Revitalizing Base Closure Communities and Addressing Impacts of Realignment, 9910-9927 [06-1902]

Agencies

• Office of the Secretary
• DEPARTMENT OF DEFENSE

[Federal Register Volume 71, Number 39 (Tuesday, February 28, 2006)]
[Rules and Regulations]
[Pages 9910-9927]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1902]



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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Parts 174, 175, and 176

DOD-2006-OS-0020
[RIN 0790-AH91]


Revitalizing Base Closure Communities and Addressing Impacts of 
Realignment

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: The Department of Defense (DoD) is amending its regulations 
governing the disposal of property at installations being closed and 
realigned and how to address the impacts of realignment at receiving 
installations. This final rule contains amendments to address changes 
in the laws governing base closure and realignment (BRAC) made since 
the current regulations were promulgated. This final rule also amends 
DoD policy and addresses various environmental requirements not 
previously addressed in the regulations.

DATES: Effective Date: This final rule is effective on February 28, 
2006.

FOR FURTHER INFORMATION CONTACT: Mr. Steven N. Kleiman at (703) 571-
9085.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority
II. Background
III. Summary of Significant Changes to the Final Rule
IV. Response to Comments
    A. General
    B. Definitions
    C. Policy
    D. Responsibilities
    E. LRA and the Redevelopment Plan
    F. Retention for DoD Component Use and Transfer to Other Federal 
Agencies
    G. Screening Properties After Declaration of Surplus
    H. Economic Development Conveyances
    I. Leasing of Real Property to Non-Federal Entities
    J. Leasing of Transferred Real Property by Federal Agencies
    K. Personal Property
    L. Maintenance and Repair
    M. Indemnification Under Section 330 of the National Defense 
Authorization Act for Fiscal Year 1993
    N. Real Property Containing Explosive or Chemical Agent Hazards
    O. NEPA
    P. Historic Preservation
V. Administrative Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandates
    D. Paperwork Reduction Act
    E. National Technology Transfer and Advancement Act
    F. Environmental Justice Requirements Under Executive Order 
12898
    G. Federalism Considerations Under Executive Order 13132

I. Authority

    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. Sec.  113.

II. Background

    The Department of Defense (hereinafter the Department) developed 
the original rule, which this rule would amend, in conjunction with 
prior rounds of base closures and realignments. The Department 
published this amendment in the Federal Register as a proposed rule on 
August 9, 2005, at 70 FR 46116.
    In the preamble for the proposed rule, the Department explained 
that the rule was a counterpart to two Department 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. The Department further 
advised that these two issuances were being revised in conjunction with 
the proposed rule. During the public comment period, the Department 
further considered the need for such counterpart issuances and 
determined that there was no need for either the DoD Directive or the 
DoD Instruction. Consequently, DoD Directive 4165.66 and DoD 
Instruction 4165.67 have been canceled. For purposes of ensuring the 
necessary and appropriate delegations of authority, DoD Directive 
5134.01, Under Secretary of Defense for Acquisition, Technology, and 
Logistics (USD (AT&L)), has been revised to include delegation language 
specific to the base closure process. The cancellations of DoD 
Directive 4165.66 and DoD Instruction 4165.67 do not affect in any way 
the validity, applicability, or enforceability of the rule but merely 
reduces the number of additional internal publications issued by the 
Department.
    The public comment period for the proposed rule ended October 11, 
2005. Thirty-one commenters submitted comments on the proposed rule. 
Several commenters submitted comments after the close of the public 
comment period; to the extent the Department was able to respond to 
these comments without significantly interfering with the timely 
publication of this final rule, those comments were also considered. 
The preamble to this final rule consists mainly of an explanation of 
the Department's responses to these comments. Therefore, both this 
preamble and the preamble to the proposed rule should be reviewed 
should a question arise as to the meaning or intent of the final rule.
    The preamble to the final rule provides a discussion of each 
proposed rule section on which comments were received. Where changes in 
the rule are being made, specific reference is made to those changes in 
the discussion. Where no such specific reference is made in the 
discussion, no change to the rule is being made. Revisions to the 
proposed rule that are simply editorial or that do not reflect 
substantive changes are not addressed in this preamble.
    All comments the Department received are presented in a document 
available at either https://www.defenselink.mil/brac/ or https://
www.oea.gov.

III. Summary of Significant Changes to the Final Rule

    The Department made a number of changes to the proposed rule that 
are reflected in this final rule. A detailed explanation of 
modifications is provided in the preamble.

IV. Response to Comments

    This section contains the Department's responses to the comments 
received on the proposed rule, organized by the structure of the 
proposed and final rules.
    The primary purpose of the rule is to bring the Department's 
regulatory framework into line with statutory enactments made 
subsequent to the promulgation of the existing regulation. Many of the 
items of concern noted by commenters are, in fact, changes made to 
comply with the base closure laws as they have been amended, and such 
changes have been incorporated into the rule whenever applicable and 
appropriate. The Department does not see the disposal process as a 
``zero-sum'' arrangement. The purpose of the implementation provisions 
of the base closure laws and associated provisions of law are to 
provide an ordered process to achieve a number of Congressional goals. 
Among these goals (and not in any order of importance) is to ensure a 
meaningful role for local communities in planning the reuse of the 
installation, ensure efficient use of excess Federal property, provide 
support to homeless

[[Page 9911]]

providers, promote job generation at closing facilities, require 
appropriate and timely environmental remediation, and recoup the 
taxpayers' investment in installations. Some of the goals may well be 
better accomplished if the local redevelopment authority (LRA) is not 
the transferee but focuses on planning redevelopment. Many of the most 
contentious provisions in the rule, judging from the comments, actually 
represent language taken almost verbatim from the base closure laws. 
The Department has carefully considered the many comments it has 
received. Its responses follow:

