uniform
process, with specified timelines, for identifying real property that
is available for use by DoD Components (which for purposes of this
section includes the United States Coast Guard) or is excess to the
needs of the Department of Defense and available for use by other
Federal agencies, and for the disposal of surplus property for various
purposes.
(b) Upon the President's submission of the recommendations for base
closures and realignments to the Congress in accordance with a base
closure law, the Secretary concerned shall send out a notice of
potential availability to the DoD Components and other Federal
agencies. The notice of potential availability is a public document and
should be made available on a timely basis, upon request. Federal
agencies are encouraged to review this list, and to evaluate whether
they may have a requirement for the listed properties. The notice of
potential availability should describe the property and buildings that
may be available for transfer. Installations which wholly or in part
are comprised of withdrawn and reserved public domain lands shall
implement paragraph (m) of this section at the same time.
(c) The Secretary concerned should consider LRA input, if provided,
in making determinations on the retention of property (location and
size of cantonment area).
(d) Within one week of the date of approval of the closure or
realignment, the Secretary concerned shall issue a notice of
availability to the DoD Components and other Federal agencies covering
closing and realigning installation buildings and property available
for transfer to the DoD Components and other Federal agencies.
Withdrawn public domain lands which the Secretary of the Interior has
determined are suitable for return to the jurisdiction of the
Department of the Interior (DoI) will not be included in the notice of
availability.
(e) To obtain consideration of a requirement for such available
buildings and property, a DoD Component or Federal agency is required
to provide a written, firm expression of interest for buildings and
property within 30 days of the date of the notice of availability. An
expression of interest must explain the intended use and the
corresponding requirement for the buildings and property.
(f)(1) Within 60 days of the date of the notice of availability,
the DoD Component or Federal agency expressing interest in buildings or
property must submit an application for transfer of such property to a
Military Department or Federal agency. In the case of a DoD Component
that would normally, under the circumstances, obtain its real property
needs from the Military Department disposing of the real property, the
application should indicate the property would not transfer to another
Military Department but should be retained by the current Military
Department for the use of the DoD Component. To the extent a different
Military Department provides real property support for the requesting
DoD Component, the application must indicate the concurrence of the
supporting Military Department.
(2) Within 90 days of the notice of availability, the Federal
Aviation Administration (FAA) should survey the air traffic control and
air navigation equipment at the installation to determine what is
needed to support the air traffic control, surveillance, and
communications functions supported by the Military Department, and to
identify the facilities needed to support the National Airspace System.
FAA requests for property to manage the National Airspace System will
not be governed by paragraph (i) of this section. Instead, the FAA
shall work directly with the Military Department to prepare an
agreement to assume custody of the property necessary for control of
the airspace being relinquished by the Military Department.
(g) The Secretary concerned will keep the LRA informed of the
progress in identifying interests. At the same time, the LRA is
encouraged to contact Federal agencies which sponsor public benefit
conveyances for information and technical assistance. The Secretary
concerned will provide to the LRA points of contact at the Federal
agencies.
(h) DoD Components and Federal agencies are encouraged to discuss
their plans and needs with the LRA, if an LRA exists. If an LRA does
not exist, the consultation should be pursued with the governor or the
heads of the local governments in whose jurisdiction the property is
located. DoD Components and Federal agencies are encouraged to notify
the Secretary concerned of the results of this consultation. The
Secretary concerned, the Transition Coordinator, and the DoD Office of
Economic Adjustment Project Manager are available to help facilitate
communication between the DoD Components and Federal agencies, and the
LRA, governor, and heads of local governments.
(i) An application for property from a DoD Component or Federal
agency must contain the following information:
(1) A completed GSA Form 1334, Request for Transfer (for requests
from DoD Components, a DD Form 1354 will be used). This must be signed
by the head of the Component or agency requesting the property. If the
authority to acquire property has been delegated, a copy of the
delegation must accompany the form;
(2) A statement from the head of the requesting Component or agency
that the request does not establish a new program (i.e., one that has
never been reflected in a previous budget submission or Congressional
action);
[[Page 46121]]
(3) A statement that the requesting Component or agency has
reviewed its real property holdings and cannot satisfy its requirement
with existing property. This review must include all property under the
requester's accountability, including permits to other Federal agencies
and outleases to other organizations;
(4) A statement that the requested property would provide greater
long-term economic benefits for the program than acquisition of a new
facility or other property;
(5) A statement that the program for which the property is
requested has long-term viability;
(6) A statement that considerations of design, layout, geographic
location, age, state of repair, and expected maintenance costs of the
requested property clearly demonstrate that the transfer will prove
more economical over a sustained period of time than acquiring a new
facility;
(7) A statement that the size of the property requested is
consistent with the actual requirement;
(8) A statement that fair market value reimbursement to the
Military Department will be made at the later of January of 2008, or at
the time of transfer, unless this obligation is waived by the Office of
Management and Budget and the Secretary concerned, or a public law
specifically provides for a non-reimbursable transfer (this requirement
does not apply to requests from DoD Components);
(9) A statement that the requesting DoD Component or Federal agency
agrees to accept the care and custody costs for the property on the
date the property is available for transfer, as determined by the
Secretary concerned; and
(10) A statement that the requesting agency agrees to accept
transfer of the property in its existing condition, unless this
obligation is waived by the Secretary concerned.
