Use of Federal Real Property To Assist the Homeless: Revisions to Regulations, 16834-16867 [2023-04353]
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16834
Federal Register / Vol. 88, No. 53 / Monday, March 20, 2023 / Proposed Rules
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 581
[Docket No. FR 6119–P–01]
RIN 2506–AC49
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–75
[3090–AK46]
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Part 12a
RIN 0991–AC14
Use of Federal Real Property To Assist
the Homeless: Revisions to
Regulations
Department of Housing and
Urban Development, General Services
Administration, and Department of
Health and Human Services.
ACTION: Proposed rule.
AGENCY:
The Department of Housing
and Urban Development (HUD), the
General Services Administration (GSA),
and the Department of Health and
Human Services (HHS) (the Agencies)
each have distinct responsibilities in the
administration of the Title V program,
authorized by the McKinney-Vento
Homeless Assistance Act. The program
makes suitable Federal real properties
categorized as underutilized, unutilized,
excess, or surplus available to States,
local government agencies, and
501(c)(3) tax-exempt non-profit
organizations for use to assist the
homeless. In 2016, the Federal Assets
Sales and Transfer Act amended Title V
of the McKinney-Vento Homeless
Assistance Act. This proposed rule
would incorporate required statutory
changes and current practices; update
references and terminology that are now
outdated; and revise procedures for
more efficient program administration
in the Agencies’ regulations.
DATES: Comment Due Date: May 19,
2023.
ADDRESSES: Interested persons are
invited to submit comments regarding
this proposed rule. All submissions
must refer to the above docket number
and title. There are two methods for
submitting public comments.
1. Submission of Comments by Mail.
Comments regarding a particular agency
or its portion of the proposed rule may
be submitted by mail to the Regulations
Division, Office of General Counsel,
Department of Housing and Urban
Development, 451 7th Street SW, Room
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SUMMARY:
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10276, Washington, DC 20410–0500;
Theresa M. Ritta, Program Manager,
Real Property Management Services,
Real Estate Logistics and Operations,
Program Support Center, ATTN: [RIN:
0991–AC14], 5600 Fishers Lane, Suite
6W66, Rockville, Maryland 20852,
respectively. Comments for GSA must
be submitted electronically.
2. Electronic Submission of
Comments. Interested persons may
submit comments electronically through
the Federal eRulemaking Portal at
www.regulations.gov. The Agencies
strongly encourage commenters to
submit comments electronically.
Electronic submission of comments
allows the commenter maximum time to
prepare and submit a comment, ensures
timely receipt, and enables the Agencies
to make comments immediately
available to the public. Comments
submitted electronically through the
www.regulations.gov website can be
viewed by other commenters and
interested members of the public.
Commenters should follow the
instructions provided on that site to
submit comments electronically.
speech or communication disabilities.
To learn more about how to make an
accessible telephone call, please visit:
https://www.fcc.gov/consumers/guides/
telecommunications-relay-service-trs.
Department of Housing and Urban
Development: Juanita Perry, Senior
Program Specialist, Office of Special
Needs Assistance Programs, Community
Planning and Development, Department
of Housing and Urban Development,
451 7th Street SW, Room 7262,
Washington, DC 20140; title5@hud.gov;
telephone number (202)–402–3970 (this
is not a toll-free number).
General Services Administration:
Chris Coneeney, Director, Real Property
Policy Division, Office of Governmentwide Policy, at 202–208–2956 or
chris.coneeney@gsa.gov. For
information pertaining to status or
publication schedules, contact the
Regulatory Secretariat Division at 202–
501–4755 or GSA at RegSec@gsa.gov.
Department of Health and Human
Services: Theresa M. Ritta, Program
Manager, Real Property Management
Services; Telephone: (301) 443–2265;
Email: rpb@psc.hhs.gov.
Note: To receive consideration as public
comments, comments must be submitted
through one of the two methods specified
above. Again, all submissions must refer to
the docket number and title of the rule.
I. Background
No Facsimile (FAX) Comments. FAX
comments will not be considered.
Public Inspection of Public
Comments. HUD will make available all
properly submitted comments and
communications for public inspection
and copying between 8 a.m. and 5 p.m.
weekdays at the above HUD address.
Due to security measures at the HUD
Headquarters building, you must
schedule an appointment in advance to
review the public comments by calling
the Regulations Division at 202–708–
3055 (this is not a toll-free number).
HUD welcomes and is prepared to
receive calls from individuals who are
deaf or hard of hearing, as well as
individuals with speech or
communication disabilities. To learn
more about how to make an accessible
telephone call, please visit https://
www.fcc.gov/consumers/guides/
telecommunications-relay-service-trs.
Copies of all comments submitted are
also available for inspection and
downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
information regarding each agency’s
implementation of these regulations, the
contact information for that agency
follows.
The Agencies welcome and are
prepared to receive calls from
individuals who are deaf or hard of
hearing, as well as individuals with
In 1991, the Agencies jointly
published a regulation (56 FR 23789
(May 24, 1991)), codified at 24 CFR part
581, 41 CFR part 102–75, and 45 CFR
part 12a, implementing the provisions
of Title V of the McKinney-Vento
Homeless Assistance Act (McKinneyVento Act or Title V) (42 U.S.C. 11411).
The 1991 regulation established
procedures for collecting information
from landholding agencies about excess,
surplus, unutilized, and underutilized
properties under their control and the
criteria for determining the properties’
suitability for use as homeless
assistance. It also provided procedures
and timelines for the application
process and agency review of submitted
applications to use such properties for
homeless assistance. The regulation has
not been updated since its publication
in 1991. Since that time, however, the
McKinney-Vento Act has been amended
several times by new legislation,
including the Homeless Emergency
Assistance and Rapid Transition to
Housing Act (Sec. 1003, Pub. L. 111–22,
1632, 1664–65), the Federal Property
Management Reform Act of 2016 (114
Pub. L. 318, 130 Stat. 1608), and most
significantly, section 22 of the Federal
Assets Sales and Transfer Act of 2016
(FASTA) (Pub. L. 114–287, 130 Stat.
1463 (codified at 40 U.S.C. 1303 note)).
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SUPPLEMENTARY INFORMATION:
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Under Section 501 of Title V, HUD
handles the suitability determination
and HHS processes applications from
eligible organizations and monitors
transferred property for compliance
with programmatic requirements. GSA
supports both agencies at various stages
throughout the entire process.
Specifically, GSA screens real
properties reported by a particular
agency as excess with other Federal
agencies to determine if they are
required for use by any other Federal
agency pursuant to 42 U.S.C.
11411(f)(3). Properties reported to GSA
for disposal are submitted by GSA to
HUD for a determination of suitability
for use to assist the homeless. Pursuant
to 42 U.S.C. 11411(b)(1)(B), after HUD
makes its suitability determination,
HUD reports the determination to GSA,
and GSA notifies HUD whether there is
a continuing need for the property
within the Federal government. In
practice, if GSA has information that
there is a continuing Federal need for
the property, GSA notifies HUD of the
continuing need when GSA submits
property information to HUD for the
suitability determination. If there is no
continuing Federal need for the
property, the property is determined
surplus to the needs of the Federal
government, and if HUD determines the
property to be suitable, then the
property is available for application to
HHS for homeless assistance use.
Pursuant to 42 U.S.C. 11411(f)(3)(A), if
HHS receives and approves an
application for surplus property and
recommends to GSA that the property
be conveyed to the applicant for
homeless assistance use, GSA assigns
the property to HHS. HHS then deeds or
leases the property to the applicant for
the purpose(s) stated in the approved
application, unless a competing request
for the property under 40 U.S.C. 550 is
determined by GSA or HHS to be so
meritorious and compelling as to
outweigh the needs of the homeless.
Pursuant to 42 U.S.C. 11411(a), HUD
is the agency authorized to determine
whether a property is suitable for
homeless assistance use. HUD must
request information from Federal
landholding agencies regarding
unutilized, underutilized, excess, and
surplus Federal real properties
(including land, buildings, and fixtures)
based on the requirements of 42 U.S.C.
11411(a). As required by 42 U.S.C.
11411(a), HUD must determine which of
those properties are suitable for
homeless assistance no later than thirty
days after receiving the information.
Once HUD has determined a property is
suitable for use to assist the homeless
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based on HUD’s suitability criteria, HUD
must then promptly notify each Federal
agency of the suitability determination
made pursuant to HUD’s suitability
criteria. The landholding agency must
respond to HUD within 45 days
regarding whether the property is
available for use to assist the homeless.
No later than 15 days after the end of
the 45-day period, HUD must publish a
list of all reviewed properties on the
HUD website, whether HUD determined
a reviewed property to be suitable for
use to assist the homeless, and whether
the property is available for application
for use to assist the homeless. HUD
must also publish annually all
properties that were identified as
suitable for use to assist the homeless,
but were reported to be unavailable, and
why the properties were unavailable, as
required by 42 U.S.C. 11411(c)(1)(D).
GSA also hosts a website listing
property available for homeless
assistance.1
Pursuant to 42 U.S.C. 11411(c)(1)(C),
if HUD determines a property is not
suitable for homeless assistance use, it
must identify the reasons for its
determination. If HUD determines a
property is unsuitable for homeless
assistance use, there is a 20-day holding
period to allow any representative of the
homeless to request that HUD review
the unsuitability determination. HUD
must review any such requests and
make a final determination pursuant to
42 U.S.C. 11411(d)(3), implemented in
the regulations at 24 CFR 581.4.
After HUD publishes its list of
suitable properties that are available for
application, an eligible organization
may apply to HHS for use of any such
property. HHS reviews applications to
use suitable properties to assist the
homeless under 42 U.S.C. 11411(e).
After HHS receives an initial
application, HHS has 10 days, unless
extended by HHS, to review it and make
a determination as to whether the initial
application is approvable. HHS must
maintain a public record of all actions
taken regarding an application under 42
U.S.C. 11411(e)(3). If HHS approves an
initial application, the applicant then
has 45 days to provide a final
application detailing a reasonable plan
to finance the approved homeless
assistance program under 42 U.S.C.
11411(e)(4). HHS must make a final
determination and complete all actions
on the final application within 15 days
of receipt of a final application pursuant
to 42 U.S.C. 11411(e)(5). HHS is then
1 General Services Administration, Notices of
Determination of Homeless Suitability and
Availability, Real Property Utilization and Disposal,
https://disposal.gsa.gov/s/noticetypedetail?type=
Homeless+Screening.
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responsible for pursuing the transfer of
a suitable property to an approved
applicant. In the case of excess or
surplus properties, HHS will request
assignment of the property from GSA,
and if GSA assigns the property to HHS,
HHS will enter into a lease or deed with
the successful applicant. In the case of
unutilized or underutilized property,
HHS will process applications for the
use of the property, but the individual
landholding agency will enter into the
lease or permit agreement with the
successful applicant. HHS is also the
responsible agency for ensuring posttransfer compliance and monitoring
activities for those properties transferred
by HHS.
As previously noted, FASTA made
several changes to the McKinney-Vento
Act. Section 22 of FASTA amended the
McKinney-Vento Act to allow for HUD’s
suitability determinations to be posted
electronically; to eliminate subsequent
posting of previously reported
properties determined unsuitable with
no changes; to change the timeframes
related to how long suitable and
available properties are held for
homeless assistance use; to change the
number of days by which eligible
organizations must submit an
expression of interest to HHS from 60
days to 30 days from the date of HUD’s
publication; to create a two-phased
application process; to shorten the
initial application processing period
from 90 days to 75 days; and, if
approved, provide the applicant 45 days
to submit a final application. If HHS
does not approve a final application
after approving an initial application,
disposal of the property may proceed in
accordance with applicable law.
In addition to 42 U.S.C. 11411 and the
current regulations, the Title V Program
is guided by Federal court decisions,
including the March 13, 2017, revised
Order in National Law Center on
Homelessness and Poverty v. Veterans
Administration, et al. 1988 WL 136970
(D.D.C. 1988). Subsequent nationwide
litigation, including Colorado Coalition
for the Homeless v. GSA and HHS, 2019
WL 2723857 (D.CO. 2019), United
States v. Overcoming Love Ministries,
2018 WL 4054867 (E.D.N.Y. 2018) and
New Life Evangelistic Center, Inc. v.
Sebelius, 753 F.Supp.2d 103 (D.D.C.
2010) have interpreted and applied key
provisions of Title V and HHS’s
regulations. These rulings, taken
together with the Agencies’ experience
operating the Title V program over the
past thirty years, have convinced the
Agencies that it is now appropriate to
amend this joint regulation to achieve
the following three goals: harmonize the
joint regulation with Title V, as
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amended by FASTA; incorporate
existing policy and practice
requirements for the benefit of future
applicants; and, for ease of reference,
expand portions of the joint regulation
that cross-reference other sections of
other regulations by incorporating the
referenced portions.
II. This Proposed Rule
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A. Collaborative Changes Across HUD,
GSA, and HHS’s Individual Regulations
This proposed rule would establish
procedures conforming to FASTA,
incorporate other legislative changes,
and codify established policies and
processes that the Agencies use to
govern the program. For greater
readability, in instances where
requirements found in other sections of
the proposed rule are referenced by
citation, this proposed rule would
instead incorporate those provisions in
each agency’s individual regulations,
rather than just the citation, to provide
a broader and clearer understanding of
the Title V program requirements. This
proposed rule would also provide
revised suitability criteria for clarity and
to address GAO’s recommendation in its
2014 report entitled Federal Real
Property: More Useful Information to
Providers Could Improve the Homeless
Assistance Programs.2
The changes in the proposed rule
would amend the Agencies’ individual
regulations found in Title 24 (HUD),
Title 41 (GSA), and Title 45 (HHS) of
the Code of Federal Regulations.
Provisions of this proposed rule that
apply to the Agencies collectively
would be found in each agency’s
regulations. HUD’s and GSA’s
regulations have included all sections
applicable to all three Agencies within
its regulations found in Title 24 and
Title 41, respectively. HHS’s regulation
will only include provisions directly
applicable to HHS.
Throughout this proposed rule, the
Agencies have renumbered various
existing sections of their respective
regulations. This proposed rule
references the current section numbers
in discussing changes to the applicable
sections unless otherwise stated. Also of
note, within this proposed regulation,
variations of the terms United States
and Federal government are intended to
be used interchangeably.
1. Definitions
This proposed rule would remove
definitions that are no longer relevant,
revise other definitions to conform to
existing legislation, and incorporate
2 https://www.gao.gov/assets/gao-14-739.pdf.
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new definitions, some of which are
currently used but are not defined in the
existing Title V regulation. The updated
definitions would modify 24 CFR 581.1,
41 CFR 102–75.1160, and 45 CFR 12a.1
to provide clarity and consistency
regarding the Agencies’ roles and
requirements for potential Title V
applicants. The definitions of Checklist,
Classification, Day, GSA, HHS, HUD,
Non-profit organization, Representative
of the homeless, Suitable property,
Underutilized, Unsuitable property, and
Unutilized property would remain
unchanged.
The definitions of Applicant, Eligible
organization, Excess property,
Homeless, Landholding agency, Lease,
Permit, Property, Screen and Surplus
property would be amended to provide
consistent regulatory language across
the Agencies. The proposed changes to
the definitions of Applicant, Eligible
organization, and Surplus property
would be non-substantive but provide
more clarity. The definition of
Landholding agency would be updated
to provide more detail regarding the
type of agency that typically qualifies as
a landholding agency. The definition of
Lease would be updated to clarify that
in the case of underutilized and
unutilized real properties, landholding
agencies would be the only party from
the Federal government to the lease
agreement and that landholding agency
lease agreements pertain only to
underutilized and unutilized real
properties. The definition of Permit
would be amended to specify that
permits are typically granted for a
maximum of one year and to clarify that
a permit does not grant to the recipient
any interest in the property.
The definition of Excess property
would be updated to conform with 40
U.S.C. 102, consistent with the Federal
Property Management Reform Act of
2016 and remove the word ‘‘discharge’’
from an agency’s needs or
responsibilities. The definition of
Homeless would be revised to crossreference the definition at 42 U.S.C.
11302. The definition of this term was
amended by the Homeless Emergency
Assistance and Rapid Transition to
Housing Act of 2009 (division B, Pub. L.
111–22). The proposed revision is for
ease of program administration in the
event of a future statutory amendment.
The revision is not intended to revise
the current interpretation of ‘‘homeless’’
for this program or the terms of
‘‘homeless,’’ ‘‘homeless individual,’’ or
‘‘homeless person’’ for other programs
not covered by this part. The definition
of Property would be updated to
reference 40 U.S.C. 524, pursuant to the
Federal Property Management Reform
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Act of 2016, which describes executive
agencies’ property management duties.
The definition of Screen would be
amended to add the term ‘‘surplus.’’ The
Agencies are proposing this change to
clarify the types of properties subject to
the screening processes.
Lastly, the proposed rule would add
the following definitions: HUD website
for clarity, based on FASTA’s
requirement that HUD publish on the
HUD website all reviewed properties
determined by HUD to be suitable for
use to assist the homeless and that are
available for application for use to assist
the homeless; Transferee to clarify that
it means an eligible entity that acquires
Federal real property by lease, deed, or
permit; Transfer document to identify
such documents as being lease, deed or
permit; Substantial noncompliance to
clarify that it means the failure to take
corrective action as directed by HHS,
based on transferees’ and potential
funders’ concerns that HHS will revert
a property for a minor issue that was, or
could easily be, addressed by corrective
action; and Related personal property
and State to conform with 45 CFR
12.1(n) and (p), respectively, as it
pertains to this part.
The definitions of Regional Homeless
Coordinator and State Homeless
Coordinator would be removed as they
are no longer applicable. The definition
of ICH would also be removed from the
definition section, and instead the term
‘‘United States Interagency Council on
Homelessness’’ would be included
within the text of the proposed rule on
its first reference.
2. Applicability
The proposed rule would expand the
sections of the Agencies’ regulations
that identify which properties are not
subject to the joint regulation by adding
properties that are not subject to Federal
Real Property Council reporting
requirements to this list, in accordance
with 40 U.S.C. 623(i). Additionally, 24
CFR 581.2, 41 CFR 102–75.1161, and 45
CFR 12a.2, would be updated to reflect
that properties not subject to the joint
regulation include buildings and
property at military installations that
were approved for closure under the
Defense Base Closure and Realignment
Act of 1990 after October 25, 1994. The
proposed rule would also amend 24
CFR 581.2(b)(2), 41 CFR 102–
75.1161(b)(2), and 45 CFR 12.a.2(b)(2),
to make clear that machinery and
equipment that is not related personal
property is not subject to the joint
regulation, and that machinery and
equipment that is related personal
property is not subject to the regulation
if GSA or the landholding agency
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choose to dispose of the machinery and
equipment separate from the real
property. At 24 CFR 581.2(b)(8) and 45
CFR 12a.2(b)(8), the joint regulation
already includes Indian Reservation
land as property not subject to the joint
regulation but does not include the
citation to 40 U.S.C. 523. This proposed
rule would add the citation to these
sections at newly designated paragraph
(a)(9) where it currently does not exist.
Additionally, the current regulation
already provides that properties
‘‘subject to a court order’’ are not subject
to the regulation, and this proposed rule
would specify that this refers only to
court orders that, for any reason,
preclude transfer for use to assist the
homeless under Title V at proposed 24
CFR 581.2(b)(5), 41 CFR 102–
75.1161(b)(5), and 45 CFR 12a.2(b)(5).
Similarly, the proposed rule would
provide clarity regarding the current
exclusion of mineral and air space rights
from Title V processing by specifying
that these exclusions refer to mineral
and air space rights that are
independent of surface rights. This
change would be found in newly
designated paragraphs (a)(7) and (8).
Lastly, this proposed rule would
exclude from Title V processing excess
or surplus buildings or fixtures that sit
on land owned by a landholding agency
where the underlying land is not also
excess or surplus. These changes would
be found at proposed paragraph (b)(12)
of 24 CFR 581.2, 41 CFR 102–75.1161,
and 45 CFR 12a.2.
3. Collecting Information From Federal
Agencies
The McKinney-Vento Act requires
HUD to canvass landholding agencies
quarterly and requires the landholding
agencies to respond with property
information within 25 days. HUD is
then required to make a suitability
determination on the property within 30
days of receipt of the property
information. Because of the high
number of properties being reported to
HUD, HUD began accepting property
information from landholding agencies
on an ongoing basis. This proposed rule
would codify this existing process at 24
CFR 581.3(a) and 41 CFR 102–
75.1162(a). It also would provide that
HUD’s canvass of landholding agencies
will include information about
previously reported properties only if
the property’s status or classification
changed, or if improvements were made
to the property since the property was
last reported to HUD. It would clarify
that landholding agencies will respond
to HUD’s information collecting canvass
in accordance with 40 U.S.C. 524. This
proposed rule would clarify in 24 CFR
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581.3(a) and 41 CFR 102–75.1162(a) that
a completed property checklist is the
vehicle for submitting property
information to HUD. Consistent with
FASTA, paragraphs (d) of 24 CFR 581.3
and 41 CFR 102–75.1162 would provide
that HUD will review properties with a
change in status for suitability and
repost the property information on the
HUD website.
4. Suitability Determination
HUD has 30 days from the time it
receives property information from
landholding agencies or GSA to make a
suitability determination. Currently,
property that is determined unsuitable
may not be made available for any other
purpose for 20 days after publication
under 24 CFR 581.4(e) and 41 CFR 102–
75.1175(e). To request a review of a
property determined unsuitable for
homeless assistance use, a
representative of the homeless must
contact HUD within 20 days of the
publication of notice that a property is
unsuitable pursuant to 24 CFR
581.4(f)(1) and 41 CFR 102–
75.1175(f)(1). Under 24 CFR 581.4(f)(4)
and 41 CFR 102–75.1175(f)(1) of the
current regulation, HUD is required to
notify the landholding agency of the
request to review the unsuitability
determination and advise the
landholding agency that it should
refrain from initiating disposal
procedures until HUD has completed its
reconsideration regarding unsuitability.
Regulations found at 24 CFR
581.4(f)(4)(i) and 41 CFR 102–
75.1175(f)(4)(i) currently provide that
HUD will act on all review requests
within 30 days after receiving the
landholding agency’s response and will
notify the representative of the homeless
and the landholding agency in writing
of its decision. There is currently no
deadline, however, for the landholding
agency to respond to HUD’s request for
additional information. The current
regulation also does not outline the
determination process after HUD
receives or does not receive the
landholding agency’s response. As a
result, the Agencies are proposing in 24
CFR 581.4(f)(4) and 41 CFR 102–
75.1163(f)(4) of this proposed rule that
unless HUD and the landholding agency
agree to an extended period, the
deadline for the landholding agency to
respond to HUD’s request for additional
information would be 20 days from the
date that the landholding agency is
notified of the request to review the
unsuitability determination. If the
landholding agency fails to meet the
deadline or request an extension, HUD
would proceed with the appeal review
with the property information provided
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in the survey it already has and
information submitted in the appeal
request provided by the representative
of the homeless. This proposed rule
would add at proposed paragraph
(f)(4)(i) of 24 CFR 581.4 and 41 CFR
102–75.1163 that HUD will act on
requests for review where the
landholding agency or GSA has failed to
meet the deadline within 30 days of
such deadline.
This rule would also propose to
incorporate required statutory changes
under FASTA in proposed sections 24
CFR 581.4(e), (f)(1), and (f)(4)(ii) and 41
CFR 102–75.1163(e), (f)(1), and (f)(4)(ii)
that allow HUD to post suitability
determinations on a HUD website or a
successor technology that is equally
accessible and available to the public.
This proposed rule would update
processes by removing the identified
toll-free number from 24 CFR 581.8(b)
and revising it to state that HUD will
establish and maintain ‘‘a toll-free
number’’ for the public to obtain
specific information about Title V
property reviewed for suitability.
Persons with inquiries regarding
property suitability and other Title V
related questions will be instructed to
submit questions through the HUD Title
V website, or such other method as HUD
may require in proposed 24 CFR
581.4(f)(1) and 41 CFR 102–
75.1163(f)(1). Persons with disabilities
may also request an alternative method
for submitting inquiries when it may be
necessary as a reasonable
accommodation under Federal fair
housing laws.
5. Real Property Reported Excess to GSA
Currently under 24 CFR 581.5 and 41
CFR 102–75.1180, landholding agencies
are required to submit a report to GSA
of properties determined as excess along
with a copy of any HUD suitability
determination. These sections in HUD’s
and GSA’s regulations would remain
substantially the same but would be
updated for clarity. Within Title 41, this
proposed rule would contain this
section at the redesignated 41 CFR 102–
75.1164.
6. Suitability Criteria
This proposed rule would revise the
criteria in 24 CFR 581.6 and 41 CFR
102–75.1185 that HUD uses to
determine suitability to make the
criteria clearer and more user-friendly
for both the Agencies and applicants.
The Agencies propose to reframe this
section by dividing the suitability
criteria into two categories: (1)
properties deemed suitable unless the
properties have any of the
characteristics listed in paragraph (a),
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and (2) properties having characteristics
that would make the property
presumptively unsuitable, unless the
landholding agencies provide further
information for HUD to determine the
property suitable, in proposed
paragraph (b).
In proposed paragraph (a)(1), the
proposed rule would revise the criteria
relating to property located near a
container or facility storing, handling, or
processing flammable or explosive
materials to provide for suitability if
HUD can determine, based on
information provided by the
landholding agency or GSA, that the
property complies with the acceptable
separation distance standards at 24 CFR
part 51, subpart C and the HUD
Guidebook, ‘‘Siting of HUD-Assisted
Projects Near Hazardous Facilities’’ or a
successor guidebook, or that appropriate
mitigating measures, as defined in 24
CFR 51.205, are already in place. The
proposed rule would remove the
reference to 2000 feet and the references
to gasoline stations, tank trucks, above
ground containers ‘‘with a capacity of
100 gallons or less,’’ and larger
containers providing heating or power.
Instead, the proposed rule would utilize
the more useful acceptable separation
distance standards and would exclude
containers and facilities that are not
hazards, as defined in 24 CFR 51.201.
Additionally, in proposed paragraph
(a)(2), the proposed rule would add
coastal barriers as a suitability criterion;
properties located in a Coastal Barrier
System Unit would be determined
unsuitable because most new federal
expenditures and financial assistance,
including federal flood insurance, are
prohibited within Coastal Barrier
System Units.3 A Coastal Barrier System
Unit is any undeveloped coastal barrier,
or combination of closely related
undeveloped coastal barriers, included
within the Coastal Barrier Resources
System established by the Coastal
Barriers Resources Act, as amended
(codified at 16 U.S.C. 3501).
This proposed rule would also
rename the documented deficiencies
criterion currently at 24 CFR 581.6(a)(5)
and 41 CFR 102–75.1185(a)(5) as ‘‘Site
Safety Conditions’’ in newly
redesignated paragraph (a)(3) and focus
that criterion solely on a property’s
physical characteristics, including, as
examples, properties that exhibit
significant contamination from
hazardous substances, as defined by 42
3 See U.S. Fish and Wildlife Service, Glossary,
Coastal Barrier Resources System, https://
www.fws.gov/ecological-services/about/glossary.
html#CBRA.
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U.S.C. 9601, periodic flooding,
sinkholes, or landslides.
The proposed rule would move the
criteria regarding floodways, national
security concerns, runway clear zones,
and inaccessible property into
paragraph (b), as property presumed
unsuitable unless information to enable
HUD to determine it suitable is
provided. The proposed rule would also
remove the reference in the current rule
to floodways that have been ‘‘contained
or corrected’’, since the meaning of
‘‘corrected’’ is unclear and a floodplain
that is ‘‘contained’’ might still adversely
affect the use of portions of the site that
are located within the ‘‘contained’’
floodway to assist the homeless.
The proposed rule also includes
specific questions for public comment
in section III regarding suitability
criteria. The Agencies considered
several changes to this section and do
not expect these proposed changes to
affect the number of properties deemed
suitable.
7. General Policies of HHS
The proposed rule would add a
section General Policies of HHS to
mirror 45 CFR part 12.3 instead of
incorporating that regulation. The
section highlights the minimum criteria
for eligibility for and transfers of surplus
property.
8. Expressions of Interest Process
HHS is responsible for accepting
expressions of interest for properties
published by HUD as suitable and
available for homeless assistance
purposes. Pursuant to FASTA, the
period in which eligible organizations
must submit an expression of interest
has changed from 60 days to 30 days
from the date of HUD’s publication.
Therefore, eligible organizations must
now submit an expression of interest to
HHS within 30 days of HUD’s
publication date. This proposed change
would be found at 24 CFR 581.10, 41
CFR 102–75.1169, and 45 CFR 12a.4. In
an effort to increase efficiency and be
environmentally conscious, HHS will
accept such expressions of interest by
email at rpb@psc.hhs.gov. This change
is located at paragraph (c) of those
sections. HHS’s physical address would
also be updated to its current physical
address in the revised regulation.
Additionally, at paragraph (b), this
section would be amended to clarify
that HUD’s determination of suitability
does not mean a property is necessarily
useable for the purpose stated in the
application, nor does it guarantee
subsequent conveyance or transfer of a
property.
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9. Application Process and
Requirements
HHS is responsible for receiving and
evaluating applications submitted by
eligible organizations for properties
deemed suitable and available. Prior to
FASTA, eligible organizations were
required to submit a single application
within 90 days after HHS’s receipt of an
acceptable expression of interest. Under
FASTA, the process now requires that
an eligible organization submit an initial
application within 75 days following
HHS’s receipt of an expression of
interest, unless extended by HHS. If
HHS approves the initial application,
then a final application, setting forth a
reasonable financial plan, must be
submitted within 45 days of HHS’s
approval of the initial application. This
proposed rule would incorporate the
two-stage application process outlined
in FASTA and which HHS currently
follows.
The proposed rule would revise the
regulation to make the application
requirements more clear, concise, and
consistent with the instructions
accompanying the application packet.
This proposed rule would expand the
existing regulations found at 24 CFR
581.9, 41 CFR 102–75.1200 and 45 CFR
12a.9 to describe the specific document
an applicant must submit with its
application to demonstrate its ability to
hold title to property for the requested
purpose(s). This proposed rule would
also modify the current regulations
found at 24 CFR 581.9(b)(2), 41 CFR
102–75.1200(b)(2) and 45 CFR
12a.5(b)(2) to require that applicants
certify, rather than merely indicate, that
their use of the property and any
modification(s) made to the property,
conform to all applicable building codes
and local use restrictions, or similar
limitations, including local zoning
regulations. The modification is meant
to ensure an applicant’s proposed
program is capable of being developed
and operated following transfer without
hindrances posed by local codes,
regulations and/or similar limitations.
These updates would also incorporate
existing practice that applicants
requesting lesser portions of the listed
real property will be denied. These
updated provisions would be found at
the newly redesignated paragraphs (a)(1)
and (a)(2) of 24 CFR 581.11, 41 CFR
102–75.1170, and 45 CFR 12a.5.
This proposed rule would also
expand current 24 CFR 581.9(b)(3), 41
CFR 102–75.1200(b)(3) and 45 CFR
12a.9(b)(3) to advise applicants that the
description of the proposed program
must also include how the applicant
intends to implement the proposed
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program. Such information is crucial to
HHS in rendering a determination on
the adequacy and timeliness of a
proposed program and likelihood of
operational success, and often
applications only contain a list of
proposed services without any
description about the programs or
implementation. The proposed rule
would capture these changes at the
newly redesignated paragraphs (a)(3) of
24 CFR 581.11, 41 CFR 102–75.1170,
and 45 CFR 12a.5.
This proposed rule would also modify
24 CFR 581.9(b)(4) and 581.9(b)(5), 41
CFR 102–75.1200(b)(4) and 102–
75.1200(b)(5) and 45 CFR 12a.9(b)(4)
and 12a.9(b)(5) for greater clarity
regarding the application process. These
updated paragraphs would be found at
newly redesignated paragraphs (a)(4)
and (a)(5) of 24 CFR 581.11, 41 CFR
102–75.1170, and 45 CFR 12a.5.
Regarding paragraph (a)(4), an applicant
would be required to demonstrate both
that there is an immediate need to
acquire the property for the proposed
program and the applicant’s ability to
utilize all of the Federal real property
for which it is applying. Additionally,
this paragraph would be expanded to
clarify that an applicant is required, per
the application instructions, to provide
details concerning modifications to the
property that need to be completed
before the program can become
operational.
This proposed rule would also clarify
24 CFR 581.9(b)(4), 41 CFR 102–
75.1200(b)(4) and 45 CFR 12a.9(b)(4),
the requirements needed to demonstrate
an applicant’s ability to finance and
operate the proposed program. Finances
typically prove to be the most difficult
for transferees to navigate to ensure that
monies are available to successfully
operate the program and adequately
maintain the property during the
duration of the transfer term.
Formulating a reasonable financial plan
during the application process ensures
that an applicant has the methods and
means to carry out the application
proposal. The requisite information
provides HHS more confidence in
making a determination on an
application and is designed to both
spare applicants the time and expense
associated with a transfer that is likely
to fail and protect the United States’
residual interest in the transferred
property. Therefore, rather than
requiring that an applicant merely
‘‘indicate’’ it has financial ability, this
proposed rule would revise this section
to incorporate HHS’s current practice of
requiring that an applicant
‘‘demonstrate’’ its financial ability. A
reasonable financial plan must, at a
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minimum, be specific and be
accompanied by supporting
documentation which demonstrates that
the proposed plan is likely to succeed;
and neither diminish the value of the
government’s interest in the property
nor impair the government’s ability to
revert and immediately dispose of the
property with clear title, free of any lien
or encumbrance. Further, this section
would memorialize current practice,
which permits HHS to grant, to an
otherwise approved applicant, a shortterm lease when a zoning change is
required or an applicant’s financial plan
proposes to utilize Low-Income Housing
Tax Credits or other funding sources
that typically take longer to process than
other forms of financing. This enables
the approved applicant to gain site
control of the property that may be
required for funding and additional time
to provide HHS the requisite
information to ensure the Federal
government’s interest in the property is
adequately protected. These proposed
changes would be found at newly
redesignated paragraph (a)(6) of 24 CFR
581.11, 41 CFR 102–75.1170, and 45
CFR 12a.5.
This proposed rule would modify 24
CFR 581.9(b)(6), 41 CFR 102–
75.1200(b)(6) and 45 CFR 12a.9(b)(6) to
clearly state property insurance
requirements and the purpose thereof,
thereby allowing for the omission of the
reference to other provisions of the
Agencies’ regulations. This proposed
rule would amend 24 CFR 581.9(b)(9),
41 CFR 102–75.1200(b)(9) and 45 CFR
12a.4(b)(9) pertaining to local
government notification of the
applicant’s application for acquisition of
surplus property for the proposed
purpose. The section would be amended
to incorporate HHS’s current practice of
requiring that an applicant notify the
local government in writing and provide
evidence of such rather than simply
indicate in its application that it has
done so. These changes would be
codified at newly redesignated
paragraphs (a)(9) and (a)(12),
respectively, of 24 CFR 581.11, 41 CFR
102–75.1170, and 45 CFR 12a.5.
The proposed rule would revise and
expand 24 CFR 581.9, 41 CFR 102–
75.1200, and 45 CFR 12a.9 to clarify the
requirements regarding the transfer of
surplus property and to comply with
FASTA. Pursuant to FASTA, an
applicant has the discretion to apply for
Federal real property for a permit, lease,
or deed. An applicant applying for a
deed must comply with local zoning
and certify such in its application by
providing the required documentation.
This proposed rule would incorporate
HHS’s current policy that transfers by
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16839
deed will only be made subsequent to
the appropriate certification that the
proposed program is not in conflict with
State or local zoning restrictions,
building codes, or similar limitations,
omitting the need to reference other
provisions of the Agencies’ regulations.
This proposed rule would also revise
24 CFR 581.9(c), 581.9(d), and 581.9(e),
41 CFR 102–75.1200(c), 102–75.1200(d),
and 102–75.1200(e), and 45 CFR
12a.9(c), 12a.9(d), and 12a.9(e) to
conform to legislative changes required
by FASTA. Under FASTA, an initial
application is now due 75 days
following HHS’s receipt of an
expression of interest. This differs from
the current regulation requiring the
application, in its entirety, be submitted
within 90 days of an applicant’s
expression of interest. This proposed
rule would revise paragraph (c) of the
previously referenced sections to set
forth the new deadline for submitting an
initial application. Additionally,
FASTA reduced the time for HHS to
review an initial application from 25
days to 10 days of its receipt. This
proposed rule would reflect this change
and revise paragraph (d) of the above
referenced sections within the Agencies’
individual regulations. It would also
revise the ranking system and criteria
contained in this section. An initial
application would be evaluated based
on the three statutory criteria: services
offered; need; and experience. Criteria
would no longer be evaluated with
ranking weights; rather, all criteria
would be of equal weight, and failure to
meet any one criterion would result in
the application being disapproved.
Additionally, each paragraph within
this section would be revised to
conform to legislative changes pursuant
to FASTA and to eliminate any
confusion caused by the March 13,
2017, revised Order in National Law
Center on Homelessness and Poverty v.
Department of Veterans Affairs, (D.D.C.
1988).4 If HHS approves an initial
application, an applicant is provided 45
days to submit a final application,
4 The revised court order provides, in pertinent
part: ‘‘No later than 15 days after the receipt of the
final application, HHS shall review, make a final
determination, and complete all actions on the final
application. This period may be extended by
agreement of HHS and the applicant.’’ The language
ostensibly provides HHS with the discretion to
extend the statutory deadline for the final
application. Consistent with HHS practice since
FASTA was implemented and judicial decisions
such as Colorado Coalition for the Homeless v. GSA
and HHS, 2019 WL 2723857 (D.CO. 2019) and New
Life Evangelistic Center, Inc. v. Sebelius, 753
F.Supp.2d 103 (D.D.C. 2010), HHS will require all
final applications to be completely submitted
within the statutory deadline and will not exercise
the discretion the Court’s order in National Law
Center purports to give to HHS.
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setting forth a reasonable financial plan.
HHS will not extend the deadline to
submit a final application, or any part
thereof, as the statute does not contain
an extension provision or otherwise
allow the deadline to be extended. HHS
will provide a determination within 15
days of receiving the final application.
10. Surplus Property Transfer
Documents
This proposed rule would add an
entirely new section regarding transfer
documents to conform to legislative
changes made pursuant to FASTA.
Applicants are permitted to apply for
surplus property for acquisition by
lease, deed, or permit. For clarifying
purposes, the proposed rule would add
this section to include relevant
provisions of 41 CFR part 102–75 and
45 CFR part 12 pertaining to general
terms and conditions of transfers. This
proposed change improves the
readability of the regulation and
removes the need for additional crossreferences. Additionally, the proposed
rule omits the provision that requires
the reversion or abrogation of
transferred property, at the discretion of
HHS, should the property not be placed
into use within 8 years. This change
allows more flexibility to resolve such
issues on a case-by-case basis and, based
on conversations with transferees,
provides more assurances to funders
that property may not be automatically
reverted should the property not be
placed into use within 8 years. These
proposed changes would be captured at
newly redesignated 24 CFR 581.14, 41
CFR 102–75.1172, and 45 CFR 12a.7.
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11. Compliance With the National
Environmental Policy Act of 1969
(NEPA) and Other Related Acts
(Environmental Impact)
At 24 CFR 581.9(b)(8), 41 CFR 102–
75.1200(b)(8), and 45 CFR 12a.9(b)(8),
the current regulation already provides
general application requirements as they
pertain to environmental information.
The proposed rule would expand these
sections to clarify and to mirror
requirements and policies currently
required by NEPA and other related
Acts. This proposed rule would contain
this expanded clarification at 24 CFR
581.16, 41 CFR 102–75.1174, and 45
CFR 12a.8.
12. No Applications Approved
This proposed rule would modify 24
CFR 581.12, 41 CFR 102–75.1215, and
45 CFR 12a.12 to comply with FASTA.
Under FASTA, Federal real properties
shall only be held for 30 days to permit
homeless providers an opportunity to
submit a notice of interest instead of the
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previous 60-day holding period.
Additionally, FASTA requires GSA or
the landholding agency to proceed with
disposal of surplus property 75 days
following receipt of an initial expression
of interest if no initial application or
requests for extensions have been
received by HHS, or within 45 days after
an approved initial application if no
final application has been received. This
means that no disposal action can be
taken by GSA or the landholding
agency, as appropriate, until all Title V
actions are completed. The proposed
rule would codify these changes in the
newly redesignated 24 CFR 581.17, 41
CFR 102–75.1175, and 45 CFR 12a.9.
13. Utilization and Enforcement
This proposed rule would add 24 CFR
581.18, 41 CFR 102–75.1176, and 45
CFR 12a.10 to clearly articulate a
transferee’s utilization requirements and
potential enforcement actions that may
be taken, at the discretion of HHS,
should noncompliance occur. HHS’s
policies have not changed but are
included in the regulation to clarify
program requirements to applicants and
transferees. This section also includes
the Federal government’s requirements
of transferees in the event of a reversion
action. Such reversionary language is
currently included in transfer
documents.
14. Other Uses
The proposed rule would add 24 CFR
581.19, 41 CFR 102–75.1177, and 45
CFR 12a.11 to incorporate HHS’s
current policy as it relates to ‘‘other
uses’’ of surplus property by transferees.
The proposed rule would make clear the
requirements of transferees should a
transferee request approval to utilize the
property, or a portion thereof, for uses
other than those stated in the approved
original application. In adding this
section, the Agencies address questions
and requests made by transferees since
inception of the program.
15. Abrogation
The abrogation process is discussed in
various sections of the current
regulation, and this proposed rule
would establish 24 CFR 581.20, 41 CFR
102–75.1178, and revise 45 CFR 12a.12
to more clearly articulate the instances
in which HHS may abrogate the
conditions and restrictions in the
transfer document. This proposed rule
would address the abrogation process in
its own section for clarity and
simplicity.
16. Compliance Inspections and Reports
For clarifying purposes, the proposed
rule would add this section to include
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provisions of 45 CFR part 12.14
pertaining to compliance inspections
and reports. HHS’s policies have not
changed but are included in the
regulation to be clearer for the public
and removes the need for additional
cross-references. These policies would
be captured at 24 CFR 581.21, 41 CFR
102–75.1179, and 45 CFR 12a.13.
17. No Right of Administrative Review
for Agency Decisions
Title V, as amended by FASTA, does
not provide for internal administrative
review of HHS application decisions.
Accordingly, the proposed rule would
establish 24 CFR 581.22 and 41 CFR
102–75.1180, and modify 45 CFR 12a.14
to codify HHS’s existing policy that no
agency reconsideration or appeal shall
be granted. HHS’s application decision
constitutes final agency action in
accordance with the Administrative
Procedure Act (5 U.S.C. 704).
18. Public Notice and Holding Period
Under FASTA & Technical Changes
This proposed rule would make
changes throughout HUD’s and GSA’s
existing regulations and implement
FASTA amendments to the McKinneyVento Act, including that suitability
determinations for properties are
published electronically on the HUD
website and that HUD will post a list of
all properties reviewed, including a
description of the property, its address,
and classification on the HUD website,
rather than in the Federal Register. The
language ‘‘on the HUD website’’ would
be added to 24 CFR 581.8(a) and 41 CFR
102–75.1167(a) and in place of ‘‘Federal
Register’’ as necessary, throughout
HUD’s and GSA’s regulations. In
addition, the proposed rule would
revise 24 CFR 581.8(b) and 41 CFR 102–
75.1167(b) to remove identification of a
specific toll-free number to
accommodate any necessary changes to
the toll-free number in the future and
more closely align with 42 U.S.C.
11411(c)(2)(C). The proposed rule also
clarifies that the list of all properties
published on the HUD website is sent to
the United States Interagency Council
on Homelessness within the same
timeframe as HUD’s publishing of the
list of all reviewed properties to the
HUD website. Requirements for the
agency annual suitable property report
would be added to 24 CFR 581.3(b) and
41 CFR 102–75.1162(b), and the
proposed rule would clarify that the list
of all properties published in the
Federal Register no later than February
15 of each year would be a list of all
properties from the agency annual
suitable property reports, reported to
HUD pursuant to 24 CFR 581.3(b) and
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41 CFR 102–75.1162(b). To reflect the
transition to publishing electronically,
the proposed rule also removes the
requirement for physical copies of the
list of all properties published in the
Federal Register be available for review
in HUD buildings.
Additional technical changes would
be made throughout the regulations for
clarity, including at proposed sections
24 CFR 581.8 and 581.12, 45 CFR 12a.6,
and 41 CFR 102–75.1167 and 102–
75.1171.
B. Changes to HUD’s Regulations
The proposed changes to regulations
found at 24 CFR part 581 relate to each
agency’s responsibilities under the
McKinney-Vento Act in an effort to
provide the public with a
comprehensive understanding of the
Title V process. Part 581 would
continue to contain HUD’s
responsibilities under Title V while also
publishing all changes discussed above,
including new sections explained above
in II.A.10, II.A.11, and II.A.13 through
II.A.16.
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C. Changes to GSA’s Regulations
The regulations found at 41 CFR 102–
75 (subpart H) would relate to GSA’s
role in the use of Federal real property
to assist the homeless along with the
other Agencies’ responsibilities. Since
this regulation will be published jointly
with HUD and HHS, subpart H would
be updated to include all changes
discussed above, including new sections
explained above in II.A.10, II.A.11, and
II.A.13 through II.A.16. This proposed
rule would also update subpart H to
include a section on waivers previously
contained in HUD’s regulations at 24
CFR 581.13 but never published in
GSA’s regulations. Lastly, sections in
subpart H would be renumbered
throughout the regulation as noted
above.