A. General

    Several commenters asked the Department to commit to a specific 
date for publication of the Base Redevelopment and Realignment Manual 
(BRRM). As a subordinate document to this rule, the BRRM cannot be 
published in final form until after this rule is published in final 
form. The Department intends to publish the BRRM as soon as reasonably 
possible after the publication of this final rule.
    Several commenters stated that the rule was directed at maximizing 
the Department's monetary return, as opposed to promoting economic 
recovery by transfer of properties to local communities. The Department 
disagrees. Promoting monetary return to the Department for use either 
at the particular location or at other locations and rapid property 
transfer to encourage job generation are not mutually exclusive. The 
rule conforms with the base closure laws and with other applicable 
statutes and regulations such as those of the General Services 
Administration (GSA). Unlike the current regulation which it would 
replace, the rule does not give any particular preference to one form 
of disposal over another. It conforms to the base closure laws in its 
order of actions; i.e., screening with the DoD Components and the U.S. 
Coast Guard and with other Federal agencies, followed by disposal 
actions heavily influenced by the local redevelopment plan. Some 
commenters have observed that, e.g., requiring Federal agencies to pay 
fair market value for property received is an example of trying to 
maximize the Department's monetary return. The GSA regulations 
governing transfers between Federal agencies require such payments 
unless waived, and the rule complies with this standard. The Department 
believes that the most likely effect of conforming to this requirement 
is that more property will be available for transfer to non-Federal 
entities for redevelopment than would otherwise be available. The rule 
also provides, as do the base closure laws, for economic development 
conveyances (EDCs), either at fair market value or at no cost. The 
decision regarding making an EDC will normally occur before a property 
is considered for public sale, and, although this does not represent a 
preference of one type of disposal over another, it does represent the 
rules' conformance to the order of disposal actions provided for in the 
base closure laws. The rule does conform to statutory changes that 
eliminated the stated preference for no-cost or reduced-cost EDCs; but 
conforming to those statutory changes does not represent an effort by 
the Department to seek greater monetary return. It simply represents 
the Department's effort to conform its rule to the statute.
    Several commenters suggested that the Department contract with 
local entities to take advantage of their special expertise in closing 
or realigning an installation. The Department's authority to contract 
is provided for and qualified, as appropriate, in the laws governing 
the Department's procurement actions and in the Federal Acquisition 
Regulation. In addition, the Congress has provided a preference for 
local and small businesses in section 2912 of Pub. L. 103-160. Such 
preferences are properly addressed in those regulations governing 
procurement, as opposed to this rule.
    Several commenters recommended that the Department commit to adopt 
or conform to any cleanup standards or levels provided by the local 
redevelopment plan, even though they might be greater than those 
required by current use or required by law. Cleanup standards are 
established pursuant to the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (CERCLA) and its implementing 
regulation, the National Contingency Plan (NCP). Those legal 
requirements provide for a thorough list of factors to be considered in 
determining the cleanup standard at each location and include, among 
many others, the reasonably anticipated future uses of the property. As 
with any private party, the Department must comply with these 
requirements in establishing a cleanup level. This process is overseen 
by Federal and state environmental regulators. Consequently, the 
cleanup levels established for any particular site will be in complete 
conformance with all legal requirements. The Congress has clearly 
directed the Department to conform to the requirements of CERCLA and 
the NCP, and the Department will do so in its cleanup program.
    Several commenters believe that the local redevelopment plan should 
be given greater weight in either the environmental analysis process or 
in the disposal plan. Some would like the local redevelopment plan to 
be a preferred alternative or the primary factor in developing the 
proposed Federal action in the National Environmental Policy Act (NEPA) 
process. The base closure laws are clear on the role of the local 
redevelopment plan in the NEPA process. The plan is part of the 
proposed Federal action. This means it is a basis for developing the 
action to be analyzed. In other words, it is what is being analyzed, so 
it plays a far greater role than it would if it were merely a preferred 
alternative (one way to achieve the proposed action) or the primary 
factor in developing the proposed action. These suggestions would have 
the unintended consequence of actually diluting the role of the local 
redevelopment plan, while the governing statute clearly and explicitly 
states the role that the plan has in the NEPA process.
    Several commenters recommended that the rule describe the roles of 
environmental regulators, the LRA, and others in the restoration 
program. The roles of these entities in the restoration program are 
established in the various environmental laws, primarily CERCLA and the 
NCP. It is outside of the Department's authority to specify the roles 
of these entities under those laws.
    One commenter suggested the desirability of using fixed price 
remediation agreements with privatized financial assumption, including 
liability assumption. Agreements to have the property recipient assume 
responsibility for environmental matters are provided for in section 
2905(e) of Pub. L. 101-510. Such agreements would be fixed price with 
privatized financial assumption, including liability assumption, but 
would also be subject to the other requirements of that subsection. The 
rule does not specifically address this matter because the Department 
has no requirements to add beyond those of the statute.
    Several commenters have observed that the rule does not integrate 
environmental cleanup with property disposal and reuse planning. The 
Department recognizes the importance of integrating environmental 
cleanup with property disposal and redevelopment planning. Cleanup 
standards are tied to future land use and established pursuant to 
CERCLA and the NCP. Future land use is informed by the property 
disposal plan. As stated earlier, the local redevelopment plan is a 
basis for any proposed Federal action.