(j) The Secretary concerned will make a decision on an application
from a DoD Component or Federal agency based upon the following
factors:
(1) The requirement must be valid and appropriate;
(2) The proposed use is consistent with the highest and best use of
the property;
(3) The proposed transfer will not have an adverse impact on the
transfer of any remaining portion of the installation;
(4) The proposed transfer will not establish a new program or
substantially increase the level of a Component's or agency's existing
programs;
(5) The application offers fair market value for the property,
unless waived;
(6) The proposed transfer addresses applicable environmental
responsibilities to the satisfaction of the Secretary concerned; and
(7) The proposed transfer is in the best interest of the
Government.
(k) When there is more than one acceptable application for the same
building or property, the Secretary concerned shall consider, in the
following order--
(1) The need to perform the national defense missions of the
Department of Defense and the Coast Guard;
(2) The need to support the homeland defense mission; and
(3) The LRA's comments as well as other factors in the
determination of highest and best use.
(l) If the Federal agency does not meet its commitment under
subsection (i)(8) of this section to provide the required
reimbursement, and the requested property has not yet been transferred
to the agency, the requested property will be declared surplus and
disposed of in accordance with the provisions of this part.
(m) Closing or realigning installations may contain ``public domain
lands'' which have been withdrawn by the Secretary of the Interior from
operation of the public land laws and reserved for use by the
Department of Defense. Lands deemed suitable for return to the public
domain are not real property governed by title 40, United States Code,
and are not governed by the property management and disposal provisions
of a base closure law. Public domain lands are under the jurisdiction
of the Secretary of the Interior and administered by the Bureau of Land
Management (BLM) unless the Secretary of the Interior has withdrawn the
lands and reserved them for another Federal agency's use.
(1) The Secretary concerned will provide the BLM with the notice of
potential availability, as well as information about which, if any,
public domain lands will be affected by the installation's closure or
realignment.
(2) The BLM will review the notice of potential availability to
determine if any installations contain withdrawn public domain lands.
Before the date of approval of the closure or realignment, the BLM will
review its land records to identify any withdrawn public domain lands
at the closing installations. Any records discrepancies between the BLM
and Military Departments should be resolved within this time period.
The BLM will notify the Secretary concerned as to the final agreed upon
withdrawn and reserved public domain lands at an installation.
(3) Upon agreement as to what withdrawn and reserved public domain
lands are affected at closing installations, the BLM will initiate a
screening of DoI agencies to determine if these lands are suitable for
programs of the Secretary of the Interior.
(4) The Secretary concerned will transmit a Notice of Intent to
Relinquish (see 43 CFR Part 2370) to the BLM as soon as it is known
that there is no DoD Component interest in reusing the public domain
lands. The BLM will complete the suitability determination screening
process within 30 days of receipt of the Secretary's Notice of Intent
to Relinquish. If a DoD Component is approved to reuse the public
domain lands, the BLM will be notified and BLM will determine if the
current authority for military use of these lands needs to be modified
or amended.
(5) If BLM determines the land is suitable for return, it shall
notify the Secretary concerned that the intent of the Secretary of the
Interior is to accept the relinquishment of the land by the Secretary
concerned.
(6) If BLM determines the land is not suitable for return to the
DoI, the land should be disposed of pursuant to base closure law.
(n) The Secretary concerned should make a surplus determination
within six (6) months of the date of approval of closure or
realignment, and shall inform the LRA of the determination. If
requested by the LRA, the Secretary may postpone the surplus
determination for a period of no more than six (6) additional months
after the date of approval if the Secretary determines that such
postponement is in the best interests of the communities affected by
the closure or realignment.