D. Changes to HHS’s Regulations
The regulations found at 45 CFR 12a
would solely relate to HHS’s portion of
the proposed rule. Part 12a would be
updated to include all changes
discussed above, except sections that
are not applicable to HHS, which
include II.A.3 through II.A.6. The
changes to Part 12a would also include
new sections explained in II.A.10,
II.A.11, and II.A.13 through II.A.16.
III. Questions for Public Comment
HUD and GSA seek public comment
on the suitability criteria in 24 CFR
581.6 and 41 CFR 102–75.1165 and on
the proposal to exclude property from
the screening process if it is only
available for removal for off-site use. For
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each of the questions asked below, and
regarding any other issue, the Agencies
are interested in public comment on
whether and how the Agencies should
refine the suitability criteria such that
HUD can determine properties suitable
under the statute notwithstanding
certain conditions that will not be
remedied by landholding agencies
before property is transferred by longterm lease or deed. Specifically, the
Agencies seek comment on how
suitability criteria can protect the public
from conditions that represent a clear
threat to personal physical safety and
health if left unremedied, while not
inappropriately identifying properties as
unsuitable due to low-risk conditions
that HUD determines can easily be
remedied by a transferee. Additionally,
HHS seeks public comment regarding
potential barriers to the development of
a plan to finance under the modified
application process in this proposed
rule. While the following questions are
not exhaustive, the Agencies are
particularly interested in comments on
the following questions:
Question 1. Are there cases or
scenarios in which the Agencies should
consider revising the proposed
suitability criteria at 24 CFR 581.6(a)(1)
and 41 CFR 102–75.1165 to allow HUD
to determine that a property is suitable
in its current condition if acceptable
separation distance standards, including
mitigating measures defined in 24 CFR
51.205, are not in place, but the risks
associated with the presence of
flammable or explosive materials are
extremely low or would be mitigated
through the transferee’s routine
compliance with applicable Federal,
state, or local law? If so, what changes
should HUD consider to the proposed
rule? In its review of comments, the
Agencies will not consider changes that
would require an agency to impose,
monitor, or enforce mitigating actions
by transferees.
Question 2. If an incidental portion of
a property is in a floodway or runway
clear zone should the entire property be
determined unsuitable?
Question 3: Should there be other
changes to the suitability criteria?
Question 4: The Agencies are also
considering amending the regulations’
applicability to exclude property only
available for removal for off-site use
from the screening process. How would
interested members of the public view
this change?
Question 5: Given the requirements
and limitations in the revised statute,
what if any, barriers would you foresee
to the development of a plan to finance
under the modified application process
as outlined in this proposed rule and
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how, specifically, could HHS act within
its authority to address those barriers?
IV. Findings and Certifications
HUD
Regulatory Review—Executive Orders
12866 and 13563
Under Executive Order 12866
(Regulatory Planning and Review), a
determination must be made by the
Office of Management and Budget
(OMB) regarding whether a regulatory
action is significant and therefore
subject to review in accordance with the
requirements of the executive order.
This proposed rule was determined to
be a ‘‘significant regulatory action’’ as
defined in Section 3(f) of the order
(although not an economically
significant regulatory action under the
order). Executive Order 13563
(Improving Regulations and Regulatory
Review) directs executive agencies to
analyze regulations that are ‘‘outmoded,
ineffective, insufficient, or excessively
burdensome, and to modify, streamline,
expand, or repeal them in accordance
with what has been learned.’’ Executive
Order 13563 also directs that, where
relevant, feasible, and consistent with
regulatory objectives, and to the extent
permitted by law, agencies are to
identify and consider regulatory
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public. This rule
streamlines the process for Federal
surplus transfers pursuant to the Federal
Assets and Sales Act of 2016.
This proposed rule was determined to
be a significant regulatory action under
section 3(f) of Executive Order 12866
(although not an economically
significant regulatory action under the
order). The Agencies prepared an initial
Regulatory Impact Analysis (RIA) that
addresses the costs and benefits of the
proposed rule and is part of the docket
file for this rule.
Environmental Review
A Finding of No Significant Impact
(FONSI) with respect to the
environment has been made in
accordance with HUD regulations at 24
CFR part 50, which implement Section
102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C.
4332(2)(C)). The FONSI is available for
public inspection between the hours of
8 a.m. and 5 p.m. weekdays in the
Regulations Division, Office of General
Counsel, Department of Housing and
Urban Development, 451 7th Street SW,
Room 10276, Washington, DC 20410–
0500. Due to security measures at the
HUD Headquarters building, please
schedule an appointment to review the
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FONSI by calling the Regulations
Division at 202–708–3055 (this is not a
toll-free number). HUD welcomes and is
prepared to receive calls from
individuals who are deaf or hard of
hearing, as well as individuals with
speech or communication disabilities.
To learn more about how to make an
accessible telephone call, please visit
https://www.fcc.gov/consumers/guides/
telecommunications-relay-service-trs.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA) (2 U.S.C. 1531–1538)
establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on state, local, and
tribal governments and on the private
sector. This proposed rule does not
impose any Federal mandate on any
state, local, or tribal government, or on
the private sector, within the meaning of
UMRA.
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Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.) generally requires
an agency to conduct a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements, unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities.
This proposed rule imposes no
additional requirements on small
entities. The rule conforms the
Agencies’ existing regulation with
required statutory changes under the
Federal Assets Sale and Transfer Act of
2016 and other legislative changes. This
proposed rule also provides for HUD’s
suitability determinations to be
published electronically rather than in
the Federal Register. Accordingly, the
undersigned certifies that this proposed
rule will not have a significant
economic impact on a substantial
number of small entities.
Executive Order 13132, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits, to the extent
practicable and permitted by law, an
agency from publishing any rule that
has federalism implications if the rule
either imposes substantial direct
compliance costs on state and local
governments and is not required by
statute, or preempts state law, unless the
relevant requirements of Section 6 of the
Executive Order are met. This rule does
not have federalism implications and
does not impose substantial direct
compliance costs on state and local
governments or preempt state law
within the meaning of the Executive
Order.
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Paperwork Reduction Act
The information collection
requirements for part 581 contained in
this proposed rule pertain to HHS’s
Title V application. HHS’s information
collection requirements have been
approved by OMB under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520) and assigned OMB control
number 0937–0191. In accordance with
the Paperwork Reduction Act, an agency
may not conduct or sponsor, and a
person is not required to respond to, a
collection of information, unless the
collection displays a currently valid
OMB control number.
GSA
Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This proposed rule is not
anticipated to be a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of E.O. 12866,
Regulatory Planning and Review, dated
September 30, 1993.
Congressional Review Act
This rule is not a major rule under 5
U.S.C. 804(2). Subtitle E of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (codified at 5
U.S.C. 801–808), also known as the
Congressional Review Act or CRA,
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. A major rule under the
CRA cannot take effect until 60 days
after it is published in the Federal
Register. OIRA has determined that this
rule is not a ‘‘major rule’’ as defined by
5 U.S.C. 804(2).
Regulatory Flexibility Act
GSA certifies this rule will not have
a significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. This
proposed rule applies only to Federal
agencies and employees.
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Paperwork Reduction Act
The proposed rule does not contain
any information collection requirements
that require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
HHS
Regulatory Review—Executive Orders
12866 and 13563
Under Executive Order 12866
(Regulatory Planning and Review), a
determination must be made by the
Office of Management and Budget
(OMB) regarding whether a regulatory
action is significant and therefore
subject to review in accordance with the
requirements of the order. This rule was
determined to be a ‘‘significant
regulatory action’’ as defined in Section
3(f) of the order (although not an
economically significant regulatory
action under the order). Executive Order
13563 (Improving Regulations and
Regulatory Review) directs executive
agencies to analyze regulations that are
‘‘outmoded, ineffective, insufficient, or
excessively burdensome, and to modify,
streamline, expand, or repeal them in
accordance with what has been
learned.’’ Executive Order 13563 also
directs that, where relevant, feasible,
and consistent with regulatory
objectives, and to the extent permitted
by law, agencies are to identify and
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public.
This rule streamlines the process for
Federal surplus property transfers
pursuant to the Federal Assets and Sales
Act of 2016.
Environmental Review
National Environmental Policy Act of
1969 (NEPA). Actions resulting from
this proposed rule amendment may
constitute a major Federal action
significantly affecting the quality of the
human environment. A detailed
statement under NEPA is not
specifically required for purposes of the
proposed rule amendment, however,
actions involving specific property
transactions may require further NEPA
analysis as an action may not be covered
by the categorical exclusion published
at 47 FR 2414–02 on January 11, 1982.
HHS will, prior to making a final
decision to convey or lease, or to
amend, reform, or grant an approval or
release with respect to a previous
conveyance or lease of surplus property
for homeless assistance purposes,
ensure an environmental review and/or
assessment is conducted, if applicable,
and appropriately document the
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proposed transaction, in keeping with
applicable provisions of NEPA.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA) (2 U.S.C. 1531–1538)
establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on state, local, and
tribal governments and on the private
sector. This proposed rule does not
impose any Federal mandate on any
state, local, or tribal government, or on
the private sector, within the meaning of
UMRA.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.) generally requires
an agency to conduct a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements, unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. This proposed
rule imposes no significant economic
impacts or additional requirements on a
substantial number of small entities as
defined by RFA. The rule conforms the
Agencies’ existing regulations with
required statutory changes under the
Federal Assets Sale and Transfer Act of
2016 and other legislative changes, and
to address certain issues that have
arisen since the inception of the
program. Accordingly, the undersigned
certifies that this proposed rule will not
have a significant economic impact on
a substantial number of small entities.
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Executive Order 13132, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits to the extent
practicable and permitted by law, an
agency from publishing any rule that
has federalism implications if the rule
either imposes substantial direct
compliance costs on state and local
governments and is not required by
statute, or preempts state law, unless the
relevant requirements of Section 6 of the
Executive Order are met. This rule does
not have federalism implications and
does not impose substantial direct
compliance costs on state and local
governments or preempt state law
within the meaning of the Executive
Order.
Paperwork Reduction Act
Under the Paperwork Reduction Act,
all Departments are required to submit
to the Office of Management and Budget
for review and approval or any reporting
or recordkeeping requirements in a
proposed or final rule. This proposed
rule amendment does contain
information collection requirements
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which have been approved by the Office
of Management and Budget under
control number 0937–0191.
List of Subjects
24 CFR Part 581
Administrative practice and
procedure, Homeless, Reporting and
recordkeeping requirements, Surplus
Government property.
41 CFR Part 102–75
Federal buildings and facilities,
Government property management,
Rates and fares, Surplus Government
property.
45 CFR Part 12a
Government Property, Surplus
Government Property, Grant programs—
health, Grant programs—housing and
community development, Homeless,
Housing, Public Assistance Programs.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT:
Accordingly, for the reasons stated
above, HUD proposes to amend 24 CFR
part 581 as follows:
PART 581—USE OF FEDERAL REAL
PROPERTY TO ASSIST THE
HOMELESS
1. The authority citation for part 581
continues to read as follows:
■
Authority: 42 U.S.C. 11411 note; 42 U.S.C.
3535(d).
2. Amend § 581.1 by:
a. Revising the definitions of
Applicant, Eligible organization, Excess
property, and Homeless;
■ b. Adding the definition of HUD
website;
■ c. Removing the definition of ICH;
■ d. Revising the definitions of
Landholding agency, Lease, Non-profit
organization, Permit, Property;
■ e. Removing the definition of Regional
homeless coordinator;
■ f. Adding the definition of Related
personal property;
■ g. Revising the definition of Screen;
■ h. Adding the definition of State;
■ i. Removing the definition of State
homeless coordinator;
■ j. Adding the definition of Substantial
noncompliance;
■ k. Revising the definitions of Suitable
property and Surplus property;
■ l. Adding the definitions of Transfer
document and Transferee.
The revisions and additions read as
follows:
■
■
§ 581.1
Definitions.
Applicant means any eligible
organization which has submitted an
application to the Department of Health
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and Human Services to obtain use of a
certain suitable property to assist the
homeless.
*
*
*
*
*
Eligible organization means a State or
local government agency, or a private,
non-profit organization that provides
assistance to the homeless, and that is
authorized by its charter or by State law
to enter into an agreement with the
Federal government for use of property
for the purposes of this part. Eligible
organizations that are private, non-profit
organizations interested in applying for
suitable property must be tax exempt
under section 501(c)(3) of the Internal
Revenue Code at the time of application
and remain tax exempt throughout the
time the Federal government retains a
reversionary interest in the property.
Excess property means any property
under the control of a Federal Executive
agency that the head of the agency
determines is not required to meet the
agency’s needs or responsibilities,
pursuant to 40 U.S.C. 524.
*
*
*
*
*
Homeless is defined in 42 U.S.C.
11302. This term is synonymous with
‘‘Homeless Individual’’ and ‘‘Homeless
Person.’’
*
*
*
*
*
HUD website means a website
maintained by HUD providing
information about HUD, including any
successor websites or technologies that
are equally accessible and available to
the public.
Landholding agency means the
Federal department or agency with
statutory authority to control property.
For purposes of this part, the
landholding agency is typically the
Federal department or agency that had
custody and accountability on behalf of
the Federal government, of a certain
piece of property at the time that such
property was reported to HUD for a
suitability determination pursuant to 42
U.S.C. 11411.
Lease means an agreement in writing
between either HHS for surplus
property or landholding agencies for
underutilized and unutilized properties
and the applicant giving rise to the
relationship of lessor and lessee for the
use of Federal property for a term of at
least one year under the conditions set
forth in the lease document.
Non-profit organization means an
organization recognized as a non-profit
by the State in which the organization
operates, no part of the net earnings of
which inures to the benefit of any
member, founder, contributor, or
individual; that has a voluntary board;
that has an accounting system or has
designated an entity that will maintain
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a functioning accounting system for the
organization in accordance with
generally accepted accounting
procedures; and that practices
nondiscrimination in the provision of
assistance.
Permit means a license granted by a
landholding agency to use unutilized or
underutilized property for a specific
amount of time, usually one year or less,
under terms and conditions determined
by the landholding agency. A permit
does not grant to the recipient an estate
in land or any interest in the property.
Property means real property
consisting of vacant land or buildings,
or a portion thereof, that is excess,
surplus, or designated as unutilized or
underutilized in surveys by the heads of
landholding agencies conducted
pursuant to 40 U.S.C. 524.
Related personal property means any
personal property that is located on real
property and is either an integral part of
or useful in the operation of that
property or is determined by GSA to be
otherwise related to the property.
*
*
*
*
*
Screen means the process by which
GSA surveys Federal Executive agencies
to determine if they have an interest in
using excess Federal property to carry
out a particular agency mission, and
then surveys State, local and non-profit
entities, to determine if any such entity
has an interest in using surplus Federal
property to carry out a specific public
use.
State means a State of the United
States, and includes the District of
Columbia, the Commonwealth of Puerto
Rico, and the Territories and
possessions of the United States.
Substantial noncompliance means
failure to take corrective action as
directed by HHS.
Suitable property means that HUD has
determined that a certain property
satisfies the criteria listed in § 581.6.
Surplus property means any excess
property not required by any Federal
landholding agency for its needs or the
discharge of its responsibilities, as
determined by GSA.
Transfer document means a lease,
deed, or permit transferring surplus,
unutilized or underutilized property.
Transferee means an eligible entity
that acquires Federal property by lease,
deed, or permit.
*
*
*
*
*
■ 3. Revise § 581.2 to read as follows:
§ 581.2
Applicability.
(a) This part applies to Federal
property that has been designated by
Federal landholding agencies as
unutilized, underutilized, excess or
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surplus and is therefore subject to the
provisions of Title V of the McKinney
Act, as amended (42 U.S.C. 11411).
(b) The following categories of
properties are not subject to this part
(regardless of whether they may be
unutilized or underutilized):
(1) Buildings and property at military
installations that were approved for
closure under the Defense Base Closure
and Realignment Act of 1990 (part A of
title XXIX of Pub. L. 101–510; 10 U.S.C.
2687 note) after October 25, 1994.
(2) Machinery and equipment not
determined to be related personal
property by the landholding agency or
GSA or determined to be related
personal property that the landholding
agency or GSA chooses to dispose of
separate from real property.
(3) Government-owned, contractoroperated machinery, equipment, land,
and other facilities reported excess for
sale only to the using contractor and
subject to a continuing military
requirement.
(4) Properties subject to special
legislation directing a particular action.
(5) Properties subject to a court order
that, for any reason, precludes transfer
for use to assist the homeless under the
authority of 42 U.S.C. 11411.
(6) Property not subject to Federal
Real Property Council reporting
requirements in accordance with 40
U.S.C. 623(i).
(7) Mineral rights interests
independent of surface rights.
(8) Air space interests independent of
surface rights.
(9) Indian Reservation land subject to
40 U.S.C. 523.
(10) Property interests subject to
reversion.
(11) Easements.
(12) Any building or fixture that is
excess, or surplus, that is on land
owned by a landholding agency, where
the underlying land is not excess or
surplus.
(13) Property purchased in whole or
in part with Federal funds if title to the
property is not held by a Federal
landholding agency as defined in this
part.
■ 4. In § 581.3 revise paragraphs (a), (b),
and (d) to read as follows:
§ 581.3
Collecting the Information.
(a) Canvass of landholding agencies.
On a quarterly basis, HUD will canvass
each landholding agency to collect
information about property described as
unutilized, underutilized, excess or
surplus in accordance with 40 U.S.C.
524; however, HUD will accept property
information between canvasses. Each
canvass will collect information on
properties not previously reported, and
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about property reported previously
where the status or classification of the
property has changed, or improvements
have been made to the property. HUD
will request descriptive information on
properties sufficient to make a
reasonable determination, under the
criteria described below, of the
suitability of a property for use to assist
the homeless. Landholding agencies
must report property information to
HUD using the property checklist
developed by HUD for that purpose.
Property checklists submitted in
response to a canvass must be submitted
to HUD within 25 days of receipt of the
canvass.
(b) Agency annual suitable property
report. By December 31 of each year,
each landholding agency must notify
HUD of the current availability status
and classification of each property
controlled by the agency that:
(1) was included in a list of suitable
properties published that year by HUD,
and
(2) remains available for application
for use to assist the homeless or has
become available for application during
that year.
*
*
*
*
*
(d) Change in status. If the
information provided on the property
checklist changes subsequent to HUD’s
determination of suitability, including
any improvements or other alterations
to the physical condition of the land or
the buildings on the property, and the
property remains unutilized,
underutilized, excess or surplus, the
landholding agency must submit a
revised property checklist in response to
the next quarterly canvass. HUD will
review for suitability and, if it differs
from the previous determination, repost
the property information on the HUD
website. For example, property
determined unsuitable due to extensive
deterioration may have had
improvements, or property determined
suitable may subsequently be found to
be extensively deteriorated.
■ 5. In § 581.4 revise paragraphs (a), (b),
(d), (e), and (f) to read as follows:
§ 581.4
Suitability Determination.
(a) Suitability determination. Within
30 days after the receipt of a completed
property checklist from landholding
agencies either in response to a
quarterly canvass, or between canvasses,
HUD will determine, using the criteria
set forth in § 581.6 whether a property
is suitable for use to assist the homeless
and report its determination to the
landholding agency. Properties that are
under lease, contract, license, or
agreement by which a Federal agency
retains a real property interest or which
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are scheduled to become unutilized or
underutilized will be reviewed for
suitability no earlier than six months
prior to the expected date when the
property will become unutilized or
underutilized.
(b) Scope of suitability. HUD will
determine the suitability of a property
for use to assist the homeless without
regard to any particular use.
*
*
*
*
*
(d) Record of suitability
determination. HUD will assign an
identification number to each property
reviewed for suitability. HUD will
maintain a public record of the
following:
(1) The suitability determination for a
particular piece of property, and the
reasons for that determination; and
(2) The landholding agency’s response
to the determination pursuant to the
requirements of § 581.7(a).
(e) Property determined unsuitable.
Property that is reviewed by HUD under
this section and that is determined
unsuitable for use to assist the homeless
may not be made available for any other
purpose for 20 days after publication of
a notice of unsuitability on the HUD
website.
(f) Procedures for appealing
unsuitability determinations.
(1) To request review of a
determination of unsuitability, a
representative of the homeless must
contact HUD, in writing, through the
U.S. Mail, email, or the HUD website, or
such other method as HUD may require,
within 20 days of publication of notice
of unsuitability.
(2) Requests for review of a
determination of unsuitability may be
made only by representatives of the
homeless.
(3) The request for review must
specify the grounds on which it is
based, i.e., HUD has improperly applied
the criteria or HUD has relied on
incorrect or incomplete information in
making the determination (e.g., that
property is in a floodplain but not in a
floodway).
(4) Upon receipt of a request to review
a determination of unsuitability, HUD
will notify the landholding agency or
GSA that such a request has been made.
The landholding agency or GSA shall
have 20 days from receipt of the notice
from HUD, or an extended period agreed
to between HUD and the landholding
agency or GSA, to provide any
information pertinent to the review. The
landholding agency or GSA must refrain
from initiating disposal procedures until
HUD has completed its reconsideration
regarding unsuitability. If the
landholding agency or GSA fails to meet
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the deadline, HUD will move forward
with the appeal review with the
property information it already has and
information submitted in the appeal
request provided by the representative
of the homeless.
(i) HUD will act on all requests for
review within 30 days of receipt of the
landholding agency’s or GSA’s
response, or, if the landholding agency
or GSA failed to meet the deadline,
within 30 days of such deadline, and
will notify the representative of the
homeless and the landholding agency or
GSA in writing of its decision.
(ii) If a property is determined
suitable as a result of the review, HUD
will request the landholding agency’s or
GSA’s determination of availability
pursuant to § 581.7, upon receipt of
which HUD will promptly publish the
determination on the HUD website.
■ 6. Amend § 581.5 by:
■ a. Revising paragraphs (b), (c), (e), (f),
(g), and (h); and
■ b. Adding paragraph (i).
The revisions and additions read as
follows:
§ 581.5
GSA.
Real property reported excess to
(a) * * *
(b) If a landholding agency reports an
excess property to GSA that HUD has
already determined to be suitable for
use to assist the homeless, GSA will
screen the property pursuant to
paragraph (h) of this section and will
advise HUD of the availability of the
property for use by the homeless as
provided in paragraph (e) of this
section. In lieu of the above, GSA may
submit a new checklist to HUD and
follow the procedures in paragraphs (c)
through (h) of this section.
(c) If a landholding agency reports an
excess property to GSA that has not
been reviewed by HUD for homeless
assistance suitability, GSA will
complete a property checklist, based on
information provided by the
landholding agency, and will forward
this checklist to HUD for a suitability
determination. This checklist will
reflect any change in classification, such
as from unutilized or underutilized to
excess or surplus.
*
*
*
*
*
(e) When GSA receives notification
from HUD listing suitable excess
properties, GSA will transmit a response
to HUD within 45 days regarding the
availability of the property. GSA’s
response will include the following for
each identified property:
(1) A statement that there is no other
compelling Federal need for the
property and, therefore, the property
will be determined surplus; or
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(2) A statement that there is further
and compelling Federal need for the
property (including a full explanation of
such need) and that, therefore, the
property is not presently available for
use to assist the homeless.
(f) When GSA submits a checklist to
HUD in accordance with paragraphs (b)
and (c) of this section, the information
regarding the availability of the
property, as specified in paragraph (e)(1)
and (2) of this section, may be included
with the checklist if it is known at the
time of submittal.
(g) When a surplus property is
determined as suitable, confirmed as
available by GSA, and notice is
published on the HUD website, GSA
will concurrently notify HHS, State and
local government units, and known
homeless assistance providers that have
expressed interest in the particular
property, and other organizations, as
appropriate, concerning suitable
properties.
(h) Upon submission of a Report of
Excess to GSA, GSA may screen the
property for Federal use. In addition,
GSA may screen State and local
governmental units and eligible nonprofit organizations to determine
interest in the property in accordance
with current regulations. (See 41 CFR
102–75.1220, 102–75.255 and 102–
75.350).
(i) The landholding agency will retain
custody and accountability and will
protect and maintain any property that
is reported excess to GSA as provided
in 41 CFR 102–75.965.
■ 7. Revise § 581.6 to read as follows:
§ 581.6
Suitability criteria.
(a) In general, properties will be
determined suitable unless a property’s
characteristics include one or more of
the following conditions:
(1) Flammable or explosive hazards.
Property located less than an acceptable
separation distance (under the standards
in 24 CFR part 51, subpart C and the
HUD Guidebook, ‘‘Siting of HUDAssisted Projects Near Hazardous
Facilities’’ or successor guidebook) from
any stationary above-ground container
or facility which stores, handles, or
processes hazardous substances of an
explosive or fire prone nature
(excluding containers and facilities that
are not hazards as defined in 24 CFR
51.201), unless HUD can determine
during the review period based on
information provided by the
landholding agency that appropriate
mitigating measures, as defined in 24
CFR 51.205, are already in place.
(2) Coastal Barriers. Property located
in a System Unit, as defined at 16 U.S.C.
3502(7), under the Coastal Barrier
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Resources Act, as amended (16 U.S.C.
3501 et seq.).
(3) Site Safety Conditions. Property
with a documented and extensive
condition(s) that represents a clear
threat to personal physical safety or
health. Such conditions may include,
but are not limited to, significant
contamination from hazardous
substances, as defined by 42 U.S.C.
9601, periodic flooding, sinkholes, or
landslides.
(b) In the cases below, properties will
be determined unsuitable, unless the
landholding agencies provide
information to enable HUD to determine
the property is suitable:
(1) Inaccessible. Property that is
inaccessible, meaning that the property
is not accessible by road (including
property on small offshore islands) or is
landlocked (e.g., can be reached only by
crossing private property and there is no
established right or means of entry).
(2) National Security. Property located
in an area to which the general public
is denied access in the interest of
national security (e.g., where a special
pass or security clearance is a condition
of entry to the property), unless there is
an alternative method to gain access
without compromising national
security.
(3) Runway clear zones. Property
located within a runway clear zone or
a military airfield clear zone.
(4) Floodway. Property located in a
floodway, unless only an incidental
portion of the property is in the
floodway and that incidental portion
does not affect the use of the remainder
of the property to assist the homeless.
■ 8. Revise § 581.7 to read as follows:
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§ 581.7 Determination of availability for
suitable properties.
(a) Within 45 days after receipt of
notification from HUD pursuant to
§ 581.4(a) that a property has been
determined to be suitable, each
landholding agency or GSA must
transmit to HUD a statement of one of
the following:
(1) In the case of unutilized or
underutilized property—
(i) An intention to declare the
property excess;
(ii) An intention to make the property
available for use to assist the homeless;
or
(iii) The reasons why the property
cannot be declared excess or made
available for use to assist the homeless.
The reasons given must be different
from those listed as suitability criteria in
§ 581.6.
(2) In the case of excess property
which has been reported to GSA—
(i) A statement that there is no
compelling Federal need for the
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property, and, therefore, the property
will be determined surplus; or
(ii) A statement that there is a further
and compelling Federal need for the
property (including a full explanation of
such need) and therefore, the property
is not presently available for use to
assist the homeless.
(b) [Reserved]
■ 9. Revise § 581.8 to read as follows:
§ 581.8
Public notice of determination.
(a) No later than 15 days after the
most recent 45-day period has elapsed
for receiving responses from the
landholding agencies or GSA regarding
availability, HUD will post on the HUD
website a list of all properties reviewed,
including a description of the property,
its address, and classification. The
following designations will be made:
(1) Properties that are suitable and
available.
(2) Properties that are suitable and
unavailable.
(3) Properties that are suitable and to
be declared excess.
(4) Properties that are unsuitable.
(b) HUD will establish and maintain
a toll-free number for the public to
obtain specific information about
properties in paragraph (a) of this
section.
(c) No later than 15 days after the
most recent 45-day period has elapsed
for receiving responses from the
landholding agencies or GSA regarding
availability, HUD will transmit to the
United States Interagency Council on
Homelessness (USICH) a copy of the list
of all properties in paragraph (a) of this
section. The USICH will immediately
distribute to all state and regional
homeless coordinators area-relevant
portions of the list. The USICH will
encourage the state and regional
homeless coordinators to disseminate
this information widely.
(d) No later than February 15 of each
year, HUD will publish in the Federal
Register a list of all properties in the
agency annual suitable property reports,
reported to HUD pursuant to § 581.3(b).
(e) HUD will publish an annual list of
properties determined suitable, but
which agencies reported unavailable
including the reasons such properties
are not available.
■ 10. Revise § 581.9 to read as follows:
§ 581.9
General Policies of HHS.
(a) It is the policy of HHS to foster and
assure maximum utilization of surplus
property for homeless assistance
purposes.
(b) Transfers may be made only to
eligible organizations.
(c) Eligible organizations must be
authorized, in the State in which the
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requested property is located, to carry
out the activity for which it requests the
property.
(d) Property will be requested for
assignment only when HUD has made a
final determination that the property is
suitable for use to assist the homeless,
GSA has determined it is available, and
HHS has determined it is needed for
homeless assistance purposes. The
amount of real and related personal
property to be transferred shall not
exceed normal operating requirements
of the applicant. Such property will not
be requested for assignment unless it is
needed at the time of application for
homeless assistance purposes or will be
so needed within the immediate or
foreseeable future.
(e) Transfers by deed will be made
only after the applicant’s financial plan
is approved and the applicant provides
certification that the proposed program
is permissible under all applicable State
and local zoning restrictions, building
codes, and similar limitations.
■ 11. Revise § 581.10 to read as follows:
§ 581.10
Expression of interest process.
(a) Properties published by HUD as
suitable and available pursuant to
§ 581.8, for application for use to assist
the homeless shall not be available for
any other purpose for a period of 30
days beginning on the date of
publication. Any eligible organization
interested in any underutilized,
unutilized, excess, or surplus property
for use to assist the homeless must send
to HHS a written expression of interest
in that property within 30 days after the
property has been published on the
HUD website.
(b) Although a property may be
determined suitable by HUD, HUD’s
determination does not mean a property
is necessarily useable for the purpose(s)
stated in the application, nor does it
guarantee subsequent conveyance or
transfer of a property.
(c) If a written expression of interest
to apply for suitable property for use to
assist the homeless is received by HHS
within the 30-day holding period, such
property may not be made available for
any other purpose until the date HHS or
the appropriate landholding agency has
completed action on the application
submitted pursuant to that expression of
interest.
(d) The expression of interest should
identify the specific property, briefly
describe the proposed use, include the
name of the organization, and indicate
whether it is a public body or a private,
non-profit organization. The expression
of interest must be sent to HHS by
email, rpb@psc.hhs.gov, or by mail at
the following address: Department of
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Health and Human Services, Program
Manager, Federal Real Property
Assistance Program, Real Estate
Logistics and Operations, 5600 Fishers
Lane, Rockville, Maryland 20852.
(1) HHS will notify the landholding
agency (for unutilized and underutilized
properties) or GSA (for excess and
surplus properties) when an expression
of interest has been received for a
certain property.
(e) An expression of interest may be
sent to and accepted by HHS any time
after the 30-day holding period has
expired only if the property remains
available as determined by GSA or the
landholding agency for application to
assist the homeless. In such a case, an
application submitted pursuant to this
expression of interest may be approved
for use by the homeless if:
(1) There are no pending applications
or written expressions of interest made
under any law for use of the property for
any purpose; and
(2) In the case of excess or surplus
property, GSA has not received a bona
fide offer to purchase that property or
advertised for the sale of the property by
public auction.
■ 12. Revise § 581.11 to read as follows:
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§ 581.11 Application Process and
Requirements.
(a) Upon receipt of an expression of
interest, HHS will send an application
packet to the interested entity. The
application packet requires the
applicant to provide certain
information, including the following—
(1) Acquisition type. The applicant
must state whether it is requesting
acquisition of the property by lease,
deed, or permit. A lease of one year,
extendable at HHS’s discretion, with the
concurrence of GSA or the landholding
agency, may be granted when the
applicant’s initial application is
approved and the applicant’s final
application outlining the applicant’s
financial plan is found to be otherwise
reasonable based on the criteria in
paragraph (a)(7) of this section, but
either a change in zoning is required or
the financial plan proposes to utilize
Low-Income Housing Tax Credits or
other funding sources that typically take
longer to process than other forms of
financing.
(2) Description of the applicant
organization. The applicant must
document that it satisfies the definition
of an ‘‘eligible organization’’ as
specified in § 581.1. The applicant must
document its authority to hold property
for the proposed program and plan of
use by providing a copy of its Articles
of Organization, Charter, Certification
from State of Non-Profit Organization
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status, or other appropriate document or
citation. Private, non-profit
organizations applying for the
acquisition of a certain property must
document that they are tax exempt
under section 501(c)(3) of the Internal
Revenue Code.
(3) Description of the property
desired. The applicant must describe
the listed property desired, including
existing zoning. Applicants must certify
that any modification(s) made to and
use of the property will conform to all
applicable building codes, and local use
restrictions, or similar limitations. In
accordance with GSA policy,
determinations regarding parcelization
are made prior to screening. Therefore,
expressions of interest and applications
for portions of listed properties will not
be accepted.
(4) Description of the proposed
program. The applicant must fully
describe the proposed program and plan
of use, including implementation plans.
(5) Demonstration of need. The
applicant must demonstrate that the
property is needed for homeless
assistance purposes at the time of
application and how the program will
address the needs of the homeless
population to be assisted. The applicant
must demonstrate that it has an
immediate need and ability to utilize all
of the property for which it is applying.
(6) Demonstrate that the property is
suitable and adaptable for the proposed
program and plan of use. The applicant
must fully explain why the property is
suitable and describe what, if any,
modification(s) will be made to the
property before the program becomes
operational.
(7) Ability to finance and operate the
proposed program. If the applicant’s
initial application is approved, the
applicant must set forth a reasonable
plan to finance the approved program
within 45 days of the initial approval.
To be considered reasonable, the plan
must, at a minimum:
(i) specifically describe all anticipated
costs and sources of funding for the
proposed program, including any
property modifications;
(ii) be accompanied by supporting
documentation which demonstrates that
the proposed plan is likely to succeed;
(iii) demonstrate that the applicant is
ready, willing, able, and authorized to
assume care, custody, and maintenance
of the property;
(iv) demonstrate that it has secured
the necessary dedicated funds, or the
ability to obtain such funds, to carry out
the approved proposed program and
plan of use for the property, including
administrative expenses incident to the
transfer by deed, lease, or permit;
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16847
(v) not diminish the value of the
government’s interest in the property
nor impair the government’s ability to
revert and immediately dispose of the
property free of any and all liens,
encumbrances, or anything else which
renders the property unmarketable.
Deed transfers will only be made after
an applicant demonstrates its financial
plan adequately protects the United
States’ interest in the property; and
(vi) neither subject the Federal
government’s interest in the property to
foreclosure nor impose obligations (e.g.,
extended use agreements) on the
Federal government.
(8) Compliance with nondiscrimination requirements. Each
applicant under this part must certify in
writing that it will comply with all
requirements of federal law and HHS
policy, as amended, relating to nondiscrimination, including the following:
the Fair Housing Act (42 U.S.C. 3601–
3619) and implementing regulations;
and, as applicable, Executive Order
11063 (Equal Opportunity in Housing)
and implementing regulations; Title VI
of the Civil Rights Act of 1964 (42
U.S.C. 2000d to d–4) (Nondiscrimination in Federally Assisted
Programs) and implementing
regulations; Section 1557 of the
Affordable Care Act and implementing
regulations; the prohibitions against
discrimination on the basis of age under
the Age Discrimination Act of 1975 (42
U.S.C. 6101–6107) and implementing
regulations; the prohibitions against
discrimination against otherwise
qualified individuals with disabilities
under section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794) and
implementing regulations; and Titles II
or III of the Americans with Disabilities
Act and implementing regulations, as
applicable. The applicant must maintain
the required records to demonstrate
compliance with all applicable Federal
laws and HHS policies related to nondiscrimination.
(9) Insurance and Indemnification.
The applicant must certify that it will
insure the property against loss,
damage, or destruction to protect the
residual financial interest of the United
States. The United States shall be
named as an additional insured.
Applicants must provide proof of
insurance annually or upon request.
Failure to maintain sufficient insurance
may result in adverse action, including
reversion of the property, at the
discretion of HHS. Applicants, and all
affiliated parties utilizing the property,
as approved by HHS, must indemnify
the United States and hold the United
States harmless for all actions involving
use of the property.
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(10) Historic preservation. Where
applicable, the applicant must provide
information that will enable HHS to
comply with Federal historic
preservation requirements.
(11) Environmental information. The
applicant must provide sufficient
information to allow HHS to analyze the
potential impact of the applicant’s
proposal on the environment, in
accordance with the instructions
provided with the application packet.
HHS will assist applicants in obtaining
any pertinent environmental
information in the possession of HUD,
GSA, or the landholding agency.
However, the burden is on the applicant
to submit sufficient documentation for
analysis by HHS.
(12) Local government notification.
The applicant must certify that it has
notified the applicable unit of general
local government responsible for sewer,
water, police, and fire services, in
writing, of its proposed program for the
specific property and submit a copy of
that written notification.
(13) Zoning and Local Use
Restrictions. An applicant requesting a
deed must certify that it has consulted
all State and local governmental entities
that will have jurisdiction over the
property and that the proposed use will
comply with all applicable zoning and
local use restrictions, including local
building code requirements. An
applicant that applies for a lease or
permit is not required to comply with
local zoning requirements, as long as the
Federal government retains ownership
of the property. Deed transfers will only
be made after the applicant has
provided acceptable written proof that
the proposed program is not in conflict
with State or local zoning laws and
restrictions, building codes, or similar
limitations.
(b) Scope of evaluations. Due to the
short time frame imposed by statute for
evaluating applications, HHS’s
evaluation will, generally, be limited to
the information contained in the
application. It is therefore incumbent on
applicants to provide thorough and
complete applications.
(c) Deadline for Initial Application.
An initial application must be received
by HHS, at the above email address or
other address indicated by HHS, within
75 days after an expression of interest is
received from a particular applicant for
that property. Upon written request
from the applicant, HHS may, in its
discretion, grant extensions authorized
by 42 U.S.C. 11411(e)(2)(A), provided
that the appropriate landholding agency
or GSA concurs with the extension.
(d) Evaluation of initial application.
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(1) Upon receipt of an initial
application, HHS will review it for
completeness, and, if incomplete, may,
in its discretion, return it or ask the
applicant to furnish any missing or
additional required information prior to
final evaluation of the initial
application.
(2) HHS will evaluate each initial
application within 10 days of receipt
and will promptly advise the applicant
of its decision. All initial applications
will be reviewed on the basis of the
following elements:
(i) Services offered. The extent and
range of proposed services, such as
meals, shelter, job training, and
counseling.
(ii) Need. The demand for the
program, the program’s ability to satisfy
unmet needs of the community, and the
degree to which the available property
will be fully utilized.
(iii) Experience. Demonstrated ability
to provide the services, such as prior
success in operating similar programs
and recommendations attesting to that
fact by Federal, State, and local
authorities.
(e) Deadline and Evaluation of Final
Application.
(1) If HHS approves an initial
application, HHS will notify the
applicant and provide the applicant 45
days in which to provide a final
application. The final application shall
set forth a reasonable plan to finance, as
specified in § 581.11(a)(7), the approved
program as set forth in the initial
application. Applicants may not modify
the approved initial application within
its final application proposal.
(2) Upon receipt of the final
application, HHS will make a
determination within 15 days and notify
the applicant.
(3) Unlike with initial applications,
requests for extensions are not
authorized by 42 U.S.C. 11411 and thus
will not be considered for final
applications.
(4) Applications are evaluated on a
first-come, first-served basis. HHS will
notify all organizations that have
submitted expressions of interest for a
particular property whether an earlier
application received for that property
has been approved.
(f) Competing Applications. If HHS
receives more than one final application
simultaneously, HHS will evaluate all
applications and make a determination
based on each application’s merit. HHS
will rank approved applications based
on the elements listed in paragraph (a)
of this section, and notify the
landholding agency, or GSA, as
appropriate, of the approved applicant.
■ 13. Revise § 581.12 to read as follows:
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§ 581.12
Action on approved applications.
(a) Unutilized and underutilized
properties.
(1) When HHS approves an
application, it will so notify the
applicant and forward a copy of the
application to the landholding agency.
The landholding agency will execute
the lease, or permit document, as
appropriate, in consultation with the
applicant.
(2) The landholding agency maintains
the discretion to decide the following:
(i) The length of time the property
will be available. (Leases and permits
will be for a period of at least one year
unless the applicant requests a shorter
term.)
(ii) The terms and conditions of the
lease or permit document (except that a
landholding agency may not charge any
fees or impose any costs).
(b) Excess and surplus properties.
(1) When HHS approves an
application, it will so notify the
applicant and request that GSA assign
the property to HHS for transfer.
Requests to GSA for the assignment of
surplus property to HHS for homeless
assistance purposes will be based on the
following conditions:
(i) HHS has a fully approved
application for the property;
(ii) The applicant is able, willing, and
authorized to assume immediate care,
custody, and maintenance of the
property;
(iii) The applicant is able, willing and
authorized to pay the administrative
expenses incident to the transfer; and
(iv) The applicant has secured the
necessary funds, or had demonstrated
the ability to obtain such funds, to carry
out the approved program of use of the
property.
(2) Upon receipt of an acceptable
assignment, HHS will execute the
transfer document in accordance with
the procedures and requirements set out
in this part and any other terms and
conditions HHS and GSA determine are
appropriate or necessary. Custody and
accountability of the property will
remain throughout the lease term with
the landholding agency (i.e., the agency
which initially reported the property as
excess) and throughout the deed term
with the transferee.
(3) Prior to assignment to HHS, GSA
may consider other Federal uses and
other important national needs in
deciding the disposition of surplus
property. Priority of consideration will
normally be given to uses to assist the
homeless. However, both GSA and HHS
may consider any competing request for
the property made under 40 U.S.C. 550
that is so meritorious and compelling
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that it outweighs the needs of the
homeless.
(4) Whenever GSA or HHS decides in
favor of a competing request over a
request for property for homeless
assistance, the agency making the
decision will transmit to the appropriate
committees of Congress an explanatory
statement which details the need
satisfied by conveyance of the surplus
property, and the reasons for
determining that such need was so
meritorious and compelling as to
outweigh the needs of the homeless.
■ 14. Add § 581.14 to read as follows:
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§ 581.14 Surplus Property Transfer
Documents.
(a) Surplus property may be conveyed
to eligible organizations pursuant to 40
U.S.C. 550(d) and 42 U.S.C. 11411, as
amended, by lease or deed, at the
applicant’s discretion.
(b) Transfers of surplus property for
homeless assistance purposes are in
exchange for the transferee’s agreement
to fully utilize the property for homeless
assistance purposes in accordance with
the terms specified in the transfer
document.
(c) A transfer of surplus property for
homeless purposes is subject to the
disapproval of GSA within 30 days after
notice is given to GSA of the proposed
transfer.
(d) Surplus property transferred
pursuant to this part will be disposed on
an ‘‘as is, where is,’’ basis without
warranty of any kind except as may be
stated in the transfer document.
(e) Unless excepted by GSA in its
assignment, the disposal of property
includes mineral rights associated with
the surface estate.
(f) Transfers of surplus property under
this part will be made with the
following general terms and conditions:
(1) For the period provided in the
transfer document, the transferee shall
utilize all the surplus property it
receives solely and continuously for an
approved program and plan of use, in
accordance with 42 U.S.C. 11411 and
these regulations, except that:
(i) The transferee has 12 months from
the date of transfer to place the surplus
property into use, if HHS did not
approve in writing, construction of new
facilities or major renovation of the
property when it approved the final
application;
(ii) The transferee has 36 months from
the date of transfer to place the surplus
property into use, if the transferee
proposes construction of new facilities
or major renovation of the property and
HHS approves it in writing at the time
it approves the final application;
(iii) If the applicable time limitation is
not met, the transferee shall either
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commence payments in cash to the
Federal government for each month
thereafter during which the proposed
use has not been implemented or take
such other action as set forth at § 581.18
as is deemed appropriate by HHS. Such
monthly payments shall be computed
on the basis of the current fair market
value of the property, as conveyed, at
the time of the first payment and
dividing it by 360 months. At HHS’s
discretion, the payment may be waived
if the transferee makes a sufficient
showing of continued progress to place
the property into use or if an
unforeseeable event occurs which
prevents the property from being put
into use within the applicable
timeframe; and
(iv) HHS may permit use of surplus
property at any time during the period
of restriction by an entity other than the
transferee in accordance with § 581.19.
(2) The transferee will not be
permitted to encumber, sell, lease or
sublease, rent, mortgage, or otherwise
dispose of the property, or any part
thereof, without the prior written
authorization of HHS. In the event the
property is sold, leased or subleased,
encumbered, disposed of, or is used for
purposes other than those set forth in an
approved plan without the consent of
HHS, all revenues or the reasonable
value of other benefits received by the
transferee directly or indirectly from
such use, as determined by HHS, will be
considered to have been received and
held in trust by the transferee for the
account of the United States and will be
subject to the direction and control of
HHS. The provisions of this paragraph
shall not impair or affect the rights
reserved to the United States in
paragraph (f)(8) of this section, or the
right of HHS to impose conditions to its
consent.
(3) The transferee will file with HHS
such reports on its maintenance and use
of the transferred property and any
other reports or information deemed
necessary by HHS.
(4) The transferee shall pay all
administrative costs incidental to the
transfer, including but not limited to—
transfer taxes; surveys; appraisals; title
searches; the transferee’s legal fees; and
recordation expenses. Transferee is
solely responsible for such costs and
may not seek reimbursement from the
Federal government for any reason.
(5) The transferee shall protect,
preserve, maintain, and repair the
property to ensure that the property
remains in as good a condition as when
received.