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Therefore, the redevelopment planning, property disposal, and 
environmental cleanup are integrated. The cleanup process is overseen 
by Federal and state environmental regulators. Consequently, the 
cleanup levels established for any particular site will be in complete 
conformance with all legal requirements. In addition, the public has a 
chance to comment on proposed cleanup standards in the public 
participation venues required by CERCLA.
    Several commenters suggested that the rule address timely release 
of environmental information. The Department does not believe that 
specific regulatory requirements can or should be imposed to create 
timelines for these activities. The BRRM does provide guidance to the 
Military Departments and other interested parties as to when and how to 
release environmental information.
    One commenter suggested that the Department schedule a meeting with 
``stakeholders'' to discuss the Department's environmental policies 
before issuing final regulations. The Department has been meeting with 
various interested parties with regard to its environmental policies, 
and will continue to do so. However, it cannot delay the realignment 
and closure implementation process for this purpose.
    One commenter complained that the rule only requires the Department 
to consult with the LRA and others such as the Governor, not obtain 
their agreement, over future land uses, environmental restoration 
decisions, etc. Neither the base closure laws nor the various 
environmental statutes require obtaining agreement from the LRA. 
Likewise, section 2905(b)(2)(D) of the base closure law explicitly 
states that the Secretary shall ``consult with the Governor of the 
State and the heads of the local governments'' as opposed to obtaining 
their agreement. The Department will continue to consult with the LRA 
and other appropriate officials over future land uses, environmental 
restoration decisions, etc.
    One commenter suggested that an additional section be added to 
clarify the Department's responsibilities regarding environmental 
contamination under CERCLA. The recommendation was to add language that 
addressed the Department's continuing liability for contamination on 
the property. The Department disagrees with the suggestion to add 
language. The Department's liability under CERCLA (and other applicable 
environmental laws) will be established for each location depending on 
the law and facts of the site. This could include not only numerous 
Federal laws, but state and local laws as well. The process used to 
determine liability under CERCLA, including as between the Department 
and its contractors, is highly complex and virtually impossible to 
accurately describe in the context of this rule. Furthermore, the rules 
governing such liability are found in statutes and regulations for 
which the Department does not exercise primary authority. It would be 
inappropriate and likely to create confusion for the Department to 
attempt to define its CERCLA liability in this rule.
    One commenter observed that the rule does not address how the 
Department will mitigate or resolve effects on base closures and 
realignments on tribal nations affected by such actions. The Department 
believes the rule is consistent with the law. We have added text in 
response to another similar comment to paragraph 174.4(f). Under 
current law, an Indian tribe may acquire closed real property only 
through a request for excess property in accordance with section 
105(f)(3) of the Indian Self-Determination and Education Assistance Act 
(which must be made by the Secretary of the Interior on behalf of the 
tribe) or through the purchase of real property at a public sale. In 
addition, a tribe may seek to participate in the redevelopment planning 
process as a member of the LRA, which is primarily a local matter.

B. Definitions

    Several commenters suggested that those definitions contained in 
section 174.3 that are incorporated by reference to other sources be 
written out in full text. To ensure complete consistency, the rule will 
continue to incorporate those definitions by reference. However, the 
BRRM will contain the full text of the sources to facilitate ease of 
use.
    One commenter suggested that a definition for the National Historic 
Preservation Act be included in the rule. The National Historic 
Preservation Act is not referred to directly in the rule. The reference 
in section 174.18 is to the Act's implementing regulations in the Code 
of Federal Regulations and includes the specific citation to the 
regulations. Because the Act is not directly referred to in the rule 
and the only indirect reference is to its implementing regulations for 
which the citation is provided, there is no need to include a specific 
definition.
    One commenter requested that the term ``disposal plan'' be defined. 
The Department does not believe such a definition is necessary or 
desirable. The disposal plan can take many forms and will reflect the 
manner of implementation by each Military Department at each location. 
The term is not readily susceptible to a meaningful definition because 
of the wide variety of forms it may take.

C. Policy

    Several commenters suggested that the rule may change the focus of 
disposal actions by not placing paramount importance on economic 
recovery. The base closure law does not mention economic recovery as 
one of its goals, but does refer to ``job generation'' in the case of 
EDCs. The primary reason for proposing this revision of the rule is to 
bring it into line with amendments made to the base closure laws. Those 
amendments reflect a desire by Congress to encourage economic recovery 
by expediting the transfer (and subsequent redevelopment) of 
installations. The Department believes the current policy statements in 
section 174.4, which are taken from the Secretary of Defense's 
recommendations to the Defense Base Closure and Realignment Commission, 
accurately reflect both the statutory direction provided by Congress 
and the policy determinations made by the Secretary of Defense.
    One commenter expressed concern that the statements of policy in 
section 174.4 do not adequately recognize the importance of public 
benefit conveyances. The Department does not agree. Paragraph 174.4(b) 
explicitly refers to public benefit conveyances as one of the 
appropriate means to transfer property. The need for consideration of 
public benefit conveyances is not overcome by the policy statement of 
paragraph 174.4(c) relating to reliance on market forces, which, 
incidentally, refers to ``any anticipated demand for surplus military 
land and facilities.'' [Emphasis added.]
    One commenter suggested that section 174.4(d) reflect a more 
accurate list of the entities with whom the Department must collaborate 
for successful redevelopment to occur. The Department notes that the 
intent of this paragraph is to emphasize collaboration with affected 
local communities regarding the redevelopment of the installation. 
While the Department does collaborate with the other entities, their 
role is established in other parts of the rule. The focus of this 
paragraph of the rule is on the redevelopment planning process and most 
of our collaboration in this area is with the local community.
    One commenter noted that reference to substantial growth in section 
174.4(f) is difficult to define and could lead to confusion. The 
Department agrees and

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has struck the beginning clause of the sentence consisting of ``If 
installation growth is substantial, * * *''.
    One commenter observed that in many places an installation's growth 
due to realignment may not only affect the immediate locality but may 
also increase infrastructure demands regionally, requiring coordination 
with regional as well as local officials. The Department agrees and has 
further modified paragraph 174.4(f) to refer to regional officials, 
including, e.g., State and tribal officials, and to regional planning.