(1) In unusual circumstances, extensions beyond six months can be
granted by the Deputy Under Secretary of Defense (Installations and
Environment).
(2) Extensions of the surplus determination should be limited to
the portions of the installation where there is an outstanding
interest, and every effort should be made to make decisions on as much
of the installation as possible, within the specified timeframes.
(o) Once the surplus determination has been made, the Secretary
concerned shall follow the procedures in part 176 of this title.
(p) Following the surplus determination, but prior to the disposal
of property, the Secretary concerned may, at the Secretary's
discretion,
[[Page 46122]]
withdraw the surplus determination and evaluate a Federal agency's late
request for excess property.
(1) Transfers under this subsection shall be limited to special
cases, as determined by the Secretary concerned.
(2) Requests shall be made to the Secretary concerned, as specified
under paragraphs (h) and (i) of this section, and the Secretary shall
notify the LRA of such late request.
(3) Comments received from the LRA and the time and effort invested
by the LRA in the planning process should be considered when the
Secretary concerned is reviewing a late request.
Sec. 174.8 Screening for properties covered by the Base Closure
Community Redevelopment and Homeless Assistance Act of 1994, cross-
reference.
The Departments of Defense and Housing and Urban Development have
promulgated regulations to address state and local screening and
approval of redevelopment plans for installations covered by the Base
Closure Community Redevelopment and Homeless Assistance Act of 1994
(Pub. L. 103-421). The Department of Defense regulations can be found
at part 176 of this title.
Sec. 174.9 Economic development conveyances.
(a) The Secretary concerned may transfer real property and personal
property to the LRA for purposes of job generation on the installation.
Such a transfer is an Economic Development Conveyance (EDC).
(b) For installations having a date of approval for closure after
January 1, 2005, the Secretary concerned shall seek to obtain
consideration in connection with any transfer under this section in an
amount equal to the fair market value of the property.
(c) An LRA is the only entity able to receive property under an
EDC.
(d) A properly completed application will be used to decide whether
an LRA will be eligible for an EDC. An LRA may submit an EDC
application only after it adopts a redevelopment plan. The Secretary
concerned shall establish a reasonable time period for submission of an
EDC application after consultation with the LRA. The Secretary will
review the application and make a decision whether to make an EDC based
on the criteria specified in paragraph (g) of this section; such
decision will only be made after the Secretary has notified and
obtained the concurrence of the Deputy Under Secretary of Defense
(Installations & Environment) of the proposed decision. The terms and
conditions of the EDC will be negotiated between the Secretary and the
LRA.
(e) The application should explain why an EDC is necessary for job
generation on the installation. In addition to the following elements,
after the Secretary concerned reviews the application, additional
information may be requested to allow for a better evaluation of the
application:
(1) A copy of the adopted redevelopment plan.
(2) A project narrative including the following:
(i) A general description of the property requested.
(ii) A description of the intended uses.
(iii) A description of the economic impact of closure or
realignment on the local community.
(iv) A description of the financial condition of the community and
the prospects for redevelopment of the property.
(v) A statement of how the EDC is consistent with the overall
redevelopment plan.
(3) A description of how the EDC will contribute to short- and
long-term job generation on the installation, including the projected
number and type of new jobs it will assist in generating.
(4) A business/operational plan for the EDC parcel, including such
elements as:
(i) A development timetable, phasing schedule, and cash flow
analysis.
(ii) A market and financial feasibility analysis describing the
economic viability of the project, including an estimate of net
proceeds over a fifteen-year period, the proposed consideration or
payment to the Department of Defense, and the estimated present fair
market value of the property.
(iii) A cost estimate and justification for infrastructure and
other investments needed for the development of the EDC parcel.
(iv) Local investment and proposed financing strategies for the
development.
(5) A statement describing why other authorities, such as public or
negotiated sales and public benefit conveyances for education, parks,
public health, aviation, historic monuments, prisons, and wildlife
conservation, cannot be used to accomplish the job generation goals.
(6) Evidence of the LRA's legal authority to acquire and dispose of
the property.
(7) Evidence that the LRA has full authority to perform all of the
actions required pursuant to the terms of the EDC, and that the
officers executing the EDC documents on behalf of the LRA have full
authority to do so.
(8) Proof the LRA has obtained sufficient financing for acquiring
the EDC property and carrying out the LRA's redevelopment objectives.