(6) The transferee shall protect the
residual financial interest of the United
States in the surplus property by
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16849
insurance or such other means as HHS
directs. Where loss or damage to the
transferred property occurs, all proceeds
from insurance shall be promptly used
by the transferee for the purpose of
repairing and restoring the property to
its former condition or replacing it with
equivalent or more suitable facilities. If
not so used, there shall be paid to the
United States that part of the insurance
proceeds that is attributable to the
Government’s residual interest in the
property lost, damaged, or destroyed.
Further, transferee shall neither take any
action nor allow any action which
diminishes the residual financial
interest of the United States.
(7) The transferee shall abide by all
applicable Federal Civil Rights laws
including those specified in the
covenants and conditions contained in
the transfer document, prohibiting the
transferee from discriminating on the
basis of, including but not limited to,
race, color, national origin, religion, sex,
familial status or disability in the use of
the property.
(8) In the event of substantial
noncompliance with any conditions of
the deed as determined by HHS,
whether caused by the legal or other
inability of the transferee, its successors
and assigns, to perform any of the
obligations of the transfer document, the
Federal government has an immediate
right of reentry thereon, and to cause all
right, title, and interest in and to the
property to revert to the United States,
and the transferee shall forfeit all right,
title, and interest in and to the property.
In such event, transferee shall execute a
quitclaim deed and take all other
actions necessary to return the property
to the United States within ninety (90)
days of a written request from the
Federal government, extended only at
the discretion of the Federal
government. Transferee shall cooperate
with the United States in the event of a
reversion and agrees that the United
States need not seek judicial
intervention before exercising its right
to revert, reenter and reconvey the
property.
(9) In the event title is reverted to the
United States for noncompliance or
voluntarily reconveyed to the United
States, the transferee shall, at the option
of HHS, be required to: reimburse the
United States for the decrease in value
of the property not due to market
conditions, reasonable wear and tear,
acts of God, or approved alterations
completed by the transferee to adapt the
property to the homeless use for which
the property was transferred; and
reimburse the United States for any
costs incurred in reverting title to or
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possession of the property, including
reasonable attorneys’ fees.
(10) With respect to leased property,
in the event of substantial
noncompliance with any of the
conditions of the lease, as determined
by HHS or the landholding agency, the
right of occupancy and possession shall,
at the option of HHS or the landholding
agency, be terminated. In the event a
leasehold is terminated by the United
States for substantial noncompliance or
is voluntarily surrendered, the lessee
shall be required, at the option of HHS,
to reimburse the United States for the
decrease in value of the property not
due to market conditions, reasonable
wear and tear, acts of God, or approved
alterations completed by the lessee to
adapt the property to the homeless use
for which the property was leased. With
respect to any termination of leasehold
resulting from noncompliance, the
United States, shall, in addition thereto,
be reimbursed for such costs as may be
incurred in recovering possession of the
property, including reasonable
attorneys’ fees.
(11) Any other term or condition that
HHS and GSA determine appropriate or
necessary.
(12) With respect to surplus property
transferred by deed, the terms and
conditions including those in paragraph
(f) of this section, apply for a period of
thirty (30) years of use in accordance
with a program of use approved in
writing by HHS. The thirty-year (30)
period may, in HHS’s sole discretion, be
extended or restarted in the event the
property is not fully utilized or is
retransferred to a successor entity.
Expiration of the foregoing terms and
conditions does not release the
transferee from continuing compliance,
as appropriate, with any conditions that
may run with the land, e.g.,
environmental conditions and/or
historic preservation covenants. Such
conditions will continue to be the
responsibility of the transferee and
successors.
(13) With respect to surplus property
transferred by lease, the terms and
conditions including those in paragraph
(f) of this section, extend for the entire
initial lease and for any subsequent
renewal periods, unless specifically
excluded in writing by HHS.
(g) Related personal property may be
transferred or leased as a part of the
realty and in accordance with real
property procedures.
(h) Completion of Transfer Term and
Reversion of Title. Transferees will be
responsible for the protection and
maintenance of the property during the
time that they possess the property.
Upon termination of the lease term or
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reversion of title to the United States,
the transferee will be responsible for
removing improvements made to the
property if directed to by the United
States and, in such event, will be
responsible for restoration of the
property or the costs associated with
restoring the property. If improvements
made by the transferee are not
voluntarily removed by the transferee
and the United States consents, they
will become the property of the United
States. If the United States does not
consent, the transferee shall reimburse
the United States for reasonable costs of
removal. GSA or the landholding
agency, as appropriate, will assume
responsibility for protection and
maintenance of a property when the
lease terminates or title reverts.
(i) Transferees, by obtaining the
consent of HHS, may abrogate the
restrictions set forth in paragraph (f) of
this section for all or any portion of the
property in accordance with the
provisions of § 581.20.
■ 15. Add § 581.15 to read as follows:
§ 581.15
Unsuitable properties.
The landholding agency or GSA will
defer action to dispose of properties
determined unsuitable for homeless
assistance for 20 days after the date that
notice of a property is posted on the
HUD website. HUD will inform
landholding agencies or GSA if appeal
of an unsuitability determination is filed
by a representative of the homeless
pursuant to § 581.4(f). HUD will advise
the agency to refrain from initiating
disposal procedures until HUD has
completed its reconsideration process
regarding unsuitability. Thereafter, or if
no appeal has been filed after 20 days,
GSA or the appropriate landholding
agency may proceed with disposal
action in accordance with applicable
law.
■ 16. Add § 581.16 to read as follows:
§ 581.16 Compliance with the National
Environmental Policy Act of 1969 and other
related Acts (environmental impact).
(a) HHS, prior to making a final
decision to convey or lease, or to
amend, reform, or grant an approval or
release with respect to a previous
conveyance or lease of, surplus property
for homeless purposes, will act in
accordance with applicable provisions
of the National Environmental Policy
Act of 1969, the National Historic
Preservation Act of 1966, the National
Archeological Data Preservation Act,
and other related acts. No lease to use
surplus property shall allow the lessee
to make, or cause to be made, any
irreversible change in the conditions of
said property, and no lease shall be
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employed for the purpose of delaying or
avoiding compliance with the
requirements of these Acts, unless
approved by the United States.
(b) Applicants shall be required to
provide such information as HHS deems
necessary to make an assessment of the
impact of the proposed Federal action
on the human environment. Materials
contained in the applicant’s official
request, responses to a standard
questionnaire prescribed by HHS, as
well as other relevant information, will
be used by HHS in making said
assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action
involved properties of historical
significance which are listed, or eligible
for listing, in the National Register of
Historic Places; or
(2) that a more than insignificant
impact on the human environment is
reasonably foreseeable as a result of the
proposed action; or
(3) that the proposed Federal action
could result in irreparable loss or
destruction of archeologically
significant items or data, HHS will,
except as provided for in paragraph (d)
of this section, prepare and distribute,
or cause to be prepared or distributed,
such notices and statements and obtain
such approvals as are required by the
above cited Acts.
(d) If a proposed action involves other
Federal agencies in a sequence of
actions, or a group of actions, directly
related to each other because of their
functional interdependence, HHS may
enter into and support a lead agency
agreement to designate a single lead
agency which will assume primary
responsibility for coordinating the
assessment of environmental effects of
proposed Federal actions, preparing and
distributing such notices and
statements, or obtaining such approvals,
as are required by the above cited Acts.
The procedures of the designated lead
agency will be utilized in conducting
the environmental assessment. In the
event of disagreement between HHS and
another Federal agency, HHS will
reserve the right to abrogate the lead
agency agreement with the other Federal
agency.
■ 17. Add § 581.17 to read as follows:
§ 581.17
No applications approved.
(a) At the end of the 30-day holding
period described in § 581.10(a), HHS
will notify GSA, or the landholding
agency, as appropriate, if an expression
of interest has been received for a
certain property. Where there is no
expression of interest, GSA or the
landholding agency, as appropriate, will
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proceed with disposal in accordance
with applicable law.
(b) Upon notice from HHS that all
applications have been disapproved, or
if no initial applications have been
received within 75 days after an
expression of interest, or no final
application has been received within 45
days after an approved initial
application, disposal may proceed in
accordance with applicable law.
■ 18. Add § 581.18 to read as follows:
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§ 581.18
Utilization and Enforcement.
(a) Sanctions. For instances of
substantial noncompliance relating to
surplus property transfers, HHS may
impose, in its sole discretion, any or all
of the following sanctions, as
applicable:
(1) Where property or any portion
thereof was not used or is not being
used for the purposes for which
transferred, or is sold, leased or
subleased, encumbered, disposed of, or
used for purposes other than those in
the approved program and plan of use,
without the prior written consent of
HHS, HHS may require the transferee
to—
(i) Place the property into immediate
use for an approved purpose and extend
the period of restriction in the transfer
document for an additional term as
determined by HHS;
(ii) Hold in trust all revenues and the
reasonable value of other benefits
received by the transferee directly or
indirectly from that use for the United
States subject to the direction and
control of HHS;
(iii) Return title to such property to
the United States or to relinquish any
leasehold interest therein;
(iv) Abrogate the conditions and
restrictions of the transfer, as set forth
in § 581.20;
(v) Make cash payments to the United
States, as directed by HHS, equivalent to
the current fair market rental value of
the surplus property, as transferred, for
each month during which the program
and plan of use has not been
implemented and continues to not be
implemented; or
(vi) Any other remedy that HHS
determines appropriate or necessary.
(2) Where the transferee desires to
place the property into temporary use to
assist the homeless other than that for
which the property was transferred,
written approval from HHS must be
obtained, and will be conditioned upon
HHS’s authority to permit the use and
such terms as HHS may impose.
(3) If HHS or the landholding agency
determines that a lessee or sublessee of
a transferee is in substantial
noncompliance with a term or condition
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of the lease, or if the lessee voluntarily
surrenders the premises, HHS may
require termination of the lease and
impose sanctions described in
paragraph (a)(1) of this section, as
appropriate.
(b) Reversion. When HHS
recommends reversion of the property
for noncompliance, HHS will seek
GSA’s concurrence. GSA will respond
to HHS’s concurrence request within 30
days of its receipt. If GSA concurs, HHS
will work with GSA to complete the
reversion of the property. If GSA does
not concur to the reversion
recommendation, GSA will issue, to
HHS, a written determination: stating
the reason(s) for the disapproval; and
acknowledging that HHS has
recommended reversion and, therefore,
the property is no longer within HHS’s
Title V program. The Federal
government will implement a response
to the noncompliance that is in its best
interests.
■ 19. Add § 581.19 to read as follows:
§ 581.19
Other Uses.
(a) A transferee may permit the use of
all or a portion of the surplus property
by another eligible entity as described in
§ 581.1 for homeless assistance
purposes, only upon those terms and
conditions HHS determines appropriate,
if:
(1) The transferee submits a written
request to HHS explaining the purpose
of and need for another eligible entity’s
use of the property, program plan, and
other relevant information requested by
HHS;
(2) HHS determines that the proposed
use would not substantially limit the
program and plan of use by the
transferee and that the use will not
unduly burden the Federal government;
(3) HHS’s written consent is obtained
by the transferee in advance;
(4) HHS approves the use instrument
in advance and in writing; and
(5) HHS advises GSA and there is no
disapproval by GSA within thirty (30)
days.
(b) [Reserved].
■ 20. Add § 581.20 to read as follows:
§ 581.20
Frm 00019
Fmt 4701
(3) HHS transmits the abrogation
request to GSA and there is no
disapproval by GSA within 30 days after
notice is given. If GSA disapproves,
GSA will state, in writing, to HHS the
reason(s) for the disapproval.
(b) HHS abrogates the conditions and
restrictions in the transfer document
only upon receipt of the appropriate
consideration, including cash payment,
to the United States, as directed by
HHS, which is based on the formula
contained in the transfer document, and
any other terms and conditions HHS
deems appropriate to protect the interest
of the United States.
■ 21. Add § 581.21 to read as follows:
§ 581.21 Compliance Inspections and
Reports.
Transferees are required to allow HHS
to conduct compliance inspections and
to submit such compliance reports and
actions as are deemed necessary by
HHS. At a minimum, the transferee will
be required to submit an annual
utilization report regarding the
operation and maintenance of the
property, including current images of
the entire property and such
information as HHS shall require.
■ 22. Add § 581.22 to read as follows:
§ 581.22 No Right of Administrative
Review for Agency Decisions.
There is no right to administrative
review within HHS, including requests
for reconsideration or appeal, of agency
decisions on applications and other
discretionary decisions.
General Services Administration
Accordingly, for the reasons stated
above, GSA proposes to amend 41 CFR
part 102–75 subpart H as follows:
PART 102–75—REAL PROPERTY
DISPOSAL
23. The authority citation for 41 CFR
part 102–75 subpart H continues to read
as follows:
■
Authority: 40 U.S.C. 121(c), 521–523, 541–
559; E.O. 12512, 50 FR 18453, 3 CFR, 1985
Comp., p. 340.
24. Revise part 102–75 subpart H to
read as follows:
■
Abrogation.
(a) HHS may abrogate the conditions
and restrictions in the transfer
document if:
(1) The transferee submits to HHS a
written request that HHS abrogate the
conditions and restrictions in the
transfer document as to all or any
portion of the surplus property;
(2) HHS determines the terms and
conditions of the proposed abrogation
and determines that the proposed
abrogation is in the best interest of the
United States; and
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Subpart H—Use of Federal Real
Property to Assist the Homeless
Sec.
Definitions
102–75.1160 What definitions apply to this
subpart?
Applicability
102–75.1161 What is the applicability of
this subpart?
Collecting the Information
102–75.1162 How will information be
collected?
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Suitability Determination
102–75.1163 Who issues the suitability
determination?
Real Property Reported Excess to GSA
102–75.1164 For the purposes of this
subpart, what is the policy concerning
real property reported excess to GSA?
Suitability Criteria
102–75.1165 What are suitability criteria?
Determination of Availability
102–75.1166 What is the policy concerning
determination of availability statements
for suitable properties?
Public Notice of Determination
102–75.1167 What is the policy concerning
making public the notice of
determination?
General Policies of HHS
102–75.1168 What are the general policies
of HHS regarding the transfer of
properties to assist the homeless?
Expression of Interest Process
102–75.1169 How may eligible
organizations express interest in
properties to assist the homeless?
Application Process and Requirements
102–75.1170 How may eligible
organizations apply for the use of
properties to assist the homeless?
Action on Approved Applications
102–75.1171 What action must be taken on
approved applications?
Surplus Federal Real Property Transfer
Documents
102–75.1172 What documents are used for
the transfer of surplus Federal real
property for use to assist the homeless?
Unsuitable Properties
102–75.1173 What action must be taken on
properties determined unsuitable for
homeless assistance?
Compliance With the National
Environmental Policy Act of 1969 and
Other Related Acts (Environmental
Impact)
102–75.1174 What are the requirements for
compliance with the National
Environmental Policy Act of 1969 and
other related Acts (environmental
impact) for the transfer of Federal real
property for use to assist the homeless?
No Applications Approved
102–75.1175 What action must be taken if
there is no expression of interest or
approved application?
Utilization and Enforcement
102–75.1176 What are the utilization and
enforcement requirements for property
transferred for use to assist the
homeless?
Other Uses
102–75.1177 What are the requirements for
other uses of a transferred property?
Abrogation
102–75.1178 What are the conditions of
abrogation for property transferred to
assist the homeless?
Compliance Inspections and Reports
102–75.1179 What Compliance Inspections
and Reports are Required?
No Right of Administrative Review for
Agency Decisions
102–75.1180 Is there a right of
administrative review for agency
decisions within HHS?
Waivers
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102–75.1181 May any requirement of this
subpart be waived?
102–75.1182 through 102–75.1219
[Reserved]
Definitions
§ 102–75.1160
this subpart?
What definitions apply to
The following definitions are also
pursuant to 24 CFR part 581.1 and 45
CFR part 12a.1.
Applicant means any eligible
organization which has submitted an
application to the Department of Health
and Human Services to obtain use of a
certain suitable property to assist the
homeless.
Checklist or property checklist means
the form developed by HUD for use by
landholding agencies to report the
information to be used by HUD in
making determinations of suitability.
Classification means a property’s
designation as unutilized,
underutilized, excess, or surplus.
Day means one calendar day,
including weekends and holidays.
Eligible organization means a State or
local government agency, or a private,
non-profit organization that provides
assistance to the homeless, and that is
authorized by its charter or by State law
to enter into an agreement with the
Federal government for use of property
for the purposes of this subpart. Eligible
organizations that are private, non-profit
organizations interested in applying for
suitable property must be tax exempt
under section 501(c)(3) of the Internal
Revenue Code at the time of application
and remain tax exempt throughout the
time the Federal government retains a
reversionary interest in the property.
Excess property means any property
under the control of a Federal Executive
agency that the head of the agency
determines is not required to meet the
agency’s needs or responsibilities,
pursuant to 40 U.S.C. 524.
GSA means the General Services
Administration.
HHS means the Department of Health
and Human Services.
Homeless is defined in 42 U.S.C.
11302. This term is synonymous with
‘‘Homeless Individual’’ and ‘‘Homeless
Person.’’
HUD means the Department of
Housing and Urban Development.
HUD website means a website
maintained by HUD providing
information about HUD, including any
successor websites or technologies that
are equally accessible and available to
the public.
Landholding agency means the
Federal department or agency with
statutory authority to control property.
For purposes of this subpart, the
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landholding agency is typically the
Federal department or agency that had
custody and accountability on behalf of
the Federal government, of a certain
piece of property at the time that such
property was reported to HUD for a
suitability determination pursuant to 42
U.S.C. 11411.
Lease means an agreement in writing
between either HHS for surplus
property or landholding agencies for
underutilized and unutilized properties
and the applicant giving rise to the
relationship of lessor and lessee for the
use of Federal property for a term of at
least one year under the conditions set
forth in the lease document.
Non-profit organization means an
organization recognized as a non-profit
by the State in which the organization
operates, no part of the net earnings of
which inures to the benefit of any
member, founder, contributor, or
individual; that has a voluntary board;
that has an accounting system or has
designated an entity that will maintain
a functioning accounting system for the
organization in accordance with
generally accepted accounting
procedures; and that practices
nondiscrimination in the provision of
assistance.
Permit means a license granted by a
landholding agency to use unutilized or
underutilized property for a specific
amount of time, usually one year or less,
under terms and conditions determined
by the landholding agency. A permit
does not grant to the recipient an estate
in land or any interest in the property.
Property means real property
consisting of vacant land or buildings,
or a portion thereof, that is excess,
surplus, or designated as unutilized or
underutilized in surveys by the heads of
landholding agencies conducted
pursuant to 40 U.S.C. 524.
Related personal property means any
personal property that is located on real
property and is either an integral part of
or useful in the operation of that
property or is determined by GSA to be
otherwise related to the property.
Representative of the homeless means
a State or local government agency, or
private nonprofit organization that
provides, or proposes to provide,
services to the homeless.
Screen means the process by which
GSA surveys Federal Executive agencies
to determine if they have an interest in
using excess Federal property to carry
out a particular agency mission, and
then surveys State, local and non-profit
entities, to determine if any such entity
has an interest in using surplus Federal
property to carry out a specific public
use.
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State means a State of the United
States, and includes the District of
Columbia, the Commonwealth of Puerto
Rico, and the Territories and
possessions of the United States.
Substantial noncompliance means
failure to take corrective action as
directed by HHS.
Suitable property means that HUD has
determined that a certain property
satisfies the criteria listed in § 102–
75.1165.
Surplus property means any excess
property not required by any Federal
landholding agency for its needs or the
discharge of its responsibilities, as
determined by GSA.
Transfer document means a lease,
deed, or permit transferring surplus,
unutilized or underutilized property.
Transferee means an eligible entity
that acquires Federal property by lease,
deed, or permit.
Underutilized means an entire
property or portion thereof, with or
without improvements which is used
only at irregular periods or
intermittently by the accountable
landholding agency for current program
purposes of that agency, or which is
used for current program purposes that
can be satisfied with only a portion of
the property.
Unsuitable property means that HUD
has determined that a particular
property does not satisfy the criteria in
§ 102–75.1165.
Unutilized property means an entire
property or portion thereof, with or
without improvements, not occupied for
current program purposes for the
accountable executive agency or
occupied in caretaker status only.
Applicability
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§ 102–75.1161
this subpart?
What is the applicability of
(a) This subpart applies to Federal
property that has been designated by
Federal landholding agencies as
unutilized, underutilized, excess or
surplus and is therefore subject to the
provisions of Title V of the McKinney
Act, as amended (42 U.S.C. 11411).
(b) The following categories of
properties are not subject to this subpart
(regardless of whether they may be
unutilized or underutilized):
(1) Buildings and property at military
installations that were approved for
closure under the Defense Base Closure
and Realignment Act of 1990 (part A of
title XXIX of Pub. L. 101–510; 10 U.S.C.
2687 note) after October 25, 1994.
(2) Machinery and equipment not
determined to be related personal
property by the landholding agency or
GSA or determined to be related
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personal property that the landholding
agency or GSA chooses to dispose of
separate from real property.
(3) Government-owned, contractoroperated machinery, equipment, land,
and other facilities reported excess for
sale only to the using contractor and
subject to a continuing military
requirement.
(4) Properties subject to special
legislation directing a particular action.
(5) Properties subject to a court order
that, for any reason, precludes transfer
for use to assist the homeless under the
authority of 42 U.S.C. 11411.
(6) Property not subject to Federal
Real Property Council reporting
requirements in accordance with 40
U.S.C. 623(i).
(7) Mineral rights interests
independent of surface rights.
(8) Air space interests independent of
surface rights.
(9) Indian Reservation land subject to
40 U.S.C. 523.
(10) Property interests subject to
reversion.
(11) Easements.
(12) Any building or fixture that is
excess, or surplus, that is on land
owned by a landholding agency, where
the underlying land is not excess or
surplus.
(13) Property purchased in whole or
in part with Federal funds if title to the
property is not held by a Federal
landholding agency as defined in this
subpart.
Collecting the Information
§ 102–75.1162
collected?
How will information be
(a) Canvass of landholding agencies.
On a quarterly basis, HUD will canvass
each landholding agency to collect
information about property described as
unutilized, underutilized, excess or
surplus in accordance with 40 U.S.C.
524; however, HUD will accept property
information between canvasses. Each
canvass will collect information on
properties not previously reported, and
about property reported previously
where the status or classification of the
property has changed, or improvements
have been made to the property. HUD
will request descriptive information on
properties sufficient to make a
reasonable determination, under the
criteria described below, of the
suitability of a property for use to assist
the homeless. Landholding agencies
must report property information to
HUD using the property checklist
developed by HUD for that purpose.
Property checklists submitted in
response to a canvass must be submitted
to HUD within 25 days of receipt of the
canvass.
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16853
(b) Agency annual suitable property
report. By December 31 of each year,
each landholding agency must notify
HUD of the current availability status
and classification of each property
controlled by the agency that:
(1) was included in a list of suitable
properties published that year by HUD,
and
(2) remains available for application
for use to assist the homeless or has
become available for application during
that year.
(c) GSA inventory. HUD will collect
information, in the same manner as
described in paragraph (a) of this
section, from GSA regarding property
that is in GSA’s current inventory of
excess or surplus property.
(d) Change in status. If the
information provided on the property
checklist changes subsequent to HUD’s
determination of suitability, including
any improvements or other alterations
to the physical condition of the land or
the buildings on the property, and the
property remains unutilized,
underutilized, excess or surplus, the
landholding agency must submit a
revised property checklist in response to
the next quarterly canvass. HUD will
review for suitability and, if it differs
from the previous determination, repost
the property information on the HUD
website. For example, property
determined unsuitable due to extensive
deterioration may have had
improvements, or property determined
suitable may subsequently be found to
be extensively deteriorated.
Suitability Determination
§ 102–75.1163 Who issues the suitability
determination?
(a) Suitability determination. Within
30 days after the receipt of a completed
property checklist from landholding
agencies either in response to a
quarterly canvass, or between canvasses,
HUD will determine, using the criteria
set forth in § 581.6 whether a property
is suitable for use to assist the homeless
and report its determination to the
landholding agency. Properties that are
under lease, contract, license, or
agreement by which a Federal agency
retains a real property interest or which
are scheduled to become unutilized or
underutilized will be reviewed for
suitability no earlier than six months
prior to the expected date when the
property will become unutilized or
underutilized.
(b) Scope of suitability. HUD will
determine the suitability of a property
for use to assist the homeless without
regard to any particular use.
(c) Environmental information. HUD
will evaluate the environmental
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information contained in property
checklists forwarded to HUD by the
landholding agencies solely for the
purpose of determining suitability of
properties under the criteria in § 102–
75.1166
(d) Record of suitability
determination. HUD will assign an
identification number to each property
reviewed for suitability. HUD will
maintain a public record of the
following:
(1) The suitability determination for a
particular piece of property, and the
reasons for that determination; and
(2) The landholding agency’s response
to the determination pursuant to the
requirements of § 102–75.1166(a).
(e) Property determined unsuitable.
Property that is reviewed by HUD under
this section and that is determined
unsuitable for use to assist the homeless
may not be made available for any other
purpose for 20 days after publication of
a notice of unsuitability on the HUD
website.
(f) Procedures for appealing
unsuitability determinations.
(1) To request review of a
determination of unsuitability, a
representative of the homeless must
contact HUD, in writing, through the
U.S. Mail, email, or the HUD website, or
such other method as HUD may require,
within 20 days of publication of notice
of unsuitability.
(2) Requests for review of a
determination of unsuitability may be
made only by representatives of the
homeless.
(3) The request for review must
specify the grounds on which it is
based, i.e., HUD has improperly applied
the criteria or HUD has relied on
incorrect or incomplete information in
making the determination (e.g., that
property is in a floodplain but not in a
floodway).
(4) Upon receipt of a request to review
a determination of unsuitability, HUD
will notify the landholding agency or
GSA that such a request has been made.
The landholding agency or GSA shall
have 20 days from receipt of the notice
from HUD, or an extended period agreed
to between HUD and the landholding
agency or GSA, to provide any
information pertinent to the review. The
landholding agency or GSA must refrain
from initiating disposal procedures until
HUD has completed its reconsideration
regarding unsuitability. If the
landholding agency or GSA fails to meet
the deadline, HUD will move forward
with the appeal review with the
property information it already has and
information submitted in the appeal
request provided by the representative
of the homeless.
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(i) HUD will act on all requests for
review within 30 days of receipt of the
landholding agency’s or GSA’s
response, or, if the landholding agency
or GSA failed to meet the deadline,
within 30 days of such deadline, and
will notify the representative of the
homeless and the landholding agency or
GSA in writing of its decision.
(ii) If a property is determined
suitable as a result of the review, HUD
will request the landholding agency’s or
GSA’s determination of availability
pursuant to § 102–75.1166, upon receipt
of which HUD will promptly publish
the determination on the HUD website.
Real Property Reported Excess to GSA
§ 102–75.1164 For the purposes of this
subpart, what is the policy concerning real
property reported excess to GSA?
(a) Each landholding agency must
submit a report to GSA of properties it
determines excess. Each landholding
agency must also provide a copy of
HUD’s suitability determination, if any,
including HUD’s identification number
for the property.
(b) If a landholding agency reports an
excess property to GSA that HUD has
already determined to be suitable for
use to assist the homeless, GSA will
screen the property pursuant to
paragraph (h) of this section and will
advise HUD of the availability of the
property for use by the homeless as
provided in paragraph (e) of this
section. In lieu of the above, GSA may
submit a new checklist to HUD and
follow the procedures in paragraphs (c)
through (h) of this section.
(c) If a landholding agency reports an
excess property to GSA that has not
been reviewed by HUD for homeless
assistance suitability, GSA will
complete a property checklist, based on
information provided by the
landholding agency, and will forward
this checklist to HUD for a suitability
determination. This checklist will
reflect any change in classification, such
as from unutilized or underutilized to
excess or surplus.
(d) Within 30 days after GSA’s
submission, HUD will advise GSA of the
suitability determination.
(e) When GSA receives notification
from HUD listing suitable excess
properties, GSA will transmit a response
to HUD within 45 days. GSA’s response
will include the following for each
identified property:
(1) A statement that there is no other
compelling Federal need for the
property and, therefore, the property
will be determined surplus; or
(2) A statement that there is further
and compelling Federal need for the
property (including a full explanation of
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such need) and that, therefore, the
property is not presently available for
use to assist the homeless.
(f) When GSA submits a checklist to
HUD in accordance with paragraphs (b)
and (c) of this section, the information
regarding the availability of the
property, as specified in paragraph (e)(1)
and (2) of this section, may be included
with the checklist if it is known at the
time of submittal.
(g) When a surplus property is
determined as suitable, confirmed as
available by GSA, and notice is
published on the HUD website, GSA
will concurrently notify HHS, State and
local government units, and known
homeless assistance providers that have
expressed interest in the particular
property, and other organizations, as
appropriate, concerning suitable
properties.
(h) Upon submission of a Report of
Excess to GSA, GSA may screen the
property for Federal use. In addition,
GSA may screen State and local
governmental units and eligible nonprofit organizations to determine
interest in the property in accordance
with current regulations. (See 41 CFR
102–75.1220, 102–75.255 and 102–
75.350).
(i) The landholding agency will retain
custody and accountability and will
protect and maintain any property that
is reported excess to GSA as provided
in 41 CFR 102–75.965.
Suitability Criteria
§ 102–75.1165
What are suitability criteria?
(a) In general, properties will be
determined suitable unless a property’s
characteristics include one or more of
the following conditions:
(1) Flammable or explosive hazards.
Property located less than an acceptable
separation distance (under the standards
in 24 CFR part 51, subpart C and the
HUD Guidebook, ‘‘Siting of HUDAssisted Projects Near Hazardous
Facilities’’ or successor guidebook) from
any stationary aboveground container or
facility which stores, handles, or
processes hazardous substances of an
explosive or fire prone nature
(excluding containers and facilities that
are not hazards as defined in 24 CFR
51.201), unless HUD can determine
during the review period based on
information provided by the
landholding agency that appropriate
mitigating measures, as defined in 24
CFR 51.205, are already in place.
(2) Coastal Barriers. Property located
in a System Unit, as defined at 16 U.S.C.
3502(7), under the Coastal Barrier
Resources Act, as amended (16 U.S.C.
3501 et seq.).
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(3) Site Safety Conditions. Property
with a documented and extensive
condition(s) that represents a clear
threat to personal physical safety or
health. Such conditions may include,
but are not limited to, significant
contamination from hazardous
substances, as defined by 42 U.S.C.
9601, periodic flooding, sinkholes, or
landslides.
(b) In the cases below, properties will
be determined unsuitable, unless the
landholding agencies provide
information to enable HUD to determine
the property is suitable:
(1) Inaccessible. Property that is
inaccessible, meaning that the property
is not accessible by road (including
property on small offshore islands) or is
landlocked (e.g., can be reached only by
crossing private property and there is no
established right or means of entry).
(2) National Security. Property located
in an area to which the general public
is denied access in the interest of
national security (e.g., where a special
pass or security clearance is a condition
of entry to the property), unless there is
an alternative method to gain access
without compromising national
security.
(3) Runway clear zones. Property
located within a runway clear zone or
a military airfield clear zone.
(4) Floodway. Property located in a
floodway, unless only an incidental
portion of the property is in the
floodway and that incidental portion
does not affect the use of the remainder
of the property to assist the homeless.
Determination of Availability
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§ 102–75. 1166 What is the policy
concerning determination of availability
statements for suitable properties?
(a) Within 45 days after receipt of
notification from HUD pursuant to
§ 102–75.1162(a) that a property has
been determined to be suitable, each
landholding agency or GSA must
transmit to HUD a statement of one of
the following:
(1) In the case of unutilized or
underutilized property—
(i) An intention to declare the
property excess;
(ii) An intention to make the property
available for use to assist the homeless;
or
(iii) The reasons why the property
cannot be declared excess or made
available for use to assist the homeless.
The reasons given must be different
from those listed as suitability criteria in
§ 102–75.1165.
(2) In the case of excess property
which has been reported to GSA—
(i) A statement that there is no
compelling Federal need for the
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property, and, therefore, the property
will be determined surplus; or
(ii) A statement that there is a further
and compelling Federal need for the
property (including a full explanation of
such need) and therefore, the property
is not presently available for use to
assist the homeless.
(b) [Reserved]
Public Notice of Determination
§ 102–75.1167 What is the policy
concerning making public the notice of
determination?
(a) No later than 15 days after the
most recent 45-day period has elapsed
for receiving responses from the
landholding agencies or GSA regarding
availability, HUD will post on the HUD
website a list of all properties reviewed,
including a description of the property,
its address, and classification. The
following designations will be made:
(1) Properties that are suitable and
available.
(2) Properties that are suitable and
unavailable.
(3) Properties that are suitable and to
be declared excess.
(4) Properties that are unsuitable.
(b) HUD will establish and maintain
a toll-free number for the public to
obtain specific information about
properties in paragraph (a) of this
section.
(c) No later than 15 days after the
most recent 45-day period has elapsed
for receiving responses from the
landholding agencies or GSA regarding
availability, HUD will transmit to the
United States Interagency Council on
Homelessness (USICH) a copy of the list
of all properties in paragraph (a) of this
section. The USICH will immediately
distribute to all state and regional
homeless coordinators area-relevant
portions of the list. The USICH will
encourage the state and regional
homeless coordinators to disseminate
this information widely.
(d) No later than February 15 of each
year, HUD will publish in the Federal
Register a list of all properties in the
agency annual suitable property reports,
reported to HUD pursuant to § 102–
75.1162(b).
(e) HUD will publish an annual list of
properties determined suitable, but
which agencies reported unavailable
including the reasons such properties
are not available.
General Policies of HHS
§ 102–75.1168 What are the general
policies of HHS regarding the transfer of
properties to assist the homeless?
(a) It is the policy of HHS to foster and
assure maximum utilization of surplus
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16855
property for homeless assistance
purposes.
(b) Transfers may be made only to
eligible organizations.
(c) Eligible organizations must be
authorized, in the State in which the
requested property is located, to carry
out the activity for which it requests the
property.
(d) Property will be requested for
assignment only when HUD has made a
final determination that the property is
suitable for use to assist the homeless,
GSA has determined it is available, and
HHS has determined it is needed for
homeless assistance purposes. The
amount of real and related personal
property to be transferred shall not
exceed normal operating requirements
of the applicant. Such property will not
be requested for assignment unless it is
needed at the time of application for
homeless assistance purposes or will be
so needed within the immediate or
foreseeable future.
(e) Transfers by deed will be made
only after the applicant’s financial plan
is approved and the applicant provides
certification that the proposed program
is permissible under all applicable State
and local zoning restrictions, building
codes, and similar limitations.
Expression of Interest Process
§ 102–75.1169 How may eligible
organizations express interest in properties
to assist the homeless?
(a) Properties published by HUD as
suitable and available pursuant to
§ 102–75.1167, for application for use to
assist the homeless shall not be
available for any other purpose for a
period of 30 days beginning on the date
of publication. Any eligible organization
interested in any underutilized,
unutilized, excess, or surplus property
for use to assist the homeless must send
to HHS a written expression of interest
in that property within 30 days after the
property has been published on the
HUD website.
(b) Although a property may be
determined suitable by HUD, HUD’s
determination does not mean a property
is necessarily useable for the purpose(s)
stated in the application, nor does it
guarantee subsequent conveyance or
transfer of a property.
(c) If a written expression of interest
to apply for suitable property for use to
assist the homeless is received by HHS
within the 30-day holding period, such
property may not be made available for
any other purpose until the date HHS or
the appropriate landholding agency has
completed action on the application
submitted pursuant to that expression of
interest.
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(d) The expression of interest should
identify the specific property, briefly
describe the proposed use, include the
name of the organization, and indicate
whether it is a public body or a private,
non-profit organization. The expression
of interest must be sent to HHS by
email, rpb@psc.hhs.gov, or by mail at
the following address: Department of
Health and Human Services, Program
Manager, Federal Real Property
Assistance Program, Real Estate
Logistics and Operations, 5600 Fishers
Lane, Rockville, Maryland 20852.
(1) HHS will notify the landholding
agency (for unutilized and underutilized
properties) or GSA (for excess and
surplus properties) when an expression
of interest has been received for a
certain property.
(e) An expression of interest may be
sent to and accepted by HHS any time
after the 30-day holding period has
expired only if the property remains
available as determined by GSA or the
landholding agency for application to
assist the homeless. In such a case, an
application submitted pursuant to this
expression of interest may be approved
for use by the homeless if:
(1) There are no pending applications
or written expressions of interest made
under any law for use of the property for
any purpose; and
(2) In the case of excess or surplus
property, GSA has not received a bona
fide offer to purchase that property or
advertised for the sale of the property by
public auction.
Application Process and Requirements
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§ 102–75.1170 How may eligible
organizations apply for the use of
properties to assist the homeless?
(a) Upon receipt of an expression of
interest, HHS will send an application
packet to the interested entity. The
application packet requires the
applicant to provide certain
information, including the following—
(1) Acquisition type. The applicant
must state whether it is requesting
acquisition of the property by lease,
deed, or permit. A lease of one year,
extendable at HHS’s discretion, with the
concurrence of GSA or the landholding
agency, may be granted when the
applicant’s initial application is
approved and the applicant’s final
application outlining the applicant’s
financial plan is found to be otherwise
reasonable based on the criteria in
paragraph (a)(7) of this section, but
either a change in zoning is required or
the financial plan proposes to utilize
Low-Income Housing Tax Credits or
other funding sources that typically take
longer to process than other forms of
financing.
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(2) Description of the applicant
organization. The applicant must
document that it satisfies the definition
of an ‘‘eligible organization’’ as
specified in § 102–75.1160. The
applicant must document its authority
to hold property for the proposed
program and plan of use by providing a
copy of its Articles of Organization,
Charter, Certification from State of NonProfit Organization status, or other
appropriate document or citation.
Private, non-profit organizations
applying for the acquisition of a certain
property must document that they are
tax exempt under section 501(c)(3) of
the Internal Revenue Code.
(3) Description of the property
desired. The applicant must describe
the listed property desired, including
existing zoning. Applicants must certify
that any modification(s) made to and
use of the property will conform to all
applicable building codes, and local use
restrictions, or similar limitations. In
accordance with GSA policy,
determinations regarding parcelization
are made prior to screening. Therefore,
expressions of interest and applications
for portions of listed properties will not
be accepted.
(4) Description of the proposed
program. The applicant must fully
describe the proposed program and plan
of use, including implementation plans.
(5) Demonstration of need. The
applicant must demonstrate that the
property is needed for homeless
assistance purposes at the time of
application and how the program will
address the needs of the homeless
population to be assisted. The applicant
must demonstrate that it has an
immediate need and ability to utilize all
of the property for which it is applying.
(6) Demonstrate that the property is
suitable and adaptable for the proposed
program and plan of use. The applicant
must fully explain why the property is
suitable and describe what, if any,
modification(s) will be made to the
property before the program becomes
operational.
(7) Ability to finance and operate the
proposed program. If the applicant’s
initial application is approved, the
applicant must set forth a reasonable
plan to finance the approved program
within 45 days of the initial approval.
To be considered reasonable, the plan
must, at a minimum:
(i) specifically describe all anticipated
costs and sources of funding for the
proposed program, including any
property modifications;
(ii) be accompanied by supporting
documentation which demonstrates that
the proposed plan is likely to succeed;
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(iii) demonstrate that the applicant is
ready, willing, able, and authorized to
assume care, custody, and maintenance
of the property;
(iv) demonstrate that it has secured
the necessary dedicated funds, or the
ability to obtain such funds, to carry out
the approved proposed program and
plan of use for the property, including
administrative expenses incident to the
transfer by deed, lease, or permit;
(v) not diminish the value of the
government’s interest in the property
nor impair the government’s ability to
revert and immediately dispose of the
property free of any and all liens,
encumbrances, or anything else which
renders the property unmarketable.
Deed transfers will only be made after
an applicant demonstrates its financial
plan adequately protects the United
States’ interest in the property; and
(vi) neither subject the Federal
government’s interest in the property to
foreclosure nor impose obligations (e.g.,
extended use agreements) on the
Federal government.
(8) Compliance with nondiscrimination requirements. Each
applicant under this part must certify in
writing that it will comply with all
requirements of federal law and HHS
policy, as amended, relating to nondiscrimination, including the following:
the Fair Housing Act (42 U.S.C. 3601–
3619) and implementing regulations;
and, as applicable, Executive Order
11063 (Equal Opportunity in Housing)
and implementing regulations; Title VI
of the Civil Rights Act of 1964 (42
U.S.C. 2000d to d–4) (Nondiscrimination in Federally Assisted
Programs) and implementing
regulations; Section 1557 of the
Affordable Care Act and implementing
regulations; the prohibitions against
discrimination on the basis of age under
the Age Discrimination Act of 1975 (42
U.S.C. 6101–6107) and implementing
regulations; and the prohibitions against
otherwise qualified individuals with
disabilities under section 504 of the
Rehabilitation Act of 1973 (29 U.S.C.
794) and implementing regulations. The
applicant must maintain the required
records to demonstrate compliance with
all applicable Federal laws and HHS
policies related to non-discrimination.
(9) Insurance and Indemnification.
The applicant must certify that it will
insure the property against loss,
damage, or destruction to protect the
residual financial interest of the United
States. The United States shall be
named as an additional insured.
Applicants must provide proof of
insurance annually or upon request.
Failure to maintain sufficient insurance
may result in adverse action, including
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reversion of the property, at the
discretion of HHS. Applicants, and all
affiliated parties utilizing the property,
as approved by HHS, must indemnify
the United States and hold the United
States harmless for all actions involving
use of the property.
(10) Historic preservation. Where
applicable, the applicant must provide
information that will enable HHS to
comply with Federal historic
preservation requirements.
(11) Environmental information. The
applicant must provide sufficient
information to allow HHS to analyze the
potential impact of the applicant’s
proposal on the environment, in
accordance with the instructions
provided with the application packet.
HHS will assist applicants in obtaining
any pertinent environmental
information in the possession of HUD,
GSA, or the landholding agency.
However, the burden is on the applicant
to submit sufficient documentation for
analysis by HHS.
(12) Local government notification.
The applicant must certify that it has
notified the applicable unit of general
local government responsible for sewer,
water, police, and fire services, in
writing, of its proposed program for the
specific property and submit a copy of
that written notification.
(13) Zoning and Local Use
Restrictions. An applicant requesting a
deed must certify that it has consulted
all State and local governmental entities
that will have jurisdiction over the
property and that the proposed use will
comply with all applicable zoning and
local use restrictions, including local
building code requirements. An
applicant that applies for a lease or
permit is not required to comply with
local zoning requirements, as long as the
Federal government retains ownership
of the property. Deed transfers will only
be made after the applicant has
provided acceptable written proof that
the proposed program is not in conflict
with State or local zoning laws and
restrictions, building codes, or similar
limitations.
(b) Scope of evaluations. Due to the
short time frame imposed by statute for
evaluating applications, HHS’s
evaluation will, generally, be limited to
the information contained in the
application. It is therefore incumbent on
applicants to provide thorough and
complete applications.
(c) Deadline for Initial Application.
An initial application must be received
by HHS, at the above email address or
other address indicated by HHS, within
75 days after an expression of interest is
received from a particular applicant for
that property. Upon written request
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from the applicant, HHS may, in its
discretion, grant extensions authorized
by 42 U.S.C. 11411(e)(2)(A), provided
that the appropriate landholding agency
or GSA concurs with the extension.
(d) Evaluation of initial application.
(1) Upon receipt of an initial
application, HHS will review it for
completeness, and, if incomplete, may,
in its discretion, return it or ask the
applicant to furnish any missing or
additional required information prior to
final evaluation of the initial
application.
(2) HHS will evaluate each initial
application within 10 days of receipt
and will promptly advise the applicant
of its decision. All initial applications
will be reviewed on the basis of the
following elements:
(i) Services offered. The extent and
range of proposed services, such as
meals, shelter, job training, and
counseling.
(ii) Need. The demand for the
program, the program’s ability to satisfy
unmet needs of the community, and the
degree to which the available property
will be fully utilized.
(iii) Experience. Demonstrated ability
to provide the services, such as prior
success in operating similar programs
and recommendations attesting to that
fact by Federal, State, and local
authorities.
(e) Deadline and Evaluation of Final
Application.
(1) If HHS approves an initial
application, HHS will notify the
applicant and provide the applicant 45
days in which to provide a final
application. The final application shall
set forth a reasonable plan to finance, as
specified in § 102–75.1170(a)(6), the
approved program as set forth in the
initial application. Applicants may not
modify the approved initial application
within its final application proposal.
(2) Upon receipt of the final
application, HHS will make a
determination within 15 days and notify
the applicant.
(3) Unlike with initial applications,
requests for extensions are not
authorized by 42 U.S.C. 11411 and thus
will not be considered for final
applications.
(4) Applications are evaluated on a
first-come, first-served basis. HHS will
notify all organizations that have
submitted expressions of interest for a
particular property whether an earlier
application received for that property
has been approved.
(f) Competing Applications. If HHS
receives more than one final application
simultaneously, HHS will evaluate all
applications and make a determination
based on each application’s merit. HHS
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will rank approved applications based
on the elements listed in paragraph (a)
of this section, and notify the
landholding agency, or GSA, as
appropriate, of the approved applicant.
Action on Approved Applications
§ 102–75.1171 What action must be taken
on approved applications?
(a) Unutilized and underutilized
properties.
(1) When HHS approves an
application, it will so notify the
applicant and forward a copy of the
application to the landholding agency.
The landholding agency will execute
the lease, or permit document, as
appropriate, in consultation with the
applicant.
(2) The landholding agency maintains
the discretion to decide the following:
(i) The length of time the property
will be available. (Leases and permits
will be for a period of at least one year
unless the applicant requests a shorter
term.)