D. Responsibilities

    Several commenters suggested that the rule delegates too much 
authority to the Secretaries of the Military Departments, leaves the 
Office of the Secretary of Defense (OSD) out of the process, and 
undermines the policy to ``speak with one voice.'' It is essential to 
the effective implementation of the process that appropriate 
delegations of authority be provided to the Military Departments, as 
the implementing agencies, and this is done in the rule. This rule is 
consistent with other delegations to the Military Departments as 
installation and real property managers within DoD. The current 
regulation that is being revised by this rule also delegates, and much 
more generally, implementation authority to the Military Departments. 
The delegation language in the rule is actually somewhat less broad 
than the language it will be replacing. The delegation to the 
Secretaries of the Military Departments in the rule is subject to the 
superior delegations to the Under Secretary of Defense for Acquisition, 
Technology, and Logistics and the Deputy Under Secretary of Defense 
(Installations and Environment). These OSD officials will retain their 
oversight roles and, when needed, review disputed matters and enforce 
uniformity among the Military Departments in their implementing 
activities.
    Several commenters suggested that if an LRA qualifies for a no-cost 
EDC, the Federal Government should shoulder the cost of recording deeds 
and other transfer documents as well as associated surveys. The rule in 
paragraph 174.5(e) only addresses the cost of recording deeds and other 
transfer documents, which is normally the responsibility of the 
property recipient in real estate transactions. It does not address the 
responsibility of paying for any needed surveys. The cost of surveys, 
in the case of an EDC, will be subject to agreement between the 
parties.
    One commenter suggested that the requirement of paragraph 174.5(e) 
explicitly include reference to recordation of land use restrictions 
that are part of an environmental remedy. The Department notes that the 
paragraph only addresses the cost of recording deeds and other transfer 
documents; it does not address in detail all the documents that might 
be included in that category. What documents must be recorded will be 
determined by State law and local rule and will vary accordingly. To 
the extent land use restrictions are included in a deed, which would be 
necessary for them to have meaningful effect, they will be part of the 
recorded instruments.

E. LRA and the Redevelopment Plan

    Several commenters inquired as to what would constitute 
``appropriate environmental documentation'' in section 174.6(c). This 
reference would include any NEPA environmental analyses, as well as 
associated documentation that might be required to formulate a disposal 
plan. Since we cannot predict at this time the entire universe of 
potential documents, particularly given the great variety of locations 
where they might be required, the Department chose to use as broad a 
term as possible.
    Several commenters suggested that the 12 months allotted for 
completion of an environmental impact statement may prove inadequate. 
Section 174.6(c) qualifies the 12 month requirement with the words ``to 
the extent practicable'', taken from the underlying statutory provision 
of section 2911 of Pub. L. 103-160.
    Several commenters observed that the timeframe for the production 
of the local redevelopment plan is likely to be too short. The language 
in the rule is in strict compliance and consistent with the base 
closure laws, section 2905(b)(7)(F)(iv) of Pub. L. 101-510, which also 
allows an extension of time to be granted by the Deputy Under Secretary 
of Defense (Installations & Environment), section 2905(b)(7)(N). In all 
instances, the date arrived at from section 2905(b)(7)(F)(iv) will be 
after the screening of property by Federal agencies. The Department 
notes that many, if not most, LRAs begin their planning process shortly 
after the closure decisions become final, which allows for a much more 
lengthy period of time than would be available if no advance effort is 
made.
    Several commenters noted that the requirement that there be a 
single LRA for each installation may be problematic for some 
installations that have large parcels located in other jurisdictions. 
The language in the proposed rule uses the term ``generally,'' which 
provides flexibility for exceptions where geographic situations 
warrant, such as distinct, non-contiguous parcels in separate 
jurisdictions.
    Several commenters recommended that the base cleanup team 
specifically include the LRA as a member. The base cleanup team is not 
addressed by the rule, nor is it based in statute. Information on 
environmental cleanup may be found in the BRRM.

F. Retention for DoD Component Use and Transfer to Other Federal 
Agencies

    Several commenters noted that some locations such as Fort Monroe, 
Virginia, are subject to a reversionary interest in the state or local 
government and recommended specific language be inserted addressing 
this situation. The Department cannot dispose of a property interest it 
does not own. To the extent a location is subject to a reversionary 
interest, any screening or disposal action can only occur to the extent 
they are consistent with the reversionary language of the original 
deed. For instance, screening might be limited to only DoD Components 
after which the property might then have to be offered back to the 
reversionary interest holder. Because this will vary at each location 
depending on the specific provisions of the reversionary interest, it 
is neither practicable nor necessary to provide specific language 
dealing with this situation. The Military Departments are expected to 
know the nature of the real property interests they hold and to act 
accordingly with regard to any disposal actions.
    One commenter suggested that early and widespread communication 
would be beneficial and specifically objected to language in paragraph 
174.7(b) that conditioned release of some information ``upon request''. 
The Department determined that it was not going to provide to other 
Federal agencies a notice of potential availability of property upon 
submission by the President of his recommendations to the Congress. 
Consequently, those provisions of section 174.7, and particularly its 
former paragraph (b), addressing this subject have been deleted from 
the rule.
    One commenter recommended that a firm time period of 6 months be 
set for the identification of Federal property interests in real 
property. Section 174.7(m) of the proposed rule does provide a time 
period of six months from the date of approval of closure or 
realignment within which a surplus determination should be made, which 
means that Federal agency interests in

[[Page 9914]]