(f) Upon receipt of an application for an EDC, the Secretary
concerned will determine whether an EDC is needed for purposes of job
generation and examine whether the terms and conditions proposed are
fair and reasonable. The Secretary may also consider information
independent of the application, such as views of other Federal
agencies, appraisals, caretaker costs, and other relevant material. The
Secretary may propose and negotiate any alternative terms or conditions
that the Secretary considers necessary seeking always to obtain an
amount equal to the fair market value.
(g) The following factors will be considered, as appropriate, in
evaluating the application and the terms and conditions of the proposed
transfer, including price, time of payment, and other relevant methods
of compensation to the Federal Government.
(1) Adverse economic impact of closure or realignment on the region
and potential for economic recovery through an EDC.
(2) Extent of short- and long-term job generation.
(3) Consistency with the entire redevelopment plan.
(4) Financial feasibility of the development, including market
analysis and need and extent of proposed infrastructure and other
investments.
(5) Extent of state and local investment, level of risk incurred,
and the LRA's ability to implement the plan.
(6) Current local and regional real estate market conditions.
(7) Incorporation of other Federal agency interests and concerns,
and applicability of, and conflicts with, other Federal surplus
property disposal authorities.
(8) Relationship to the overall Military Department disposal plan
for the installation.
(9) Economic benefit to the Federal Government, including
protection and maintenance cost savings and anticipated consideration
from the transfer.
(10) Compliance with applicable Federal, State, interstate, and
local laws and regulations.
(h) Before making an EDC, the Secretary concerned shall prepare an
estimate of the fair market value of the property.
(1) In preparing the estimate of fair market value, the Secretary
concerned shall use the most recent edition of the Uniform Appraisal
Standards for Federal Land Acquisitions, published by the Appraisal
Institute in cooperation with the U.S. Department of Justice.
[[Page 46123]]
(2) The Secretary concerned shall consult with the LRA on valuation
assumptions, guidelines, and on instructions given to the appraiser.
(3) The Secretary concerned is fully responsible for completion of
the valuation. The Secretary, in preparing the estimate of fair market
value shall consider the proposed uses identified in the redevelopment
plan to the extent that they are not inconsistent with the highest and
best use.
Sec. 174.10 Consideration for economic development conveyances.
(a) For conveyances made pursuant to Sec. 174.9 of this part, the
Secretary concerned will review the application for an EDC and
negotiate the terms and conditions of each transaction with the LRA.
The Secretary will have the discretion and flexibility to enter into
agreements that specify the form of payment and the schedule. The
consideration may be in cash or in-kind and may be paid over time.
(b) The Secretary concerned shall seek to obtain consideration at
least equal to the fair market value, as determined by the Secretary.
(c) Any amount paid in the future should take into account the time
value of money and include repayment of interest.
(d) Additional provisions may be incorporated in the conveyance
documents to protect the Department's interest in obtaining the agreed
upon consideration, including such items as predetermined release
prices, or other appropriate clauses designed to ensure payment and
protect against fraudulent transactions.
(e)(1) An EDC without consideration may only be made if--
(i) The LRA agrees that the proceeds from any sale or lease of the
property (or any portion thereof) received by the LRA during at least
the first seven years after the date of the initial transfer of
property shall be used to support economic redevelopment of, or related
to, the installation; and
(ii) The LRA executes the agreement for transfer of the property
and accepts control of the property within a reasonable time after the
date of the property disposal record of decision.
(2) The following purposes shall be considered a use to support
economic redevelopment of, or related to, the installation--
(i) Road construction;
(ii) Transportation management facilities;
(iii) Storm and sanitary sewer construction;
(iv) Police and fire protection facilities and other public
facilities;
(v) Utility construction;
(vi) Building rehabilitation;
(vii) Historic property preservation;
(viii) Pollution prevention equipment or facilities;
(ix) Demolition;
(x) Disposal of hazardous materials generated by demolition;
(xi) Landscaping, grading, and other site or public improvements;
and
(xii) Planning for or the marketing of the development and reuse of
the installation.
(f) Every agreement for an EDC without consideration shall contain
provisions allowing the Secretary concerned to recoup from the LRA such
portion of the proceeds from its sale or lease as the Secretary
determines appropriate if the LRA does not use the proceeds to support
economic redevelopment of, or related to, the installation for the
period specified in paragraph (e)(1) of this section.
Sec. 174.11 Leasing of real property to non-Federal entities.
(a) Leasing of real property to non-Federal entities prior to the
final disposition of closing and realigning installations may
facilitate state and local economic adjustment efforts and encourage
economic redevelopment, but the Secretary concerned will always
concentrate on the final disposition of real and personal property.