(ii) The terms and conditions of the
lease or permit document (except that a
landholding agency may not charge any
fees or impose any costs).
(b) Excess and surplus properties.
(1) When HHS approves an
application, it will so notify the
applicant and request that GSA assign
the property to HHS for transfer.
Requests to GSA for the assignment of
surplus property to HHS for homeless
assistance purposes will be based on the
following conditions:
(i) HHS has a fully approved
application for the property;
(ii) The applicant is able, willing, and
authorized to assume immediate care,
custody, and maintenance of the
property;
(iii) The applicant is able, willing and
authorized to pay the administrative
expenses incident to the transfer; and
(iv) The applicant has secured the
necessary funds, or had demonstrated
the ability to obtain such funds, to carry
out the approved program of use of the
property.
(2) Upon receipt of an acceptable
assignment, HHS will execute the
transfer document in accordance with
the procedures and requirements set out
in this subpart and any other terms and
conditions HHS and GSA determines
are appropriate or necessary. Custody
and accountability of the property will
remain throughout the lease term with
the landholding agency (i.e., the agency
which initially reported the property as
excess) and throughout the deed term
with the transferee.
(3) Prior to assignment to HHS, GSA
may consider other Federal uses and
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other important national needs in
deciding the disposition of surplus
property. Priority of consideration will
normally be given to uses to assist the
homeless. However, both GSA and HHS
may consider any competing request for
the property made under 40 U.S.C. 550
that is so meritorious and compelling
that it outweighs the needs of the
homeless.
(4) Whenever GSA or HHS decides in
favor of a competing request over a
request for property for homeless
assistance, the agency making the
decision will transmit to the appropriate
committees of Congress an explanatory
statement which details the need
satisfied by conveyance of the surplus
property, and the reasons for
determining that such need was so
meritorious and compelling as to
outweigh the needs of the homeless.
Surplus Property Transfer Documents
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§ 102–75.1172 What documents are used
for the transfer of surplus Federal real
property for use to assist the homeless?
(a) Surplus property may be conveyed
to eligible organizations pursuant to 40
U.S.C. 550(d) and 42 U.S.C. 11411, as
amended, by lease or deed, at the
applicant’s discretion.
(b) Transfers of surplus property for
homeless assistance purposes are in
exchange for the transferee’s agreement
to fully utilize the property for homeless
assistance purposes in accordance with
the terms specified in the transfer
document.
(c) A transfer of surplus property for
homeless purposes is subject to the
disapproval of GSA within 30 days after
notice is given to GSA of the proposed
transfer.
(d) Surplus property transferred
pursuant to this subpart will be
disposed on an ‘‘as is, where is,’’ basis
without warranty of any kind except as
may be stated in the transfer document.
(e) Unless excepted by GSA in its
assignment, the disposal of property
includes mineral rights associated with
the surface estate.
(f) Transfers of surplus property under
this subpart will be made with the
following general terms and conditions:
(1) For the period provided in the
transfer document, the transferee shall
utilize all the surplus property it
receives solely and continuously for an
approved program and plan of use, in
accordance with 42 U.S.C. 11411 and
these regulations, except that:
(i) The transferee has 12 months from
the date of transfer to place the surplus
property into use, if HHS did not
approve in writing, construction of new
facilities or major renovation of the
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property when it approved the final
application;
(ii) The transferee has 36 months from
the date of transfer to place the surplus
property into use, if the transferee
proposes construction of new facilities
or major renovation of the property and
HHS approves it in writing at the time
it approves the final application;
(iii) If the applicable time limitation is
not met, the transferee shall either
commence payments in cash to the
Federal government for each month
thereafter during which the proposed
use has not been implemented or take
such other action as set forth at § 102–
75.1176 as is deemed appropriate by
HHS. Such monthly payments shall be
computed on the basis of the current fair
market value of the property, as
conveyed, at the time of the first
payment and dividing it by 360 months.
At HHS’s discretion, the payment may
be waived if the transferee makes a
sufficient showing of continued
progress to place the property into use
or if an unforeseeable event occurs
which prevents the property from being
put into use within the applicable
timeframe; and
(iv) HHS may permit use of surplus
property at any time during the period
of restriction by an entity other than the
transferee in accordance with § 102–
75.1177.
(2) The transferee will not be
permitted to encumber, sell, lease or
sublease, rent, mortgage, or otherwise
dispose of the property, or any part
thereof, without the prior written
authorization of HHS. In the event the
property is sold, leased or subleased,
encumbered, disposed of, or is used for
purposes other than those set forth in an
approved plan without the consent of
HHS, all revenues or the reasonable
value of other benefits received by the
transferee directly or indirectly from
such use, as determined by HHS, will be
considered to have been received and
held in trust by the transferee for the
account of the United States and will be
subject to the direction and control of
HHS. The provisions of this paragraph
shall not impair or affect the rights
reserved to the United States in
paragraph (f)(8) of this section, or the
right of HHS to impose conditions to its
consent.
(3) The transferee will file with HHS
such reports on its maintenance and use
of the surplus property and any other
reports or information deemed
necessary by HHS.
(4) The transferee shall pay all
administrative costs incidental to the
transfer, including but not limited to—
transfer taxes; surveys; appraisals; title
search; the transferee’s legal fees;
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recordation expenses, etc. Transferee is
solely responsible for such costs and
may not seek reimbursement from the
Federal government for any reason.
(5) The transferee shall protect,
preserve, maintain, and repair the
property to ensure that the property
remains in as good a condition as when
received.
(6) The transferee shall protect the
residual financial interest of the United
States in the surplus property by
insurance or such other means as HHS
directs. Where loss or damage to the
transferred property occurs, all proceeds
from insurance shall be promptly used
by the transferee for the purpose of
repairing and restoring the property to
its former condition or replacing it with
equivalent or more suitable facilities. If
not so used, there shall be paid to the
United States that part of the insurance
proceeds that is attributable to the
Government’s residual interest in the
property lost, damaged, or destroyed.
Further, transferee shall neither take any
action nor allow any action which
diminishes the residual financial
interest of the United States.
(7) The transferee shall abide by all
applicable Federal Civil Rights laws
including those specified in the
covenants and conditions contained in
the transfer document, prohibiting the
transferee from discriminating on the
basis of, including but not limited to,
race, color, national origin, religion, sex,
familial status or disability in the use of
the property.
(8) In the event of substantial
noncompliance with any conditions of
the deed as determined by HHS,
whether caused by the legal or other
inability of the transferee, its successors
and assigns, to perform any of the
obligations of the transfer document, the
Federal government has an immediate
right of reentry thereon, and to cause all
right, title, and interest in and to the
property to revert to the United States,
and the transferee shall forfeit all right,
title, and interest in and to the property.
In such event, transferee shall execute a
quitclaim deed and take all other
actions necessary to return the property
to the United States within ninety (90)
days of a written request from the
Federal government, extended only at
the discretion of the Federal
government. Transferee shall cooperate
with the United States in the event of a
reversion and agrees that the United
States need not seek judicial
intervention before exercising its right
to revert, reenter and reconvey the
property.
(9) In the event title is reverted to the
United States for noncompliance or
voluntarily reconveyed to the United
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States, the transferee shall, at the option
of HHS, be required to: reimburse the
United States for the decrease in value
of the property not due to market
conditions, reasonable wear and tear,
acts of God, or approved alterations
completed by the transferee to adapt the
property to the homeless use for which
the property was transferred; and
reimburse the United States for any
costs incurred in reverting title to or
possession of the property, including
reasonable attorneys’ fees.
(10) With respect to leased property,
in the event of substantial
noncompliance with any of the
conditions of the lease, as determined
by HHS or the landholding agency, the
right of occupancy and possession shall,
at the option of HHS or the landholding
agency, be terminated. In the event a
leasehold is terminated by the United
States for substantial noncompliance or
is voluntarily surrendered, the lessee
shall be required, at the option of HHS,
to reimburse the United States for the
decrease in value of the property not
due to market conditions, reasonable
wear and tear, acts of God, or approved
alterations completed by the lessee to
adapt the property to the homeless use
for which the property was leased. With
respect to any termination of leasehold
resulting from noncompliance, the
United States, shall, in addition thereto,
be reimbursed for such costs as may be
incurred in recovering possession of the
property, including reasonable
attorneys’ fees.
(11) Any other term or condition that
HHS and GSA determine appropriate or
necessary.
(12) With respect to surplus property
transferred by deed, the terms and
conditions including those in paragraph
(f) of this section, apply for a period of
thirty (30) years of use in accordance
with a program of use approved in
writing by HHS. The thirty-year (30)
period may, in HHS’s sole discretion, be
extended or restarted in the event the
property is not fully utilized or is
retransferred to a successor entity.
Expiration of the foregoing terms and
conditions does not release the
transferee from continuing compliance,
as appropriate, with any conditions that
may run with the land, e.g.,
environmental conditions and/or
historic preservation covenants. Such
conditions will continue to be the
responsibility of the transferee and
successors.
(13) With respect to surplus property
transferred by lease, the terms and
conditions including those in paragraph
(f) of this section, extend for the entire
initial lease and for any subsequent
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renewal periods, unless specifically
excluded in writing by HHS.
(g) Related personal property may be
transferred or leased as a part of the
realty and in accordance with real
property procedures.
(h) Completion of Transfer Term and
Reversion of Title. Transferees will be
responsible for the protection and
maintenance of the property during the
time that they possess the property.
Upon termination of the lease term or
reversion of title to the United States,
the transferee will be responsible for
removing improvements made to the
property if directed to by the United
States and, in such event, will be
responsible for restoration of the
property or the costs associated with
restoring the property. If improvements
made by the transferee are not
voluntarily removed by the transferee
and the United States consents, they
will become the property of the United
States. If the United States does not
consent, the transferee shall reimburse
the United States for reasonable costs of
removal. GSA or the landholding
agency, as appropriate, will assume
responsibility for protection and
maintenance of a property when the
lease terminates or title reverts.
(i) Transferees, by obtaining the
consent of HHS, may abrogate the
restrictions set forth in paragraph (f) of
this section for all or any portion of the
property in accordance with the
provisions of § 102–75.1178.
Unsuitable Properties
§ 102–75.1173 What action must be taken
on properties determined unsuitable for
homeless assistance?
The landholding agency or GSA will
defer action to dispose of properties
determined unsuitable for homeless
assistance for 20 days after the date that
notice of a property is posted on the
HUD website. HUD will inform
landholding agencies or GSA if appeal
of an unsuitability determination is filed
by a representative of the homeless
pursuant to § 102–75.1163(f). HUD will
advise the agency to refrain from
initiating disposal procedures until
HUD has completed its reconsideration
process regarding unsuitability.
Thereafter, or if no appeal has been filed
after 20 days, GSA or the appropriate
landholding agency may proceed with
disposal action in accordance with
applicable law.
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16859
Compliance With the National
Environmental Policy Act of 1969 and
Other Related Acts (Environmental
Impact)
§ 102–75.1174 What are the requirements
for compliance with the National
Environmental Policy Act of 1969 and other
related Acts (environmental impact) for the
transfer of Federal real property for use to
assist the homeless?
(a) HHS, prior to making a final
decision to convey or lease, or to
amend, reform, or grant an approval or
release with respect to a previous
conveyance or lease of, surplus property
for homeless purposes, will act in
accordance with applicable provisions
of the National Environmental Policy
Act of 1969, the National Historic
Preservation Act of 1966, the National
Archeological Data Preservation Act,
and other related acts. No lease to use
surplus property shall allow the lessee
to make, or cause to be made, any
irreversible change in the conditions of
said property, and no lease shall be
employed for the purpose of delaying or
avoiding compliance with the
requirements of these Acts, unless
approved by the United States.
(b) Applicants shall be required to
provide such information as HHS deems
necessary to make an assessment of the
impact of the proposed Federal action
on the human environment. Materials
contained in the applicant’s official
request, responses to a standard
questionnaire prescribed by HHS, as
well as other relevant information, will
be used by HHS in making said
assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action
involved properties of historical
significance which are listed, or eligible
for listing, in the National Register of
Historic Places; or
(2) that a more than insignificant
impact on the human environment is
reasonably foreseeable as a result of the
proposed action; or
(3) that the proposed Federal action
could result in irreparable loss or
destruction of archeologically
significant items or data, HHS will,
except as provided for in paragraph (d)
of this section, prepare and distribute,
or cause to be prepared or distributed,
such notices and statements and obtain
such approvals as are required by the
above cited Acts.
(d) If a proposed action involves other
Federal agencies in a sequence of
actions, or a group of actions, directly
related to each other because of their
functional interdependence, HHS may
enter into and support a lead agency
agreement to designate a single lead
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agency which will assume primary
responsibility for coordinating the
assessment of environmental effects of
proposed Federal actions, preparing and
distributing such notices and
statements, or obtaining such approvals,
as are required by the above cited Acts.
The procedures of the designated lead
agency will be utilized in conducting
the environmental assessment. In the
event of disagreement between HHS and
another Federal agency, HHS will
reserve the right to abrogate the lead
agency agreement with the other Federal
agency.
No Applications Approved
§ 102–75.1175 What action must be taken
if there is no expression of interest or
approved application?
(a) At the end of the 30-day holding
period described in § 102–75.1169(a),
HHS will notify GSA, or the
landholding agency, as appropriate, if
an expression of interest has been
received for a certain property. Where
there is no expression of interest, GSA
or the landholding agency, as
appropriate, will proceed with disposal
in accordance with applicable law.
(b) Upon notice from HHS that all
applications have been disapproved, or
if no initial applications have been
received within 75 days after an
expression of interest, or no final
application has been received within 45
days after an approved initial
application, disposal may proceed in
accordance with applicable law.
Utilization and Enforcement
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§ 102–75.1176 What are the utilization and
enforcement requirements for property
transferred for use to assist the homeless?
(a) Sanctions. For instances of
substantial noncompliance relating to
surplus property transfers, HHS may
impose, in its sole discretion, any or all
of the following sanctions, as
applicable:
(1) Where property or any portion
thereof was not used or is not being
used for the purposes for which
transferred, or is sold, leased or
subleased, encumbered, disposed of, or
used for purposes other than those in
the approved program and plan of use,
without the prior written consent of
HHS, HHS may require the transferee
to—
(i) Place the property into immediate
use for an approved purpose and extend
the period of restriction in the transfer
document for an additional term as
determined by HHS;
(ii) Hold in trust all revenues and the
reasonable value of other benefits
received by the transferee directly or
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indirectly from that use for the United
States subject to the direction and
control of HHS;
(iii) Return title to such property to
the United States or to relinquish any
leasehold interest therein;
(iv) Abrogate the conditions and
restrictions of the transfer, as set forth
in § 102–75.1178;
(v) Make cash payments to the United
States, as directed by HHS, equivalent to
the current fair market rental value of
the surplus property, as transferred, for
each month during which the program
and plan of use has not been
implemented and continues to not be
implemented; or
(vi) Any other remedy that HHS
determines appropriate or necessary.
(2) Where the transferee desires to
place the property into temporary use to
assist the homeless other than that for
which the property was transferred,
written approval from HHS must be
obtained, and will be conditioned upon
HHS’s authority to permit the use and
such terms as HHS may impose.
(3) If HHS or the landholding agency
determines that a lessee or sublessee of
a transferee is in substantial
noncompliance with a term or condition
of the lease, or if the lessee voluntarily
surrenders the premises, HHS may
require termination of the lease and
impose sanctions described in
paragraph (a)(1) of this section, as
appropriate.
(b) Reversion. When HHS
recommends reversion of the property
for noncompliance, HHS will seek
GSA’s concurrence. GSA will respond
to HHS’s concurrence request within 30
days of its receipt. If GSA concurs, HHS
will work with GSA to complete the
reversion of the property. If GSA does
not concur to the reversion
recommendation, GSA will issue, to
HHS, a written determination: stating
the reason(s) for the disapproval; and
acknowledging that HHS has
recommended reversion and, therefore,
the property is no longer within HHS’s
Title V program. The Federal
government will implement a response
to the noncompliance that is in its best
interests.
Other Uses
§ 102–75.1177 What are the requirements
for other uses of a transferred property?
(a) A transferee may permit the use of
all or a portion of the surplus property
by another eligible entity as described in
§ 102–75.1160 for homeless assistance
purposes, only upon those terms and
conditions HHS determines appropriate,
if:
(1) The transferee submits a written
request to HHS explaining the purpose
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of and need for another eligible entity’s
use of the property, program plan, and
other relevant information requested by
HHS;
(2) HHS determines that the proposed
use would not substantially limit the
program and plan of use by the
transferee and that the use will not
unduly burden the Federal government;
(3) HHS’s written consent is obtained
by the transferee in advance;
(4) HHS approves the use instrument
in advance and in writing; and
(b) [Reserved].
Abrogation
§ 102–75.1178 What are the conditions of
abrogation for property transferred to assist
the homeless?
(a) HHS may abrogate the conditions
and restrictions in the transfer
document if:
(1) The transferee submits to HHS a
written request that HHS abrogate the
conditions and restrictions in the
transfer document as to all or any
portion of the surplus property;
(2) HHS determines the terms and
conditions of the proposed abrogation
and determines that the proposed
abrogation is in the best interest of the
United States; and
(3) HHS transmits the abrogation
request to GSA and there is no
disapproval by GSA within 30 days after
notice is given. If GSA disapproves,
GSA will state, in writing, to HHS the
reason(s) for the disapproval.
(b) HHS abrogates the conditions and
restrictions in the transfer document
only upon receipt of the appropriate
consideration, including cash payment,
to the United States, as directed by
HHS, which is based on the formula
contained in the transfer document, and
any other terms and conditions HHS
deems appropriate to protect the interest
of the United States.
Compliance Inspections and Reports
§ 102–75.1179 What Compliance
Inspections and Reports are Required?
Transferees are required to allow HHS
to conduct compliance inspections and
to submit such compliance reports and
actions as are deemed necessary by
HHS. At a minimum, the transferee will
be required to submit an annual
utilization report regarding the
operation and maintenance of the
property, including current images of
the entire property and such
information as HHS shall require.
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No Right of Administrative Review for
Agency Decisions
§ 102–75.1180 Is there a right of
administrative review for agency decisions
within HHS?
There is no right to administrative
review within HHS, including requests
for reconsideration or appeal, of agency
decisions on applications and other
discretionary decisions.
Waivers
§ 102–75.1181 May any requirement of this
subpart be waived?
The Secretary of HUD may waive any
requirement of this subpart (over which
the Secretary of HUD has jurisdiction)
that is not required by law, whenever it
is determined that undue hardship
would result from applying the
requirement, or where application of the
requirement would adversely affect the
purposes of the program. Each waiver
will be in writing and will be supported
by documentation of the pertinent facts
and grounds. The Secretary periodically
will publish notice of granted waivers
on the HUD website.
§§ 102–75.1182 through 102–75.1219
[Reserved]
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Accordingly, for the reasons stated
above, HHS proposes to amend 45 CFR
part 12a as follows:
■ 25. The authority citation for part 12a
is revised to read as follows:
Authority: 42 U.S.C. 11411; 40 U.S.C. 550.
■
26. Revise part 12a to read as follows:
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PART 12a—USE OF FEDERAL REAL
PROPERTY TO ASSIST THE
HOMELESS
Sec.
12a.1 Definitions.
12a.2 Applicability
12a.3 General Policies
12a.4 Expression of Interest Process.
12a.5 Application Process and
Requirements.
12a.6 Action on Approved Applications.
12a.7 Transfer Documents.
12a.8 Compliance with the National
Environmental Policy Act of 1969 and
Other Related Acts (environmental
impact).
12a.9 No Applications Approved.
12a.10 Utilization and Enforcement.
12a.11 Other Uses.
12a.12 Abrogation.
12a.13 Compliance Inspections and Reports
12a.14 No Right of Administrative Review
for Agency Decisions.
§ 12a.1
Definitions.
(a) Applicant means any eligible
organization which has submitted an
application to the Department of Health
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and Human Services to obtain use of a
certain suitable property to assist the
homeless.
(b) Classification means a property’s
designation as unutilized,
underutilized, excess, or surplus.
(c) Day means one calendar day,
including weekends and holidays.
(d) Eligible organization means a State
or local government agency, or a private,
non-profit organization that provides
assistance to the homeless, and that is
authorized by its charter or by State law
to enter into an agreement with the
Federal government for use of property
for the purposes of this part. Eligible
organizations that are private, non-profit
organizations interested in applying for
suitable property must be tax exempt
under section 501(c)(3) of the Internal
Revenue Code at the time of application
and remain tax exempt throughout the
time the Federal government retains a
reversionary interest in the property.
(e) Excess property means any
property under the control of a Federal
Executive agency that the head of the
agency determines is not required to
meet the agency’s needs or
responsibilities, pursuant to 40 U.S.C.
524.
(f) GSA means the General Services
Administration.
(g) HHS means the Department of
Health and Human Services.
(h) Homeless is defined in 42 U.S.C.
11302. This term is synonymous with
‘‘Homeless Individual’’ and ‘‘Homeless
Person.’’
(i) HUD means the Department of
Housing and Urban Development.
(j) HUD website means a website
maintained by HUD providing
information about HUD, including any
successor websites or technologies that
are equally accessible and available to
the public.
(k) Landholding agency means the
Federal department or agency with
statutory authority to control property.
For purposes of this part, the
landholding agency is typically the
Federal department or agency that had
custody and accountability on behalf of
the Federal government, of a certain
piece of property at the time that such
property was reported to HUD for a
suitability determination pursuant to 42
U.S.C. 11411.
(l) Lease means an agreement in
writing between either HHS for surplus
property or landholding agencies for
underutilized and unutilized properties
and the applicant giving rise to the
relationship of lessor and lessee for the
use of Federal property for a term of at
least one year under the conditions set
forth in the lease document.
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16861
(m) Non-profit organization means an
organization recognized as a non-profit
by the State in which the organization
operates, no part of the net earnings of
which inures to the benefit of any
member, founder, contributor, or
individual; that has a voluntary board;
that has an accounting system or has
designated an entity that will maintain
a functioning accounting system for the
organization in accordance with
generally accepted accounting
procedures; and that practices
nondiscrimination in the provision of
assistance.
(n) Permit means a license granted by
a landholding agency to use unutilized
or underutilized property for a specific
amount of time, usually one year or less,
under terms and conditions determined
by the landholding agency. A permit
does not grant to the recipient an estate
in land or any interest in the property.
(o) Property means real property
consisting of vacant land or buildings,
or a portion thereof, that is excess,
surplus, or designated as unutilized or
underutilized in surveys by the heads of
landholding agencies conducted
pursuant to 40 U.S.C. 524.
(p) Related personal property means
any personal property that is located on
real property and is either an integral
part of or useful in the operation of that
property or is determined by GSA to be
otherwise related to the property.
(q) Representative of the homeless
means a State or local government
agency, or private nonprofit
organization that provides, or proposes
to provide, services to the homeless.
(r) Screen means the process by which
GSA surveys Federal Executive agencies
to determine if they have an interest in
using excess Federal property to carry
out a particular agency mission, and
then surveys State, local and non-profit
entities, to determine if any such entity
has an interest in using surplus Federal
property to carry out a specific public
use.
(s) State means a State of the United
States, and includes the District of
Columbia, the Commonwealth of Puerto
Rico, and the Territories and
possessions of the United States.
(t) Substantial noncompliance means
failure to take corrective action as
directed by HHS.
(u) Suitable property means that HUD
has determined that a certain property
satisfies the criteria listed in 24 CFR
581.6.
(v) Surplus property means any excess
property not required by any Federal
landholding agency for its needs or the
discharge of its responsibilities, as
determined by GSA.
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(w) Transfer document means a lease,
deed, or permit transferring surplus,
unutilized or underutilized property.
(x) Transferee means an eligible entity
that acquires Federal property by lease,
deed, or permit.
(y) Underutilized means an entire
property or portion thereof, with or
without improvements which is used
only at irregular periods or
intermittently by the accountable
landholding agency for current program
purposes of that agency, or which is
used for current program purposes that
can be satisfied with only a portion of
the property.
(z) Unutilized property means an
entire property or portion thereof, with
or without improvements, not occupied
for current program purposes for the
accountable executive agency or
occupied in caretaker status only.
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§ 12a.2
Applicability.
(a) This part applies to Federal
property that has been designated by
Federal landholding agencies as
unutilized, underutilized, excess or
surplus and is therefore subject to the
provisions of Title V of the McKinney
Act, as amended (42 U.S.C. 11411).
(b) The following categories of
properties are not subject to this part
(regardless of whether they may be
unutilized or underutilized):
(1) Buildings and property at military
installations that were approved for
closure under the Defense Base Closure
and Realignment Act of 1990 (part A of
title XXIX of Public Law 101–510; 10
U.S.C. 2687 note) after October 25, 1994.
(2) Machinery and equipment not
determined to be related personal
property by the landholding agency or
GSA or determined to be related
personal property that the landholding
agency or GSA chooses to dispose of
separate from real property.
(3) Government-owned, contractoroperated machinery, equipment, land,
and other facilities reported excess for
sale only to the using contractor and
subject to a continuing military
requirement.
(4) Properties subject to special
legislation directing a particular action.
(5) Properties subject to a court order
that, for any reason, precludes transfer
for use to assist the homeless under the
authority of 42 U.S.C. 11411.
(6) Property not subject to Federal
Real Property Council reporting
requirements in accordance with 40
U.S.C. 623(i).
(7) Mineral rights interests
independent of surface rights.
(8) Air space interests independent of
surface rights.
(9) Indian Reservation land subject to
40 U.S.C. 523.
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(10) Property interests subject to
reversion.
(11) Easements.
(12) Any building or fixture that is
excess, or surplus, that is on land
owned by a landholding agency, where
the underlying land is not excess or
surplus.
(13) Property purchased in whole or
in part with Federal funds if title to the
property is not held by a Federal
landholding agency as defined in this
part.
§ 12a.3
General Policies.
(a) It is the policy of HHS to foster and
assure maximum utilization of surplus
property for homeless assistance
purposes.
(b) Transfers may be made only to
eligible organizations.
(c) Eligible organizations must be
authorized, in the State in which the
requested property is located, to carry
out the activity for which it requests the
property.
(d) Property will be requested for
assignment only when HUD has made a
final determination that the property is
suitable for use to assist the homeless,
GSA has determined it is available, and
HHS has determined it is needed for
homeless assistance purposes. The
amount of real and related personal
property to be transferred shall not
exceed normal operating requirements
of the applicant. Such property will not
be requested for assignment unless it is
needed at the time of application for
homeless assistance purposes or will be
so needed within the immediate or
foreseeable future.
(e) Transfers by deed will be made
only after the applicant’s financial plan
is approved and the applicant provides
certification that the proposed program
is permissible under all applicable State
and local zoning restrictions, building
codes, and similar limitations.
§ 12a.4
Expression of Interest Process.
(a) Properties published by HUD as
suitable and available pursuant to 24
CFR 581.8, for application for use to
assist the homeless shall not be
available for any other purpose for a
period of 30 days beginning on the date
of publication. Any eligible organization
interested in any underutilized,
unutilized, excess, or surplus property
for use to assist the homeless must send
to HHS a written expression of interest
in that property within 30 days after the
property has been published on the
HUD website.
(b) Although a property may be
determined suitable by HUD, HUD’s
determination does not mean a property
is necessarily useable for the purpose(s)
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stated in the application, nor does it
guarantee subsequent conveyance or
transfer of a property.
(c) If a written expression of interest
to apply for suitable property for use to
assist the homeless is received by HHS
within the 30-day holding period, such
property may not be made available for
any other purpose until the date HHS or
the appropriate landholding agency has
completed action on the application
submitted pursuant to that expression of
interest.
(d) The expression of interest should
identify the specific property, briefly
describe the proposed use, include the
name of the organization, and indicate
whether it is a public body or a private,
non-profit organization. The expression
of interest must be sent to HHS by
email, rpb@psc.hhs.gov, or by mail at
the following address: Department of
Health and Human Services, Program
Manager, Federal Real Property
Assistance Program, Real Estate
Logistics and Operations, 5600 Fishers
Lane, Rockville, Maryland 20852.
(1) HHS will notify the landholding
agency (for unutilized and underutilized
properties) or GSA (for excess and
surplus properties) when an expression
of interest has been received for a
certain property.
(e) An expression of interest may be
sent to and accepted by HHS any time
after the 30-day holding period has
expired only if the property remains
available as determined by GSA or the
landholding agency for application to
assist the homeless. In such a case, an
application submitted pursuant to this
expression of interest may be approved
for use by the homeless if:
(1) There are no pending applications
or written expressions of interest made
under any law for use of the property for
any purpose; and
(2) In the case of excess or surplus
property, GSA has not received a bona
fide offer to purchase that property or
advertised for the sale of the property by
public auction.
§ 12a.5 Application Process and
Requirements.
(a) Upon receipt of an expression of
interest, HHS will send an application
packet to the interested entity. The
application packet requires the
applicant to provide certain
information, including the following—
(1) Acquisition type. The applicant
must state whether it is requesting
acquisition of the property by lease,
deed, or permit. A lease of one year,
extendable at HHS’s discretion, with the
concurrence of GSA or the landholding
agency, may be granted when the
applicant’s initial application is
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approved and the applicant’s final
application outlining the applicant’s
financial plan is found to be otherwise
reasonable based on the criteria in
paragraph (a)(7) of this section, but
either a change in zoning is required or
the financial plan proposes to utilize
Low-Income Housing Tax Credits or
other funding sources that typically take
longer to process than other forms of
financing.
(2) Description of the applicant
organization. The applicant must
document that it satisfies the definition
of an ‘‘eligible organization’’ as
specified in § 12a.1. The applicant must
document its authority to hold property
for the proposed program and plan of
use by providing a copy of its Articles
of Organization, Charter, Certification
from State of Non-Profit Organization
status, or other appropriate document or
citation. Private, non-profit
organizations applying for the
acquisition of a certain property must
document that they are tax exempt
under section 501(c)(3) of the Internal
Revenue Code.
(3) Description of the property
desired. The applicant must describe
the listed property desired, including
existing zoning. Applicants must certify
that any modification(s) made to and
use of the property will conform to all
applicable building codes, and local use
restrictions, or similar limitations. In
accordance with GSA policy,
determinations regarding parcelization
are made prior to screening. Therefore,
expressions of interest and applications
for portions of listed properties will not
be accepted.
(4) Description of the proposed
program. The applicant must fully
describe the proposed program and plan
of use, including implementation plans.
(5) Demonstration of need. The
applicant must demonstrate that the
property is needed for homeless
assistance purposes at the time of
application and how the program will
address the needs of the homeless
population to be assisted. The applicant
must demonstrate that it has an
immediate need and ability to utilize all
of the property for which it is applying.
(6) Demonstrate that the property is
suitable and adaptable for the proposed
program and plan of use. The applicant
must fully explain why the property is
suitable and describe what, if any,
modification(s) will be made to the
property before the program becomes
operational.
(7) Ability to finance and operate the
proposed program. If the applicant’s
initial application is approved, the
applicant must set forth a reasonable
plan to finance the approved program
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within 45 days of the initial approval.
To be considered reasonable, the plan
must, at a minimum:
(i) specifically describe all anticipated
costs and sources of funding for the
proposed program, including any
property modifications;
(ii) be accompanied by supporting
documentation which demonstrates that
the proposed plan is likely to succeed;
(iii) demonstrate that the applicant is
ready, willing, able, and authorized to
assume care, custody, and maintenance
of the property;
(iv) demonstrate that it has secured
the necessary dedicated funds, or the
ability to obtain such funds, to carry out
the approved proposed program and
plan of use for the property, including
administrative expenses incident to the
transfer by deed, lease, or permit;
(v) not diminish the value of the
government’s interest in the property
nor impair the government’s ability to
revert and immediately dispose of the
property free of any and all liens,
encumbrances, or anything else which
renders the property unmarketable.
Deed transfers will only be made after
an applicant demonstrates its financial
plan adequately protects the United
States’ interest in the property; and
(vi) neither subject the Federal
government’s interest in the property to
foreclosure nor impose obligations (e.g.,
extended use agreements) on the
Federal government.
(8) Compliance with nondiscrimination requirements. Each
applicant under this part must certify in
writing that it will comply with all
requirements of federal law and HHS
policy, as amended, relating to nondiscrimination, including the following:
the Fair Housing Act (42 U.S.C. 3601–
3619) and implementing regulations;
and, as applicable, Executive Order
11063 (Equal Opportunity in Housing)
and implementing regulations; Title VI
of the Civil Rights Act of 1964 (42
U.S.C. 2000d to d–4) (Nondiscrimination in Federally Assisted
Programs) and implementing
regulations; Section 1557 of the
Affordable Care Act and implementing
regulations; the prohibitions against
discrimination on the basis of age under
the Age Discrimination Act of 1975 (42
U.S.C. 6101–6107) and implementing
regulations; and the prohibitions against
otherwise qualified individuals with
disabilities under section 504 of the
Rehabilitation Act of 1973 (29 U.S.C.
794) and implementing regulations. The
applicant must maintain the required
records to demonstrate compliance with
all applicable Federal laws and HHS
policies related to non-discrimination.
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(9) Insurance and Indemnification.
The applicant must certify that it will
insure the property against loss,
damage, or destruction to protect the
residual financial interest of the United
States. The United States shall be
named as an additional insured.
Applicants must provide proof of
insurance annually or upon request.
Failure to maintain sufficient insurance
may result in adverse action, including
reversion of the property, at the
discretion of HHS. Applicants, and all
affiliated parties utilizing the property,
as approved by HHS, must indemnify
the United States and hold the United
States harmless for all actions involving
use of the property.
(10) Historic preservation. Where
applicable, the applicant must provide
information that will enable HHS to
comply with Federal historic
preservation requirements.
(11) Environmental information. The
applicant must provide sufficient
information to allow HHS to analyze the
potential impact of the applicant’s
proposal on the environment, in
accordance with the instructions
provided with the application packet.
HHS will assist applicants in obtaining
any pertinent environmental
information in the possession of HUD,
GSA, or the landholding agency.
However, the burden is on the applicant
to submit sufficient documentation for
analysis by HHS.
(12) Local government notification.
The applicant must certify that it has
notified the applicable unit of general
local government responsible for sewer,
water, police, and fire services, in
writing, of its proposed program for the
specific property and submit a copy of
that written notification.
(13) Zoning and Local Use
Restrictions. An applicant requesting a
deed must certify that it has consulted
all State and local governmental entities
that will have jurisdiction over the
property and that the proposed use will
comply with all applicable zoning and
local use restrictions, including local
building code requirements. An
applicant that applies for a lease or
permit is not required to comply with
local zoning requirements, as long as the
Federal government retains ownership
of the property. Deed transfers will only
be made after the applicant has
provided acceptable written proof that
the proposed program is not in conflict
with State or local zoning laws and
restrictions, building codes, or similar
limitations.
(b) Scope of evaluations. Due to the
short time frame imposed by statute for
evaluating applications, HHS’s
evaluation will, generally, be limited to
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the information contained in the
application. It is therefore incumbent on
applicants to provide thorough and
complete applications.
(c) Deadline for Initial Application.
An initial application must be received
by HHS, at the above email address or
other address indicated by HHS, within
75 days after an expression of interest is
received from a particular applicant for
that property. Upon written request
from the applicant, HHS may, in its
discretion, grant extensions authorized
by 42 U.S.C. 11411(e)(2)(A), provided
that the appropriate landholding agency
or GSA concurs with the extension.
(d) Evaluation of initial application.
(1) Upon receipt of an initial
application, HHS will review it for
completeness, and, if incomplete, may,
in its discretion, return it or ask the
applicant to furnish any missing or
additional required information prior to
final evaluation of the initial
application.
(2) HHS will evaluate each initial
application within 10 days of receipt
and will promptly advise the applicant
of its decision. All initial applications
will be reviewed on the basis of the
following elements:
(i) Services offered. The extent and
range of proposed services, such as
meals, shelter, job training, and
counseling.
(ii) Need. The demand for the
program, the program’s ability to satisfy
unmet needs of the community, and the
degree to which the available property
will be fully utilized.
(iii) Experience. Demonstrated ability
to provide the services, such as prior
success in operating similar programs
and recommendations attesting to that
fact by Federal, State, and local
authorities.
(e) Deadline and Evaluation of Final
Application.
(1) If HHS approves an initial
application, HHS will notify the
applicant and provide the applicant 45
days in which to provide a final
application. The final application shall
set forth a reasonable plan to finance, as
specified in § 12a.5(a)(7), the approved
program as set forth in the initial
application. Applicants may not modify
the approved initial application within
its final application proposal.
(2) Upon receipt of the final
application, HHS will make a
determination within 15 days and notify
the applicant.
(3) Unlike with initial applications,
requests for extensions are not
authorized by 42 U.S.C. 11411 and thus
will not be considered for final
applications.
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(4) Applications are evaluated on a
first-come, first-served basis. HHS will
notify all organizations that have
submitted expressions of interest for a
particular property whether an earlier
application received for that property
has been approved.
(f) Competing Applications. If HHS
receives more than one final application
simultaneously, HHS will evaluate all
applications and make a determination
based on each application’s merit. HHS
will rank approved applications based
on the elements listed in paragraph (a)
of this section, and notify the
landholding agency, or GSA, as
appropriate, of the approved applicant.
§ 12a.6
Action on Approved Applications.
(a) Unutilized and underutilized
properties.
(1) When HHS approves an
application, it will so notify the
applicant and forward a copy of the
application to the landholding agency.
The landholding agency will execute
the lease, or permit document, as
appropriate, in consultation with the
applicant.
(2) The landholding agency maintains
the discretion to decide the following:
(i) The length of time the property
will be available. (Leases and permits
will be for a period of at least one year
unless the applicant requests a shorter
term.)
(ii) The terms and conditions of the
lease or permit document (except that a
landholding agency may not charge any
fees or impose any costs).
(b) Excess and surplus properties.
(1) When HHS approves an
application, it will so notify the
applicant and request that GSA assign
the property to HHS for transfer.
Requests to GSA for the assignment of
surplus property to HHS for homeless
assistance purposes will be based on the
following conditions:
(i) HHS has a fully approved
application for the property;
(ii) The applicant is able, willing, and
authorized to assume immediate care,
custody, and maintenance of the
property;
(iii) The applicant is able, willing and
authorized to pay the administrative
expenses incident to the transfer; and
(iv) The applicant has secured the
necessary funds, or had demonstrated
the ability to obtain such funds, to carry
out the approved program of use of the
property.
(2) Upon receipt of an acceptable
assignment, HHS will execute the
transfer document in accordance with
the procedures and requirements set out
in this part and any other terms and
conditions HHS and GSA determine are
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appropriate or necessary. Custody and
accountability of the property will
remain throughout the lease term with
the landholding agency (i.e., the agency
which initially reported the property as
excess) and throughout the deed term
with the transferee.
(3) Prior to assignment to HHS, GSA
may consider other Federal uses and
other important national needs in
deciding the disposition of surplus
property. Priority of consideration will
normally be given to uses to assist the
homeless. However, both GSA and HHS
may consider any competing request for
the property made under 40 U.S.C. 550
that is so meritorious and compelling
that it outweighs the needs of the
homeless.
(4) Whenever GSA or HHS decides in
favor of a competing request over a
request for property for homeless
assistance, the agency making the
decision will transmit to the appropriate
committees of Congress an explanatory
statement which details the need
satisfied by conveyance of the surplus
property, and the reasons for
determining that such need was so
meritorious and compelling as to
outweigh the needs of the homeless.
§ 12a.7
Transfer Documents.
(a) Surplus property may be conveyed
to eligible organizations pursuant to 40
U.S.C. 550(d) and 42 U.S.C. 11411, as
amended, by lease or deed, at the
applicant’s discretion.
(b) Transfers of surplus property for
homeless assistance purposes are in
exchange for the transferee’s agreement
to fully utilize the property for homeless
assistance purposes in accordance with
the terms specified in the transfer
document.
(c) A transfer of surplus property for
homeless purposes is subject to the
disapproval of GSA within 30 days after
notice is given to GSA of the proposed
transfer.
(d) Surplus property transferred
pursuant to this part will be disposed on
an ‘‘as is, where is,’’ basis without
warranty of any kind except as may be
stated in the transfer document.
(e) Unless excepted by GSA in its
assignment, the disposal of property
includes mineral rights associated with
the surface estate.
(f) Transfers of surplus property under
this part will be made with the
following general terms and conditions:
(1) For the period provided in the
transfer document, the transferee shall
utilize all the surplus property it
receives solely and continuously for an
approved program and plan of use, in
accordance with 42 U.S.C. 11411 and
these regulations, except that:
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(i) The transferee has 12 months from
the date of transfer to place the surplus
property into use, if HHS did not
approve in writing, construction of new
facilities or major renovation of the
property when it approved the final
application;
(ii) The transferee has 36 months from
the date of transfer to place the surplus
property into use, if the transferee
proposes construction of new facilities
or major renovation of the property and
HHS approves it in writing at the time
it approves the final application;
(iii) If the applicable time limitation is
not met, the transferee shall either
commence payments in cash to the
Federal government for each month
thereafter during which the proposed
use has not been implemented or take
such other action as set forth at § 12a.10
as is deemed appropriate by HHS. Such
monthly payments shall be computed
on the basis of the current fair market
value of the property, as conveyed, at
the time of the first payment and
dividing it by 360 months. At HHS’s
discretion, the payment may be waived
if the transferee makes a sufficient
showing of continued progress to place
the property into use or if an
unforeseeable event occurs which
prevents the property from being put
into use within the applicable
timeframe; and
(iv) HHS may permit use of surplus
property at any time during the period
of restriction by an entity other than the
transferee in accordance with § 12a.11.
(2) The transferee will not be
permitted to encumber, sell, lease or
sublease, rent, mortgage, or otherwise
dispose of the property, or any part
thereof, without the prior written
authorization of HHS. In the event the
property is sold, leased or subleased,
encumbered, disposed of, or is used for
purposes other than those set forth in an
approved plan without the consent of
HHS, all revenues or the reasonable
value of other benefits received by the
transferee directly or indirectly from
such use, as determined by HHS, will be
considered to have been received and
held in trust by the transferee for the
account of the United States and will be
subject to the direction and control of
HHS. The provisions of this paragraph
shall not impair or affect the rights
reserved to the United States in
paragraph (f)(8) of this section, or the
right of HHS to impose conditions to its
consent.
(3) The transferee will file with HHS
such reports on its maintenance and use
of the transferred property and any
other reports or information deemed
necessary by HHS.
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(4) The transferee shall pay all
administrative costs incidental to the
transfer, including but not limited to—
transfer taxes; surveys; appraisals; title
searches; the transferee’s legal fees; and
recordation expenses. Transferee is
solely responsible for such costs and
may not seek reimbursement from the
Federal government for any reason.
(5) The transferee shall protect,
preserve, maintain, and repair the
property to ensure that the property
remains in as good a condition as when
received.
(6) The transferee shall protect the
residual financial interest of the United
States in the surplus property by
insurance or such other means as HHS
directs. Where loss or damage to the
transferred property occurs, all proceeds
from insurance shall be promptly used
by the transferee for the purpose of
repairing and restoring the property to
its former condition or replacing it with
equivalent or more suitable facilities. If
not so used, there shall be paid to the
United States that part of the insurance
proceeds that is attributable to the
Government’s residual interest in the
property lost, damaged, or destroyed.
Further, transferee shall neither take any
action nor allow any action which
diminishes the residual financial
interest of the United States.
(7) The transferee shall abide by all
applicable Federal Civil Rights laws
including those specified in the
covenants and conditions contained in
the transfer document, prohibiting the
transferee from discriminating on the
basis of, including but not limited to,
race, color, national origin, religion, sex,
familial status or disability in the use of
the property.
(8) In the event of substantial
noncompliance with any conditions of
the deed as determined by HHS,
whether caused by the legal or other
inability of the transferee, its successors
and assigns, to perform any of the
obligations of the transfer document, the
Federal government has an immediate
right of reentry thereon, and to cause all
right, title, and interest in and to the
property to revert to the United States,
and the transferee shall forfeit all right,
title, and interest in and to the property.
In such event, transferee shall execute a
quitclaim deed and take all other
actions necessary to return the property
to the United States within ninety (90)
days of a written request from the
Federal government, extended only at
the discretion of the Federal
government. Transferee shall cooperate
with the United States in the event of a
reversion and agrees that the United
States need not seek judicial
intervention before exercising its right
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to revert, reenter and reconvey the
property.
(9) In the event title is reverted to the
United States for noncompliance or
voluntarily reconveyed to the United
States, the transferee shall, at the option
of HHS, be required to: reimburse the
United States for the decrease in value
of the property not due to market
conditions, reasonable wear and tear,
acts of God, or approved alterations
completed by the transferee to adapt the
property to the homeless use for which
the property was transferred; and
reimburse the United States for any
costs incurred in reverting title to or
possession of the property, including
reasonable attorneys’ fees.
(10) With respect to leased property,
in the event of substantial
noncompliance with any of the
conditions of the lease, as determined
by HHS or the landholding agency, the
right of occupancy and possession shall,
at the option of HHS or the landholding
agency, be terminated. In the event a
leasehold is terminated by the United
States for substantial noncompliance or
is voluntarily surrendered, the lessee
shall be required, at the option of HHS,
to reimburse the United States for the
decrease in value of the property not
due to market conditions, reasonable
wear and tear, acts of God, or approved
alterations completed by the lessee to
adapt the property to the homeless use
for which the property was leased. With
respect to any termination of leasehold
resulting from noncompliance, the
United States, shall, in addition thereto,
be reimbursed for such costs as may be
incurred in recovering possession of the
property, including reasonable
attorneys’ fees.
(11) Any other term or condition that
HHS and GSA determine appropriate or
necessary.