property must be identified prior to that time.
    Several commenters suggested that other Federal agencies seeking to 
obtain excess real property should be required, as opposed to being 
encouraged, to consult with the LRA. The statute that required 
consultation has expired [Section 2905(b)(5)(C) of Pub. L. 101-510]. 
However, because the Department believes it is to everyone's benefit, 
it encourages consultation. It is to the benefit of a Federal agency to 
consult with the LRA and any other interested entity when seeking 
excess real property. The Department believes it unnecessary to require 
such consultation. In addition, such a requirement could generate legal 
conflicts as to what constituted consultation in particular cases and 
at what specific time periods consultation was performed.
    Several commenters objected to the requirement that other Federal 
agencies accept any excess property in its existing condition, viewing 
this as a burden on their resources or an attempt by Department to 
avoid its cleanup responsibilities. This is in conformance with the 
Interdepartmental Waiver Doctrine which notes that all Federal property 
belongs to the United States and it is the determination of Congress as 
to the adequacy of funding for individual agencies to perform their 
missions. See Matter of: Use of One Agency's Real Property by Another--
Liability for Damage, B-194861, Comptroller General of the United 
States, 59 Comp. Gen. 93, November 20, 1979. The general rule is that 
an agency must have the resources to accept property it is voluntarily 
seeking or forego the opportunity. This is also indicated in other 
requirements of section 174.7(h) such as the requirement that the 
request does not establish a new program, current real property 
holdings cannot satisfy the agency's needs, and that the request be 
economically viable. The receiving agency must also pay fair market 
value, unless waived, which would potentially include a reduction of 
value because of contamination (see the discussion on appraisals and 
fair market value). Nothing in the requirement that a receiving Federal 
agency take the property in its existing condition changes the 
liability of the United States for cleanup.
    One commenter asserted that, in transfers between Federal agencies, 
in order to accurately reflect section 120 of CERCLA, a statement 
should be added in both subparagraphs (9) and (10) of paragraph 
174.7(h) that would exclude the costs for remedies needed to address 
environmental contamination present on the property at the time of 
transfer, unless an agreement has been reached with the other agency to 
take responsibility for such actions and costs. The commenter further 
asserted that a Federal agency's ultimate environmental liability 
cannot be transferred to other agencies of the Federal Government. The 
Department disagrees. The Department does not believe that section 
120(h) of CERCLA has any application to the question of responsibility 
as between Federal agencies for contamination on Federal real property 
transferred between them. There is no provision of applicable law or 
regulation preventing the Department from requiring another agency to 
accept property transferred ``as-is,'' as a mutually agreed condition 
of the transfer. If the receiving agency is unwilling to accept 
responsibility for any needed cleanup, it has no obligation to take the 
property and Department can proceed to other means of property 
disposal.

G. Screening Properties After Declaration of Surplus

    One commenter suggested specific language be added to the rule 
relating to the process after a declaration of surplus, and 
specifically relating to the process for public benefit conveyances and 
to consultation with the LRA and communities. These aspects of the 
property disposal process are governed by 32 CFR part 176, which is not 
being amended by this rulemaking (other than a ministerial change). The 
Department anticipates that it will propose amendments to part 176 in 
the future to ensure its conformance to changes in the law. At that 
time, it would be appropriate for the commenter to raise issues that 
are relevant to that regulation.

H. Economic Development Conveyances

    Several commenters are concerned that the rule requires the 
Secretary concerned to seek fair market value in an EDC. This is a 
clear change from the existing regulation which the rule would replace. 
The requirement to seek to obtain fair market value is clearly stated 
in section 2905(b)(4)(B) of Pub. L. 101-510. This is a change made by 
Congress to the law since the publication of the existing regulation. 
The changes made in the rule are in strict conformance with the 
statute.
    Several commenters noted that the rule does not provide for below-
cost EDCs (other than no-cost EDCs). Section 2905(b)(4) of Pub. L. 101-
510 addresses the nature of EDCs that can be offered by Department. 
There is no provision for a ``below-cost'' EDC. Consequently, the rule 
does not provide for such an EDC.
    Several commenters objected to the requirements imposed by the rule 
on those submitting EDC applications, and the Department's 
consideration of those applications. These, largely information, 
requirements are necessary to allow the Department to make an informed 
judgment as to whether the application can meet the statutory 
requirements for an EDC as well as whether a no-cost EDC, if sought, is 
appropriate under the circumstances. Given the potentially significant 
financial impact of EDCs on both the Department and the LRA, it is 
appropriate to require a reasonable submission of information to ensure 
the EDC's success. It is understood by the Department that some of the 
information requested may not be available or available in adequate 
time and accuracy, but the LRA should attempt to submit as much and as 
accurate information as it can to address the factors for consideration 
of an EDC. The Department will use the best information available to 
evaluate EDC applications according to the statute and rule. This is 
consistent with prior practice of the Department.
    Several commenters objected to the provisions relating to an 
appraisal of fair market value. Commenters objected to the use of the 
Uniform Appraisal Standards, to appraisals conducted under criteria set 
by the Military Department without the LRA's agreement, and to the 
application of highest and best use criteria. Additionally, it was 
suggested that an independent entity conduct the appraisal, that the 
appraisal include liabilities associated with, e.g., environmental 
contamination or demolition of buildings, that all appraisal 
information be shared with the LRA, that special consideration be given 
to rural areas, and that multiple appraisals be accomplished for EDCs 
based on differing assumptions. Although the Uniform Appraisal 
Standards were drafted primarily for the acquisition of property by the 
Federal Government, no cogent reasons have been advanced as to why they 
would not apply with equal validity to appraising lands being disposed 
of. The rule does require the Secretary concerned to consult with the 
LRA about valuation assumptions and other factors, but the base closure 
laws explicitly provide that the fair market value will be as 
determined by the Secretary, not by the LRA or an independent entity. 
The law does not provide, for instance, for multiple appraisals of fair 
market value, although an entity seeking property is certainly

[[Page 9915]]

free to conduct its own appraisal. The rule does seek an appraisal 
based on the highest and best use, as provided in the Uniform Appraisal 
Standards and the governing GSA regulations. The Uniform Appraisal 
Standards include consideration of all relevant valuation factors such 
as reduction in value due to contamination, existing land use controls 
that limit potential development, and location.
    Several commenters asserted that only by obtaining the property 
through an EDC can the LRA maintain control to provide job generation. 
According to the statute, an LRA is any entity (including an entity 
established by a State or local government) recognized by the Secretary 
of Defense as the entity responsible for developing the redevelopment 
plan with respect to the installation or for directing the 
implementation of such plan. In some instances, taking possession of 
the property may be one way of furthering this goal, but it is not the 
only means, or even necessarily the most likely to succeed. Jobs can 
often be generated by rapid conveyance to private parties at least as 
effectively as by transfer to the LRA. The statutory framework clearly 
envisions that the LRA's primary function is the redevelopment planning 
process. Seeking EDCs is a function to be performed at the LRA's 
discretion and certainly does not foreclose the LRA or other 
appropriate local agencies from exercising any necessary controls to 
ensure job generation.
    One commenter noted that subparagraph (7) of paragraph 174.9(e) 
could be interpreted as requiring an LRA to exercise more authority 
than it would normally have, e.g., zoning or other approval powers. The 
Department agrees and has added language to this subparagraph to 
clarify that the LRA need only demonstrate that it has the necessary 
approvals for items such as zoning, as opposed to actually having the 
authority to grant such approvals.