(b) In addition to leasing property at fair market value, to assist
local redevelopment efforts the Secretary concerned may also lease real
and personal property, pending final disposition, for less than fair
market value if the Secretary determines that:
(1) A public interest will be served as a result of the lease; and,
(2) The fair market value of the lease is unobtainable or not
compatible with such public benefit.
(c) Pending final disposition of an installation, the Secretary
concerned may grant interim leases which are short-term leases that
make no commitment for future use or ultimate disposal. When granting
an interim lease, the Secretary will generally lease to the LRA but can
lease property directly to other entities. If the interim lease (after
complying with NEPA) is entered into prior to completion of the final
disposal decisions, the term may be for up to five years, including
options to renew, and may contain restrictions on use. Leasing should
not delay the final disposal of the property. After completion of the
final disposal decisions, the term of the lease may be longer than five
years.
(d) If the property is leased for less than fair market value to
the LRA and the interim lease permits the property to be subleased, the
interim lease shall provide that rents from the subleases will be
applied by the lessee to the protection, maintenance, repair,
improvement, and costs related to the property at the installation
consistent with 10 U.S.C. 2667.
Sec. 174.12 Leasing of transferred real property by Federal agencies.
(a) The Secretary concerned may transfer real property that is
still needed by a Federal agency (which for purposes of this section
includes DoD Components) to an LRA provided the LRA agrees to lease the
property to the Federal agency in accordance with all statutory and
regulatory guidance. (This leasing arrangement was referred to as a
``leaseback'' in previous versions of this part.)
(b) The decision whether to transfer property pursuant to such a
leasing arrangement rests with the Secretary concerned. However, a
Secretary shall only transfer property subject to such a leasing
arrangement if the Federal agency that needs the property agrees to the
leasing arrangement.
(c) If the subject property cannot be transferred pursuant to such
a leasing arrangement (e.g., the relevant Federal agency prefers
ownership, the LRA and the Federal agency cannot agree on terms of the
lease, or the Secretary concerned determines that such a lease would
not be in the Federal interest), such property shall remain in Federal
ownership unless and until the Secretary concerned determines that it
is surplus.
(d) If a building or structure is proposed for transfer pursuant to
this section, that which is leased by the Federal agency may be all or
a portion of that building or structure.
(e) Transfers pursuant to this section must be to an LRA.
(f) Either existing Federal tenants or Federal agencies desiring to
locate onto the property after operational closure may make use of such
a leasing arrangement. The Secretary concerned may not enter into such
a leasing arrangement unless:
(1) In the case of a Defense Agency, the Secretary concerned is
acting in an Executive Agent capacity on behalf of the Agency that
certifies that such a leasing arrangement is in the interest of that
Agency; or,
(2) In the case of a Military Department, the Secretary concerned
certifies that such a leasing arrangement is in the best interest of
the Military Department and that use of the property by the Military
Department is consistent with the obligation to close or realign
[[Page 46124]]
the installation in accordance with the recommendations of the Defense
Base Closure and Realignment Commission.
(g) Property eligible for such a leasing arrangement is not surplus
because it is still needed by the Federal Government. Even though the
LRA would not otherwise have to include such property in its
redevelopment plan, it should include the property in its redevelopment
plan anyway to take into account the planned Federal use of such
property.
(h) The terms of the LRA's lease to the Federal Government should
afford the Federal agency rights as close to those associated with
ownership of the property as is practicable. The requirements of the
General Services Administration (GSA) Federal Acquisition Regulation
(48 CFR Part 570) are not applicable to the lease, but provisions in
that regulation may be used to the extent they are consistent with this
part. The terms of the lease are negotiable subject to the following:
(1) The lease shall be for a term of no more than 50 years, but may
provide for options for renewal or extension of the term at the request
of the Federal Government. The lease term should be based on the needs
of the Federal agency.
(2) The lease, or any renewals or extensions thereof, shall not
require rental payments.
(3) Notwithstanding paragraph (h)(2) of this section, if the lease
involves a substantial portion of the installation, the Secretary
concerned may obtain facility services for the leased property and
common area maintenance from the LRA or the LRA's assignee as a
provision of the lease.
(i) Such services and common area maintenance shall be provided at
a rate no higher than the rate charged to non-Federal tenants of the
transferred property.
(ii) Such services and common area maintenance shall not include--
(A) Municipal services that a State or local government is required
by law to provide to all landowners in its jurisdiction without direct
charge, including police protection; or
(B) Firefighting or security-guard functions.