(12) With respect to surplus property
transferred by deed, the terms and
conditions including those in paragraph
(f) of this section, apply for a period of
thirty (30) years of use in accordance
with a program of use approved in
writing by HHS. The thirty-year (30)
period may, in HHS’s sole discretion, be
extended or restarted in the event the
property is not fully utilized or is
retransferred to a successor entity.
Expiration of the foregoing terms and
conditions does not release the
transferee from continuing compliance,
as appropriate, with any conditions that
may run with the land, e.g.,
environmental conditions and/or
historic preservation covenants. Such
conditions will continue to be the
responsibility of the transferee and
successors.
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(13) With respect to surplus property
transferred by lease, the terms and
conditions including those in paragraph
(f) of this section, extend for the entire
initial lease and for any subsequent
renewal periods, unless specifically
excluded in writing by HHS.
(g) Related personal property may be
transferred or leased as a part of the
realty and in accordance with real
property procedures.
(h) Completion of Transfer Term and
Reversion of Title. Transferees will be
responsible for the protection and
maintenance of the property during the
time that they possess the property.
Upon termination of the lease term or
reversion of title to the United States,
the transferee will be responsible for
removing improvements made to the
property if directed to by the United
States and, in such event, will be
responsible for restoration of the
property or the costs associated with
restoring the property. If improvements
made by the transferee are not
voluntarily removed by the transferee
and the United States consents, they
will become the property of the United
States. If the United States does not
consent, the transferee shall reimburse
the United States for reasonable costs of
removal. GSA or the landholding
agency, as appropriate, will assume
responsibility for protection and
maintenance of a property when the
lease terminates or title reverts.
(i) Transferees, by obtaining the
consent of HHS, may abrogate the
restrictions set forth in paragraph (f) of
this section for all or any portion of the
property in accordance with the
provisions of § 12a.12.
lotter on DSK11XQN23PROD with PROPOSALS3
§ 12a.8 Compliance With the National
Environmental Policy Act of 1969 and Other
Related Acts (environmental impact).
(a) HHS, prior to making a final
decision to convey or lease, or to
amend, reform, or grant an approval or
release with respect to a previous
conveyance or lease of, surplus property
for homeless purposes, will act in
accordance with applicable provisions
of the National Environmental Policy
Act of 1969, the National Historic
Preservation Act of 1966, the National
Archeological Data Preservation Act,
and other related acts. No lease to use
surplus property shall allow the lessee
to make, or cause to be made, any
irreversible change in the conditions of
said property, and no lease shall be
employed for the purpose of delaying or
avoiding compliance with the
requirements of these Acts, unless
approved by the United States.
(b) Applicants shall be required to
provide such information as HHS deems
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19:01 Mar 17, 2023
Jkt 259001
necessary to make an assessment of the
impact of the proposed Federal action
on the human environment. Materials
contained in the applicant’s official
request, responses to a standard
questionnaire prescribed by HHS, as
well as other relevant information, will
be used by HHS in making said
assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action
involved properties of historical
significance which are listed, or eligible
for listing, in the National Register of
Historic Places; or
(2) that a more than insignificant
impact on the human environment is
reasonably foreseeable as a result of the
proposed action; or
(3) that the proposed Federal action
could result in irreparable loss or
destruction of archeologically
significant items or data, HHS will,
except as provided for in paragraph (d)
of this section, prepare and distribute,
or cause to be prepared or distributed,
such notices and statements and obtain
such approvals as are required by the
above cited Acts.
(d) If a proposed action involves other
Federal agencies in a sequence of
actions, or a group of actions, directly
related to each other because of their
functional interdependence, HHS may
enter into and support a lead agency
agreement to designate a single lead
agency which will assume primary
responsibility for coordinating the
assessment of environmental effects of
proposed Federal actions, preparing and
distributing such notices and
statements, or obtaining such approvals,
as are required by the above cited Acts.
The procedures of the designated lead
agency will be utilized in conducting
the environmental assessment. In the
event of disagreement between HHS and
another Federal agency, HHS will
reserve the right to abrogate the lead
agency agreement with the other Federal
agency.
§ 12a.9
No Applications Approved.
(a) At the end of the 30-day holding
period described in § 12a.4(a), HHS will
notify GSA, or the landholding agency,
as appropriate, if an expression of
interest has been received for a certain
property. Where there is no expression
of interest, GSA or the landholding
agency, as appropriate, will proceed
with disposal in accordance with
applicable law.
(b) Upon notice from HHS that all
applications have been disapproved, or
if no initial applications have been
received within 75 days after an
expression of interest, or no final
application has been received within 45
PO 00000
Frm 00034
Fmt 4701
Sfmt 4702
days after an approved initial
application, disposal may proceed in
accordance with applicable law.
§ 12a.10
Utilization and Enforcement.
(a) Sanctions. For instances of
substantial noncompliance relating to
surplus property transfers, HHS may
impose, in its sole discretion, any or all
of the following sanctions, as
applicable:
(1) Where property or any portion
thereof was not used or is not being
used for the purposes for which
transferred, or is sold, leased or
subleased, encumbered, disposed of, or
used for purposes other than those in
the approved program and plan of use,
without the prior written consent of
HHS, HHS may require the transferee
to—
(i) Place the property into immediate
use for an approved purpose and extend
the period of restriction in the transfer
document for an additional term as
determined by HHS;
(ii) Hold in trust all revenues and the
reasonable value of other benefits
received by the transferee directly or
indirectly from that use for the United
States subject to the direction and
control of HHS;
(iii) Return title to such property to
the United States or to relinquish any
leasehold interest therein;
(iv) Abrogate the conditions and
restrictions of the transfer, as set forth
in § 12a.12;
(v) Make cash payments to the United
States, as directed by HHS, equivalent to
the current fair market rental value of
the surplus property, as transferred, for
each month during which the program
and plan of use has not been
implemented and continues to not be
implemented; or
(vi) Any other remedy that HHS
determines appropriate or necessary.
(2) Where the transferee desires to
place the property into temporary use to
assist the homeless other than that for
which the property was transferred,
written approval from HHS must be
obtained, and will be conditioned upon
HHS’s authority to permit the use and
such terms as HHS may impose.
(3) If HHS or the landholding agency
determines that a lessee or sublessee of
a transferee is in substantial
noncompliance with a term or condition
of the lease, or if the lessee voluntarily
surrenders the premises, HHS may
require termination of the lease and
impose sanctions described in
paragraph (a)(1) of this section, as
appropriate.
(b) Reversion. When HHS
recommends reversion of the property
for noncompliance, HHS will seek
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GSA’s concurrence. GSA will respond
to HHS’s concurrence request within 30
days of its receipt. If GSA concurs, HHS
will work with GSA to complete the
reversion of the property. If GSA does
not concur to the reversion
recommendation, GSA will issue, to
HHS, a written determination: stating
the reason(s) for the disapproval; and
acknowledging that HHS has
recommended reversion and, therefore,
the property is no longer within HHS’s
Title V program. The Federal
government will implement a response
to the noncompliance that is in its best
interests.
§ 12a.11
Other Uses.
lotter on DSK11XQN23PROD with PROPOSALS3
A transferee may permit the use of all
or a portion of the surplus property by
another eligible entity as described in
§ 12a.1(d) for homeless assistance
purposes, only upon those terms and
conditions HHS determines appropriate,
if:
(a) The transferee submits a written
request to HHS explaining the purpose
of and need for another eligible entity’s
use of the property, program plan, and
other relevant information requested by
HHS;
(b) HHS determines that the proposed
use would not substantially limit the
program and plan of use by the
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19:01 Mar 17, 2023
Jkt 259001
transferee and that the use will not
unduly burden the Federal government;
(c) HHS’s written consent is obtained
by the transferee in advance;
(d) HHS approves the use instrument
in advance and in writing; and
(e) HHS advises GSA and there is no
disapproval by GSA within thirty (30)
days.
§ 12a.12
Abrogation.
(a) HHS may abrogate the conditions
and restrictions in the transfer
document if:
(1) The transferee submits to HHS a
written request that HHS abrogate the
conditions and restrictions in the
transfer document as to all or any
portion of the surplus property;
(2) HHS determines the terms and
conditions of the proposed abrogation
and determines that the proposed
abrogation is in the best interest of the
United States; and
(3) HHS transmits the abrogation
request to GSA and there is no
disapproval by GSA within 30 days after
notice is given. If GSA disapproves,
GSA will state, in writing, to HHS the
reason(s) for the disapproval.
(b) HHS abrogates the conditions and
restrictions in the transfer document
only upon receipt of the appropriate
consideration, including cash payment,
to the United States, as directed by
HHS, which is based on the formula
PO 00000
Frm 00035
Fmt 4701
Sfmt 9990
16867
contained in the transfer document, and
any other terms and conditions HHS
deems appropriate to protect the interest
of the United States.
§ 12a.13 Compliance Inspections and
Reports.
Transferees are required to allow HHS
to conduct compliance inspections and
to submit such compliance reports and
actions as are deemed necessary by
HHS. At a minimum, the transferee will
be required to submit an annual
utilization report regarding the
operation and maintenance of the
property, including current images of
the entire property and such
information as HHS shall require.
§ 12a.14 No Right of Administrative
Review for Agency Decisions.
There is no right to administrative
review within HHS, including requests
for reconsideration or appeal, of agency
decisions on applications and other
discretionary decisions.
Marcia L. Fudge,
Secretary, HUD.
Robin Carnahan,
Administrator, GSA.
Xavier Becerra,
Secretary, HHS.
[FR Doc. 2023–04353 Filed 3–17–23; 8:45 am]
BILLING CODE 4210–67–P; 6820–14–P; 4150–24–P
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]]>Agencies
[Federal Register Volume 88, Number 53 (Monday, March 20, 2023)]
[Proposed Rules]
[Pages 16834-16867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04353]
[[Page 16833]]
Vol. 88
Monday,
No. 53
March 20, 2023
Part IV
Department of Housing and Urban Development
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24 CFR Part 581
General Services Administration
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41 CFR Part 102-75
Department of Health and Human Services
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45 CFR Part 12a
Use of Federal Real Property To Assist the Homeless: Revisions to
Regulations; Proposed Rule
Federal Register / Vol. 88, No. 53 / Monday, March 20, 2023 /
Proposed Rules
[[Page 16834]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 581
[Docket No. FR 6119-P-01]
RIN 2506-AC49
GENERAL SERVICES ADMINISTRATION
41 CFR Part 102-75
[3090-AK46]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 12a
RIN 0991-AC14
Use of Federal Real Property To Assist the Homeless: Revisions to
Regulations
AGENCY: Department of Housing and Urban Development, General Services
Administration, and Department of Health and Human Services.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Housing and Urban Development (HUD), the
General Services Administration (GSA), and the Department of Health and
Human Services (HHS) (the Agencies) each have distinct responsibilities
in the administration of the Title V program, authorized by the
McKinney-Vento Homeless Assistance Act. The program makes suitable
Federal real properties categorized as underutilized, unutilized,
excess, or surplus available to States, local government agencies, and
501(c)(3) tax-exempt non-profit organizations for use to assist the
homeless. In 2016, the Federal Assets Sales and Transfer Act amended
Title V of the McKinney-Vento Homeless Assistance Act. This proposed
rule would incorporate required statutory changes and current
practices; update references and terminology that are now outdated; and
revise procedures for more efficient program administration in the
Agencies' regulations.
DATES: Comment Due Date: May 19, 2023.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule. All submissions must refer to the above docket
number and title. There are two methods for submitting public comments.
1. Submission of Comments by Mail. Comments regarding a particular
agency or its portion of the proposed rule may be submitted by mail to
the Regulations Division, Office of General Counsel, Department of
Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500; Theresa M. Ritta, Program Manager, Real
Property Management Services, Real Estate Logistics and Operations,
Program Support Center, ATTN: [RIN: 0991-AC14], 5600 Fishers Lane,
Suite 6W66, Rockville, Maryland 20852, respectively. Comments for GSA
must be submitted electronically.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
www.regulations.gov. The Agencies strongly encourage commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt, and enables the Agencies to make comments
immediately available to the public. Comments submitted electronically
through the www.regulations.gov website can be viewed by other
commenters and interested members of the public. Commenters should
follow the instructions provided on that site to submit comments
electronically.
Note: To receive consideration as public comments, comments
must be submitted through one of the two methods specified above.
Again, all submissions must refer to the docket number and title of
the rule.
No Facsimile (FAX) Comments. FAX comments will not be considered.
Public Inspection of Public Comments. HUD will make available all
properly submitted comments and communications for public inspection
and copying between 8 a.m. and 5 p.m. weekdays at the above HUD
address. Due to security measures at the HUD Headquarters building, you
must schedule an appointment in advance to review the public comments
by calling the Regulations Division at 202-708-3055 (this is not a
toll-free number). HUD welcomes and is prepared to receive calls from
individuals who are deaf or hard of hearing, as well as individuals
with speech or communication disabilities. To learn more about how to
make an accessible telephone call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs. Copies of all
comments submitted are also available for inspection and downloading at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For information regarding each
agency's implementation of these regulations, the contact information
for that agency follows.
The Agencies welcome and are prepared to receive calls from
individuals who are deaf or hard of hearing, as well as individuals
with speech or communication disabilities. To learn more about how to
make an accessible telephone call, please visit: https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.
Department of Housing and Urban Development: Juanita Perry, Senior
Program Specialist, Office of Special Needs Assistance Programs,
Community Planning and Development, Department of Housing and Urban
Development, 451 7th Street SW, Room 7262, Washington, DC 20140;
[email protected]; telephone number (202)-402-3970 (this is not a toll-
free number).
General Services Administration: Chris Coneeney, Director, Real
Property Policy Division, Office of Government-wide Policy, at 202-208-
2956 or [email protected]. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or GSA at [email protected].
Department of Health and Human Services: Theresa M. Ritta, Program
Manager, Real Property Management Services; Telephone: (301) 443-2265;
Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
In 1991, the Agencies jointly published a regulation (56 FR 23789
(May 24, 1991)), codified at 24 CFR part 581, 41 CFR part 102-75, and
45 CFR part 12a, implementing the provisions of Title V of the
McKinney-Vento Homeless Assistance Act (McKinney-Vento Act or Title V)
(42 U.S.C. 11411). The 1991 regulation established procedures for
collecting information from landholding agencies about excess, surplus,
unutilized, and underutilized properties under their control and the
criteria for determining the properties' suitability for use as
homeless assistance. It also provided procedures and timelines for the
application process and agency review of submitted applications to use
such properties for homeless assistance. The regulation has not been
updated since its publication in 1991. Since that time, however, the
McKinney-Vento Act has been amended several times by new legislation,
including the Homeless Emergency Assistance and Rapid Transition to
Housing Act (Sec. 1003, Pub. L. 111-22, 1632, 1664-65), the Federal
Property Management Reform Act of 2016 (114 Pub. L. 318, 130 Stat.
1608), and most significantly, section 22 of the Federal Assets Sales
and Transfer Act of 2016 (FASTA) (Pub. L. 114-287, 130 Stat. 1463
(codified at 40 U.S.C. 1303 note)).
[[Page 16835]]
Under Section 501 of Title V, HUD handles the suitability
determination and HHS processes applications from eligible
organizations and monitors transferred property for compliance with
programmatic requirements. GSA supports both agencies at various stages
throughout the entire process. Specifically, GSA screens real
properties reported by a particular agency as excess with other Federal
agencies to determine if they are required for use by any other Federal
agency pursuant to 42 U.S.C. 11411(f)(3). Properties reported to GSA
for disposal are submitted by GSA to HUD for a determination of
suitability for use to assist the homeless. Pursuant to 42 U.S.C.
11411(b)(1)(B), after HUD makes its suitability determination, HUD
reports the determination to GSA, and GSA notifies HUD whether there is
a continuing need for the property within the Federal government. In
practice, if GSA has information that there is a continuing Federal
need for the property, GSA notifies HUD of the continuing need when GSA
submits property information to HUD for the suitability determination.
If there is no continuing Federal need for the property, the property
is determined surplus to the needs of the Federal government, and if
HUD determines the property to be suitable, then the property is
available for application to HHS for homeless assistance use. Pursuant
to 42 U.S.C. 11411(f)(3)(A), if HHS receives and approves an
application for surplus property and recommends to GSA that the
property be conveyed to the applicant for homeless assistance use, GSA
assigns the property to HHS. HHS then deeds or leases the property to
the applicant for the purpose(s) stated in the approved application,
unless a competing request for the property under 40 U.S.C. 550 is
determined by GSA or HHS to be so meritorious and compelling as to
outweigh the needs of the homeless.
Pursuant to 42 U.S.C. 11411(a), HUD is the agency authorized to
determine whether a property is suitable for homeless assistance use.
HUD must request information from Federal landholding agencies
regarding unutilized, underutilized, excess, and surplus Federal real
properties (including land, buildings, and fixtures) based on the
requirements of 42 U.S.C. 11411(a). As required by 42 U.S.C. 11411(a),
HUD must determine which of those properties are suitable for homeless
assistance no later than thirty days after receiving the information.
Once HUD has determined a property is suitable for use to assist the
homeless based on HUD's suitability criteria, HUD must then promptly
notify each Federal agency of the suitability determination made
pursuant to HUD's suitability criteria. The landholding agency must
respond to HUD within 45 days regarding whether the property is
available for use to assist the homeless. No later than 15 days after
the end of the 45-day period, HUD must publish a list of all reviewed
properties on the HUD website, whether HUD determined a reviewed
property to be suitable for use to assist the homeless, and whether the
property is available for application for use to assist the homeless.
HUD must also publish annually all properties that were identified as
suitable for use to assist the homeless, but were reported to be
unavailable, and why the properties were unavailable, as required by 42
U.S.C. 11411(c)(1)(D). GSA also hosts a website listing property
available for homeless assistance.\1\
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\1\ General Services Administration, Notices of Determination of
Homeless Suitability and Availability, Real Property Utilization and
Disposal, https://disposal.gsa.gov/s/noticetypedetail?type=Homeless+Screening.
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Pursuant to 42 U.S.C. 11411(c)(1)(C), if HUD determines a property
is not suitable for homeless assistance use, it must identify the
reasons for its determination. If HUD determines a property is
unsuitable for homeless assistance use, there is a 20-day holding
period to allow any representative of the homeless to request that HUD
review the unsuitability determination. HUD must review any such
requests and make a final determination pursuant to 42 U.S.C.
11411(d)(3), implemented in the regulations at 24 CFR 581.4.
After HUD publishes its list of suitable properties that are
available for application, an eligible organization may apply to HHS
for use of any such property. HHS reviews applications to use suitable
properties to assist the homeless under 42 U.S.C. 11411(e). After HHS
receives an initial application, HHS has 10 days, unless extended by
HHS, to review it and make a determination as to whether the initial
application is approvable. HHS must maintain a public record of all
actions taken regarding an application under 42 U.S.C. 11411(e)(3). If
HHS approves an initial application, the applicant then has 45 days to
provide a final application detailing a reasonable plan to finance the
approved homeless assistance program under 42 U.S.C. 11411(e)(4). HHS
must make a final determination and complete all actions on the final
application within 15 days of receipt of a final application pursuant
to 42 U.S.C. 11411(e)(5). HHS is then responsible for pursuing the
transfer of a suitable property to an approved applicant. In the case
of excess or surplus properties, HHS will request assignment of the
property from GSA, and if GSA assigns the property to HHS, HHS will
enter into a lease or deed with the successful applicant. In the case
of unutilized or underutilized property, HHS will process applications
for the use of the property, but the individual landholding agency will
enter into the lease or permit agreement with the successful applicant.
HHS is also the responsible agency for ensuring post-transfer
compliance and monitoring activities for those properties transferred
by HHS.
As previously noted, FASTA made several changes to the McKinney-
Vento Act. Section 22 of FASTA amended the McKinney-Vento Act to allow
for HUD's suitability determinations to be posted electronically; to
eliminate subsequent posting of previously reported properties
determined unsuitable with no changes; to change the timeframes related
to how long suitable and available properties are held for homeless
assistance use; to change the number of days by which eligible
organizations must submit an expression of interest to HHS from 60 days
to 30 days from the date of HUD's publication; to create a two-phased
application process; to shorten the initial application processing
period from 90 days to 75 days; and, if approved, provide the applicant
45 days to submit a final application. If HHS does not approve a final
application after approving an initial application, disposal of the
property may proceed in accordance with applicable law.
In addition to 42 U.S.C. 11411 and the current regulations, the
Title V Program is guided by Federal court decisions, including the
March 13, 2017, revised Order in National Law Center on Homelessness
and Poverty v. Veterans Administration, et al. 1988 WL 136970 (D.D.C.
1988). Subsequent nationwide litigation, including Colorado Coalition
for the Homeless v. GSA and HHS, 2019 WL 2723857 (D.CO. 2019), United
States v. Overcoming Love Ministries, 2018 WL 4054867 (E.D.N.Y. 2018)
and New Life Evangelistic Center, Inc. v. Sebelius, 753 F.Supp.2d 103
(D.D.C. 2010) have interpreted and applied key provisions of Title V
and HHS's regulations. These rulings, taken together with the Agencies'
experience operating the Title V program over the past thirty years,
have convinced the Agencies that it is now appropriate to amend this
joint regulation to achieve the following three goals: harmonize the
joint regulation with Title V, as
[[Page 16836]]
amended by FASTA; incorporate existing policy and practice requirements
for the benefit of future applicants; and, for ease of reference,
expand portions of the joint regulation that cross-reference other
sections of other regulations by incorporating the referenced portions.
II. This Proposed Rule
A. Collaborative Changes Across HUD, GSA, and HHS's Individual
Regulations
This proposed rule would establish procedures conforming to FASTA,
incorporate other legislative changes, and codify established policies
and processes that the Agencies use to govern the program. For greater
readability, in instances where requirements found in other sections of
the proposed rule are referenced by citation, this proposed rule would
instead incorporate those provisions in each agency's individual
regulations, rather than just the citation, to provide a broader and
clearer understanding of the Title V program requirements. This
proposed rule would also provide revised suitability criteria for
clarity and to address GAO's recommendation in its 2014 report entitled
Federal Real Property: More Useful Information to Providers Could
Improve the Homeless Assistance Programs.\2\
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\2\ https://www.gao.gov/assets/gao-14-739.pdf.
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The changes in the proposed rule would amend the Agencies'
individual regulations found in Title 24 (HUD), Title 41 (GSA), and
Title 45 (HHS) of the Code of Federal Regulations. Provisions of this
proposed rule that apply to the Agencies collectively would be found in
each agency's regulations. HUD's and GSA's regulations have included
all sections applicable to all three Agencies within its regulations
found in Title 24 and Title 41, respectively. HHS's regulation will
only include provisions directly applicable to HHS.
Throughout this proposed rule, the Agencies have renumbered various
existing sections of their respective regulations. This proposed rule
references the current section numbers in discussing changes to the
applicable sections unless otherwise stated. Also of note, within this
proposed regulation, variations of the terms United States and Federal
government are intended to be used interchangeably.
1. Definitions
This proposed rule would remove definitions that are no longer
relevant, revise other definitions to conform to existing legislation,
and incorporate new definitions, some of which are currently used but
are not defined in the existing Title V regulation. The updated
definitions would modify 24 CFR 581.1, 41 CFR 102-75.1160, and 45 CFR
12a.1 to provide clarity and consistency regarding the Agencies' roles
and requirements for potential Title V applicants. The definitions of
Checklist, Classification, Day, GSA, HHS, HUD, Non-profit organization,
Representative of the homeless, Suitable property, Underutilized,
Unsuitable property, and Unutilized property would remain unchanged.
The definitions of Applicant, Eligible organization, Excess
property, Homeless, Landholding agency, Lease, Permit, Property, Screen
and Surplus property would be amended to provide consistent regulatory
language across the Agencies. The proposed changes to the definitions
of Applicant, Eligible organization, and Surplus property would be non-
substantive but provide more clarity. The definition of Landholding
agency would be updated to provide more detail regarding the type of
agency that typically qualifies as a landholding agency. The definition
of Lease would be updated to clarify that in the case of underutilized
and unutilized real properties, landholding agencies would be the only
party from the Federal government to the lease agreement and that
landholding agency lease agreements pertain only to underutilized and
unutilized real properties. The definition of Permit would be amended
to specify that permits are typically granted for a maximum of one year
and to clarify that a permit does not grant to the recipient any
interest in the property.
The definition of Excess property would be updated to conform with
40 U.S.C. 102, consistent with the Federal Property Management Reform
Act of 2016 and remove the word ``discharge'' from an agency's needs or
responsibilities. The definition of Homeless would be revised to cross-
reference the definition at 42 U.S.C. 11302. The definition of this
term was amended by the Homeless Emergency Assistance and Rapid
Transition to Housing Act of 2009 (division B, Pub. L. 111-22). The
proposed revision is for ease of program administration in the event of
a future statutory amendment. The revision is not intended to revise
the current interpretation of ``homeless'' for this program or the
terms of ``homeless,'' ``homeless individual,'' or ``homeless person''
for other programs not covered by this part. The definition of Property
would be updated to reference 40 U.S.C. 524, pursuant to the Federal
Property Management Reform Act of 2016, which describes executive
agencies' property management duties.
The definition of Screen would be amended to add the term
``surplus.'' The Agencies are proposing this change to clarify the
types of properties subject to the screening processes.
Lastly, the proposed rule would add the following definitions: HUD
website for clarity, based on FASTA's requirement that HUD publish on
the HUD website all reviewed properties determined by HUD to be
suitable for use to assist the homeless and that are available for
application for use to assist the homeless; Transferee to clarify that
it means an eligible entity that acquires Federal real property by
lease, deed, or permit; Transfer document to identify such documents as
being lease, deed or permit; Substantial noncompliance to clarify that
it means the failure to take corrective action as directed by HHS,
based on transferees' and potential funders' concerns that HHS will
revert a property for a minor issue that was, or could easily be,
addressed by corrective action; and Related personal property and State
to conform with 45 CFR 12.1(n) and (p), respectively, as it pertains to
this part.
The definitions of Regional Homeless Coordinator and State Homeless
Coordinator would be removed as they are no longer applicable. The
definition of ICH would also be removed from the definition section,
and instead the term ``United States Interagency Council on
Homelessness'' would be included within the text of the proposed rule
on its first reference.
2. Applicability
The proposed rule would expand the sections of the Agencies'
regulations that identify which properties are not subject to the joint
regulation by adding properties that are not subject to Federal Real
Property Council reporting requirements to this list, in accordance
with 40 U.S.C. 623(i). Additionally, 24 CFR 581.2, 41 CFR 102-75.1161,
and 45 CFR 12a.2, would be updated to reflect that properties not
subject to the joint regulation include buildings and property at
military installations that were approved for closure under the Defense
Base Closure and Realignment Act of 1990 after October 25, 1994. The
proposed rule would also amend 24 CFR 581.2(b)(2), 41 CFR 102-
75.1161(b)(2), and 45 CFR 12.a.2(b)(2), to make clear that machinery
and equipment that is not related personal property is not subject to
the joint regulation, and that machinery and equipment that is related
personal property is not subject to the regulation if GSA or the
landholding agency
[[Page 16837]]
choose to dispose of the machinery and equipment separate from the real
property. At 24 CFR 581.2(b)(8) and 45 CFR 12a.2(b)(8), the joint
regulation already includes Indian Reservation land as property not
subject to the joint regulation but does not include the citation to 40
U.S.C. 523. This proposed rule would add the citation to these sections
at newly designated paragraph (a)(9) where it currently does not exist.
Additionally, the current regulation already provides that properties
``subject to a court order'' are not subject to the regulation, and
this proposed rule would specify that this refers only to court orders
that, for any reason, preclude transfer for use to assist the homeless
under Title V at proposed 24 CFR 581.2(b)(5), 41 CFR 102-75.1161(b)(5),
and 45 CFR 12a.2(b)(5). Similarly, the proposed rule would provide
clarity regarding the current exclusion of mineral and air space rights
from Title V processing by specifying that these exclusions refer to
mineral and air space rights that are independent of surface rights.
This change would be found in newly designated paragraphs (a)(7) and
(8). Lastly, this proposed rule would exclude from Title V processing
excess or surplus buildings or fixtures that sit on land owned by a
landholding agency where the underlying land is not also excess or
surplus. These changes would be found at proposed paragraph (b)(12) of
24 CFR 581.2, 41 CFR 102-75.1161, and 45 CFR 12a.2.
3. Collecting Information From Federal Agencies
The McKinney-Vento Act requires HUD to canvass landholding agencies
quarterly and requires the landholding agencies to respond with
property information within 25 days. HUD is then required to make a
suitability determination on the property within 30 days of receipt of
the property information. Because of the high number of properties
being reported to HUD, HUD began accepting property information from
landholding agencies on an ongoing basis. This proposed rule would
codify this existing process at 24 CFR 581.3(a) and 41 CFR 102-
75.1162(a). It also would provide that HUD's canvass of landholding
agencies will include information about previously reported properties
only if the property's status or classification changed, or if
improvements were made to the property since the property was last
reported to HUD. It would clarify that landholding agencies will
respond to HUD's information collecting canvass in accordance with 40
U.S.C. 524. This proposed rule would clarify in 24 CFR 581.3(a) and 41
CFR 102-75.1162(a) that a completed property checklist is the vehicle
for submitting property information to HUD. Consistent with FASTA,
paragraphs (d) of 24 CFR 581.3 and 41 CFR 102-75.1162 would provide
that HUD will review properties with a change in status for suitability
and repost the property information on the HUD website.
4. Suitability Determination
HUD has 30 days from the time it receives property information from
landholding agencies or GSA to make a suitability determination.
Currently, property that is determined unsuitable may not be made
available for any other purpose for 20 days after publication under 24
CFR 581.4(e) and 41 CFR 102-75.1175(e). To request a review of a
property determined unsuitable for homeless assistance use, a
representative of the homeless must contact HUD within 20 days of the
publication of notice that a property is unsuitable pursuant to 24 CFR
581.4(f)(1) and 41 CFR 102-75.1175(f)(1). Under 24 CFR 581.4(f)(4) and
41 CFR 102-75.1175(f)(1) of the current regulation, HUD is required to
notify the landholding agency of the request to review the
unsuitability determination and advise the landholding agency that it
should refrain from initiating disposal procedures until HUD has
completed its reconsideration regarding unsuitability. Regulations
found at 24 CFR 581.4(f)(4)(i) and 41 CFR 102-75.1175(f)(4)(i)
currently provide that HUD will act on all review requests within 30
days after receiving the landholding agency's response and will notify
the representative of the homeless and the landholding agency in
writing of its decision. There is currently no deadline, however, for
the landholding agency to respond to HUD's request for additional
information. The current regulation also does not outline the
determination process after HUD receives or does not receive the
landholding agency's response. As a result, the Agencies are proposing
in 24 CFR 581.4(f)(4) and 41 CFR 102-75.1163(f)(4) of this proposed
rule that unless HUD and the landholding agency agree to an extended
period, the deadline for the landholding agency to respond to HUD's
request for additional information would be 20 days from the date that
the landholding agency is notified of the request to review the
unsuitability determination. If the landholding agency fails to meet
the deadline or request an extension, HUD would proceed with the appeal
review with the property information provided in the survey it already
has and information submitted in the appeal request provided by the
representative of the homeless. This proposed rule would add at
proposed paragraph (f)(4)(i) of 24 CFR 581.4 and 41 CFR 102-75.1163
that HUD will act on requests for review where the landholding agency
or GSA has failed to meet the deadline within 30 days of such deadline.
This rule would also propose to incorporate required statutory
changes under FASTA in proposed sections 24 CFR 581.4(e), (f)(1), and
(f)(4)(ii) and 41 CFR 102-75.1163(e), (f)(1), and (f)(4)(ii) that allow
HUD to post suitability determinations on a HUD website or a successor
technology that is equally accessible and available to the public. This
proposed rule would update processes by removing the identified toll-
free number from 24 CFR 581.8(b) and revising it to state that HUD will
establish and maintain ``a toll-free number'' for the public to obtain
specific information about Title V property reviewed for suitability.
Persons with inquiries regarding property suitability and other Title V
related questions will be instructed to submit questions through the
HUD Title V website, or such other method as HUD may require in
proposed 24 CFR 581.4(f)(1) and 41 CFR 102-75.1163(f)(1). Persons with
disabilities may also request an alternative method for submitting
inquiries when it may be necessary as a reasonable accommodation under
Federal fair housing laws.
5. Real Property Reported Excess to GSA
Currently under 24 CFR 581.5 and 41 CFR 102-75.1180, landholding
agencies are required to submit a report to GSA of properties
determined as excess along with a copy of any HUD suitability
determination. These sections in HUD's and GSA's regulations would
remain substantially the same but would be updated for clarity. Within
Title 41, this proposed rule would contain this section at the
redesignated 41 CFR 102-75.1164.
6. Suitability Criteria
This proposed rule would revise the criteria in 24 CFR 581.6 and 41
CFR 102-75.1185 that HUD uses to determine suitability to make the
criteria clearer and more user-friendly for both the Agencies and
applicants. The Agencies propose to reframe this section by dividing
the suitability criteria into two categories: (1) properties deemed
suitable unless the properties have any of the characteristics listed
in paragraph (a),
[[Page 16838]]
and (2) properties having characteristics that would make the property
presumptively unsuitable, unless the landholding agencies provide
further information for HUD to determine the property suitable, in
proposed paragraph (b).
In proposed paragraph (a)(1), the proposed rule would revise the
criteria relating to property located near a container or facility
storing, handling, or processing flammable or explosive materials to
provide for suitability if HUD can determine, based on information
provided by the landholding agency or GSA, that the property complies
with the acceptable separation distance standards at 24 CFR part 51,
subpart C and the HUD Guidebook, ``Siting of HUD-Assisted Projects Near
Hazardous Facilities'' or a successor guidebook, or that appropriate
mitigating measures, as defined in 24 CFR 51.205, are already in place.
The proposed rule would remove the reference to 2000 feet and the
references to gasoline stations, tank trucks, above ground containers
``with a capacity of 100 gallons or less,'' and larger containers
providing heating or power. Instead, the proposed rule would utilize
the more useful acceptable separation distance standards and would
exclude containers and facilities that are not hazards, as defined in
24 CFR 51.201. Additionally, in proposed paragraph (a)(2), the proposed
rule would add coastal barriers as a suitability criterion; properties
located in a Coastal Barrier System Unit would be determined unsuitable
because most new federal expenditures and financial assistance,
including federal flood insurance, are prohibited within Coastal
Barrier System Units.\3\ A Coastal Barrier System Unit is any
undeveloped coastal barrier, or combination of closely related
undeveloped coastal barriers, included within the Coastal Barrier
Resources System established by the Coastal Barriers Resources Act, as
amended (codified at 16 U.S.C. 3501).
---------------------------------------------------------------------------
\3\ See U.S. Fish and Wildlife Service, Glossary, Coastal
Barrier Resources System, https://www.fws.gov/ecological-services/about/glossary.html#CBRA.
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This proposed rule would also rename the documented deficiencies
criterion currently at 24 CFR 581.6(a)(5) and 41 CFR 102-75.1185(a)(5)
as ``Site Safety Conditions'' in newly redesignated paragraph (a)(3)
and focus that criterion solely on a property's physical
characteristics, including, as examples, properties that exhibit
significant contamination from hazardous substances, as defined by 42
U.S.C. 9601, periodic flooding, sinkholes, or landslides.
The proposed rule would move the criteria regarding floodways,
national security concerns, runway clear zones, and inaccessible
property into paragraph (b), as property presumed unsuitable unless
information to enable HUD to determine it suitable is provided. The
proposed rule would also remove the reference in the current rule to
floodways that have been ``contained or corrected'', since the meaning
of ``corrected'' is unclear and a floodplain that is ``contained''
might still adversely affect the use of portions of the site that are
located within the ``contained'' floodway to assist the homeless.
The proposed rule also includes specific questions for public
comment in section III regarding suitability criteria. The Agencies
considered several changes to this section and do not expect these
proposed changes to affect the number of properties deemed suitable.
7. General Policies of HHS
The proposed rule would add a section General Policies of HHS to
mirror 45 CFR part 12.3 instead of incorporating that regulation. The
section highlights the minimum criteria for eligibility for and
transfers of surplus property.
8. Expressions of Interest Process
HHS is responsible for accepting expressions of interest for
properties published by HUD as suitable and available for homeless
assistance purposes. Pursuant to FASTA, the period in which eligible
organizations must submit an expression of interest has changed from 60
days to 30 days from the date of HUD's publication. Therefore, eligible
organizations must now submit an expression of interest to HHS within
30 days of HUD's publication date. This proposed change would be found
at 24 CFR 581.10, 41 CFR 102-75.1169, and 45 CFR 12a.4. In an effort to
increase efficiency and be environmentally conscious, HHS will accept
such expressions of interest by email at [email protected]. This change
is located at paragraph (c) of those sections. HHS's physical address
would also be updated to its current physical address in the revised
regulation. Additionally, at paragraph (b), this section would be
amended to clarify that HUD's determination of suitability does not
mean a property is necessarily useable for the purpose stated in the
application, nor does it guarantee subsequent conveyance or transfer of
a property.
9. Application Process and Requirements
HHS is responsible for receiving and evaluating applications
submitted by eligible organizations for properties deemed suitable and
available. Prior to FASTA, eligible organizations were required to
submit a single application within 90 days after HHS's receipt of an
acceptable expression of interest. Under FASTA, the process now
requires that an eligible organization submit an initial application
within 75 days following HHS's receipt of an expression of interest,
unless extended by HHS. If HHS approves the initial application, then a
final application, setting forth a reasonable financial plan, must be
submitted within 45 days of HHS's approval of the initial application.
This proposed rule would incorporate the two-stage application process
outlined in FASTA and which HHS currently follows.
The proposed rule would revise the regulation to make the
application requirements more clear, concise, and consistent with the
instructions accompanying the application packet. This proposed rule
would expand the existing regulations found at 24 CFR 581.9, 41 CFR
102-75.1200 and 45 CFR 12a.9 to describe the specific document an
applicant must submit with its application to demonstrate its ability
to hold title to property for the requested purpose(s). This proposed
rule would also modify the current regulations found at 24 CFR
581.9(b)(2), 41 CFR 102-75.1200(b)(2) and 45 CFR 12a.5(b)(2) to require
that applicants certify, rather than merely indicate, that their use of
the property and any modification(s) made to the property, conform to
all applicable building codes and local use restrictions, or similar
limitations, including local zoning regulations. The modification is
meant to ensure an applicant's proposed program is capable of being
developed and operated following transfer without hindrances posed by
local codes, regulations and/or similar limitations. These updates
would also incorporate existing practice that applicants requesting
lesser portions of the listed real property will be denied. These
updated provisions would be found at the newly redesignated paragraphs
(a)(1) and (a)(2) of 24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR
12a.5.
This proposed rule would also expand current 24 CFR 581.9(b)(3), 41
CFR 102-75.1200(b)(3) and 45 CFR 12a.9(b)(3) to advise applicants that
the description of the proposed program must also include how the
applicant intends to implement the proposed
[[Page 16839]]
program. Such information is crucial to HHS in rendering a
determination on the adequacy and timeliness of a proposed program and
likelihood of operational success, and often applications only contain
a list of proposed services without any description about the programs
or implementation. The proposed rule would capture these changes at the
newly redesignated paragraphs (a)(3) of 24 CFR 581.11, 41 CFR 102-
75.1170, and 45 CFR 12a.5.
This proposed rule would also modify 24 CFR 581.9(b)(4) and
581.9(b)(5), 41 CFR 102-75.1200(b)(4) and 102-75.1200(b)(5) and 45 CFR
12a.9(b)(4) and 12a.9(b)(5) for greater clarity regarding the
application process. These updated paragraphs would be found at newly
redesignated paragraphs (a)(4) and (a)(5) of 24 CFR 581.11, 41 CFR 102-
75.1170, and 45 CFR 12a.5. Regarding paragraph (a)(4), an applicant
would be required to demonstrate both that there is an immediate need
to acquire the property for the proposed program and the applicant's
ability to utilize all of the Federal real property for which it is
applying. Additionally, this paragraph would be expanded to clarify
that an applicant is required, per the application instructions, to
provide details concerning modifications to the property that need to
be completed before the program can become operational.
This proposed rule would also clarify 24 CFR 581.9(b)(4), 41 CFR
102-75.1200(b)(4) and 45 CFR 12a.9(b)(4), the requirements needed to
demonstrate an applicant's ability to finance and operate the proposed
program. Finances typically prove to be the most difficult for
transferees to navigate to ensure that monies are available to
successfully operate the program and adequately maintain the property
during the duration of the transfer term. Formulating a reasonable
financial plan during the application process ensures that an applicant
has the methods and means to carry out the application proposal. The
requisite information provides HHS more confidence in making a
determination on an application and is designed to both spare
applicants the time and expense associated with a transfer that is
likely to fail and protect the United States' residual interest in the
transferred property. Therefore, rather than requiring that an
applicant merely ``indicate'' it has financial ability, this proposed
rule would revise this section to incorporate HHS's current practice of
requiring that an applicant ``demonstrate'' its financial ability. A
reasonable financial plan must, at a minimum, be specific and be
accompanied by supporting documentation which demonstrates that the
proposed plan is likely to succeed; and neither diminish the value of
the government's interest in the property nor impair the government's
ability to revert and immediately dispose of the property with clear
title, free of any lien or encumbrance. Further, this section would
memorialize current practice, which permits HHS to grant, to an
otherwise approved applicant, a short-term lease when a zoning change
is required or an applicant's financial plan proposes to utilize Low-
Income Housing Tax Credits or other funding sources that typically take
longer to process than other forms of financing. This enables the
approved applicant to gain site control of the property that may be
required for funding and additional time to provide HHS the requisite
information to ensure the Federal government's interest in the property
is adequately protected. These proposed changes would be found at newly
redesignated paragraph (a)(6) of 24 CFR 581.11, 41 CFR 102-75.1170, and
45 CFR 12a.5.
This proposed rule would modify 24 CFR 581.9(b)(6), 41 CFR 102-
75.1200(b)(6) and 45 CFR 12a.9(b)(6) to clearly state property
insurance requirements and the purpose thereof, thereby allowing for
the omission of the reference to other provisions of the Agencies'
regulations. This proposed rule would amend 24 CFR 581.9(b)(9), 41 CFR
102-75.1200(b)(9) and 45 CFR 12a.4(b)(9) pertaining to local government
notification of the applicant's application for acquisition of surplus
property for the proposed purpose. The section would be amended to
incorporate HHS's current practice of requiring that an applicant
notify the local government in writing and provide evidence of such
rather than simply indicate in its application that it has done so.
These changes would be codified at newly redesignated paragraphs (a)(9)
and (a)(12), respectively, of 24 CFR 581.11, 41 CFR 102-75.1170, and 45
CFR 12a.5.
The proposed rule would revise and expand 24 CFR 581.9, 41 CFR 102-
75.1200, and 45 CFR 12a.9 to clarify the requirements regarding the
transfer of surplus property and to comply with FASTA. Pursuant to
FASTA, an applicant has the discretion to apply for Federal real
property for a permit, lease, or deed. An applicant applying for a deed
must comply with local zoning and certify such in its application by
providing the required documentation. This proposed rule would
incorporate HHS's current policy that transfers by deed will only be
made subsequent to the appropriate certification that the proposed
program is not in conflict with State or local zoning restrictions,
building codes, or similar limitations, omitting the need to reference
other provisions of the Agencies' regulations.
This proposed rule would also revise 24 CFR 581.9(c), 581.9(d), and
581.9(e), 41 CFR 102-75.1200(c), 102-75.1200(d), and 102-75.1200(e),
and 45 CFR 12a.9(c), 12a.9(d), and 12a.9(e) to conform to legislative
changes required by FASTA. Under FASTA, an initial application is now
due 75 days following HHS's receipt of an expression of interest. This
differs from the current regulation requiring the application, in its
entirety, be submitted within 90 days of an applicant's expression of
interest. This proposed rule would revise paragraph (c) of the
previously referenced sections to set forth the new deadline for
submitting an initial application. Additionally, FASTA reduced the time
for HHS to review an initial application from 25 days to 10 days of its
receipt. This proposed rule would reflect this change and revise
paragraph (d) of the above referenced sections within the Agencies'
individual regulations. It would also revise the ranking system and
criteria contained in this section. An initial application would be
evaluated based on the three statutory criteria: services offered;
need; and experience. Criteria would no longer be evaluated with
ranking weights; rather, all criteria would be of equal weight, and
failure to meet any one criterion would result in the application being
disapproved. Additionally, each paragraph within this section would be
revised to conform to legislative changes pursuant to FASTA and to
eliminate any confusion caused by the March 13, 2017, revised Order in
National Law Center on Homelessness and Poverty v. Department of
Veterans Affairs, (D.D.C. 1988).\4\ If HHS approves an initial
application, an applicant is provided 45 days to submit a final
application,
[[Page 16840]]
setting forth a reasonable financial plan. HHS will not extend the
deadline to submit a final application, or any part thereof, as the
statute does not contain an extension provision or otherwise allow the
deadline to be extended. HHS will provide a determination within 15
days of receiving the final application.
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\4\ The revised court order provides, in pertinent part: ``No
later than 15 days after the receipt of the final application, HHS
shall review, make a final determination, and complete all actions
on the final application. This period may be extended by agreement
of HHS and the applicant.'' The language ostensibly provides HHS
with the discretion to extend the statutory deadline for the final
application. Consistent with HHS practice since FASTA was
implemented and judicial decisions such as Colorado Coalition for
the Homeless v. GSA and HHS, 2019 WL 2723857 (D.CO. 2019) and New
Life Evangelistic Center, Inc. v. Sebelius, 753 F.Supp.2d 103
(D.D.C. 2010), HHS will require all final applications to be
completely submitted within the statutory deadline and will not
exercise the discretion the Court's order in National Law Center
purports to give to HHS.