I. Leasing of Real Property to Non-Federal Entities

    Several commenters were concerned that the rule would discourage 
long-term leasing at closed installations, thereby reducing the 
likelihood of promoting new employment. As with the other provisions of 
the rule, section 174.11 is designed to expedite property transfer in 
order to encourage rapid job generation. In the past, long-term leases 
were primarily the result of difficulty in transferring property that 
still had environmental contamination. With statutory authority to 
engage in ``early transfers'' under CERCLA, it should be possible to 
avoid the need for long-term leases in most if not all situations.

J. Leasing of Transferred Real Property by Federal Agencies

    Several commenters were concerned that a ``lease-back'' would be at 
no rental cost to the Federal agency occupying the leased facility, 
thereby removing any incentive to engage in this type of transaction. 
The requirement for a no cost lease is a provision of the statute, 
section 2905(b)(4)(e)(iii) of Pub. L. 101-510.
    One commenter inquired as to how real property will be declared as 
surplus when a ``lease-back'' cannot be successfully concluded. The 
authority to lease to a Federal agency, at no cost, real property that 
has been transferred to an LRA is a unique alternative form of property 
disposal. If the process fails to result in agreement, the Department 
presumes, until shown otherwise, that the requesting Federal agency 
still requires the property, in which case it is not surplus. If the 
requesting Federal agency is only willing to accept the use of the real 
property under a lease and an agreement cannot be reached, the real 
property would be considered as surplus.

K. Personal Property

    One commenter noted the use of ``community redevelopment plan'' in 
section 174.13(a). This reference will be changed to ``redevelopment 
plan'' to conform to the usage elsewhere in the rule.
    One commenter inquired whether the personal property inventory will 
occur 6 months after the closure decision or 6 months after the actual 
closure of the installation. Section 174.13(b) provides that the 
inventory will be compiled 6 months after the date of approval of 
closure or realignment. The term ``date of approval'' is defined in 
section 174.3 and refers to the date the Commission's recommendations 
become final, as opposed to the date of actual closure of the 
installation.
    One commenter inquired as to the timelines for an LRA's submittal 
of a request for a personal property EDC as opposed to a real property 
EDC that includes personal property. The commenter was concerned that 
the local redevelopment plan might be submitted prior to the completion 
of the inventory. Since the inventory is required to be completed 
within 6 months of the date of approval of the closure, and the local 
redevelopment plan is not required until quite some time later, it 
would be very unlikely for an LRA to submit the local redevelopment 
plan prior to completion of the personal property inventory. This is in 
part due to the screening period for other Federal uses during the 
first 6 months after the date of approval.

L. Maintenance and Repair

    One commenter inquired as to the citation for the Federal 
Management Regulations of the GSA, referred to in section 174.14. The 
regulations can be found at chapter 102 of title 41, Code of Federal 
Regulations. Additional information on these regulations will be 
provided in the BRRM. The citation will be added to the rule.
    Several commenters expressed concern that the level of maintenance 
might not be adequate in relation to various locations, e.g., humidity 
levels left uncontrolled could result in damaging mold. Section 
174.14(b)(3) provides that the initial levels of maintenance cannot be 
``less than the minimum levels required to support the use of such 
facilities or equipment for nonmilitary purposes; * * *''. The 
Department believes this provision addresses the concern noted by the 
commenters.
    Several commenters noted that maintenance levels provided by 
section 174.14 should conform to appropriate requirements of the 
National Historic Preservation Act and any agreements thereunder with, 
e.g., the state historic preservation officer. Section 174.14 provides 
maintenance procedures to preserve and protect facilities located on 
closing installations needed for economical reuse. Nothing in that 
section should be interpreted as supplanting any requirement of the 
National Historic Preservation Act or its implementing regulations. The 
Department expects actions relating to historic preservation to be 
fully vetted with the interested agencies and organizations in line 
with both the requirements of the Act and its implementing regulations 
and the direction of the rule to, e.g., consult with the LRA. As noted 
in previous responses to comments, it is not the purpose of this rule 
to replace other statutory or regulatory requirements. Given the 
limited purpose of section 174.14, the Department is satisfied that it 
has addressed the issue that needs to be addressed in the context of 
this rule.
    Several commenters asserted that the Department should properly 
maintain all installation assets until the time of transfer. The rule 
strictly complies with the statutory requirements for maintenance. 
Those statutory requirements include specific time limits governing the 
initial levels of maintenance. The rule provides flexibility in 
allowing the Secretary

[[Page 9916]]

concerned to extend the time period for the initial levels of 
maintenance and repair for property still under military control if the 
LRA is actively implementing its redevelopment plan.
    Several commenters objected that maintenance requirements would be 
shifted to the local community even before the installation was closed. 
This is incorrect. Section 174.14(e) provides that reductions in 
maintenance levels will not apply to facilities still being used for 
Department missions, i.e., pre-closure. After facilities are no longer 
required for Department missions, the minimum standard prescribed by 
GSA requires that the Government's value be preserved. The community 
would not be expected to maintain facilities until they have possession 
through either a deed or lease. The statutory timelines reflected in 
the rule are designed to encourage rapid transfer to effect productive 
civilian reuse.
    Several commenters suggested that the level of maintenance and 
repair be linked to the local redevelopment plan. The Department 
disagrees. Such a requirement would be contrary to the base closure 
laws' time limitations on maintenance and repair. The rule already 
provides for an appropriate level of maintenance and repair which will 
consider, to the extent it is known, the proposed reuses in the local 
redevelopment plan. The period of maintenance and repair, however, is 
set by statute.
    One commenter expressed concern that any limitations on maintenance 
and repair might apply to environmental remediation efforts underway on 
the installation. The Department categorically states that 
``Maintenance and repair'' as used in this section has no application 
to environmental remedies. An interpretation to the contrary would be 
entirely inconsistent with the base closure laws and with CERCLA.