(iii) The Federal agency may be responsible for services such as
janitorial, grounds keeping, utilities, capital maintenance, and other
services normally provided by a landlord. Acquisition of such services
by the Federal agency is to be accomplished through the use of Federal
Acquisition Regulation procedures or otherwise in accordance with
applicable statutory and regulatory requirements.
(4) The lease shall include a provision prohibiting the LRA from
transferring fee title to another entity during the term of the lease,
other than one of the political jurisdictions that comprise the LRA,
without the written consent of the Federal agency occupying the leased
property.
(5)(i) The lease shall include an option specifying that if the
Federal agency no longer needs the property before the expiration of
the term of the lease, the remainder of the lease term may be satisfied
by the same or another Federal agency that needs property for a similar
use. (``Similar use'' is a use that is comparable to or essentially the
same as the use under the original lease, as determined by the
Secretary concerned.)
(ii)(A) If the tenant is a DoD Component, before notifying GSA of
the availability of the leasehold, it shall determine whether any other
DoD Component has a requirement for the leasehold; in doing so, it
shall consult with the LRA. If another DoD Component has a requirement
for the leasehold, that DoD Component shall be allowed to assume the
leasehold for the remainder of its term. If no DoD Component has a
requirement for the leasehold, the tenant shall notify GSA in
accordance with paragraph (h)(5)(i)(B) of this section.
(B) The Federal tenant shall notify the GSA of the availability of
the leasehold. GSA will then decide whether to exercise this option
after consulting with the LRA or other property owner. The GSA shall
have 60 days from the date of notification in which to identify a
Federal agency to serve out the term of the lease and to notify the LRA
or other property owner of the new tenant. If the GSA does not notify
the LRA or other property owner of a new tenant within such 60 days,
the leasehold shall terminate on a date agreed to by the Federal tenant
and the LRA or other property owner.
(iii) If the GSA decides not to exercise this option after
consulting with the LRA or other property owner, the leasehold shall
terminate on a date agreed to by the Federal tenant and the LRA or
other property owner.
(6) The terms of the lease shall provide that the Federal agency
may repair and improve the property at its expense after consultation
with the LRA.
(i) Property subject to such a leasing arrangement shall be
conveyed in accordance with the existing EDC procedures. The LRA shall
submit the following in addition to the application requirements
outlined in Sec. 174.9(e) of this part:
(1) A description of the parcel or parcels the LRA proposes to have
transferred to it and then to lease to a Federal agency;
(2) A written statement signed by an authorized representative of
the Federal agency that it agrees to accept the lease of the property;
and,
(3) A statement explaining why such a leasing arrangement is
necessary for the long-term economic redevelopment of the installation
property.
(j) The exact amount of consideration, or the formula to be used to
determine that consideration, as well as the schedule for payment of
consideration must be agreed upon in writing before transfer pursuant
to this section.
Subpart E--Personal Property
Sec. 174.13 Personal property.
(a) This section outlines procedures to allow transfer of personal
property to the LRA for the effective implementation of a community
redevelopment plan. Personal property does not include fixtures.
(b) The Secretary concerned, supported by DoD Components with
personal property on the installation, will take an inventory of the
personal property, including its condition, within 6 months after the
date of approval of closure or realignment. This inventory will be
limited to the personal property located on the real property to be
disposed of by the Military Department. The inventory will be taken in
consultation with LRA officials. If there is no LRA, the Secretary
concerned shall consult with the local government in whose jurisdiction
the installation is wholly located, or a local government agency or a
State government agency designated for that purpose by the Governor of
the State. Based on these consultations, the installation commander
will determine the items or category of items that have the potential
to enhance the reuse of the real property.
(c) Except for property subject to the exemptions in subsection (e)
of this section, personal property with potential to enhance the reuse
of the real property shall remain at an installation being closed or
realigned until the earlier of:
(1) one week after the Secretary concerned receives the
redevelopment plan;
(2) the date notified by the LRA that there will be no
redevelopment plan;
(3) 24 months after the date of approval of the closure or
realignment of the installation; or
[[Page 46125]]
(4) 90 days before the date of the closure or realignment of the
installation.
(d) National Guard property under the control of the United States
Property and Fiscal Officer is subject to inventory and may be made
available for redevelopment planning purposes.