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10. Surplus Property Transfer Documents
This proposed rule would add an entirely new section regarding
transfer documents to conform to legislative changes made pursuant to
FASTA. Applicants are permitted to apply for surplus property for
acquisition by lease, deed, or permit. For clarifying purposes, the
proposed rule would add this section to include relevant provisions of
41 CFR part 102-75 and 45 CFR part 12 pertaining to general terms and
conditions of transfers. This proposed change improves the readability
of the regulation and removes the need for additional cross-references.
Additionally, the proposed rule omits the provision that requires the
reversion or abrogation of transferred property, at the discretion of
HHS, should the property not be placed into use within 8 years. This
change allows more flexibility to resolve such issues on a case-by-case
basis and, based on conversations with transferees, provides more
assurances to funders that property may not be automatically reverted
should the property not be placed into use within 8 years. These
proposed changes would be captured at newly redesignated 24 CFR 581.14,
41 CFR 102-75.1172, and 45 CFR 12a.7.
11. Compliance With the National Environmental Policy Act of 1969
(NEPA) and Other Related Acts (Environmental Impact)
At 24 CFR 581.9(b)(8), 41 CFR 102-75.1200(b)(8), and 45 CFR
12a.9(b)(8), the current regulation already provides general
application requirements as they pertain to environmental information.
The proposed rule would expand these sections to clarify and to mirror
requirements and policies currently required by NEPA and other related
Acts. This proposed rule would contain this expanded clarification at
24 CFR 581.16, 41 CFR 102-75.1174, and 45 CFR 12a.8.
12. No Applications Approved
This proposed rule would modify 24 CFR 581.12, 41 CFR 102-75.1215,
and 45 CFR 12a.12 to comply with FASTA. Under FASTA, Federal real
properties shall only be held for 30 days to permit homeless providers
an opportunity to submit a notice of interest instead of the previous
60-day holding period. Additionally, FASTA requires GSA or the
landholding agency to proceed with disposal of surplus property 75 days
following receipt of an initial expression of interest if no initial
application or requests for extensions have been received by HHS, or
within 45 days after an approved initial application if no final
application has been received. This means that no disposal action can
be taken by GSA or the landholding agency, as appropriate, until all
Title V actions are completed. The proposed rule would codify these
changes in the newly redesignated 24 CFR 581.17, 41 CFR 102-75.1175,
and 45 CFR 12a.9.
13. Utilization and Enforcement
This proposed rule would add 24 CFR 581.18, 41 CFR 102-75.1176, and
45 CFR 12a.10 to clearly articulate a transferee's utilization
requirements and potential enforcement actions that may be taken, at
the discretion of HHS, should noncompliance occur. HHS's policies have
not changed but are included in the regulation to clarify program
requirements to applicants and transferees. This section also includes
the Federal government's requirements of transferees in the event of a
reversion action. Such reversionary language is currently included in
transfer documents.
14. Other Uses
The proposed rule would add 24 CFR 581.19, 41 CFR 102-75.1177, and
45 CFR 12a.11 to incorporate HHS's current policy as it relates to
``other uses'' of surplus property by transferees. The proposed rule
would make clear the requirements of transferees should a transferee
request approval to utilize the property, or a portion thereof, for
uses other than those stated in the approved original application. In
adding this section, the Agencies address questions and requests made
by transferees since inception of the program.
15. Abrogation
The abrogation process is discussed in various sections of the
current regulation, and this proposed rule would establish 24 CFR
581.20, 41 CFR 102-75.1178, and revise 45 CFR 12a.12 to more clearly
articulate the instances in which HHS may abrogate the conditions and
restrictions in the transfer document. This proposed rule would address
the abrogation process in its own section for clarity and simplicity.
16. Compliance Inspections and Reports
For clarifying purposes, the proposed rule would add this section
to include provisions of 45 CFR part 12.14 pertaining to compliance
inspections and reports. HHS's policies have not changed but are
included in the regulation to be clearer for the public and removes the
need for additional cross-references. These policies would be captured
at 24 CFR 581.21, 41 CFR 102-75.1179, and 45 CFR 12a.13.
17. No Right of Administrative Review for Agency Decisions
Title V, as amended by FASTA, does not provide for internal
administrative review of HHS application decisions. Accordingly, the
proposed rule would establish 24 CFR 581.22 and 41 CFR 102-75.1180, and
modify 45 CFR 12a.14 to codify HHS's existing policy that no agency
reconsideration or appeal shall be granted. HHS's application decision
constitutes final agency action in accordance with the Administrative
Procedure Act (5 U.S.C. 704).
18. Public Notice and Holding Period Under FASTA & Technical Changes
This proposed rule would make changes throughout HUD's and GSA's
existing regulations and implement FASTA amendments to the McKinney-
Vento Act, including that suitability determinations for properties are
published electronically on the HUD website and that HUD will post a
list of all properties reviewed, including a description of the
property, its address, and classification on the HUD website, rather
than in the Federal Register. The language ``on the HUD website'' would
be added to 24 CFR 581.8(a) and 41 CFR 102-75.1167(a) and in place of
``Federal Register'' as necessary, throughout HUD's and GSA's
regulations. In addition, the proposed rule would revise 24 CFR
581.8(b) and 41 CFR 102-75.1167(b) to remove identification of a
specific toll-free number to accommodate any necessary changes to the
toll-free number in the future and more closely align with 42 U.S.C.
11411(c)(2)(C). The proposed rule also clarifies that the list of all
properties published on the HUD website is sent to the United States
Interagency Council on Homelessness within the same timeframe as HUD's
publishing of the list of all reviewed properties to the HUD website.
Requirements for the agency annual suitable property report would be
added to 24 CFR 581.3(b) and 41 CFR 102-75.1162(b), and the proposed
rule would clarify that the list of all properties published in the
Federal Register no later than February 15 of each year would be a list
of all properties from the agency annual suitable property reports,
reported to HUD pursuant to 24 CFR 581.3(b) and
[[Page 16841]]
41 CFR 102-75.1162(b). To reflect the transition to publishing
electronically, the proposed rule also removes the requirement for
physical copies of the list of all properties published in the Federal
Register be available for review in HUD buildings.
Additional technical changes would be made throughout the
regulations for clarity, including at proposed sections 24 CFR 581.8
and 581.12, 45 CFR 12a.6, and 41 CFR 102-75.1167 and 102-75.1171.
B. Changes to HUD's Regulations
The proposed changes to regulations found at 24 CFR part 581 relate
to each agency's responsibilities under the McKinney-Vento Act in an
effort to provide the public with a comprehensive understanding of the
Title V process. Part 581 would continue to contain HUD's
responsibilities under Title V while also publishing all changes
discussed above, including new sections explained above in II.A.10,
II.A.11, and II.A.13 through II.A.16.
C. Changes to GSA's Regulations
The regulations found at 41 CFR 102-75 (subpart H) would relate to
GSA's role in the use of Federal real property to assist the homeless
along with the other Agencies' responsibilities. Since this regulation
will be published jointly with HUD and HHS, subpart H would be updated
to include all changes discussed above, including new sections
explained above in II.A.10, II.A.11, and II.A.13 through II.A.16. This
proposed rule would also update subpart H to include a section on
waivers previously contained in HUD's regulations at 24 CFR 581.13 but
never published in GSA's regulations. Lastly, sections in subpart H
would be renumbered throughout the regulation as noted above.
D. Changes to HHS's Regulations
The regulations found at 45 CFR 12a would solely relate to HHS's
portion of the proposed rule. Part 12a would be updated to include all
changes discussed above, except sections that are not applicable to
HHS, which include II.A.3 through II.A.6. The changes to Part 12a would
also include new sections explained in II.A.10, II.A.11, and II.A.13
through II.A.16.
III. Questions for Public Comment
HUD and GSA seek public comment on the suitability criteria in 24
CFR 581.6 and 41 CFR 102-75.1165 and on the proposal to exclude
property from the screening process if it is only available for removal
for off-site use. For each of the questions asked below, and regarding
any other issue, the Agencies are interested in public comment on
whether and how the Agencies should refine the suitability criteria
such that HUD can determine properties suitable under the statute
notwithstanding certain conditions that will not be remedied by
landholding agencies before property is transferred by long-term lease
or deed. Specifically, the Agencies seek comment on how suitability
criteria can protect the public from conditions that represent a clear
threat to personal physical safety and health if left unremedied, while
not inappropriately identifying properties as unsuitable due to low-
risk conditions that HUD determines can easily be remedied by a
transferee. Additionally, HHS seeks public comment regarding potential
barriers to the development of a plan to finance under the modified
application process in this proposed rule. While the following
questions are not exhaustive, the Agencies are particularly interested
in comments on the following questions:
Question 1. Are there cases or scenarios in which the Agencies
should consider revising the proposed suitability criteria at 24 CFR
581.6(a)(1) and 41 CFR 102-75.1165 to allow HUD to determine that a
property is suitable in its current condition if acceptable separation
distance standards, including mitigating measures defined in 24 CFR
51.205, are not in place, but the risks associated with the presence of
flammable or explosive materials are extremely low or would be
mitigated through the transferee's routine compliance with applicable
Federal, state, or local law? If so, what changes should HUD consider
to the proposed rule? In its review of comments, the Agencies will not
consider changes that would require an agency to impose, monitor, or
enforce mitigating actions by transferees.
Question 2. If an incidental portion of a property is in a floodway
or runway clear zone should the entire property be determined
unsuitable?
Question 3: Should there be other changes to the suitability
criteria?
Question 4: The Agencies are also considering amending the
regulations' applicability to exclude property only available for
removal for off-site use from the screening process. How would
interested members of the public view this change?
Question 5: Given the requirements and limitations in the revised
statute, what if any, barriers would you foresee to the development of
a plan to finance under the modified application process as outlined in
this proposed rule and how, specifically, could HHS act within its
authority to address those barriers?
IV. Findings and Certifications
HUD
Regulatory Review--Executive Orders 12866 and 13563
Under Executive Order 12866 (Regulatory Planning and Review), a
determination must be made by the Office of Management and Budget (OMB)
regarding whether a regulatory action is significant and therefore
subject to review in accordance with the requirements of the executive
order. This proposed rule was determined to be a ``significant
regulatory action'' as defined in Section 3(f) of the order (although
not an economically significant regulatory action under the order).
Executive Order 13563 (Improving Regulations and Regulatory Review)
directs executive agencies to analyze regulations that are ``outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.'' Executive Order 13563 also directs that, where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, agencies are to identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public. This rule streamlines the process for Federal
surplus transfers pursuant to the Federal Assets and Sales Act of 2016.
This proposed rule was determined to be a significant regulatory
action under section 3(f) of Executive Order 12866 (although not an
economically significant regulatory action under the order). The
Agencies prepared an initial Regulatory Impact Analysis (RIA) that
addresses the costs and benefits of the proposed rule and is part of
the docket file for this rule.
Environmental Review
A Finding of No Significant Impact (FONSI) with respect to the
environment has been made in accordance with HUD regulations at 24 CFR
part 50, which implement Section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is
available for public inspection between the hours of 8 a.m. and 5 p.m.
weekdays in the Regulations Division, Office of General Counsel,
Department of Housing and Urban Development, 451 7th Street SW, Room
10276, Washington, DC 20410-0500. Due to security measures at the HUD
Headquarters building, please schedule an appointment to review the
[[Page 16842]]
FONSI by calling the Regulations Division at 202-708-3055 (this is not
a toll-free number). HUD welcomes and is prepared to receive calls from
individuals who are deaf or hard of hearing, as well as individuals
with speech or communication disabilities. To learn more about how to
make an accessible telephone call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-
1538) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and on the private sector. This proposed rule does not
impose any Federal mandate on any state, local, or tribal government,
or on the private sector, within the meaning of UMRA.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
This proposed rule imposes no additional requirements on small
entities. The rule conforms the Agencies' existing regulation with
required statutory changes under the Federal Assets Sale and Transfer
Act of 2016 and other legislative changes. This proposed rule also
provides for HUD's suitability determinations to be published
electronically rather than in the Federal Register. Accordingly, the
undersigned certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits, to the
extent practicable and permitted by law, an agency from publishing any
rule that has federalism implications if the rule either imposes
substantial direct compliance costs on state and local governments and
is not required by statute, or preempts state law, unless the relevant
requirements of Section 6 of the Executive Order are met. This rule
does not have federalism implications and does not impose substantial
direct compliance costs on state and local governments or preempt state
law within the meaning of the Executive Order.
Paperwork Reduction Act
The information collection requirements for part 581 contained in
this proposed rule pertain to HHS's Title V application. HHS's
information collection requirements have been approved by OMB under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB
control number 0937-0191. In accordance with the Paperwork Reduction
Act, an agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information, unless the collection
displays a currently valid OMB control number.
GSA
Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule is not anticipated to be a significant regulatory
action and, therefore, was not subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
Congressional Review Act
This rule is not a major rule under 5 U.S.C. 804(2). Subtitle E of
the Small Business Regulatory Enforcement Fairness Act of 1996
(codified at 5 U.S.C. 801-808), also known as the Congressional Review
Act or CRA, generally provides that before a rule may take effect, the
agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of the Congress and to the
Comptroller General of the United States. A major rule under the CRA
cannot take effect until 60 days after it is published in the Federal
Register. OIRA has determined that this rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
Regulatory Flexibility Act
GSA certifies this rule will not have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This proposed rule
applies only to Federal agencies and employees.
Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
HHS
Regulatory Review--Executive Orders 12866 and 13563
Under Executive Order 12866 (Regulatory Planning and Review), a
determination must be made by the Office of Management and Budget (OMB)
regarding whether a regulatory action is significant and therefore
subject to review in accordance with the requirements of the order.
This rule was determined to be a ``significant regulatory action'' as
defined in Section 3(f) of the order (although not an economically
significant regulatory action under the order). Executive Order 13563
(Improving Regulations and Regulatory Review) directs executive
agencies to analyze regulations that are ``outmoded, ineffective,
insufficient, or excessively burdensome, and to modify, streamline,
expand, or repeal them in accordance with what has been learned.''
Executive Order 13563 also directs that, where relevant, feasible, and
consistent with regulatory objectives, and to the extent permitted by
law, agencies are to identify and consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public. This rule streamlines the process for Federal surplus property
transfers pursuant to the Federal Assets and Sales Act of 2016.
Environmental Review
National Environmental Policy Act of 1969 (NEPA). Actions resulting
from this proposed rule amendment may constitute a major Federal action
significantly affecting the quality of the human environment. A
detailed statement under NEPA is not specifically required for purposes
of the proposed rule amendment, however, actions involving specific
property transactions may require further NEPA analysis as an action
may not be covered by the categorical exclusion published at 47 FR
2414-02 on January 11, 1982. HHS will, prior to making a final decision
to convey or lease, or to amend, reform, or grant an approval or
release with respect to a previous conveyance or lease of surplus
property for homeless assistance purposes, ensure an environmental
review and/or assessment is conducted, if applicable, and appropriately
document the
[[Page 16843]]
proposed transaction, in keeping with applicable provisions of NEPA.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-
1538) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and on the private sector. This proposed rule does not
impose any Federal mandate on any state, local, or tribal government,
or on the private sector, within the meaning of UMRA.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
This proposed rule imposes no significant economic impacts or
additional requirements on a substantial number of small entities as
defined by RFA. The rule conforms the Agencies' existing regulations
with required statutory changes under the Federal Assets Sale and
Transfer Act of 2016 and other legislative changes, and to address
certain issues that have arisen since the inception of the program.
Accordingly, the undersigned certifies that this proposed rule will not
have a significant economic impact on a substantial number of small
entities.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits to the
extent practicable and permitted by law, an agency from publishing any
rule that has federalism implications if the rule either imposes
substantial direct compliance costs on state and local governments and
is not required by statute, or preempts state law, unless the relevant
requirements of Section 6 of the Executive Order are met. This rule
does not have federalism implications and does not impose substantial
direct compliance costs on state and local governments or preempt state
law within the meaning of the Executive Order.
Paperwork Reduction Act
Under the Paperwork Reduction Act, all Departments are required to
submit to the Office of Management and Budget for review and approval
or any reporting or recordkeeping requirements in a proposed or final
rule. This proposed rule amendment does contain information collection
requirements which have been approved by the Office of Management and
Budget under control number 0937-0191.
List of Subjects
24 CFR Part 581
Administrative practice and procedure, Homeless, Reporting and
recordkeeping requirements, Surplus Government property.
41 CFR Part 102-75
Federal buildings and facilities, Government property management,
Rates and fares, Surplus Government property.
45 CFR Part 12a
Government Property, Surplus Government Property, Grant programs--
health, Grant programs--housing and community development, Homeless,
Housing, Public Assistance Programs.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT:
Accordingly, for the reasons stated above, HUD proposes to amend 24
CFR part 581 as follows:
PART 581--USE OF FEDERAL REAL PROPERTY TO ASSIST THE HOMELESS
0
1. The authority citation for part 581 continues to read as follows:
Authority: 42 U.S.C. 11411 note; 42 U.S.C. 3535(d).
0
2. Amend Sec. 581.1 by:
0
a. Revising the definitions of Applicant, Eligible organization, Excess
property, and Homeless;
0
b. Adding the definition of HUD website;
0
c. Removing the definition of ICH;
0
d. Revising the definitions of Landholding agency, Lease, Non-profit
organization, Permit, Property;
0
e. Removing the definition of Regional homeless coordinator;
0
f. Adding the definition of Related personal property;
0
g. Revising the definition of Screen;
0
h. Adding the definition of State;
0
i. Removing the definition of State homeless coordinator;
0
j. Adding the definition of Substantial noncompliance;
0
k. Revising the definitions of Suitable property and Surplus property;
0
l. Adding the definitions of Transfer document and Transferee.
The revisions and additions read as follows:
Sec. 581.1 Definitions.
Applicant means any eligible organization which has submitted an
application to the Department of Health and Human Services to obtain
use of a certain suitable property to assist the homeless.
* * * * *
Eligible organization means a State or local government agency, or
a private, non-profit organization that provides assistance to the
homeless, and that is authorized by its charter or by State law to
enter into an agreement with the Federal government for use of property
for the purposes of this part. Eligible organizations that are private,
non-profit organizations interested in applying for suitable property
must be tax exempt under section 501(c)(3) of the Internal Revenue Code
at the time of application and remain tax exempt throughout the time
the Federal government retains a reversionary interest in the property.
Excess property means any property under the control of a Federal
Executive agency that the head of the agency determines is not required
to meet the agency's needs or responsibilities, pursuant to 40 U.S.C.
524.
* * * * *
Homeless is defined in 42 U.S.C. 11302. This term is synonymous
with ``Homeless Individual'' and ``Homeless Person.''
* * * * *
HUD website means a website maintained by HUD providing information
about HUD, including any successor websites or technologies that are
equally accessible and available to the public.
Landholding agency means the Federal department or agency with
statutory authority to control property. For purposes of this part, the
landholding agency is typically the Federal department or agency that
had custody and accountability on behalf of the Federal government, of
a certain piece of property at the time that such property was reported
to HUD for a suitability determination pursuant to 42 U.S.C. 11411.
Lease means an agreement in writing between either HHS for surplus
property or landholding agencies for underutilized and unutilized
properties and the applicant giving rise to the relationship of lessor
and lessee for the use of Federal property for a term of at least one
year under the conditions set forth in the lease document.
Non-profit organization means an organization recognized as a non-
profit by the State in which the organization operates, no part of the
net earnings of which inures to the benefit of any member, founder,
contributor, or individual; that has a voluntary board; that has an
accounting system or has designated an entity that will maintain
[[Page 16844]]
a functioning accounting system for the organization in accordance with
generally accepted accounting procedures; and that practices
nondiscrimination in the provision of assistance.
Permit means a license granted by a landholding agency to use
unutilized or underutilized property for a specific amount of time,
usually one year or less, under terms and conditions determined by the
landholding agency. A permit does not grant to the recipient an estate
in land or any interest in the property.
Property means real property consisting of vacant land or
buildings, or a portion thereof, that is excess, surplus, or designated
as unutilized or underutilized in surveys by the heads of landholding
agencies conducted pursuant to 40 U.S.C. 524.
Related personal property means any personal property that is
located on real property and is either an integral part of or useful in
the operation of that property or is determined by GSA to be otherwise
related to the property.
* * * * *
Screen means the process by which GSA surveys Federal Executive
agencies to determine if they have an interest in using excess Federal
property to carry out a particular agency mission, and then surveys
State, local and non-profit entities, to determine if any such entity
has an interest in using surplus Federal property to carry out a
specific public use.
State means a State of the United States, and includes the District
of Columbia, the Commonwealth of Puerto Rico, and the Territories and
possessions of the United States.
Substantial noncompliance means failure to take corrective action
as directed by HHS.
Suitable property means that HUD has determined that a certain
property satisfies the criteria listed in Sec. 581.6.
Surplus property means any excess property not required by any
Federal landholding agency for its needs or the discharge of its
responsibilities, as determined by GSA.
Transfer document means a lease, deed, or permit transferring
surplus, unutilized or underutilized property.
Transferee means an eligible entity that acquires Federal property
by lease, deed, or permit.
* * * * *
0
3. Revise Sec. 581.2 to read as follows:
Sec. 581.2 Applicability.
(a) This part applies to Federal property that has been designated
by Federal landholding agencies as unutilized, underutilized, excess or
surplus and is therefore subject to the provisions of Title V of the
McKinney Act, as amended (42 U.S.C. 11411).
(b) The following categories of properties are not subject to this
part (regardless of whether they may be unutilized or underutilized):
(1) Buildings and property at military installations that were
approved for closure under the Defense Base Closure and Realignment Act
of 1990 (part A of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note)
after October 25, 1994.
(2) Machinery and equipment not determined to be related personal
property by the landholding agency or GSA or determined to be related
personal property that the landholding agency or GSA chooses to dispose
of separate from real property.
(3) Government-owned, contractor-operated machinery, equipment,
land, and other facilities reported excess for sale only to the using
contractor and subject to a continuing military requirement.
(4) Properties subject to special legislation directing a
particular action.
(5) Properties subject to a court order that, for any reason,
precludes transfer for use to assist the homeless under the authority
of 42 U.S.C. 11411.
(6) Property not subject to Federal Real Property Council reporting
requirements in accordance with 40 U.S.C. 623(i).
(7) Mineral rights interests independent of surface rights.
(8) Air space interests independent of surface rights.
(9) Indian Reservation land subject to 40 U.S.C. 523.
(10) Property interests subject to reversion.
(11) Easements.
(12) Any building or fixture that is excess, or surplus, that is on
land owned by a landholding agency, where the underlying land is not
excess or surplus.
(13) Property purchased in whole or in part with Federal funds if
title to the property is not held by a Federal landholding agency as
defined in this part.
0
4. In Sec. 581.3 revise paragraphs (a), (b), and (d) to read as
follows:
Sec. 581.3 Collecting the Information.
(a) Canvass of landholding agencies. On a quarterly basis, HUD will
canvass each landholding agency to collect information about property
described as unutilized, underutilized, excess or surplus in accordance
with 40 U.S.C. 524; however, HUD will accept property information
between canvasses. Each canvass will collect information on properties
not previously reported, and about property reported previously where
the status or classification of the property has changed, or
improvements have been made to the property. HUD will request
descriptive information on properties sufficient to make a reasonable
determination, under the criteria described below, of the suitability
of a property for use to assist the homeless. Landholding agencies must
report property information to HUD using the property checklist
developed by HUD for that purpose. Property checklists submitted in
response to a canvass must be submitted to HUD within 25 days of
receipt of the canvass.
(b) Agency annual suitable property report. By December 31 of each
year, each landholding agency must notify HUD of the current
availability status and classification of each property controlled by
the agency that:
(1) was included in a list of suitable properties published that
year by HUD, and
(2) remains available for application for use to assist the
homeless or has become available for application during that year.
* * * * *
(d) Change in status. If the information provided on the property
checklist changes subsequent to HUD's determination of suitability,
including any improvements or other alterations to the physical
condition of the land or the buildings on the property, and the
property remains unutilized, underutilized, excess or surplus, the
landholding agency must submit a revised property checklist in response
to the next quarterly canvass. HUD will review for suitability and, if
it differs from the previous determination, repost the property
information on the HUD website. For example, property determined
unsuitable due to extensive deterioration may have had improvements, or
property determined suitable may subsequently be found to be
extensively deteriorated.
0
5. In Sec. 581.4 revise paragraphs (a), (b), (d), (e), and (f) to read
as follows:
Sec. 581.4 Suitability Determination.
(a) Suitability determination. Within 30 days after the receipt of
a completed property checklist from landholding agencies either in
response to a quarterly canvass, or between canvasses, HUD will
determine, using the criteria set forth in Sec. 581.6 whether a
property is suitable for use to assist the homeless and report its
determination to the landholding agency. Properties that are under
lease, contract, license, or agreement by which a Federal agency
retains a real property interest or which
[[Page 16845]]
are scheduled to become unutilized or underutilized will be reviewed
for suitability no earlier than six months prior to the expected date
when the property will become unutilized or underutilized.
(b) Scope of suitability. HUD will determine the suitability of a
property for use to assist the homeless without regard to any
particular use.
* * * * *
(d) Record of suitability determination. HUD will assign an
identification number to each property reviewed for suitability. HUD
will maintain a public record of the following:
(1) The suitability determination for a particular piece of
property, and the reasons for that determination; and
(2) The landholding agency's response to the determination pursuant
to the requirements of Sec. 581.7(a).
(e) Property determined unsuitable. Property that is reviewed by
HUD under this section and that is determined unsuitable for use to
assist the homeless may not be made available for any other purpose for
20 days after publication of a notice of unsuitability on the HUD
website.
(f) Procedures for appealing unsuitability determinations.
(1) To request review of a determination of unsuitability, a
representative of the homeless must contact HUD, in writing, through
the U.S. Mail, email, or the HUD website, or such other method as HUD
may require, within 20 days of publication of notice of unsuitability.
(2) Requests for review of a determination of unsuitability may be
made only by representatives of the homeless.
(3) The request for review must specify the grounds on which it is
based, i.e., HUD has improperly applied the criteria or HUD has relied
on incorrect or incomplete information in making the determination
(e.g., that property is in a floodplain but not in a floodway).
(4) Upon receipt of a request to review a determination of
unsuitability, HUD will notify the landholding agency or GSA that such
a request has been made. The landholding agency or GSA shall have 20
days from receipt of the notice from HUD, or an extended period agreed
to between HUD and the landholding agency or GSA, to provide any
information pertinent to the review. The landholding agency or GSA must
refrain from initiating disposal procedures until HUD has completed its
reconsideration regarding unsuitability. If the landholding agency or
GSA fails to meet the deadline, HUD will move forward with the appeal
review with the property information it already has and information
submitted in the appeal request provided by the representative of the
homeless.
(i) HUD will act on all requests for review within 30 days of
receipt of the landholding agency's or GSA's response, or, if the
landholding agency or GSA failed to meet the deadline, within 30 days
of such deadline, and will notify the representative of the homeless
and the landholding agency or GSA in writing of its decision.
(ii) If a property is determined suitable as a result of the
review, HUD will request the landholding agency's or GSA's
determination of availability pursuant to Sec. 581.7, upon receipt of
which HUD will promptly publish the determination on the HUD website.
0
6. Amend Sec. 581.5 by:
0
a. Revising paragraphs (b), (c), (e), (f), (g), and (h); and
0
b. Adding paragraph (i).
The revisions and additions read as follows:
Sec. 581.5 Real property reported excess to GSA.
(a) * * *
(b) If a landholding agency reports an excess property to GSA that
HUD has already determined to be suitable for use to assist the
homeless, GSA will screen the property pursuant to paragraph (h) of
this section and will advise HUD of the availability of the property
for use by the homeless as provided in paragraph (e) of this section.
In lieu of the above, GSA may submit a new checklist to HUD and follow
the procedures in paragraphs (c) through (h) of this section.
(c) If a landholding agency reports an excess property to GSA that
has not been reviewed by HUD for homeless assistance suitability, GSA
will complete a property checklist, based on information provided by
the landholding agency, and will forward this checklist to HUD for a
suitability determination. This checklist will reflect any change in
classification, such as from unutilized or underutilized to excess or
surplus.
* * * * *
(e) When GSA receives notification from HUD listing suitable excess
properties, GSA will transmit a response to HUD within 45 days
regarding the availability of the property. GSA's response will include
the following for each identified property:
(1) A statement that there is no other compelling Federal need for
the property and, therefore, the property will be determined surplus;
or
(2) A statement that there is further and compelling Federal need
for the property (including a full explanation of such need) and that,
therefore, the property is not presently available for use to assist
the homeless.
(f) When GSA submits a checklist to HUD in accordance with
paragraphs (b) and (c) of this section, the information regarding the
availability of the property, as specified in paragraph (e)(1) and (2)
of this section, may be included with the checklist if it is known at
the time of submittal.
(g) When a surplus property is determined as suitable, confirmed as
available by GSA, and notice is published on the HUD website, GSA will
concurrently notify HHS, State and local government units, and known
homeless assistance providers that have expressed interest in the
particular property, and other organizations, as appropriate,
concerning suitable properties.
(h) Upon submission of a Report of Excess to GSA, GSA may screen
the property for Federal use. In addition, GSA may screen State and
local governmental units and eligible non-profit organizations to
determine interest in the property in accordance with current
regulations. (See 41 CFR 102-75.1220, 102-75.255 and 102-75.350).
(i) The landholding agency will retain custody and accountability
and will protect and maintain any property that is reported excess to
GSA as provided in 41 CFR 102-75.965.
0
7. Revise Sec. 581.6 to read as follows:
Sec. 581.6 Suitability criteria.
(a) In general, properties will be determined suitable unless a
property's characteristics include one or more of the following
conditions:
(1) Flammable or explosive hazards. Property located less than an
acceptable separation distance (under the standards in 24 CFR part 51,
subpart C and the HUD Guidebook, ``Siting of HUD-Assisted Projects Near
Hazardous Facilities'' or successor guidebook) from any stationary
above-ground container or facility which stores, handles, or processes
hazardous substances of an explosive or fire prone nature (excluding
containers and facilities that are not hazards as defined in 24 CFR
51.201), unless HUD can determine during the review period based on
information provided by the landholding agency that appropriate
mitigating measures, as defined in 24 CFR 51.205, are already in place.
(2) Coastal Barriers. Property located in a System Unit, as defined
at 16 U.S.C. 3502(7), under the Coastal Barrier
[[Page 16846]]
Resources Act, as amended (16 U.S.C. 3501 et seq.).
(3) Site Safety Conditions. Property with a documented and
extensive condition(s) that represents a clear threat to personal
physical safety or health. Such conditions may include, but are not
limited to, significant contamination from hazardous substances, as
defined by 42 U.S.C. 9601, periodic flooding, sinkholes, or landslides.
(b) In the cases below, properties will be determined unsuitable,
unless the landholding agencies provide information to enable HUD to
determine the property is suitable:
(1) Inaccessible. Property that is inaccessible, meaning that the
property is not accessible by road (including property on small
offshore islands) or is landlocked (e.g., can be reached only by
crossing private property and there is no established right or means of
entry).
(2) National Security. Property located in an area to which the
general public is denied access in the interest of national security
(e.g., where a special pass or security clearance is a condition of
entry to the property), unless there is an alternative method to gain
access without compromising national security.
(3) Runway clear zones. Property located within a runway clear zone
or a military airfield clear zone.
(4) Floodway. Property located in a floodway, unless only an
incidental portion of the property is in the floodway and that
incidental portion does not affect the use of the remainder of the
property to assist the homeless.
0
8. Revise Sec. 581.7 to read as follows:
Sec. 581.7 Determination of availability for suitable properties.
(a) Within 45 days after receipt of notification from HUD pursuant
to Sec. 581.4(a) that a property has been determined to be suitable,
each landholding agency or GSA must transmit to HUD a statement of one
of the following:
(1) In the case of unutilized or underutilized property--
(i) An intention to declare the property excess;
(ii) An intention to make the property available for use to assist
the homeless; or
(iii) The reasons why the property cannot be declared excess or
made available for use to assist the homeless. The reasons given must
be different from those listed as suitability criteria in Sec. 581.6.
(2) In the case of excess property which has been reported to GSA--
(i) A statement that there is no compelling Federal need for the
property, and, therefore, the property will be determined surplus; or
(ii) A statement that there is a further and compelling Federal
need for the property (including a full explanation of such need) and
therefore, the property is not presently available for use to assist
the homeless.
(b) [Reserved]
0
9. Revise Sec. 581.8 to read as follows:
Sec. 581.8 Public notice of determination.
(a) No later than 15 days after the most recent 45-day period has
elapsed for receiving responses from the landholding agencies or GSA
regarding availability, HUD will post on the HUD website a list of all
properties reviewed, including a description of the property, its
address, and classification. The following designations will be made:
(1) Properties that are suitable and available.
(2) Properties that are suitable and unavailable.
(3) Properties that are suitable and to be declared excess.
(4) Properties that are unsuitable.
(b) HUD will establish and maintain a toll-free number for the
public to obtain specific information about properties in paragraph (a)
of this section.
(c) No later than 15 days after the most recent 45-day period has
elapsed for receiving responses from the landholding agencies or GSA
regarding availability, HUD will transmit to the United States
Interagency Council on Homelessness (USICH) a copy of the list of all
properties in paragraph (a) of this section. The USICH will immediately
distribute to all state and regional homeless coordinators area-
relevant portions of the list. The USICH will encourage the state and
regional homeless coordinators to disseminate this information widely.
(d) No later than February 15 of each year, HUD will publish in the
Federal Register a list of all properties in the agency annual suitable
property reports, reported to HUD pursuant to Sec. 581.3(b).
(e) HUD will publish an annual list of properties determined
suitable, but which agencies reported unavailable including the reasons
such properties are not available.
0
10. Revise Sec. 581.9 to read as follows:
Sec. 581.9 General Policies of HHS.
(a) It is the policy of HHS to foster and assure maximum
utilization of surplus property for homeless assistance purposes.
(b) Transfers may be made only to eligible organizations.
(c) Eligible organizations must be authorized, in the State in
which the requested property is located, to carry out the activity for
which it requests the property.
(d) Property will be requested for assignment only when HUD has
made a final determination that the property is suitable for use to
assist the homeless, GSA has determined it is available, and HHS has
determined it is needed for homeless assistance purposes. The amount of
real and related personal property to be transferred shall not exceed
normal operating requirements of the applicant. Such property will not
be requested for assignment unless it is needed at the time of
application for homeless assistance purposes or will be so needed
within the immediate or foreseeable future.
(e) Transfers by deed will be made only after the applicant's
financial plan is approved and the applicant provides certification
that the proposed program is permissible under all applicable State and
local zoning restrictions, building codes, and similar limitations.
0
11. Revise Sec. 581.10 to read as follows:
Sec. 581.10 Expression of interest process.
(a) Properties published by HUD as suitable and available pursuant
to Sec. 581.8, for application for use to assist the homeless shall
not be available for any other purpose for a period of 30 days
beginning on the date of publication. Any eligible organization
interested in any underutilized, unutilized, excess, or surplus
property for use to assist the homeless must send to HHS a written
expression of interest in that property within 30 days after the
property has been published on the HUD website.
(b) Although a property may be determined suitable by HUD, HUD's
determination does not mean a property is necessarily useable for the
purpose(s) stated in the application, nor does it guarantee subsequent
conveyance or transfer of a property.
(c) If a written expression of interest to apply for suitable
property for use to assist the homeless is received by HHS within the
30-day holding period, such property may not be made available for any
other purpose until the date HHS or the appropriate landholding agency
has completed action on the application submitted pursuant to that
expression of interest.
(d) The expression of interest should identify the specific
property, briefly describe the proposed use, include the name of the
organization, and indicate whether it is a public body or a private,
non-profit organization. The expression of interest must be sent to HHS
by email, [email protected], or by mail at the following address:
Department of
[[Page 16847]]
Health and Human Services, Program Manager, Federal Real Property
Assistance Program, Real Estate Logistics and Operations, 5600 Fishers
Lane, Rockville, Maryland 20852.
(1) HHS will notify the landholding agency (for unutilized and
underutilized properties) or GSA (for excess and surplus properties)
when an expression of interest has been received for a certain
property.
(e) An expression of interest may be sent to and accepted by HHS
any time after the 30-day holding period has expired only if the
property remains available as determined by GSA or the landholding
agency for application to assist the homeless. In such a case, an
application submitted pursuant to this expression of interest may be
approved for use by the homeless if:
(1) There are no pending applications or written expressions of
interest made under any law for use of the property for any purpose;
and
(2) In the case of excess or surplus property, GSA has not received
a bona fide offer to purchase that property or advertised for the sale
of the property by public auction.
0
12. Revise Sec. 581.11 to read as follows:
Sec. 581.11 Application Process and Requirements.
(a) Upon receipt of an expression of interest, HHS will send an
application packet to the interested entity. The application packet
requires the applicant to provide certain information, including the
following--
(1) Acquisition type. The applicant must state whether it is
requesting acquisition of the property by lease, deed, or permit. A
lease of one year, extendable at HHS's discretion, with the concurrence
of GSA or the landholding agency, may be granted when the applicant's
initial application is approved and the applicant's final application
outlining the applicant's financial plan is found to be otherwise
reasonable based on the criteria in paragraph (a)(7) of this section,
but either a change in zoning is required or the financial plan
proposes to utilize Low-Income Housing Tax Credits or other funding
sources that typically take longer to process than other forms of
financing.
(2) Description of the applicant organization. The applicant must
document that it satisfies the definition of an ``eligible
organization'' as specified in Sec. 581.1. The applicant must document
its authority to hold property for the proposed program and plan of use
by providing a copy of its Articles of Organization, Charter,
Certification from State of Non-Profit Organization status, or other
appropriate document or citation. Private, non-profit organizations
applying for the acquisition of a certain property must document that
they are tax exempt under section 501(c)(3) of the Internal Revenue
Code.
(3) Description of the property desired. The applicant must
describe the listed property desired, including existing zoning.
Applicants must certify that any modification(s) made to and use of the
property will conform to all applicable building codes, and local use
restrictions, or similar limitations. In accordance with GSA policy,
determinations regarding parcelization are made prior to screening.
Therefore, expressions of interest and applications for portions of
listed properties will not be accepted.
(4) Description of the proposed program. The applicant must fully
describe the proposed program and plan of use, including implementation
plans.
(5) Demonstration of need. The applicant must demonstrate that the
property is needed for homeless assistance purposes at the time of
application and how the program will address the needs of the homeless
population to be assisted. The applicant must demonstrate that it has
an immediate need and ability to utilize all of the property for which
it is applying.
(6) Demonstrate that the property is suitable and adaptable for the
proposed program and plan of use. The applicant must fully explain why
the property is suitable and describe what, if any, modification(s)
will be made to the property before the program becomes operational.
(7) Ability to finance and operate the proposed program. If the
applicant's initial application is approved, the applicant must set
forth a reasonable plan to finance the approved program within 45 days
of the initial approval. To be considered reasonable, the plan must, at
a minimum:
(i) specifically describe all anticipated costs and sources of
funding for the proposed program, including any property modifications;
(ii) be accompanied by supporting documentation which demonstrates
that the proposed plan is likely to succeed;
(iii) demonstrate that the applicant is ready, willing, able, and
authorized to assume care, custody, and maintenance of the property;
(iv) demonstrate that it has secured the necessary dedicated funds,
or the ability to obtain such funds, to carry out the approved proposed
program and plan of use for the property, including administrative
expenses incident to the transfer by deed, lease, or permit;
(v) not diminish the value of the government's interest in the
property nor impair the government's ability to revert and immediately
dispose of the property free of any and all liens, encumbrances, or
anything else which renders the property unmarketable. Deed transfers
will only be made after an applicant demonstrates its financial plan
adequately protects the United States' interest in the property; and
(vi) neither subject the Federal government's interest in the
property to foreclosure nor impose obligations (e.g., extended use
agreements) on the Federal government.
(8) Compliance with non-discrimination requirements. Each applicant
under this part must certify in writing that it will comply with all
requirements of federal law and HHS policy, as amended, relating to
non-discrimination, including the following: the Fair Housing Act (42
U.S.C. 3601-3619) and implementing regulations; and, as applicable,
Executive Order 11063 (Equal Opportunity in Housing) and implementing
regulations; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
to d-4) (Non-discrimination in Federally Assisted Programs) and
implementing regulations; Section 1557 of the Affordable Care Act and
implementing regulations; the prohibitions against discrimination on
the basis of age under the Age Discrimination Act of 1975 (42 U.S.C.
6101-6107) and implementing regulations; the prohibitions against
discrimination against otherwise qualified individuals with
disabilities under section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794) and implementing regulations; and Titles II or III of the
Americans with Disabilities Act and implementing regulations, as
applicable. The applicant must maintain the required records to
demonstrate compliance with all applicable Federal laws and HHS
policies related to non-discrimination.
(9) Insurance and Indemnification. The applicant must certify that
it will insure the property against loss, damage, or destruction to
protect the residual financial interest of the United States. The
United States shall be named as an additional insured. Applicants must
provide proof of insurance annually or upon request. Failure to
maintain sufficient insurance may result in adverse action, including
reversion of the property, at the discretion of HHS. Applicants, and
all affiliated parties utilizing the property, as approved by HHS, must
indemnify the United States and hold the United States harmless for all
actions involving use of the property.
[[Page 16848]]
(10) Historic preservation. Where applicable, the applicant must
provide information that will enable HHS to comply with Federal
historic preservation requirements.
(11) Environmental information. The applicant must provide
sufficient information to allow HHS to analyze the potential impact of
the applicant's proposal on the environment, in accordance with the
instructions provided with the application packet. HHS will assist
applicants in obtaining any pertinent environmental information in the
possession of HUD, GSA, or the landholding agency. However, the burden
is on the applicant to submit sufficient documentation for analysis by
HHS.
(12) Local government notification. The applicant must certify that
it has notified the applicable unit of general local government
responsible for sewer, water, police, and fire services, in writing, of
its proposed program for the specific property and submit a copy of
that written notification.
(13) Zoning and Local Use Restrictions. An applicant requesting a
deed must certify that it has consulted all State and local
governmental entities that will have jurisdiction over the property and
that the proposed use will comply with all applicable zoning and local
use restrictions, including local building code requirements. An
applicant that applies for a lease or permit is not required to comply
with local zoning requirements, as long as the Federal government
retains ownership of the property. Deed transfers will only be made
after the applicant has provided acceptable written proof that the
proposed program is not in conflict with State or local zoning laws and
restrictions, building codes, or similar limitations.
(b) Scope of evaluations. Due to the short time frame imposed by
statute for evaluating applications, HHS's evaluation will, generally,
be limited to the information contained in the application. It is
therefore incumbent on applicants to provide thorough and complete
applications.
(c) Deadline for Initial Application. An initial application must
be received by HHS, at the above email address or other address
indicated by HHS, within 75 days after an expression of interest is
received from a particular applicant for that property. Upon written
request from the applicant, HHS may, in its discretion, grant
extensions authorized by 42 U.S.C. 11411(e)(2)(A), provided that the
appropriate landholding agency or GSA concurs with the extension.
(d) Evaluation of initial application.
(1) Upon receipt of an initial application, HHS will review it for
completeness, and, if incomplete, may, in its discretion, return it or
ask the applicant to furnish any missing or additional required
information prior to final evaluation of the initial application.
(2) HHS will evaluate each initial application within 10 days of
receipt and will promptly advise the applicant of its decision. All
initial applications will be reviewed on the basis of the following
elements:
(i) Services offered. The extent and range of proposed services,
such as meals, shelter, job training, and counseling.
(ii) Need. The demand for the program, the program's ability to
satisfy unmet needs of the community, and the degree to which the
available property will be fully utilized.
(iii) Experience. Demonstrated ability to provide the services,
such as prior success in operating similar programs and recommendations
attesting to that fact by Federal, State, and local authorities.
(e) Deadline and Evaluation of Final Application.
(1) If HHS approves an initial application, HHS will notify the
applicant and provide the applicant 45 days in which to provide a final
application. The final application shall set forth a reasonable plan to
finance, as specified in Sec. 581.11(a)(7), the approved program as
set forth in the initial application. Applicants may not modify the
approved initial application within its final application proposal.
(2) Upon receipt of the final application, HHS will make a
determination within 15 days and notify the applicant.
(3) Unlike with initial applications, requests for extensions are
not authorized by 42 U.S.C. 11411 and thus will not be considered for
final applications.
(4) Applications are evaluated on a first-come, first-served basis.
HHS will notify all organizations that have submitted expressions of
interest for a particular property whether an earlier application
received for that property has been approved.
(f) Competing Applications. If HHS receives more than one final
application simultaneously, HHS will evaluate all applications and make
a determination based on each application's merit. HHS will rank
approved applications based on the elements listed in paragraph (a) of
this section, and notify the landholding agency, or GSA, as
appropriate, of the approved applicant.
0
13. Revise Sec. 581.12 to read as follows:
Sec. 581.12 Action on approved applications.
(a) Unutilized and underutilized properties.
(1) When HHS approves an application, it will so notify the
applicant and forward a copy of the application to the landholding
agency. The landholding agency will execute the lease, or permit
document, as appropriate, in consultation with the applicant.
(2) The landholding agency maintains the discretion to decide the
following:
(i) The length of time the property will be available. (Leases and
permits will be for a period of at least one year unless the applicant
requests a shorter term.)
(ii) The terms and conditions of the lease or permit document
(except that a landholding agency may not charge any fees or impose any
costs).
(b) Excess and surplus properties.
(1) When HHS approves an application, it will so notify the
applicant and request that GSA assign the property to HHS for transfer.