M. Indemnification Under Section 330 of the National Defense 
Authorization Act for Fiscal Year 1993

    Several commenters observed that requiring any documents referring 
to section 330 of Pub. L. 102-484 to be reviewed by the DoD Office of 
General Counsel would cause delay and, instead, model language should 
be provided with only deviations being reviewed by the General 
Counsel's Office. The Department disagrees. The insertion of language 
even mentioning section 330 in a deed or other transfer document 
creates a contract right that otherwise would not exist and for which 
section 330 does not provide.
    One commenter asserted that the Department does not have discretion 
with regard to insertion of language dealing with section 330 of Pub. 
L. 102-484 and suggested changes that would require ``* * * Section 330 
indemnification language under every instance specified by * * *'' 
section 330. Review of section 330 readily demonstrates that it does 
not require or even hint at the need to include language relating to 
its provisions in any document. In fact, section 330 is self-executing 
and stands alone without the need for additional discussion or 
exposition in transfer documents. It is even questionable whether such 
further discussion or exposition has any legal basis since it must, 
virtually by definition, either expand or contract the rights of a 
potential claimant under the statute and the Department has authority 
to do neither.

N. Real Property Containing Explosive or Chemical Agent Hazards

    Several commenters recommended that the requirement for review of 
explosive safety plans under section 174.16 be extended to private 
entities conducting a remediation in place of the Department. The 
Department is prepared to review, on a case-by-case basis, those 
locations where such a safety plan is likely to be required and 
determine whether the circumstances of that location should require 
plan review and approval. Such requirements, if found to be necessary, 
can be included in any contract with the entity conducting the remedial 
action.
    One commenter expressed concern that the language of the rule could 
allow the submission of an explosives safety plan but not actually 
require approval of the plan by the DoD Explosives Safety Board prior 
to transfer of the property. Although the language of the rule could be 
interpreted as requiring submission but not actual approval of the plan 
before real property transfer, the uniform practice of the Military 
Departments has been to wait on actual approval of the plan before 
proceeding to transfer property. The language of this section has been 
modified to more accurately refer to the governing DoD Directive as 
well as the documents being submitted.

O. NEPA

    One commenter suggested that the LRA be given the opportunity to 
serve as a ``cooperating agency'' during the NEPA analysis. The 
Department interprets this as a request that the LRA be guaranteed the 
right to be a cooperating agency if it so desires. (This assumption is 
based on the fact that an LRA may already qualify as a cooperating 
agency under the Council on Environmental Quality regulations 
implementing NEPA; 32 CFR 1508.5.) Being a cooperating agency in a NEPA 
analysis carries with it certain obligations and requires certain 
expertise. The Department does not believe it appropriate to mandate in 
all circumstances that an LRA be a cooperating agency and believes it 
more appropriate to allow each situation to be judged on its own merits 
under existing regulations implementing NEPA.
    Several commenters suggested that the NEPA process allow an LRA, if 
it was not satisfied with the schedule of the Military Department, to 
enter into an agreement with the Government to conduct the analysis 
itself but consistent with the Military Department's NEPA regulation. 
The cost expended by the LRA would qualify as a credit in any future 
EDC, or, in the case of a no-cost EDC, be attributable to economic 
redevelopment. This suggestion is premised on the availability, or lack 
thereof, of funds to pay for the NEPA analysis. There has been no 
demonstration that such funding has been unavailable in the past, nor 
is there any indication it will be unavailable in the future. By 
statute, the Military Departments are required to complete NEPA 
analysis within 12 months, if possible. The NEPA regulations of the 
Military Departments have sufficient flexibility to allow those 
departments to ensure prompt and compliant NEPA analyses.

P. Historic Preservation

    Several commenters raised concerns with the lack of more extensive 
discussion of historic preservation. The provisions in section 174.18 
are solely intended to clarify that the Military Departments have 
authority to engage in the types of preservation activities discussed. 
Nothing in that section should be interpreted as supplanting any 
requirement of the National Historic Preservation Act or its 
implementing regulations. The Department expects actions relating to 
historic preservation to be fully vetted with the interested agencies 
and organizations in line with both the requirements of the Act and its 
implementing regulations and the direction of the rule to, e.g., 
consult with the LRA. As noted in previous responses to comments, it is 
not the purpose of this rule to replace other statutory or regulatory 
requirements. Given the limited purpose of section 174.18, the 
Department is satisfied that it has addressed the issue that needs to 
be addressed in the context of this rule.

[[Page 9917]]