(e) Personal property may be removed upon approval of the
installation commander or higher authority, as prescribed by the
Secretary concerned, after the inventory required in paragraph (b) of
this section has been sent to the LRA, when:
(1) The property is required for the operation of a unit, function,
component, weapon, or weapons system at another installation;
(2) The property is uniquely military in character and is likely to
have no civilian use (other than use for its material content or as a
source of commonly used components). This property consists of
classified items; nuclear, biological, and chemical items; weapons and
munitions; museum property or items of significant historic value that
are maintained or displayed on loan; and similar military items;
(3) The property is not required for the reutilization or
redevelopment of the installation (as jointly determined by the
Secretary concerned and the LRA);
(4) The property is stored at the installation for purposes of
distribution (including spare parts or stock items) or redistribution
and sale (DoD excess/surplus personal property). This property includes
materials or parts used in a manufacturing or repair function but does
not include maintenance spares for equipment to be left in place;
(5) The property meets known requirements of an authorized program
of a DoD Component or another Federal agency that would have to
purchase similar items, and is the subject of a written request by the
head of the DoD Component or other Federal agency. If the authority to
acquire personal property has been delegated, a copy of the delegation
must accompany the request. (For purposes of this paragraph,
``purchase'' means the DoD Component or Federal agency intends to
obligate funds in the current quarter or next six fiscal quarters.) The
DoD Component or Federal agency must pay packing, crating, handling,
and transportation charges associated with such transfers of personal
property;
(6) The property belongs to a nonappropriated fund instrumentality
(NAFI) of the Department of Defense; separate arrangements for
communities to purchase such property are possible and may be
negotiated with the Secretary concerned;
(7) The property is not owned by the Department of Defense, i.e.,
it is owned by a Federal agency outside the Department of Defense or by
non-Federal persons or entities such as a State, a private corporation,
or an individual; or,
(8) The property is needed elsewhere in the national security
interest of the United States as determined by the Secretary concerned.
This authority may not be re-delegated below the level of an Assistant
Secretary. In exercising this authority, the Secretary may transfer the
property to any DoD Component or other Federal agency.
(f) Personal property not subject to the exemptions in subsection
(e) of this section may be conveyed to the LRA as part of an EDC for
the real property if the Secretary concerned makes a finding that the
personal property is necessary for the effective implementation of the
redevelopment plan.
(g) Personal property may also be conveyed separately to the LRA
under an EDC for personal property. This type of EDC can be made if the
Secretary concerned determines that the transfer is necessary for the
effective implementation of a redevelopment plan with respect to the
installation. Such determination shall be based on the LRA's timely
application for the property, which should be submitted to the
Secretary upon completion of the redevelopment plan. The application
must include the LRA's agreement to accept the personal property after
a reasonable period and will otherwise comply with the requirements of
sections 174.9 and 174.10 of this part. The transfer will be subject to
reasonable limitations and conditions on use.
(h) Personal property that is not needed by a DoD Component or a
tenant Federal agency or conveyed to an LRA (or a state or local
jurisdiction in lieu of an LRA), or conveyed as related personal
property together with the real property, will be transferred to the
Defense Reutilization and Marketing Office for disposal in accordance
with applicable regulations.
(i) Useful personal property not needed by the Federal Government
and not qualifying for transfer to the LRA under an EDC may be donated
to the community or LRA through the appropriate State Agency for
Surplus Property (SASP) under 41 CFR part 102-37 surplus program
guidelines. Personal property donated under this procedure must meet
the usage and control requirements of the applicable SASP.
Subpart F--Maintenance and Repair
Sec. 174.14 Maintenance and repair.
(a) Facilities and equipment located on installations being closed
are often important to the eventual reuse of the installation. This
section provides maintenance procedures to preserve and protect those
facilities and items of equipment needed for reuse in an economical
manner that facilitates installation redevelopment.
(b) In order to ensure quick reuse, the Secretary concerned, in
consultation with the LRA, will establish initial levels of maintenance
and repair needed to aid redevelopment and to protect the property for
the time periods set forth in subsection (c) of this section. Where
agreement between the Secretary and the LRA cannot be reached, the
Secretary will determine the required levels of maintenance and repair
and its duration. In no case will these initial levels of maintenance:
(1) Exceed the standard of maintenance and repair in effect on the
date of approval of closure or realignment;
(2) Be less than maintenance and repair required to be consistent
with Federal Government standards for excess and surplus properties as
provided in the Federal Management Regulations of the GSA;
(3) Be less than the minimum levels required to support the use of
such facilities or equipment for nonmilitary purposes; or,
(4) Require any property improvements, including construction,
alteration, or demolition, except when the demolition is required for
health, safety, or environmental purposes, or is economically justified
in lieu of continued maintenance expenditures.