Requests to GSA for the assignment of surplus property to HHS for
homeless assistance purposes will be based on the following conditions:
(i) HHS has a fully approved application for the property;
(ii) The applicant is able, willing, and authorized to assume
immediate care, custody, and maintenance of the property;
(iii) The applicant is able, willing and authorized to pay the
administrative expenses incident to the transfer; and
(iv) The applicant has secured the necessary funds, or had
demonstrated the ability to obtain such funds, to carry out the
approved program of use of the property.
(2) Upon receipt of an acceptable assignment, HHS will execute the
transfer document in accordance with the procedures and requirements
set out in this part and any other terms and conditions HHS and GSA
determine are appropriate or necessary. Custody and accountability of
the property will remain throughout the lease term with the landholding
agency (i.e., the agency which initially reported the property as
excess) and throughout the deed term with the transferee.
(3) Prior to assignment to HHS, GSA may consider other Federal uses
and other important national needs in deciding the disposition of
surplus property. Priority of consideration will normally be given to
uses to assist the homeless. However, both GSA and HHS may consider any
competing request for the property made under 40 U.S.C. 550 that is so
meritorious and compelling
[[Page 16849]]
that it outweighs the needs of the homeless.
(4) Whenever GSA or HHS decides in favor of a competing request
over a request for property for homeless assistance, the agency making
the decision will transmit to the appropriate committees of Congress an
explanatory statement which details the need satisfied by conveyance of
the surplus property, and the reasons for determining that such need
was so meritorious and compelling as to outweigh the needs of the
homeless.
0
14. Add Sec. 581.14 to read as follows:
Sec. 581.14 Surplus Property Transfer Documents.
(a) Surplus property may be conveyed to eligible organizations
pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease
or deed, at the applicant's discretion.
(b) Transfers of surplus property for homeless assistance purposes
are in exchange for the transferee's agreement to fully utilize the
property for homeless assistance purposes in accordance with the terms
specified in the transfer document.
(c) A transfer of surplus property for homeless purposes is subject
to the disapproval of GSA within 30 days after notice is given to GSA
of the proposed transfer.
(d) Surplus property transferred pursuant to this part will be
disposed on an ``as is, where is,'' basis without warranty of any kind
except as may be stated in the transfer document.
(e) Unless excepted by GSA in its assignment, the disposal of
property includes mineral rights associated with the surface estate.
(f) Transfers of surplus property under this part will be made with
the following general terms and conditions:
(1) For the period provided in the transfer document, the
transferee shall utilize all the surplus property it receives solely
and continuously for an approved program and plan of use, in accordance
with 42 U.S.C. 11411 and these regulations, except that:
(i) The transferee has 12 months from the date of transfer to place
the surplus property into use, if HHS did not approve in writing,
construction of new facilities or major renovation of the property when
it approved the final application;
(ii) The transferee has 36 months from the date of transfer to
place the surplus property into use, if the transferee proposes
construction of new facilities or major renovation of the property and
HHS approves it in writing at the time it approves the final
application;
(iii) If the applicable time limitation is not met, the transferee
shall either commence payments in cash to the Federal government for
each month thereafter during which the proposed use has not been
implemented or take such other action as set forth at Sec. 581.18 as
is deemed appropriate by HHS. Such monthly payments shall be computed
on the basis of the current fair market value of the property, as
conveyed, at the time of the first payment and dividing it by 360
months. At HHS's discretion, the payment may be waived if the
transferee makes a sufficient showing of continued progress to place
the property into use or if an unforeseeable event occurs which
prevents the property from being put into use within the applicable
timeframe; and
(iv) HHS may permit use of surplus property at any time during the
period of restriction by an entity other than the transferee in
accordance with Sec. 581.19.
(2) The transferee will not be permitted to encumber, sell, lease
or sublease, rent, mortgage, or otherwise dispose of the property, or
any part thereof, without the prior written authorization of HHS. In
the event the property is sold, leased or subleased, encumbered,
disposed of, or is used for purposes other than those set forth in an
approved plan without the consent of HHS, all revenues or the
reasonable value of other benefits received by the transferee directly
or indirectly from such use, as determined by HHS, will be considered
to have been received and held in trust by the transferee for the
account of the United States and will be subject to the direction and
control of HHS. The provisions of this paragraph shall not impair or
affect the rights reserved to the United States in paragraph (f)(8) of
this section, or the right of HHS to impose conditions to its consent.
(3) The transferee will file with HHS such reports on its
maintenance and use of the transferred property and any other reports
or information deemed necessary by HHS.
(4) The transferee shall pay all administrative costs incidental to
the transfer, including but not limited to--transfer taxes; surveys;
appraisals; title searches; the transferee's legal fees; and
recordation expenses. Transferee is solely responsible for such costs
and may not seek reimbursement from the Federal government for any
reason.
(5) The transferee shall protect, preserve, maintain, and repair
the property to ensure that the property remains in as good a condition
as when received.
(6) The transferee shall protect the residual financial interest of
the United States in the surplus property by insurance or such other
means as HHS directs. Where loss or damage to the transferred property
occurs, all proceeds from insurance shall be promptly used by the
transferee for the purpose of repairing and restoring the property to
its former condition or replacing it with equivalent or more suitable
facilities. If not so used, there shall be paid to the United States
that part of the insurance proceeds that is attributable to the
Government's residual interest in the property lost, damaged, or
destroyed. Further, transferee shall neither take any action nor allow
any action which diminishes the residual financial interest of the
United States.
(7) The transferee shall abide by all applicable Federal Civil
Rights laws including those specified in the covenants and conditions
contained in the transfer document, prohibiting the transferee from
discriminating on the basis of, including but not limited to, race,
color, national origin, religion, sex, familial status or disability in
the use of the property.
(8) In the event of substantial noncompliance with any conditions
of the deed as determined by HHS, whether caused by the legal or other
inability of the transferee, its successors and assigns, to perform any
of the obligations of the transfer document, the Federal government has
an immediate right of reentry thereon, and to cause all right, title,
and interest in and to the property to revert to the United States, and
the transferee shall forfeit all right, title, and interest in and to
the property. In such event, transferee shall execute a quitclaim deed
and take all other actions necessary to return the property to the
United States within ninety (90) days of a written request from the
Federal government, extended only at the discretion of the Federal
government. Transferee shall cooperate with the United States in the
event of a reversion and agrees that the United States need not seek
judicial intervention before exercising its right to revert, reenter
and reconvey the property.
(9) In the event title is reverted to the United States for
noncompliance or voluntarily reconveyed to the United States, the
transferee shall, at the option of HHS, be required to: reimburse the
United States for the decrease in value of the property not due to
market conditions, reasonable wear and tear, acts of God, or approved
alterations completed by the transferee to adapt the property to the
homeless use for which the property was transferred; and reimburse the
United States for any costs incurred in reverting title to or
[[Page 16850]]
possession of the property, including reasonable attorneys' fees.
(10) With respect to leased property, in the event of substantial
noncompliance with any of the conditions of the lease, as determined by
HHS or the landholding agency, the right of occupancy and possession
shall, at the option of HHS or the landholding agency, be terminated.
In the event a leasehold is terminated by the United States for
substantial noncompliance or is voluntarily surrendered, the lessee
shall be required, at the option of HHS, to reimburse the United States
for the decrease in value of the property not due to market conditions,
reasonable wear and tear, acts of God, or approved alterations
completed by the lessee to adapt the property to the homeless use for
which the property was leased. With respect to any termination of
leasehold resulting from noncompliance, the United States, shall, in
addition thereto, be reimbursed for such costs as may be incurred in
recovering possession of the property, including reasonable attorneys'
fees.
(11) Any other term or condition that HHS and GSA determine
appropriate or necessary.
(12) With respect to surplus property transferred by deed, the
terms and conditions including those in paragraph (f) of this section,
apply for a period of thirty (30) years of use in accordance with a
program of use approved in writing by HHS. The thirty-year (30) period
may, in HHS's sole discretion, be extended or restarted in the event
the property is not fully utilized or is retransferred to a successor
entity. Expiration of the foregoing terms and conditions does not
release the transferee from continuing compliance, as appropriate, with
any conditions that may run with the land, e.g., environmental
conditions and/or historic preservation covenants. Such conditions will
continue to be the responsibility of the transferee and successors.
(13) With respect to surplus property transferred by lease, the
terms and conditions including those in paragraph (f) of this section,
extend for the entire initial lease and for any subsequent renewal
periods, unless specifically excluded in writing by HHS.
(g) Related personal property may be transferred or leased as a
part of the realty and in accordance with real property procedures.
(h) Completion of Transfer Term and Reversion of Title. Transferees
will be responsible for the protection and maintenance of the property
during the time that they possess the property. Upon termination of the
lease term or reversion of title to the United States, the transferee
will be responsible for removing improvements made to the property if
directed to by the United States and, in such event, will be
responsible for restoration of the property or the costs associated
with restoring the property. If improvements made by the transferee are
not voluntarily removed by the transferee and the United States
consents, they will become the property of the United States. If the
United States does not consent, the transferee shall reimburse the
United States for reasonable costs of removal. GSA or the landholding
agency, as appropriate, will assume responsibility for protection and
maintenance of a property when the lease terminates or title reverts.
(i) Transferees, by obtaining the consent of HHS, may abrogate the
restrictions set forth in paragraph (f) of this section for all or any
portion of the property in accordance with the provisions of Sec.
581.20.
0
15. Add Sec. 581.15 to read as follows:
Sec. 581.15 Unsuitable properties.
The landholding agency or GSA will defer action to dispose of
properties determined unsuitable for homeless assistance for 20 days
after the date that notice of a property is posted on the HUD website.
HUD will inform landholding agencies or GSA if appeal of an
unsuitability determination is filed by a representative of the
homeless pursuant to Sec. 581.4(f). HUD will advise the agency to
refrain from initiating disposal procedures until HUD has completed its
reconsideration process regarding unsuitability. Thereafter, or if no
appeal has been filed after 20 days, GSA or the appropriate landholding
agency may proceed with disposal action in accordance with applicable
law.
0
16. Add Sec. 581.16 to read as follows:
Sec. 581.16 Compliance with the National Environmental Policy Act of
1969 and other related Acts (environmental impact).
(a) HHS, prior to making a final decision to convey or lease, or to
amend, reform, or grant an approval or release with respect to a
previous conveyance or lease of, surplus property for homeless
purposes, will act in accordance with applicable provisions of the
National Environmental Policy Act of 1969, the National Historic
Preservation Act of 1966, the National Archeological Data Preservation
Act, and other related acts. No lease to use surplus property shall
allow the lessee to make, or cause to be made, any irreversible change
in the conditions of said property, and no lease shall be employed for
the purpose of delaying or avoiding compliance with the requirements of
these Acts, unless approved by the United States.
(b) Applicants shall be required to provide such information as HHS
deems necessary to make an assessment of the impact of the proposed
Federal action on the human environment. Materials contained in the
applicant's official request, responses to a standard questionnaire
prescribed by HHS, as well as other relevant information, will be used
by HHS in making said assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action involved properties of
historical significance which are listed, or eligible for listing, in
the National Register of Historic Places; or
(2) that a more than insignificant impact on the human environment
is reasonably foreseeable as a result of the proposed action; or
(3) that the proposed Federal action could result in irreparable
loss or destruction of archeologically significant items or data, HHS
will, except as provided for in paragraph (d) of this section, prepare
and distribute, or cause to be prepared or distributed, such notices
and statements and obtain such approvals as are required by the above
cited Acts.
(d) If a proposed action involves other Federal agencies in a
sequence of actions, or a group of actions, directly related to each
other because of their functional interdependence, HHS may enter into
and support a lead agency agreement to designate a single lead agency
which will assume primary responsibility for coordinating the
assessment of environmental effects of proposed Federal actions,
preparing and distributing such notices and statements, or obtaining
such approvals, as are required by the above cited Acts. The procedures
of the designated lead agency will be utilized in conducting the
environmental assessment. In the event of disagreement between HHS and
another Federal agency, HHS will reserve the right to abrogate the lead
agency agreement with the other Federal agency.
0
17. Add Sec. 581.17 to read as follows:
Sec. 581.17 No applications approved.
(a) At the end of the 30-day holding period described in Sec.
581.10(a), HHS will notify GSA, or the landholding agency, as
appropriate, if an expression of interest has been received for a
certain property. Where there is no expression of interest, GSA or the
landholding agency, as appropriate, will
[[Page 16851]]
proceed with disposal in accordance with applicable law.
(b) Upon notice from HHS that all applications have been
disapproved, or if no initial applications have been received within 75
days after an expression of interest, or no final application has been
received within 45 days after an approved initial application, disposal
may proceed in accordance with applicable law.
0
18. Add Sec. 581.18 to read as follows:
Sec. 581.18 Utilization and Enforcement.
(a) Sanctions. For instances of substantial noncompliance relating
to surplus property transfers, HHS may impose, in its sole discretion,
any or all of the following sanctions, as applicable:
(1) Where property or any portion thereof was not used or is not
being used for the purposes for which transferred, or is sold, leased
or subleased, encumbered, disposed of, or used for purposes other than
those in the approved program and plan of use, without the prior
written consent of HHS, HHS may require the transferee to--
(i) Place the property into immediate use for an approved purpose
and extend the period of restriction in the transfer document for an
additional term as determined by HHS;
(ii) Hold in trust all revenues and the reasonable value of other
benefits received by the transferee directly or indirectly from that
use for the United States subject to the direction and control of HHS;
(iii) Return title to such property to the United States or to
relinquish any leasehold interest therein;
(iv) Abrogate the conditions and restrictions of the transfer, as
set forth in Sec. 581.20;
(v) Make cash payments to the United States, as directed by HHS,
equivalent to the current fair market rental value of the surplus
property, as transferred, for each month during which the program and
plan of use has not been implemented and continues to not be
implemented; or
(vi) Any other remedy that HHS determines appropriate or necessary.
(2) Where the transferee desires to place the property into
temporary use to assist the homeless other than that for which the
property was transferred, written approval from HHS must be obtained,
and will be conditioned upon HHS's authority to permit the use and such
terms as HHS may impose.
(3) If HHS or the landholding agency determines that a lessee or
sublessee of a transferee is in substantial noncompliance with a term
or condition of the lease, or if the lessee voluntarily surrenders the
premises, HHS may require termination of the lease and impose sanctions
described in paragraph (a)(1) of this section, as appropriate.
(b) Reversion. When HHS recommends reversion of the property for
noncompliance, HHS will seek GSA's concurrence. GSA will respond to
HHS's concurrence request within 30 days of its receipt. If GSA
concurs, HHS will work with GSA to complete the reversion of the
property. If GSA does not concur to the reversion recommendation, GSA
will issue, to HHS, a written determination: stating the reason(s) for
the disapproval; and acknowledging that HHS has recommended reversion
and, therefore, the property is no longer within HHS's Title V program.
The Federal government will implement a response to the noncompliance
that is in its best interests.
0
19. Add Sec. 581.19 to read as follows:
Sec. 581.19 Other Uses.
(a) A transferee may permit the use of all or a portion of the
surplus property by another eligible entity as described in Sec. 581.1
for homeless assistance purposes, only upon those terms and conditions
HHS determines appropriate, if:
(1) The transferee submits a written request to HHS explaining the
purpose of and need for another eligible entity's use of the property,
program plan, and other relevant information requested by HHS;
(2) HHS determines that the proposed use would not substantially
limit the program and plan of use by the transferee and that the use
will not unduly burden the Federal government;
(3) HHS's written consent is obtained by the transferee in advance;
(4) HHS approves the use instrument in advance and in writing; and
(5) HHS advises GSA and there is no disapproval by GSA within
thirty (30) days.
(b) [Reserved].
0
20. Add Sec. 581.20 to read as follows:
Sec. 581.20 Abrogation.
(a) HHS may abrogate the conditions and restrictions in the
transfer document if:
(1) The transferee submits to HHS a written request that HHS
abrogate the conditions and restrictions in the transfer document as to
all or any portion of the surplus property;
(2) HHS determines the terms and conditions of the proposed
abrogation and determines that the proposed abrogation is in the best
interest of the United States; and
(3) HHS transmits the abrogation request to GSA and there is no
disapproval by GSA within 30 days after notice is given. If GSA
disapproves, GSA will state, in writing, to HHS the reason(s) for the
disapproval.
(b) HHS abrogates the conditions and restrictions in the transfer
document only upon receipt of the appropriate consideration, including
cash payment, to the United States, as directed by HHS, which is based
on the formula contained in the transfer document, and any other terms
and conditions HHS deems appropriate to protect the interest of the
United States.
0
21. Add Sec. 581.21 to read as follows:
Sec. 581.21 Compliance Inspections and Reports.
Transferees are required to allow HHS to conduct compliance
inspections and to submit such compliance reports and actions as are
deemed necessary by HHS. At a minimum, the transferee will be required
to submit an annual utilization report regarding the operation and
maintenance of the property, including current images of the entire
property and such information as HHS shall require.
0
22. Add Sec. 581.22 to read as follows:
Sec. 581.22 No Right of Administrative Review for Agency Decisions.
There is no right to administrative review within HHS, including
requests for reconsideration or appeal, of agency decisions on
applications and other discretionary decisions.
General Services Administration
Accordingly, for the reasons stated above, GSA proposes to amend 41
CFR part 102-75 subpart H as follows:
PART 102-75--REAL PROPERTY DISPOSAL
0
23. The authority citation for 41 CFR part 102-75 subpart H continues
to read as follows:
Authority: 40 U.S.C. 121(c), 521-523, 541-559; E.O. 12512, 50
FR 18453, 3 CFR, 1985 Comp., p. 340.
0
24. Revise part 102-75 subpart H to read as follows:
Subpart H--Use of Federal Real Property to Assist the Homeless
Sec.
Definitions
102-75.1160 What definitions apply to this subpart?
Applicability
102-75.1161 What is the applicability of this subpart?
Collecting the Information
102-75.1162 How will information be collected?
[[Page 16852]]
Suitability Determination
102-75.1163 Who issues the suitability determination?
Real Property Reported Excess to GSA
102-75.1164 For the purposes of this subpart, what is the policy
concerning real property reported excess to GSA?
Suitability Criteria
102-75.1165 What are suitability criteria?
Determination of Availability
102-75.1166 What is the policy concerning determination of
availability statements for suitable properties?
Public Notice of Determination
102-75.1167 What is the policy concerning making public the notice
of determination?
General Policies of HHS
102-75.1168 What are the general policies of HHS regarding the
transfer of properties to assist the homeless?
Expression of Interest Process
102-75.1169 How may eligible organizations express interest in
properties to assist the homeless?
Application Process and Requirements
102-75.1170 How may eligible organizations apply for the use of
properties to assist the homeless?
Action on Approved Applications
102-75.1171 What action must be taken on approved applications?
Surplus Federal Real Property Transfer Documents
102-75.1172 What documents are used for the transfer of surplus
Federal real property for use to assist the homeless?
Unsuitable Properties
102-75.1173 What action must be taken on properties determined
unsuitable for homeless assistance?
Compliance With the National Environmental Policy Act of 1969 and
Other Related Acts (Environmental Impact)
102-75.1174 What are the requirements for compliance with the
National Environmental Policy Act of 1969 and other related Acts
(environmental impact) for the transfer of Federal real property for
use to assist the homeless?
No Applications Approved
102-75.1175 What action must be taken if there is no expression of
interest or approved application?
Utilization and Enforcement
102-75.1176 What are the utilization and enforcement requirements
for property transferred for use to assist the homeless?
Other Uses
102-75.1177 What are the requirements for other uses of a
transferred property?
Abrogation
102-75.1178 What are the conditions of abrogation for property
transferred to assist the homeless?
Compliance Inspections and Reports
102-75.1179 What Compliance Inspections and Reports are Required?
No Right of Administrative Review for Agency Decisions
102-75.1180 Is there a right of administrative review for agency
decisions within HHS?
Waivers
102-75.1181 May any requirement of this subpart be waived?
102-75.1182 through 102-75.1219 [Reserved]
Definitions
Sec. 102-75.1160 What definitions apply to this subpart?
The following definitions are also pursuant to 24 CFR part 581.1
and 45 CFR part 12a.1.
Applicant means any eligible organization which has submitted an
application to the Department of Health and Human Services to obtain
use of a certain suitable property to assist the homeless.
Checklist or property checklist means the form developed by HUD for
use by landholding agencies to report the information to be used by HUD
in making determinations of suitability.
Classification means a property's designation as unutilized,
underutilized, excess, or surplus.
Day means one calendar day, including weekends and holidays.
Eligible organization means a State or local government agency, or
a private, non-profit organization that provides assistance to the
homeless, and that is authorized by its charter or by State law to
enter into an agreement with the Federal government for use of property
for the purposes of this subpart. Eligible organizations that are
private, non-profit organizations interested in applying for suitable
property must be tax exempt under section 501(c)(3) of the Internal
Revenue Code at the time of application and remain tax exempt
throughout the time the Federal government retains a reversionary
interest in the property.
Excess property means any property under the control of a Federal
Executive agency that the head of the agency determines is not required
to meet the agency's needs or responsibilities, pursuant to 40 U.S.C.
524.
GSA means the General Services Administration.
HHS means the Department of Health and Human Services.
Homeless is defined in 42 U.S.C. 11302. This term is synonymous
with ``Homeless Individual'' and ``Homeless Person.''
HUD means the Department of Housing and Urban Development.
HUD website means a website maintained by HUD providing information
about HUD, including any successor websites or technologies that are
equally accessible and available to the public.
Landholding agency means the Federal department or agency with
statutory authority to control property. For purposes of this subpart,
the landholding agency is typically the Federal department or agency
that had custody and accountability on behalf of the Federal
government, of a certain piece of property at the time that such
property was reported to HUD for a suitability determination pursuant
to 42 U.S.C. 11411.
Lease means an agreement in writing between either HHS for surplus
property or landholding agencies for underutilized and unutilized
properties and the applicant giving rise to the relationship of lessor
and lessee for the use of Federal property for a term of at least one
year under the conditions set forth in the lease document.
Non-profit organization means an organization recognized as a non-
profit by the State in which the organization operates, no part of the
net earnings of which inures to the benefit of any member, founder,
contributor, or individual; that has a voluntary board; that has an
accounting system or has designated an entity that will maintain a
functioning accounting system for the organization in accordance with
generally accepted accounting procedures; and that practices
nondiscrimination in the provision of assistance.
Permit means a license granted by a landholding agency to use
unutilized or underutilized property for a specific amount of time,
usually one year or less, under terms and conditions determined by the
landholding agency. A permit does not grant to the recipient an estate
in land or any interest in the property.
Property means real property consisting of vacant land or
buildings, or a portion thereof, that is excess, surplus, or designated
as unutilized or underutilized in surveys by the heads of landholding
agencies conducted pursuant to 40 U.S.C. 524.
Related personal property means any personal property that is
located on real property and is either an integral part of or useful in
the operation of that property or is determined by GSA to be otherwise
related to the property.
Representative of the homeless means a State or local government
agency, or private nonprofit organization that provides, or proposes to
provide, services to the homeless.
Screen means the process by which GSA surveys Federal Executive
agencies to determine if they have an interest in using excess Federal
property to carry out a particular agency mission, and then surveys
State, local and non-profit entities, to determine if any such entity
has an interest in using surplus Federal property to carry out a
specific public use.
[[Page 16853]]
State means a State of the United States, and includes the District
of Columbia, the Commonwealth of Puerto Rico, and the Territories and
possessions of the United States.
Substantial noncompliance means failure to take corrective action
as directed by HHS.
Suitable property means that HUD has determined that a certain
property satisfies the criteria listed in Sec. 102-75.1165.
Surplus property means any excess property not required by any
Federal landholding agency for its needs or the discharge of its
responsibilities, as determined by GSA.
Transfer document means a lease, deed, or permit transferring
surplus, unutilized or underutilized property.
Transferee means an eligible entity that acquires Federal property
by lease, deed, or permit.
Underutilized means an entire property or portion thereof, with or
without improvements which is used only at irregular periods or
intermittently by the accountable landholding agency for current
program purposes of that agency, or which is used for current program
purposes that can be satisfied with only a portion of the property.
Unsuitable property means that HUD has determined that a particular
property does not satisfy the criteria in Sec. 102-75.1165.
Unutilized property means an entire property or portion thereof,
with or without improvements, not occupied for current program purposes
for the accountable executive agency or occupied in caretaker status
only.
Applicability
Sec. 102-75.1161 What is the applicability of this subpart?
(a) This subpart applies to Federal property that has been
designated by Federal landholding agencies as unutilized,
underutilized, excess or surplus and is therefore subject to the
provisions of Title V of the McKinney Act, as amended (42 U.S.C.
11411).
(b) The following categories of properties are not subject to this
subpart (regardless of whether they may be unutilized or
underutilized):
(1) Buildings and property at military installations that were
approved for closure under the Defense Base Closure and Realignment Act
of 1990 (part A of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note)
after October 25, 1994.
(2) Machinery and equipment not determined to be related personal
property by the landholding agency or GSA or determined to be related
personal property that the landholding agency or GSA chooses to dispose
of separate from real property.
(3) Government-owned, contractor-operated machinery, equipment,
land, and other facilities reported excess for sale only to the using
contractor and subject to a continuing military requirement.
(4) Properties subject to special legislation directing a
particular action.
(5) Properties subject to a court order that, for any reason,
precludes transfer for use to assist the homeless under the authority
of 42 U.S.C. 11411.
(6) Property not subject to Federal Real Property Council reporting
requirements in accordance with 40 U.S.C. 623(i).
(7) Mineral rights interests independent of surface rights.
(8) Air space interests independent of surface rights.
(9) Indian Reservation land subject to 40 U.S.C. 523.
(10) Property interests subject to reversion.
(11) Easements.
(12) Any building or fixture that is excess, or surplus, that is on
land owned by a landholding agency, where the underlying land is not
excess or surplus.
(13) Property purchased in whole or in part with Federal funds if
title to the property is not held by a Federal landholding agency as
defined in this subpart.
Collecting the Information
Sec. 102-75.1162 How will information be collected?
(a) Canvass of landholding agencies. On a quarterly basis, HUD will
canvass each landholding agency to collect information about property
described as unutilized, underutilized, excess or surplus in accordance
with 40 U.S.C. 524; however, HUD will accept property information
between canvasses. Each canvass will collect information on properties
not previously reported, and about property reported previously where
the status or classification of the property has changed, or
improvements have been made to the property. HUD will request
descriptive information on properties sufficient to make a reasonable
determination, under the criteria described below, of the suitability
of a property for use to assist the homeless. Landholding agencies must
report property information to HUD using the property checklist
developed by HUD for that purpose. Property checklists submitted in
response to a canvass must be submitted to HUD within 25 days of
receipt of the canvass.
(b) Agency annual suitable property report. By December 31 of each
year, each landholding agency must notify HUD of the current
availability status and classification of each property controlled by
the agency that:
(1) was included in a list of suitable properties published that
year by HUD, and
(2) remains available for application for use to assist the
homeless or has become available for application during that year.
(c) GSA inventory. HUD will collect information, in the same manner
as described in paragraph (a) of this section, from GSA regarding
property that is in GSA's current inventory of excess or surplus
property.
(d) Change in status. If the information provided on the property
checklist changes subsequent to HUD's determination of suitability,
including any improvements or other alterations to the physical
condition of the land or the buildings on the property, and the
property remains unutilized, underutilized, excess or surplus, the
landholding agency must submit a revised property checklist in response
to the next quarterly canvass. HUD will review for suitability and, if
it differs from the previous determination, repost the property
information on the HUD website. For example, property determined
unsuitable due to extensive deterioration may have had improvements, or
property determined suitable may subsequently be found to be
extensively deteriorated.
Suitability Determination
Sec. 102-75.1163 Who issues the suitability determination?
(a) Suitability determination. Within 30 days after the receipt of
a completed property checklist from landholding agencies either in
response to a quarterly canvass, or between canvasses, HUD will
determine, using the criteria set forth in Sec. 581.6 whether a
property is suitable for use to assist the homeless and report its
determination to the landholding agency. Properties that are under
lease, contract, license, or agreement by which a Federal agency
retains a real property interest or which are scheduled to become
unutilized or underutilized will be reviewed for suitability no earlier
than six months prior to the expected date when the property will
become unutilized or underutilized.
(b) Scope of suitability. HUD will determine the suitability of a
property for use to assist the homeless without regard to any
particular use.
(c) Environmental information. HUD will evaluate the environmental
[[Page 16854]]
information contained in property checklists forwarded to HUD by the
landholding agencies solely for the purpose of determining suitability
of properties under the criteria in Sec. 102-75.1166
(d) Record of suitability determination. HUD will assign an
identification number to each property reviewed for suitability. HUD
will maintain a public record of the following:
(1) The suitability determination for a particular piece of
property, and the reasons for that determination; and
(2) The landholding agency's response to the determination pursuant
to the requirements of Sec. 102-75.1166(a).
(e) Property determined unsuitable. Property that is reviewed by
HUD under this section and that is determined unsuitable for use to
assist the homeless may not be made available for any other purpose for
20 days after publication of a notice of unsuitability on the HUD
website.
(f) Procedures for appealing unsuitability determinations.
(1) To request review of a determination of unsuitability, a
representative of the homeless must contact HUD, in writing, through
the U.S. Mail, email, or the HUD website, or such other method as HUD
may require, within 20 days of publication of notice of unsuitability.
(2) Requests for review of a determination of unsuitability may be
made only by representatives of the homeless.
(3) The request for review must specify the grounds on which it is
based, i.e., HUD has improperly applied the criteria or HUD has relied
on incorrect or incomplete information in making the determination
(e.g., that property is in a floodplain but not in a floodway).
(4) Upon receipt of a request to review a determination of
unsuitability, HUD will notify the landholding agency or GSA that such
a request has been made. The landholding agency or GSA shall have 20
days from receipt of the notice from HUD, or an extended period agreed
to between HUD and the landholding agency or GSA, to provide any
information pertinent to the review. The landholding agency or GSA must
refrain from initiating disposal procedures until HUD has completed its
reconsideration regarding unsuitability. If the landholding agency or
GSA fails to meet the deadline, HUD will move forward with the appeal
review with the property information it already has and information
submitted in the appeal request provided by the representative of the
homeless.
(i) HUD will act on all requests for review within 30 days of
receipt of the landholding agency's or GSA's response, or, if the
landholding agency or GSA failed to meet the deadline, within 30 days
of such deadline, and will notify the representative of the homeless
and the landholding agency or GSA in writing of its decision.
(ii) If a property is determined suitable as a result of the
review, HUD will request the landholding agency's or GSA's
determination of availability pursuant to Sec. 102-75.1166, upon
receipt of which HUD will promptly publish the determination on the HUD
website.
Real Property Reported Excess to GSA
Sec. 102-75.1164 For the purposes of this subpart, what is the policy
concerning real property reported excess to GSA?
(a) Each landholding agency must submit a report to GSA of
properties it determines excess. Each landholding agency must also
provide a copy of HUD's suitability determination, if any, including
HUD's identification number for the property.
(b) If a landholding agency reports an excess property to GSA that
HUD has already determined to be suitable for use to assist the
homeless, GSA will screen the property pursuant to paragraph (h) of
this section and will advise HUD of the availability of the property
for use by the homeless as provided in paragraph (e) of this section.
In lieu of the above, GSA may submit a new checklist to HUD and follow
the procedures in paragraphs (c) through (h) of this section.
(c) If a landholding agency reports an excess property to GSA that
has not been reviewed by HUD for homeless assistance suitability, GSA
will complete a property checklist, based on information provided by
the landholding agency, and will forward this checklist to HUD for a
suitability determination. This checklist will reflect any change in
classification, such as from unutilized or underutilized to excess or
surplus.
(d) Within 30 days after GSA's submission, HUD will advise GSA of
the suitability determination.
(e) When GSA receives notification from HUD listing suitable excess
properties, GSA will transmit a response to HUD within 45 days. GSA's
response will include the following for each identified property:
(1) A statement that there is no other compelling Federal need for
the property and, therefore, the property will be determined surplus;
or
(2) A statement that there is further and compelling Federal need
for the property (including a full explanation of such need) and that,
therefore, the property is not presently available for use to assist
the homeless.
(f) When GSA submits a checklist to HUD in accordance with
paragraphs (b) and (c) of this section, the information regarding the
availability of the property, as specified in paragraph (e)(1) and (2)
of this section, may be included with the checklist if it is known at
the time of submittal.
(g) When a surplus property is determined as suitable, confirmed as
available by GSA, and notice is published on the HUD website, GSA will
concurrently notify HHS, State and local government units, and known
homeless assistance providers that have expressed interest in the
particular property, and other organizations, as appropriate,
concerning suitable properties.
(h) Upon submission of a Report of Excess to GSA, GSA may screen
the property for Federal use. In addition, GSA may screen State and
local governmental units and eligible non-profit organizations to
determine interest in the property in accordance with current
regulations. (See 41 CFR 102-75.1220, 102-75.255 and 102-75.350).
(i) The landholding agency will retain custody and accountability
and will protect and maintain any property that is reported excess to
GSA as provided in 41 CFR 102-75.965.
Suitability Criteria
Sec. 102-75.1165 What are suitability criteria?
(a) In general, properties will be determined suitable unless a
property's characteristics include one or more of the following
conditions:
(1) Flammable or explosive hazards. Property located less than an
acceptable separation distance (under the standards in 24 CFR part 51,
subpart C and the HUD Guidebook, ``Siting of HUD-Assisted Projects Near
Hazardous Facilities'' or successor guidebook) from any stationary
aboveground container or facility which stores, handles, or processes
hazardous substances of an explosive or fire prone nature (excluding
containers and facilities that are not hazards as defined in 24 CFR
51.201), unless HUD can determine during the review period based on
information provided by the landholding agency that appropriate
mitigating measures, as defined in 24 CFR 51.205, are already in place.
(2) Coastal Barriers. Property located in a System Unit, as defined
at 16 U.S.C. 3502(7), under the Coastal Barrier Resources Act, as
amended (16 U.S.C. 3501 et seq.).
[[Page 16855]]
(3) Site Safety Conditions. Property with a documented and
extensive condition(s) that represents a clear threat to personal
physical safety or health. Such conditions may include, but are not
limited to, significant contamination from hazardous substances, as
defined by 42 U.S.C. 9601, periodic flooding, sinkholes, or landslides.
(b) In the cases below, properties will be determined unsuitable,
unless the landholding agencies provide information to enable HUD to
determine the property is suitable:
(1) Inaccessible. Property that is inaccessible, meaning that the
property is not accessible by road (including property on small
offshore islands) or is landlocked (e.g., can be reached only by
crossing private property and there is no established right or means of
entry).
(2) National Security. Property located in an area to which the
general public is denied access in the interest of national security
(e.g., where a special pass or security clearance is a condition of
entry to the property), unless there is an alternative method to gain
access without compromising national security.
(3) Runway clear zones. Property located within a runway clear zone
or a military airfield clear zone.
(4) Floodway. Property located in a floodway, unless only an
incidental portion of the property is in the floodway and that
incidental portion does not affect the use of the remainder of the
property to assist the homeless.
Determination of Availability
Sec. 102-75. 1166 What is the policy concerning determination of
availability statements for suitable properties?
(a) Within 45 days after receipt of notification from HUD pursuant
to Sec. 102-75.1162(a) that a property has been determined to be
suitable, each landholding agency or GSA must transmit to HUD a
statement of one of the following:
(1) In the case of unutilized or underutilized property--
(i) An intention to declare the property excess;
(ii) An intention to make the property available for use to assist
the homeless; or
(iii) The reasons why the property cannot be declared excess or
made available for use to assist the homeless. The reasons given must
be different from those listed as suitability criteria in Sec. 102-
75.1165.
(2) In the case of excess property which has been reported to GSA--
(i) A statement that there is no compelling Federal need for the
property, and, therefore, the property will be determined surplus; or
(ii) A statement that there is a further and compelling Federal
need for the property (including a full explanation of such need) and
therefore, the property is not presently available for use to assist
the homeless.
(b) [Reserved]
Public Notice of Determination
Sec. 102-75.1167 What is the policy concerning making public the
notice of determination?
(a) No later than 15 days after the most recent 45-day period has
elapsed for receiving responses from the landholding agencies or GSA
regarding availability, HUD will post on the HUD website a list of all
properties reviewed, including a description of the property, its
address, and classification. The following designations will be made:
(1) Properties that are suitable and available.
(2) Properties that are suitable and unavailable.
(3) Properties that are suitable and to be declared excess.
(4) Properties that are unsuitable.
(b) HUD will establish and maintain a toll-free number for the
public to obtain specific information about properties in paragraph (a)
of this section.
(c) No later than 15 days after the most recent 45-day period has
elapsed for receiving responses from the landholding agencies or GSA
regarding availability, HUD will transmit to the United States
Interagency Council on Homelessness (USICH) a copy of the list of all
properties in paragraph (a) of this section. The USICH will immediately
distribute to all state and regional homeless coordinators area-
relevant portions of the list. The USICH will encourage the state and
regional homeless coordinators to disseminate this information widely.
(d) No later than February 15 of each year, HUD will publish in the
Federal Register a list of all properties in the agency annual suitable
property reports, reported to HUD pursuant to Sec. 102-75.1162(b).
(e) HUD will publish an annual list of properties determined
suitable, but which agencies reported unavailable including the reasons
such properties are not available.
General Policies of HHS
Sec. 102-75.1168 What are the general policies of HHS regarding the
transfer of properties to assist the homeless?
(a) It is the policy of HHS to foster and assure maximum
utilization of surplus property for homeless assistance purposes.
(b) Transfers may be made only to eligible organizations.
(c) Eligible organizations must be authorized, in the State in
which the requested property is located, to carry out the activity for
which it requests the property.
(d) Property will be requested for assignment only when HUD has
made a final determination that the property is suitable for use to
assist the homeless, GSA has determined it is available, and HHS has
determined it is needed for homeless assistance purposes. The amount of
real and related personal property to be transferred shall not exceed
normal operating requirements of the applicant. Such property will not
be requested for assignment unless it is needed at the time of
application for homeless assistance purposes or will be so needed
within the immediate or foreseeable future.
(e) Transfers by deed will be made only after the applicant's
financial plan is approved and the applicant provides certification
that the proposed program is permissible under all applicable State and
local zoning restrictions, building codes, and similar limitations.
Expression of Interest Process
Sec. 102-75.1169 How may eligible organizations express interest in
properties to assist the homeless?
(a) Properties published by HUD as suitable and available pursuant
to Sec. 102-75.1167, for application for use to assist the homeless
shall not be available for any other purpose for a period of 30 days
beginning on the date of publication. Any eligible organization
interested in any underutilized, unutilized, excess, or surplus
property for use to assist the homeless must send to HHS a written
expression of interest in that property within 30 days after the
property has been published on the HUD website.
(b) Although a property may be determined suitable by HUD, HUD's
determination does not mean a property is necessarily useable for the
purpose(s) stated in the application, nor does it guarantee subsequent
conveyance or transfer of a property.
(c) If a written expression of interest to apply for suitable
property for use to assist the homeless is received by HHS within the
30-day holding period, such property may not be made available for any
other purpose until the date HHS or the appropriate landholding agency
has completed action on the application submitted pursuant to that
expression of interest.
[[Page 16856]]
(d) The expression of interest should identify the specific
property, briefly describe the proposed use, include the name of the
organization, and indicate whether it is a public body or a private,
non-profit organization. The expression of interest must be sent to HHS
by email, [email protected], or by mail at the following address:
Department of Health and Human Services, Program Manager, Federal Real
Property Assistance Program, Real Estate Logistics and Operations, 5600
Fishers Lane, Rockville, Maryland 20852.
(1) HHS will notify the landholding agency (for unutilized and
underutilized properties) or GSA (for excess and surplus properties)
when an expression of interest has been received for a certain
property.
(e) An expression of interest may be sent to and accepted by HHS
any time after the 30-day holding period has expired only if the
property remains available as determined by GSA or the landholding
agency for application to assist the homeless. In such a case, an
application submitted pursuant to this expression of interest may be
approved for use by the homeless if:
(1) There are no pending applications or written expressions of
interest made under any law for use of the property for any purpose;
and
(2) In the case of excess or surplus property, GSA has not received
a bona fide offer to purchase that property or advertised for the sale
of the property by public auction.
Application Process and Requirements
Sec. 102-75.1170 How may eligible organizations apply for the use of
properties to assist the homeless?
(a) Upon receipt of an expression of interest, HHS will send an
application packet to the interested entity. The application packet
requires the applicant to provide certain information, including the
following--
(1) Acquisition type. The applicant must state whether it is
requesting acquisition of the property by lease, deed, or permit. A
lease of one year, extendable at HHS's discretion, with the concurrence
of GSA or the landholding agency, may be granted when the applicant's
initial application is approved and the applicant's final application
outlining the applicant's financial plan is found to be otherwise
reasonable based on the criteria in paragraph (a)(7) of this section,
but either a change in zoning is required or the financial plan
proposes to utilize Low-Income Housing Tax Credits or other funding
sources that typically take longer to process than other forms of
financing.
(2) Description of the applicant organization. The applicant must
document that it satisfies the definition of an ``eligible
organization'' as specified in Sec. 102-75.1160. The applicant must
document its authority to hold property for the proposed program and
plan of use by providing a copy of its Articles of Organization,
Charter, Certification from State of Non-Profit Organization status, or
other appropriate document or citation. Private, non-profit
organizations applying for the acquisition of a certain property must
document that they are tax exempt under section 501(c)(3) of the
Internal Revenue Code.
(3) Description of the property desired. The applicant must
describe the listed property desired, including existing zoning.
Applicants must certify that any modification(s) made to and use of the
property will conform to all applicable building codes, and local use
restrictions, or similar limitations. In accordance with GSA policy,
determinations regarding parcelization are made prior to screening.
Therefore, expressions of interest and applications for portions of
listed properties will not be accepted.
(4) Description of the proposed program. The applicant must fully
describe the proposed program and plan of use, including implementation
plans.
(5) Demonstration of need. The applicant must demonstrate that the
property is needed for homeless assistance purposes at the time of
application and how the program will address the needs of the homeless
population to be assisted. The applicant must demonstrate that it has
an immediate need and ability to utilize all of the property for which
it is applying.
(6) Demonstrate that the property is suitable and adaptable for the
proposed program and plan of use. The applicant must fully explain why
the property is suitable and describe what, if any, modification(s)
will be made to the property before the program becomes operational.
(7) Ability to finance and operate the proposed program. If the
applicant's initial application is approved, the applicant must set
forth a reasonable plan to finance the approved program within 45 days
of the initial approval. To be considered reasonable, the plan must, at
a minimum:
(i) specifically describe all anticipated costs and sources of
funding for the proposed program, including any property modifications;
(ii) be accompanied by supporting documentation which demonstrates
that the proposed plan is likely to succeed;
(iii) demonstrate that the applicant is ready, willing, able, and
authorized to assume care, custody, and maintenance of the property;
(iv) demonstrate that it has secured the necessary dedicated funds,
or the ability to obtain such funds, to carry out the approved proposed
program and plan of use for the property, including administrative
expenses incident to the transfer by deed, lease, or permit;
(v) not diminish the value of the government's interest in the
property nor impair the government's ability to revert and immediately
dispose of the property free of any and all liens, encumbrances, or
anything else which renders the property unmarketable. Deed transfers
will only be made after an applicant demonstrates its financial plan
adequately protects the United States' interest in the property; and
(vi) neither subject the Federal government's interest in the
property to foreclosure nor impose obligations (e.g., extended use
agreements) on the Federal government.
(8) Compliance with non-discrimination requirements. Each applicant
under this part must certify in writing that it will comply with all
requirements of federal law and HHS policy, as amended, relating to
non-discrimination, including the following: the Fair Housing Act (42
U.S.C. 3601-3619) and implementing regulations; and, as applicable,
Executive Order 11063 (Equal Opportunity in Housing) and implementing
regulations; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
to d-4) (Non-discrimination in Federally Assisted Programs) and
implementing regulations; Section 1557 of the Affordable Care Act and
implementing regulations; the prohibitions against discrimination on
the basis of age under the Age Discrimination Act of 1975 (42 U.S.C.
6101-6107) and implementing regulations; and the prohibitions against
otherwise qualified individuals with disabilities under section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing
regulations. The applicant must maintain the required records to
demonstrate compliance with all applicable Federal laws and HHS
policies related to non-discrimination.
(9) Insurance and Indemnification. The applicant must certify that
it will insure the property against loss, damage, or destruction to
protect the residual financial interest of the United States. The
United States shall be named as an additional insured. Applicants must
provide proof of insurance annually or upon request. Failure to
maintain sufficient insurance may result in adverse action, including
[[Page 16857]]
reversion of the property, at the discretion of HHS. Applicants, and
all affiliated parties utilizing the property, as approved by HHS, must
indemnify the United States and hold the United States harmless for all
actions involving use of the property.
(10) Historic preservation. Where applicable, the applicant must
provide information that will enable HHS to comply with Federal
historic preservation requirements.
(11) Environmental information. The applicant must provide
sufficient information to allow HHS to analyze the potential impact of
the applicant's proposal on the environment, in accordance with the
instructions provided with the application packet. HHS will assist
applicants in obtaining any pertinent environmental information in the
possession of HUD, GSA, or the landholding agency. However, the burden
is on the applicant to submit sufficient documentation for analysis by
HHS.
(12) Local government notification. The applicant must certify that
it has notified the applicable unit of general local government
responsible for sewer, water, police, and fire services, in writing, of
its proposed program for the specific property and submit a copy of
that written notification.