V. Administrative Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

    Executive Order 12866 (58 FR 51735 [October 4, 1993]) requires each 
agency taking regulatory action to determine whether that action is 
``significant.'' The agency must submit any regulatory actions that 
qualify as ``significant'' to the Office of Management and Budget (OMB) 
for review, assess the costs and benefits anticipated as a result of 
the proposed action, and otherwise ensure that the action meets the 
requirements of the Executive Order. The Order defines ``significant 
regulatory action'' as one that is likely to result in a rule that may 
(1) Have an annual effect on the economy of $ 100 million or more or 
adversely effect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities; (2) create a 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 obligations 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 the Executive 
Order.
    The Department has determined that the rule is not a significant 
rule under Executive Order 12866 because it is not likely to result in 
a rule that will meet any of the four prerequisites.
    (1) The rule will not have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or state, local, or tribal 
governments or communities. The major effects of base closure and 
realignment actions is the result of the decisions to close and realign 
installations. This rule does not affect those decisions to the extent 
they were made by the Defense Base Closure and Realignment Commission, 
approved by the President, and not disapproved by the Congress. This 
rule only implements those decisions in accordance with applicable law. 
As such, its requirements do not create a significant economic impact.
    For these reasons, the Department has determined that the rule will 
not adversely affect, in a material way, the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or 
communities.
    (2) The rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    Implementation of the rule will not create a serious inconsistency 
or otherwise interfere with another agency's action because the 
Department has lead authority for implementing the base closure 
statutes and because the rule's requirements do not override, but are 
in addition to, legal requirements established by other agencies. As 
discussed in more detail in the response to comments, the rule does 
not, e.g., establish requirements in place of the Historic Preservation 
Act, but provides additional authority to the Military Departments to 
implement that Act in accordance with its terms and with its 
implementing regulations. Similarly, the rule does not override or 
provide inconsistent requirements for environmental restoration, but, 
as discussed in more detail in the response to comments, is premised on 
applicability of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 and the National Contingency 
Plan. Several subjects raised by commenters are not addressed in the 
rule in order to avoid the possibility of inconsistency with the 
authorities and actions of other agencies.
    (3) The rule will not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof.
    The rule will not materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof because no entitlements, grants, user 
fees, or loan programs are invoked in the rule.
    (4) The rule will not raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.
    Finally, the rule does not raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order. Congress has provided 
extensive and detailed guidance for implementation of the base closure 
and realignment process. The rule is merely a means for the Department 
to address some areas not addressed by Congress and provide some 
clarity in procedures to enable potential property recipients and 
others interested in the base closure and realignment process to 
harmonize their actions with those of the Department. The Department 
has identified no novel legal or policy issues that this rule will 
create on either a base closure and realignment basis or overall. Nor 
has the Department identified any novel legal or policy issues arising 
out of the President's priorities or principles set forth in the 
Regulatory Impact Analysis.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 
1996), requires that an agency conduct a regulatory flexibility 
analysis when publishing a notice of rulemaking for any proposed or 
final rule. The regulatory flexibility analysis determines the impact 
of the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). SBREFA amended 
the Regulatory Flexibility Act to require federal agencies to state the 
factual basis for certifying that a rule will not have a significant 
economic impact on a substantial number of small entities.
    The Department hereby certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
The nature of the rule provides the factual basis for a determination 
that no regulatory flexibility analysis is required. The potential for 
a significant impact on a substantial number of small entities would 
result, if at all, because of the decision to close or realign an 
installation. This rule does not address those decisions. No costs are 
directly imposed on small entities nor is any action directly required 
of small entities through this rule. Since the Department will apply 
this rule for the purpose of disposing of real and personal property, 
the rule does not impose any requirements on small entities. For the 
foregoing reasons, the Department believes that the rule, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities.

C. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, requires Federal agencies to assess the effects of their 
regulatory actions on state, local, and tribal governments and the 
private sector. Section 202 of the UMRA requires that, prior to 
promulgating proposed and final rules with ``federal mandates'' that 
may result in expenditures by state, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year, the agency must prepare a written

[[Page 9918]]

statement, including a cost-benefit analysis of the rule. Under Section 
205 of the UMRA, the Department must also identify and consider a 
reasonable number of regulatory alternatives to the rule and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. Certain exceptions to Section 205 
exist. For example, when the requirements of Section 205 are 
inconsistent with applicable law, Section 205 does not apply. In 
addition, an agency may adopt an alternative other than the least 
costly, most cost-effective, or least burdensome in those cases where 
the agency publishes with the final rule an explanation of why such 
alternative was not adopted. Section 203 of the UMRA requires that the 
agency develop a small government agency plan before establishing any 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments. The small government agency 
plan must include procedures for notifying potentially affected small 
governments, providing officials of affected small governments with the 
opportunity for meaningful and timely input in the development of 
regulatory proposals with significant federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    The Department has determined that the rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments in the aggregate, or by the 
private sector in any one year. The term ``federal mandate'' means any 
provision in statute or regulation or any Federal court ruling that 
imposes ``an enforceable duty'' upon State, local, or tribal 
governments, and includes any condition of federal assistance or a duty 
arising from participation in a voluntary federal program that imposes 
such a duty. The rule does not contain a Federal mandate because it 
imposes no enforceable duty upon state, tribal, or local governments. 
The base closure laws provide local governments the opportunity to 
participate in the implementation of the base closure and realignment 
process by establishing a LRA. There is no statutory requirement that 
an LRA be established; it is simply a means to allow the maximum local 
participation in the planning process for installations being closed. 
Since the establishment of an LRA and any actions taken by the LRA are 
entirely within the discretion of the local governments in the vicinity 
of a closing installation, there is no mandate involved in this rule, 
funded or unfunded. The Department does note that virtually all LRAs 
are provided planning assistance funds by the Department of Defense 
Office of Economic Adjustment to assist them in establishing and 
operating the LRA. To the extent that environmental restoration actions 
taken by the Department at an installation being closed or realigned 
are subject to state regulatory oversight, that oversight is due to 
statutory requirements outside of the base closure and realignment 
process. This rule, itself, does not require such oversight. To the 
degree such oversight is required, it is required by preexisting law on 
which the rule has no effect.

D. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a Federal agency from conducting or sponsoring a collection 
of information that requires OMB approval, unless such approval has 
been obtained and the collection request displays a currently valid OMB 
control number. Nor is any person required to respond to an information 
collection request that has not complied with the PRA. The term 
``collection of information'' includes collection of information from 
ten or more persons. The Department has determined that the PRA does 
not apply to this rule because the Department will not be seeking 
information from the public under the rule. The information that would 
be collected will be in the form of applications for EDCs and similar 
property transfers and will, in all instances, be entirely voluntary 
and be the result of members of the public seeking real or personal 
property under the disposal process. Therefore, the PRA does not apply 
to the rule.

E. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, Section 12(d) (15 U.S.C. 272 
note), directs Federal agencies to use technical standards developed by 
voluntary consensus standards bodies in its regulatory activities, 
except in those cases in which using such standards would be 
inconsistent with applicable law or otherwise impractical. ``Technical 
standards'' means performance-based or design-specific technical 
specifications and related management systems practices. Voluntary 
consensus means that the technical standards are developed or adopted 
by voluntary consensus standards organizations. In those cases in which 
a Federal agency does not use voluntary consensus standards that are 
available and applicable, the agency must provide OMB with an 
explanation.
    The rule does not involve performance-based or des