(c) Unless the Secretary concerned determines that it is in the
national security interest of the United States, the levels of
maintenance and repair specified in paragraph (b) of this section shall
not be changed until the earlier of:
(1) One week after the Secretary concerned receives the
redevelopment plan;
(2) The date notified by the LRA that there will be no
redevelopment plan;
(3) 24 months after the date of approval of the closure or
realignment of the installation; or
(4) 90 days before the date of the closure or realignment of the
installation.
(d) The Secretary concerned may extend the time period for the
initial levels of maintenance and repair for property still under the
Secretary's control for an additional period, if the Secretary
determines that the LRA is
[[Page 46126]]
actively implementing its redevelopment plan, and such levels of
maintenance are justified.
(e) Once the time period for the initial or extended levels of
maintenance and repair expires, the Secretary concerned will reduce the
levels of maintenance and repair to levels consistent with Federal
Government standards for excess and surplus properties as provided in
the Federal Management Regulations of the GSA, except in the case of
facilities still being used to perform a DoD mission.
Subpart G--Environmental Matters
Sec. 174.15 Indemnification under Section 330 of the National Defense
Authorization Act for Fiscal Year 1993.
Section 330 of the National Defense Authorization Act for Fiscal
Year 1993, Pub. L. 102-484, as amended, provides for indemnification of
transferees of closing Department of Defense properties under
circumstances specified in that statute. The authority to implement
this provision of law has been delegated by the Secretary of Defense to
the General Counsel of the Department of Defense; therefore, this
provision of law shall only be referred to or recited in any deed,
sales agreement, bill of sale, lease, license, easement, right-of-way,
or transfer document for real or personal property after obtaining the
written concurrence of the Deputy General Counsel (Environment and
Installations), Office of the General Counsel, Department of Defense.
Sec. 174.16 Decontamination of potentially explosive materials.
The DoD Component conducting restoration shall submit all plans for
decontamination of potentially explosive materials to the DoD
Explosives Safety Board, in accordance with DoD Directive 6055.9, DoD
Explosives Safety Board (DDESB) and DoD Component Explosives Safety
Responsibilities, and any implementing standards issued under that
Directive, for approval prior to disposing of property, either directly
or by transfer to another agency for disposal or reuse.
Sec. 174.17 NEPA.
At installations subject to this part, NEPA analysis shall comply
with the promulgated NEPA regulations of the Military Department
exercising real property accountability for the installation, including
any requirements relating to responsibility for funding the analysis.
See 32 CFR parts 651 (for the Army), 775 (for the Navy), and 989 (for
the Air Force). Nothing in this section shall be interpreted as
releasing a Military Department from complying with its own NEPA
regulation.
Sec. 174.18 Historic preservation.
(a) The transfer, lease, or sale of National Register-eligible
historic property to a non-Federal entity at installations subject to
this part may constitute an ``adverse effect'' under the regulations
implementing the National Historic Preservation Act (36 CFR
800.5(a)(2)(vii)). One way of resolving this adverse effect is to
restrict the use that may be made of the property subsequent to its
transfer out of Federal ownership or control through the imposition of
legally enforceable restrictions or conditions. The Secretary concerned
may include such restrictions or conditions (typically a real property
interest in the form of a restrictive covenant or preservation
easement) in any deed or lease conveying an interest in historic
property to a non-Federal entity. Before doing so, the Secretary should
first consider whether the historic character of the property can be
protected effectively through planning and zoning actions undertaken by
units of State or local government; if so, working with such units of
State or local government to protect the property through these means
is preferable to encumbering the property with such a covenant or
easement.
(b) Before including such a covenant or easement in a deed or
lease, the Secretary concerned shall consider--
(1) Whether the jurisdiction that encompasses the property
authorizes such a covenant or easement; and
(2) Whether the Secretary can give or assign to a third party the
responsibility for monitoring and enforcing such a covenant or
easement.
PART 175--[REMOVED AND RESERVED]
2. Part 175 is removed and reserved.
PART 176--REVITALIZING BASE CLOSURE COMMUNITIES AND COMMUNITY
ASSISTANCE--COMMUNITY REDEVELOPMENT AND HOMELESS ASSISTANCE
3. The authority citation for part 176 continues to read as
follows:
Authority: 10 U.S.C. note.
Sec. 176.20 [Amended]
4. Section 176.20 (b) is amended by revising ``32 CFR part 175'' to
read ``32 CFR part 174''.
Dated: August 4, 2005.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-15698 Filed 8-8-05; 8:45 am]
BILLING CODE 5001-06-P