(13) Zoning and Local Use Restrictions. An applicant requesting a
deed must certify that it has consulted all State and local
governmental entities that will have jurisdiction over the property and
that the proposed use will comply with all applicable zoning and local
use restrictions, including local building code requirements. An
applicant that applies for a lease or permit is not required to comply
with local zoning requirements, as long as the Federal government
retains ownership of the property. Deed transfers will only be made
after the applicant has provided acceptable written proof that the
proposed program is not in conflict with State or local zoning laws and
restrictions, building codes, or similar limitations.
(b) Scope of evaluations. Due to the short time frame imposed by
statute for evaluating applications, HHS's evaluation will, generally,
be limited to the information contained in the application. It is
therefore incumbent on applicants to provide thorough and complete
applications.
(c) Deadline for Initial Application. An initial application must
be received by HHS, at the above email address or other address
indicated by HHS, within 75 days after an expression of interest is
received from a particular applicant for that property. Upon written
request from the applicant, HHS may, in its discretion, grant
extensions authorized by 42 U.S.C. 11411(e)(2)(A), provided that the
appropriate landholding agency or GSA concurs with the extension.
(d) Evaluation of initial application.
(1) Upon receipt of an initial application, HHS will review it for
completeness, and, if incomplete, may, in its discretion, return it or
ask the applicant to furnish any missing or additional required
information prior to final evaluation of the initial application.
(2) HHS will evaluate each initial application within 10 days of
receipt and will promptly advise the applicant of its decision. All
initial applications will be reviewed on the basis of the following
elements:
(i) Services offered. The extent and range of proposed services,
such as meals, shelter, job training, and counseling.
(ii) Need. The demand for the program, the program's ability to
satisfy unmet needs of the community, and the degree to which the
available property will be fully utilized.
(iii) Experience. Demonstrated ability to provide the services,
such as prior success in operating similar programs and recommendations
attesting to that fact by Federal, State, and local authorities.
(e) Deadline and Evaluation of Final Application.
(1) If HHS approves an initial application, HHS will notify the
applicant and provide the applicant 45 days in which to provide a final
application. The final application shall set forth a reasonable plan to
finance, as specified in Sec. 102-75.1170(a)(6), the approved program
as set forth in the initial application. Applicants may not modify the
approved initial application within its final application proposal.
(2) Upon receipt of the final application, HHS will make a
determination within 15 days and notify the applicant.
(3) Unlike with initial applications, requests for extensions are
not authorized by 42 U.S.C. 11411 and thus will not be considered for
final applications.
(4) Applications are evaluated on a first-come, first-served basis.
HHS will notify all organizations that have submitted expressions of
interest for a particular property whether an earlier application
received for that property has been approved.
(f) Competing Applications. If HHS receives more than one final
application simultaneously, HHS will evaluate all applications and make
a determination based on each application's merit. HHS will rank
approved applications based on the elements listed in paragraph (a) of
this section, and notify the landholding agency, or GSA, as
appropriate, of the approved applicant.
Action on Approved Applications
Sec. 102-75.1171 What action must be taken on approved applications?
(a) Unutilized and underutilized properties.
(1) When HHS approves an application, it will so notify the
applicant and forward a copy of the application to the landholding
agency. The landholding agency will execute the lease, or permit
document, as appropriate, in consultation with the applicant.
(2) The landholding agency maintains the discretion to decide the
following:
(i) The length of time the property will be available. (Leases and
permits will be for a period of at least one year unless the applicant
requests a shorter term.)
(ii) The terms and conditions of the lease or permit document
(except that a landholding agency may not charge any fees or impose any
costs).
(b) Excess and surplus properties.
(1) When HHS approves an application, it will so notify the
applicant and request that GSA assign the property to HHS for transfer.
Requests to GSA for the assignment of surplus property to HHS for
homeless assistance purposes will be based on the following conditions:
(i) HHS has a fully approved application for the property;
(ii) The applicant is able, willing, and authorized to assume
immediate care, custody, and maintenance of the property;
(iii) The applicant is able, willing and authorized to pay the
administrative expenses incident to the transfer; and
(iv) The applicant has secured the necessary funds, or had
demonstrated the ability to obtain such funds, to carry out the
approved program of use of the property.
(2) Upon receipt of an acceptable assignment, HHS will execute the
transfer document in accordance with the procedures and requirements
set out in this subpart and any other terms and conditions HHS and GSA
determines are appropriate or necessary. Custody and accountability of
the property will remain throughout the lease term with the landholding
agency (i.e., the agency which initially reported the property as
excess) and throughout the deed term with the transferee.
(3) Prior to assignment to HHS, GSA may consider other Federal uses
and
[[Page 16858]]
other important national needs in deciding the disposition of surplus
property. Priority of consideration will normally be given to uses to
assist the homeless. However, both GSA and HHS may consider any
competing request for the property made under 40 U.S.C. 550 that is so
meritorious and compelling that it outweighs the needs of the homeless.
(4) Whenever GSA or HHS decides in favor of a competing request
over a request for property for homeless assistance, the agency making
the decision will transmit to the appropriate committees of Congress an
explanatory statement which details the need satisfied by conveyance of
the surplus property, and the reasons for determining that such need
was so meritorious and compelling as to outweigh the needs of the
homeless.
Surplus Property Transfer Documents
Sec. 102-75.1172 What documents are used for the transfer of surplus
Federal real property for use to assist the homeless?
(a) Surplus property may be conveyed to eligible organizations
pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease
or deed, at the applicant's discretion.
(b) Transfers of surplus property for homeless assistance purposes
are in exchange for the transferee's agreement to fully utilize the
property for homeless assistance purposes in accordance with the terms
specified in the transfer document.
(c) A transfer of surplus property for homeless purposes is subject
to the disapproval of GSA within 30 days after notice is given to GSA
of the proposed transfer.
(d) Surplus property transferred pursuant to this subpart will be
disposed on an ``as is, where is,'' basis without warranty of any kind
except as may be stated in the transfer document.
(e) Unless excepted by GSA in its assignment, the disposal of
property includes mineral rights associated with the surface estate.
(f) Transfers of surplus property under this subpart will be made
with the following general terms and conditions:
(1) For the period provided in the transfer document, the
transferee shall utilize all the surplus property it receives solely
and continuously for an approved program and plan of use, in accordance
with 42 U.S.C. 11411 and these regulations, except that:
(i) The transferee has 12 months from the date of transfer to place
the surplus property into use, if HHS did not approve in writing,
construction of new facilities or major renovation of the property when
it approved the final application;
(ii) The transferee has 36 months from the date of transfer to
place the surplus property into use, if the transferee proposes
construction of new facilities or major renovation of the property and
HHS approves it in writing at the time it approves the final
application;
(iii) If the applicable time limitation is not met, the transferee
shall either commence payments in cash to the Federal government for
each month thereafter during which the proposed use has not been
implemented or take such other action as set forth at Sec. 102-75.1176
as is deemed appropriate by HHS. Such monthly payments shall be
computed on the basis of the current fair market value of the property,
as conveyed, at the time of the first payment and dividing it by 360
months. At HHS's discretion, the payment may be waived if the
transferee makes a sufficient showing of continued progress to place
the property into use or if an unforeseeable event occurs which
prevents the property from being put into use within the applicable
timeframe; and
(iv) HHS may permit use of surplus property at any time during the
period of restriction by an entity other than the transferee in
accordance with Sec. 102-75.1177.
(2) The transferee will not be permitted to encumber, sell, lease
or sublease, rent, mortgage, or otherwise dispose of the property, or
any part thereof, without the prior written authorization of HHS. In
the event the property is sold, leased or subleased, encumbered,
disposed of, or is used for purposes other than those set forth in an
approved plan without the consent of HHS, all revenues or the
reasonable value of other benefits received by the transferee directly
or indirectly from such use, as determined by HHS, will be considered
to have been received and held in trust by the transferee for the
account of the United States and will be subject to the direction and
control of HHS. The provisions of this paragraph shall not impair or
affect the rights reserved to the United States in paragraph (f)(8) of
this section, or the right of HHS to impose conditions to its consent.
(3) The transferee will file with HHS such reports on its
maintenance and use of the surplus property and any other reports or
information deemed necessary by HHS.
(4) The transferee shall pay all administrative costs incidental to
the transfer, including but not limited to--transfer taxes; surveys;
appraisals; title search; the transferee's legal fees; recordation
expenses, etc. Transferee is solely responsible for such costs and may
not seek reimbursement from the Federal government for any reason.
(5) The transferee shall protect, preserve, maintain, and repair
the property to ensure that the property remains in as good a condition
as when received.
(6) The transferee shall protect the residual financial interest of
the United States in the surplus property by insurance or such other
means as HHS directs. Where loss or damage to the transferred property
occurs, all proceeds from insurance shall be promptly used by the
transferee for the purpose of repairing and restoring the property to
its former condition or replacing it with equivalent or more suitable
facilities. If not so used, there shall be paid to the United States
that part of the insurance proceeds that is attributable to the
Government's residual interest in the property lost, damaged, or
destroyed. Further, transferee shall neither take any action nor allow
any action which diminishes the residual financial interest of the
United States.
(7) The transferee shall abide by all applicable Federal Civil
Rights laws including those specified in the covenants and conditions
contained in the transfer document, prohibiting the transferee from
discriminating on the basis of, including but not limited to, race,
color, national origin, religion, sex, familial status or disability in
the use of the property.
(8) In the event of substantial noncompliance with any conditions
of the deed as determined by HHS, whether caused by the legal or other
inability of the transferee, its successors and assigns, to perform any
of the obligations of the transfer document, the Federal government has
an immediate right of reentry thereon, and to cause all right, title,
and interest in and to the property to revert to the United States, and
the transferee shall forfeit all right, title, and interest in and to
the property. In such event, transferee shall execute a quitclaim deed
and take all other actions necessary to return the property to the
United States within ninety (90) days of a written request from the
Federal government, extended only at the discretion of the Federal
government. Transferee shall cooperate with the United States in the
event of a reversion and agrees that the United States need not seek
judicial intervention before exercising its right to revert, reenter
and reconvey the property.
(9) In the event title is reverted to the United States for
noncompliance or voluntarily reconveyed to the United
[[Page 16859]]
States, the transferee shall, at the option of HHS, be required to:
reimburse the United States for the decrease in value of the property
not due to market conditions, reasonable wear and tear, acts of God, or
approved alterations completed by the transferee to adapt the property
to the homeless use for which the property was transferred; and
reimburse the United States for any costs incurred in reverting title
to or possession of the property, including reasonable attorneys' fees.
(10) With respect to leased property, in the event of substantial
noncompliance with any of the conditions of the lease, as determined by
HHS or the landholding agency, the right of occupancy and possession
shall, at the option of HHS or the landholding agency, be terminated.
In the event a leasehold is terminated by the United States for
substantial noncompliance or is voluntarily surrendered, the lessee
shall be required, at the option of HHS, to reimburse the United States
for the decrease in value of the property not due to market conditions,
reasonable wear and tear, acts of God, or approved alterations
completed by the lessee to adapt the property to the homeless use for
which the property was leased. With respect to any termination of
leasehold resulting from noncompliance, the United States, shall, in
addition thereto, be reimbursed for such costs as may be incurred in
recovering possession of the property, including reasonable attorneys'
fees.
(11) Any other term or condition that HHS and GSA determine
appropriate or necessary.
(12) With respect to surplus property transferred by deed, the
terms and conditions including those in paragraph (f) of this section,
apply for a period of thirty (30) years of use in accordance with a
program of use approved in writing by HHS. The thirty-year (30) period
may, in HHS's sole discretion, be extended or restarted in the event
the property is not fully utilized or is retransferred to a successor
entity. Expiration of the foregoing terms and conditions does not
release the transferee from continuing compliance, as appropriate, with
any conditions that may run with the land, e.g., environmental
conditions and/or historic preservation covenants. Such conditions will
continue to be the responsibility of the transferee and successors.
(13) With respect to surplus property transferred by lease, the
terms and conditions including those in paragraph (f) of this section,
extend for the entire initial lease and for any subsequent renewal
periods, unless specifically excluded in writing by HHS.
(g) Related personal property may be transferred or leased as a
part of the realty and in accordance with real property procedures.
(h) Completion of Transfer Term and Reversion of Title. Transferees
will be responsible for the protection and maintenance of the property
during the time that they possess the property. Upon termination of the
lease term or reversion of title to the United States, the transferee
will be responsible for removing improvements made to the property if
directed to by the United States and, in such event, will be
responsible for restoration of the property or the costs associated
with restoring the property. If improvements made by the transferee are
not voluntarily removed by the transferee and the United States
consents, they will become the property of the United States. If the
United States does not consent, the transferee shall reimburse the
United States for reasonable costs of removal. GSA or the landholding
agency, as appropriate, will assume responsibility for protection and
maintenance of a property when the lease terminates or title reverts.
(i) Transferees, by obtaining the consent of HHS, may abrogate the
restrictions set forth in paragraph (f) of this section for all or any
portion of the property in accordance with the provisions of Sec. 102-
75.1178.
Unsuitable Properties
Sec. 102-75.1173 What action must be taken on properties determined
unsuitable for homeless assistance?
The landholding agency or GSA will defer action to dispose of
properties determined unsuitable for homeless assistance for 20 days
after the date that notice of a property is posted on the HUD website.
HUD will inform landholding agencies or GSA if appeal of an
unsuitability determination is filed by a representative of the
homeless pursuant to Sec. 102-75.1163(f). HUD will advise the agency
to refrain from initiating disposal procedures until HUD has completed
its reconsideration process regarding unsuitability. Thereafter, or if
no appeal has been filed after 20 days, GSA or the appropriate
landholding agency may proceed with disposal action in accordance with
applicable law.
Compliance With the National Environmental Policy Act of 1969 and Other
Related Acts (Environmental Impact)
Sec. 102-75.1174 What are the requirements for compliance with the
National Environmental Policy Act of 1969 and other related Acts
(environmental impact) for the transfer of Federal real property for
use to assist the homeless?
(a) HHS, prior to making a final decision to convey or lease, or to
amend, reform, or grant an approval or release with respect to a
previous conveyance or lease of, surplus property for homeless
purposes, will act in accordance with applicable provisions of the
National Environmental Policy Act of 1969, the National Historic
Preservation Act of 1966, the National Archeological Data Preservation
Act, and other related acts. No lease to use surplus property shall
allow the lessee to make, or cause to be made, any irreversible change
in the conditions of said property, and no lease shall be employed for
the purpose of delaying or avoiding compliance with the requirements of
these Acts, unless approved by the United States.
(b) Applicants shall be required to provide such information as HHS
deems necessary to make an assessment of the impact of the proposed
Federal action on the human environment. Materials contained in the
applicant's official request, responses to a standard questionnaire
prescribed by HHS, as well as other relevant information, will be used
by HHS in making said assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action involved properties of
historical significance which are listed, or eligible for listing, in
the National Register of Historic Places; or
(2) that a more than insignificant impact on the human environment
is reasonably foreseeable as a result of the proposed action; or
(3) that the proposed Federal action could result in irreparable
loss or destruction of archeologically significant items or data, HHS
will, except as provided for in paragraph (d) of this section, prepare
and distribute, or cause to be prepared or distributed, such notices
and statements and obtain such approvals as are required by the above
cited Acts.
(d) If a proposed action involves other Federal agencies in a
sequence of actions, or a group of actions, directly related to each
other because of their functional interdependence, HHS may enter into
and support a lead agency agreement to designate a single lead
[[Page 16860]]
agency which will assume primary responsibility for coordinating the
assessment of environmental effects of proposed Federal actions,
preparing and distributing such notices and statements, or obtaining
such approvals, as are required by the above cited Acts. The procedures
of the designated lead agency will be utilized in conducting the
environmental assessment. In the event of disagreement between HHS and
another Federal agency, HHS will reserve the right to abrogate the lead
agency agreement with the other Federal agency.
No Applications Approved
Sec. 102-75.1175 What action must be taken if there is no expression
of interest or approved application?
(a) At the end of the 30-day holding period described in Sec. 102-
75.1169(a), HHS will notify GSA, or the landholding agency, as
appropriate, if an expression of interest has been received for a
certain property. Where there is no expression of interest, GSA or the
landholding agency, as appropriate, will proceed with disposal in
accordance with applicable law.
(b) Upon notice from HHS that all applications have been
disapproved, or if no initial applications have been received within 75
days after an expression of interest, or no final application has been
received within 45 days after an approved initial application, disposal
may proceed in accordance with applicable law.
Utilization and Enforcement
Sec. 102-75.1176 What are the utilization and enforcement
requirements for property transferred for use to assist the homeless?
(a) Sanctions. For instances of substantial noncompliance relating
to surplus property transfers, HHS may impose, in its sole discretion,
any or all of the following sanctions, as applicable:
(1) Where property or any portion thereof was not used or is not
being used for the purposes for which transferred, or is sold, leased
or subleased, encumbered, disposed of, or used for purposes other than
those in the approved program and plan of use, without the prior
written consent of HHS, HHS may require the transferee to--
(i) Place the property into immediate use for an approved purpose
and extend the period of restriction in the transfer document for an
additional term as determined by HHS;
(ii) Hold in trust all revenues and the reasonable value of other
benefits received by the transferee directly or indirectly from that
use for the United States subject to the direction and control of HHS;
(iii) Return title to such property to the United States or to
relinquish any leasehold interest therein;
(iv) Abrogate the conditions and restrictions of the transfer, as
set forth in Sec. 102-75.1178;
(v) Make cash payments to the United States, as directed by HHS,
equivalent to the current fair market rental value of the surplus
property, as transferred, for each month during which the program and
plan of use has not been implemented and continues to not be
implemented; or
(vi) Any other remedy that HHS determines appropriate or necessary.
(2) Where the transferee desires to place the property into
temporary use to assist the homeless other than that for which the
property was transferred, written approval from HHS must be obtained,
and will be conditioned upon HHS's authority to permit the use and such
terms as HHS may impose.
(3) If HHS or the landholding agency determines that a lessee or
sublessee of a transferee is in substantial noncompliance with a term
or condition of the lease, or if the lessee voluntarily surrenders the
premises, HHS may require termination of the lease and impose sanctions
described in paragraph (a)(1) of this section, as appropriate.
(b) Reversion. When HHS recommends reversion of the property for
noncompliance, HHS will seek GSA's concurrence. GSA will respond to
HHS's concurrence request within 30 days of its receipt. If GSA
concurs, HHS will work with GSA to complete the reversion of the
property. If GSA does not concur to the reversion recommendation, GSA
will issue, to HHS, a written determination: stating the reason(s) for
the disapproval; and acknowledging that HHS has recommended reversion
and, therefore, the property is no longer within HHS's Title V program.
The Federal government will implement a response to the noncompliance
that is in its best interests.
Other Uses
Sec. 102-75.1177 What are the requirements for other uses of a
transferred property?
(a) A transferee may permit the use of all or a portion of the
surplus property by another eligible entity as described in Sec. 102-
75.1160 for homeless assistance purposes, only upon those terms and
conditions HHS determines appropriate, if:
(1) The transferee submits a written request to HHS explaining the
purpose of and need for another eligible entity's use of the property,
program plan, and other relevant information requested by HHS;
(2) HHS determines that the proposed use would not substantially
limit the program and plan of use by the transferee and that the use
will not unduly burden the Federal government;
(3) HHS's written consent is obtained by the transferee in advance;
(4) HHS approves the use instrument in advance and in writing; and
(b) [Reserved].
Abrogation
Sec. 102-75.1178 What are the conditions of abrogation for property
transferred to assist the homeless?
(a) HHS may abrogate the conditions and restrictions in the
transfer document if:
(1) The transferee submits to HHS a written request that HHS
abrogate the conditions and restrictions in the transfer document as to
all or any portion of the surplus property;
(2) HHS determines the terms and conditions of the proposed
abrogation and determines that the proposed abrogation is in the best
interest of the United States; and
(3) HHS transmits the abrogation request to GSA and there is no
disapproval by GSA within 30 days after notice is given. If GSA
disapproves, GSA will state, in writing, to HHS the reason(s) for the
disapproval.
(b) HHS abrogates the conditions and restrictions in the transfer
document only upon receipt of the appropriate consideration, including
cash payment, to the United States, as directed by HHS, which is based
on the formula contained in the transfer document, and any other terms
and conditions HHS deems appropriate to protect the interest of the
United States.
Compliance Inspections and Reports
Sec. 102-75.1179 What Compliance Inspections and Reports are
Required?
Transferees are required to allow HHS to conduct compliance
inspections and to submit such compliance reports and actions as are
deemed necessary by HHS. At a minimum, the transferee will be required
to submit an annual utilization report regarding the operation and
maintenance of the property, including current images of the entire
property and such information as HHS shall require.
[[Page 16861]]
No Right of Administrative Review for Agency Decisions
Sec. 102-75.1180 Is there a right of administrative review for agency
decisions within HHS?
There is no right to administrative review within HHS, including
requests for reconsideration or appeal, of agency decisions on
applications and other discretionary decisions.
Waivers
Sec. 102-75.1181 May any requirement of this subpart be waived?
The Secretary of HUD may waive any requirement of this subpart
(over which the Secretary of HUD has jurisdiction) that is not required
by law, whenever it is determined that undue hardship would result from
applying the requirement, or where application of the requirement would
adversely affect the purposes of the program. Each waiver will be in
writing and will be supported by documentation of the pertinent facts
and grounds. The Secretary periodically will publish notice of granted
waivers on the HUD website.
Sec. Sec. 102-75.1182 through 102-75.1219 [Reserved]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Accordingly, for the reasons stated above, HHS proposes to amend 45
CFR part 12a as follows:
0
25. The authority citation for part 12a is revised to read as follows:
Authority: 42 U.S.C. 11411; 40 U.S.C. 550.
0
26. Revise part 12a to read as follows:
PART 12a--USE OF FEDERAL REAL PROPERTY TO ASSIST THE HOMELESS
Sec.
12a.1 Definitions.
12a.2 Applicability
12a.3 General Policies
12a.4 Expression of Interest Process.
12a.5 Application Process and Requirements.
12a.6 Action on Approved Applications.
12a.7 Transfer Documents.
12a.8 Compliance with the National Environmental Policy Act of 1969
and Other Related Acts (environmental impact).
12a.9 No Applications Approved.
12a.10 Utilization and Enforcement.
12a.11 Other Uses.
12a.12 Abrogation.
12a.13 Compliance Inspections and Reports
12a.14 No Right of Administrative Review for Agency Decisions.
Sec. 12a.1 Definitions.
(a) Applicant means any eligible organization which has submitted
an application to the Department of Health and Human Services to obtain
use of a certain suitable property to assist the homeless.
(b) Classification means a property's designation as unutilized,
underutilized, excess, or surplus.
(c) Day means one calendar day, including weekends and holidays.
(d) Eligible organization means a State or local government agency,
or a private, non-profit organization that provides assistance to the
homeless, and that is authorized by its charter or by State law to
enter into an agreement with the Federal government for use of property
for the purposes of this part. Eligible organizations that are private,
non-profit organizations interested in applying for suitable property
must be tax exempt under section 501(c)(3) of the Internal Revenue Code
at the time of application and remain tax exempt throughout the time
the Federal government retains a reversionary interest in the property.
(e) Excess property means any property under the control of a
Federal Executive agency that the head of the agency determines is not
required to meet the agency's needs or responsibilities, pursuant to 40
U.S.C. 524.
(f) GSA means the General Services Administration.
(g) HHS means the Department of Health and Human Services.
(h) Homeless is defined in 42 U.S.C. 11302. This term is synonymous
with ``Homeless Individual'' and ``Homeless Person.''
(i) HUD means the Department of Housing and Urban Development.
(j) HUD website means a website maintained by HUD providing
information about HUD, including any successor websites or technologies
that are equally accessible and available to the public.
(k) Landholding agency means the Federal department or agency with
statutory authority to control property. For purposes of this part, the
landholding agency is typically the Federal department or agency that
had custody and accountability on behalf of the Federal government, of
a certain piece of property at the time that such property was reported
to HUD for a suitability determination pursuant to 42 U.S.C. 11411.
(l) Lease means an agreement in writing between either HHS for
surplus property or landholding agencies for underutilized and
unutilized properties and the applicant giving rise to the relationship
of lessor and lessee for the use of Federal property for a term of at
least one year under the conditions set forth in the lease document.
(m) Non-profit organization means an organization recognized as a
non-profit by the State in which the organization operates, no part of
the net earnings of which inures to the benefit of any member, founder,
contributor, or individual; that has a voluntary board; that has an
accounting system or has designated an entity that will maintain a
functioning accounting system for the organization in accordance with
generally accepted accounting procedures; and that practices
nondiscrimination in the provision of assistance.
(n) Permit means a license granted by a landholding agency to use
unutilized or underutilized property for a specific amount of time,
usually one year or less, under terms and conditions determined by the
landholding agency. A permit does not grant to the recipient an estate
in land or any interest in the property.
(o) Property means real property consisting of vacant land or
buildings, or a portion thereof, that is excess, surplus, or designated
as unutilized or underutilized in surveys by the heads of landholding
agencies conducted pursuant to 40 U.S.C. 524.
(p) Related personal property means any personal property that is
located on real property and is either an integral part of or useful in
the operation of that property or is determined by GSA to be otherwise
related to the property.
(q) Representative of the homeless means a State or local
government agency, or private nonprofit organization that provides, or
proposes to provide, services to the homeless.
(r) Screen means the process by which GSA surveys Federal Executive
agencies to determine if they have an interest in using excess Federal
property to carry out a particular agency mission, and then surveys
State, local and non-profit entities, to determine if any such entity
has an interest in using surplus Federal property to carry out a
specific public use.
(s) State means a State of the United States, and includes the
District of Columbia, the Commonwealth of Puerto Rico, and the
Territories and possessions of the United States.
(t) Substantial noncompliance means failure to take corrective
action as directed by HHS.
(u) Suitable property means that HUD has determined that a certain
property satisfies the criteria listed in 24 CFR 581.6.
(v) Surplus property means any excess property not required by any
Federal landholding agency for its needs or the discharge of its
responsibilities, as determined by GSA.
[[Page 16862]]
(w) Transfer document means a lease, deed, or permit transferring
surplus, unutilized or underutilized property.
(x) Transferee means an eligible entity that acquires Federal
property by lease, deed, or permit.
(y) Underutilized means an entire property or portion thereof, with
or without improvements which is used only at irregular periods or
intermittently by the accountable landholding agency for current
program purposes of that agency, or which is used for current program
purposes that can be satisfied with only a portion of the property.
(z) Unutilized property means an entire property or portion
thereof, with or without improvements, not occupied for current program
purposes for the accountable executive agency or occupied in caretaker
status only.
Sec. 12a.2 Applicability.
(a) This part applies to Federal property that has been designated
by Federal landholding agencies as unutilized, underutilized, excess or
surplus and is therefore subject to the provisions of Title V of the
McKinney Act, as amended (42 U.S.C. 11411).
(b) The following categories of properties are not subject to this
part (regardless of whether they may be unutilized or underutilized):
(1) Buildings and property at military installations that were
approved for closure under the Defense Base Closure and Realignment Act
of 1990 (part A of title XXIX of Public Law 101-510; 10 U.S.C. 2687
note) after October 25, 1994.
(2) Machinery and equipment not determined to be related personal
property by the landholding agency or GSA or determined to be related
personal property that the landholding agency or GSA chooses to dispose
of separate from real property.
(3) Government-owned, contractor-operated machinery, equipment,
land, and other facilities reported excess for sale only to the using
contractor and subject to a continuing military requirement.
(4) Properties subject to special legislation directing a
particular action.
(5) Properties subject to a court order that, for any reason,
precludes transfer for use to assist the homeless under the authority
of 42 U.S.C. 11411.
(6) Property not subject to Federal Real Property Council reporting
requirements in accordance with 40 U.S.C. 623(i).
(7) Mineral rights interests independent of surface rights.
(8) Air space interests independent of surface rights.
(9) Indian Reservation land subject to 40 U.S.C. 523.
(10) Property interests subject to reversion.
(11) Easements.
(12) Any building or fixture that is excess, or surplus, that is on
land owned by a landholding agency, where the underlying land is not
excess or surplus.
(13) Property purchased in whole or in part with Federal funds if
title to the property is not held by a Federal landholding agency as
defined in this part.
Sec. 12a.3 General Policies.
(a) It is the policy of HHS to foster and assure maximum
utilization of surplus property for homeless assistance purposes.
(b) Transfers may be made only to eligible organizations.
(c) Eligible organizations must be authorized, in the State in
which the requested property is located, to carry out the activity for
which it requests the property.
(d) Property will be requested for assignment only when HUD has
made a final determination that the property is suitable for use to
assist the homeless, GSA has determined it is available, and HHS has
determined it is needed for homeless assistance purposes. The amount of
real and related personal property to be transferred shall not exceed
normal operating requirements of the applicant. Such property will not
be requested for assignment unless it is needed at the time of
application for homeless assistance purposes or will be so needed
within the immediate or foreseeable future.
(e) Transfers by deed will be made only after the applicant's
financial plan is approved and the applicant provides certification
that the proposed program is permissible under all applicable State and
local zoning restrictions, building codes, and similar limitations.
Sec. 12a.4 Expression of Interest Process.
(a) Properties published by HUD as suitable and available pursuant
to 24 CFR 581.8, for application for use to assist the homeless shall
not be available for any other purpose for a period of 30 days
beginning on the date of publication. Any eligible organization
interested in any underutilized, unutilized, excess, or surplus
property for use to assist the homeless must send to HHS a written
expression of interest in that property within 30 days after the
property has been published on the HUD website.
(b) Although a property may be determined suitable by HUD, HUD's
determination does not mean a property is necessarily useable for the
purpose(s) stated in the application, nor does it guarantee subsequent
conveyance or transfer of a property.
(c) If a written expression of interest to apply for suitable
property for use to assist the homeless is received by HHS within the
30-day holding period, such property may not be made available for any
other purpose until the date HHS or the appropriate landholding agency
has completed action on the application submitted pursuant to that
expression of interest.
(d) The expression of interest should identify the specific
property, briefly describe the proposed use, include the name of the
organization, and indicate whether it is a public body or a private,
non-profit organization. The expression of interest must be sent to HHS
by email, [email protected], or by mail at the following address:
Department of Health and Human Services, Program Manager, Federal Real
Property Assistance Program, Real Estate Logistics and Operations, 5600
Fishers Lane, Rockville, Maryland 20852.
(1) HHS will notify the landholding agency (for unutilized and
underutilized properties) or GSA (for excess and surplus properties)
when an expression of interest has been received for a certain
property.
(e) An expression of interest may be sent to and accepted by HHS
any time after the 30-day holding period has expired only if the
property remains available as determined by GSA or the landholding
agency for application to assist the homeless. In such a case, an
application submitted pursuant to this expression of interest may be
approved for use by the homeless if:
(1) There are no pending applications or written expressions of
interest made under any law for use of the property for any purpose;
and
(2) In the case of excess or surplus property, GSA has not received
a bona fide offer to purchase that property or advertised for the sale
of the property by public auction.
Sec. 12a.5 Application Process and Requirements.
(a) Upon receipt of an expression of interest, HHS will send an
application packet to the interested entity. The application packet
requires the applicant to provide certain information, including the
following--
(1) Acquisition type. The applicant must state whether it is
requesting acquisition of the property by lease, deed, or permit. A
lease of one year, extendable at HHS's discretion, with the concurrence
of GSA or the landholding agency, may be granted when the applicant's
initial application is
[[Page 16863]]
approved and the applicant's final application outlining the
applicant's financial plan is found to be otherwise reasonable based on
the criteria in paragraph (a)(7) of this section, but either a change
in zoning is required or the financial plan proposes to utilize Low-
Income Housing Tax Credits or other funding sources that typically take
longer to process than other forms of financing.
(2) Description of the applicant organization. The applicant must
document that it satisfies the definition of an ``eligible
organization'' as specified in Sec. 12a.1. The applicant must document
its authority to hold property for the proposed program and plan of use
by providing a copy of its Articles of Organization, Charter,
Certification from State of Non-Profit Organization status, or other
appropriate document or citation. Private, non-profit organizations
applying for the acquisition of a certain property must document that
they are tax exempt under section 501(c)(3) of the Internal Revenue
Code.
(3) Description of the property desired. The applicant must
describe the listed property desired, including existing zoning.
Applicants must certify that any modification(s) made to and use of the
property will conform to all applicable building codes, and local use
restrictions, or similar limitations. In accordance with GSA policy,
determinations regarding parcelization are made prior to screening.
Therefore, expressions of interest and applications for portions of
listed properties will not be accepted.
(4) Description of the proposed program. The applicant must fully
describe the proposed program and plan of use, including implementation
plans.
(5) Demonstration of need. The applicant must demonstrate that the
property is needed for homeless assistance purposes at the time of
application and how the program will address the needs of the homeless
population to be assisted. The applicant must demonstrate that it has
an immediate need and ability to utilize all of the property for which
it is applying.
(6) Demonstrate that the property is suitable and adaptable for the
proposed program and plan of use. The applicant must fully explain why
the property is suitable and describe what, if any, modification(s)
will be made to the property before the program becomes operational.
(7) Ability to finance and operate the proposed program. If the
applicant's initial application is approved, the applicant must set
forth a reasonable plan to finance the approved program within 45 days
of the initial approval. To be considered reasonable, the plan must, at
a minimum:
(i) specifically describe all anticipated costs and sources of
funding for the proposed program, including any property modifications;
(ii) be accompanied by supporting documentation which demonstrates
that the proposed plan is likely to succeed;
(iii) demonstrate that the applicant is ready, willing, able, and
authorized to assume care, custody, and maintenance of the property;
(iv) demonstrate that it has secured the necessary dedicated funds,
or the ability to obtain such funds, to carry out the approved proposed
program and plan of use for the property, including administrative
expenses incident to the transfer by deed, lease, or permit;
(v) not diminish the value of the government's interest in the
property nor impair the government's ability to revert and immediately
dispose of the property free of any and all liens, encumbrances, or
anything else which renders the property unmarketable. Deed transfers
will only be made after an applicant demonstrates its financial plan
adequately protects the United States' interest in the property; and
(vi) neither subject the Federal government's interest in the
property to foreclosure nor impose obligations (e.g., extended use
agreements) on the Federal government.
(8) Compliance with non-discrimination requirements. Each applicant
under this part must certify in writing that it will comply with all
requirements of federal law and HHS policy, as amended, relating to
non-discrimination, including the following: the Fair Housing Act (42
U.S.C. 3601-3619) and implementing regulations; and, as applicable,
Executive Order 11063 (Equal Opportunity in Housing) and implementing
regulations; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
to d-4) (Non-discrimination in Federally Assisted Programs) and
implementing regulations; Section 1557 of the Affordable Care Act and
implementing regulations; the prohibitions against discrimination on
the basis of age under the Age Discrimination Act of 1975 (42 U.S.C.
6101-6107) and implementing regulations; and the prohibitions against
otherwise qualified individuals with disabilities under section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing
regulations. The applicant must maintain the required records to
demonstrate compliance with all applicable Federal laws and HHS
policies related to non-discrimination.
(9) Insurance and Indemnification. The applicant must certify that
it will insure the property against loss, damage, or destruction to
protect the residual financial interest of the United States. The
United States shall be named as an additional insured. Applicants must
provide proof of insurance annually or upon request. Failure to
maintain sufficient insurance may result in adverse action, including
reversion of the property, at the discretion of HHS. Applicants, and
all affiliated parties utilizing the property, as approved by HHS, must
indemnify the United States and hold the United States harmless for all
actions involving use of the property.
(10) Historic preservation. Where applicable, the applicant must
provide information that will enable HHS to comply with Federal
historic preservation requirements.
(11) Environmental information. The applicant must provide
sufficient information to allow HHS to analyze the potential impact of
the applicant's proposal on the environment, in accordance with the
instructions provided with the application packet. HHS will assist
applicants in obtaining any pertinent environmental information in the
possession of HUD, GSA, or the landholding agency. However, the burden
is on the applicant to submit sufficient documentation for analysis by
HHS.
(12) Local government notification. The applicant must certify that
it has notified the applicable unit of general local government
responsible for sewer, water, police, and fire services, in writing, of
its proposed program for the specific property and submit a copy of
that written notification.
(13) Zoning and Local Use Restrictions. An applicant requesting a
deed must certify that it has consulted all State and local
governmental entities that will have jurisdiction over the property and
that the proposed use will comply with all applicable zoning and local
use restrictions, including local building code requirements. An
applicant that applies for a lease or permit is not required to comply
with local zoning requirements, as long as the Federal government
retains ownership of the property. Deed transfers will only be made
after the applicant has provided acceptable written proof that the
proposed program is not in conflict with State or local zoning laws and
restrictions, building codes, or similar limitations.
(b) Scope of evaluations. Due to the short time frame imposed by
statute for evaluating applications, HHS's evaluation will, generally,
be limited to
[[Page 16864]]
the information contained in the application. It is therefore incumbent
on applicants to provide thorough and complete applications.
(c) Deadline for Initial Application. An initial application must
be received by HHS, at the above email address or other address
indicated by HHS, within 75 days after an expression of interest is
received from a particular applicant for that property. Upon written
request from the applicant, HHS may, in its discretion, grant
extensions authorized by 42 U.S.C. 11411(e)(2)(A), provided that the
appropriate landholding agency or GSA concurs with the extension.
(d) Evaluation of initial application.
(1) Upon receipt of an initial application, HHS will review it for
completeness, and, if incomplete, may, in its discretion, return it or
ask the applicant to furnish any missing or additional required
information prior to final evaluation of the initial application.
(2) HHS will evaluate each initial application within 10 days of
receipt and will promptly advise the applicant of its decision. All
initial applications will be reviewed on the basis of the following
elements:
(i) Services offered. The extent and range of proposed services,
such as meals, shelter, job training, and counseling.
(ii) Need. The demand for the program, the program's ability to
satisfy unmet needs of the community, and the degree to which the
available property will be fully utilized.
(iii) Experience. Demonstrated ability to provide the services,
such as prior success in operating similar programs and recommendations
attesting to that fact by Federal, State, and local authorities.
(e) Deadline and Evaluation of Final Application.
(1) If HHS approves an initial application, HHS will notify the
applicant and provide the applicant 45 days in which to provide a final
application. The final application shall set forth a reasonable plan to
finance, as specified in Sec. 12a.5(a)(7), the approved program as set
forth in the initial application. Applicants may not modify the
approved initial application within its final application proposal.
(2) Upon receipt of the final application, HHS will make a
determination within 15 days and notify the applicant.
(3) Unlike with initial applications, requests for extensions are
not authorized by 42 U.S.C. 11411 and thus will not be considered for
final applications.
(4) Applications are evaluated on a first-come, first-served basis.
HHS will notify all organizations that have submitted expressions of
interest for a particular property whether an earlier application
received for that property has been approved.
(f) Competing Applications. If HHS receives more than one final
application simultaneously, HHS will evaluate all applications and make
a determination based on each application's merit. HHS will rank
approved applications based on the elements listed in paragraph (a) of
this section, and notify the landholding agency, or GSA, as
appropriate, of the approved applicant.
Sec. 12a.6 Action on Approved Applications.
(a) Unutilized and underutilized properties.
(1) When HHS approves an application, it will so notify the
applicant and forward a copy of the application to the landholding
agency. The landholding agency will execute the lease, or permit
document, as appropriate, in consultation with the applicant.
(2) The landholding agency maintains the discretion to decide the
following:
(i) The length of time the property will be available. (Leases and
permits will be for a period of at least one year unless the applicant
requests a shorter term.)
(ii) The terms and conditions of the lease or permit document
(except that a landholding agency may not charge any fees or impose any
costs).
(b) Excess and surplus properties.
(1) When HHS approves an application, it will so notify the
applicant and request that GSA assign the property to HHS for transfer.
Requests to GSA for the assignment of surplus property to HHS for
homeless assistance purposes will be based on the following conditions:
(i) HHS has a fully approved application for the property;
(ii) The applicant is able, willing, and authorized to assume
immediate care, custody, and maintenance of the property;
(iii) The applicant is able, willing and authorized to pay the
administrative expenses incident to the transfer; and
(iv) The applicant has secured the necessary funds, or had
demonstrated the ability to obtain such funds, to carry out the
approved program of use of the property.
(2) Upon receipt of an acceptable assignment, HHS will execute the
transfer document in accordance with the procedures and requirements
set out in this part and any other terms and conditions HHS and GSA
determine are appropriate or necessary. Custody and accountability of
the property will remain throughout the lease term with the landholding
agency (i.e., the agency which initially reported the property as
excess) and throughout the deed term with the transferee.
(3) Prior to assignment to HHS, GSA may consider other Federal uses
and other important national needs in deciding the disposition of
surplus property. Priority of consideration will normally be given to
uses to assist the homeless. However, both GSA and HHS may consider any
competing request for the property made under 40 U.S.C. 550 that is so
meritorious and compelling that it outweighs the needs of the homeless.
(4) Whenever GSA or HHS decides in favor of a competing request
over a request for property for homeless assistance, the agency making
the decision will transmit to the appropriate committees of Congress an
explanatory statement which details the need satisfied by conveyance of
the surplus property, and the reasons for determining that such need
was so meritorious and compelling as to outweigh the needs of the
homeless.
Sec. 12a.7 Transfer Documents.
(a) Surplus property may be conveyed to eligible organizations
pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease
or deed, at the applicant's discretion.
(b) Transfers of surplus property for homeless assistance purposes
are in exchange for the transferee's agreement to fully utilize the
property for homeless assistance purposes in accordance with the terms
specified in the transfer document.
(c) A transfer of surplus property for homeless purposes is subject
to the disapproval of GSA within 30 days after notice is given to GSA
of the proposed transfer.
(d) Surplus property transferred pursuant to this part will be
disposed on an ``as is, where is,'' basis without warranty of any kind
except as may be stated in the transfer document.
(e) Unless excepted by GSA in its assignment, the disposal of
property includes mineral rights associated with the surface estate.
(f) Transfers of surplus property under this part will be made with
the following general terms and conditions:
(1) For the period provided in the transfer document, the
transferee shall utilize all the surplus property it receives solely
and continuously for an approved program and plan of use, in accordance
with 42 U.S.C. 11411 and these regulations, except that:
[[Page 16865]]
(i) The transferee has 12 months from the date of transfer to place
the surplus property into use, if HHS did not approve in writing,
construction of new facilities or major renovation of the property when
it approved the final application;
(ii) The transferee has 36 months from the date of transfer to
place the surplus property into use, if the transferee proposes
construction of new facilities or major renovation of the property and
HHS approves it in writing at the time it approves the final
application;
(iii) If the applicable time limitation is not met, the transferee
shall either commence payments in cash to the Federal government for
each month thereafter during which the proposed use has not been
implemented or take such other action as set forth at Sec. 12a.10 as
is deemed appropriate by HHS. Such monthly payments shall be computed
on the basis of the current fair market value of the property, as
conveyed, at the time of the first payment and dividing it by 360
months. At HHS's discretion, the payment may be waived if the
transferee makes a sufficient showing of continued progress to place
the property into use or if an unforeseeable event occurs which
prevents the property from being put into use within the applicable
timeframe; and
(iv) HHS may permit use of surplus property at any time during the
period of restriction by an entity other than the transferee in
accordance with Sec. 12a.11.
(2) The transferee will not be permitted to encumber, sell, lease
or sublease, rent, mortgage, or otherwise dispose of the property, or
any part thereof, without the prior written authorization of HHS. In
the event the property is sold, leased or subleased, encumbered,
disposed of, or is used for purposes other than those set forth in an
approved plan without the consent of HHS, all revenues or the
reasonable value of other benefits received by the transferee directly
or indirectly from such use, as determined by HHS, will be considered
to have been received and held in trust by the transferee for the
account of the United States and will be subject to the direction and
control of HHS. The provisions of this paragraph shall not impair or
affect the rights reserved to the United States in paragraph (f)(8) of
this section, or the right of HHS to impose conditions to its consent.
(3) The transferee will file with HHS such reports on its
maintenance and use of the transferred property and any other reports
or information deemed necessary by HHS.
(4) The transferee shall pay all administrative costs incidental to
the transfer, including but not limited to--transfer taxes; surveys;
appraisals; title searches; the transferee's legal fees; and
recordation expenses. Transferee is solely responsible for such costs
and may not seek reimbursement from the Federal government for any
reason.
(5) The transferee shall protect, preserve, maintain, and repair
the property to ensure that the property remains in as good a condition
as when received.
(6) The transferee shall protect the residual financial interest of
the United States in the surplus property by insurance or such other
means as HHS directs. Where loss or damage to the transferred property
occurs, all proceeds from insurance shall be promptly used by the
transferee for the purpose of repairing and restoring the property to
its former condition or replacing it with equivalent or more suitable
facilities. If not so used, there shall be paid to the United States
that part of the insurance proceeds that is attributable to the
Government's residual interest in the property lost, damaged, or
destroyed. Further, transferee shall neither take any action nor allow
any action which diminishes the residual financial interest of the
United States.
(7) The transferee shall abide by all applicable Federal Civil
Rights laws including those specified in the covenants and conditions
contained in the transfer document, prohibiting the transferee from
discriminating on the basis of, including but not limited to, race,
color, national origin, religion, sex, familial status or disability in
the use of the property.
(8) In the event of substantial noncompliance with any conditions
of the deed as determined by HHS, whether caused by the legal or other
inability of the transferee, its successors and assigns, to perform any
of the obligations of the transfer document, the Federal government has
an immediate right of reentry thereon, and to cause all right, title,
and interest in and to the property to revert to the United States, and
the transferee shall forfeit all right, title, and interest in and to
the property. In such event, transferee shall execute a quitclaim deed
and take all other actions necessary to return the property to the
United States within ninety (90) days of a written request from the
Federal government, extended only at the discretion of the Federal
government. Transferee shall cooperate with the United States in the
event of a reversion and agrees that the United States need not seek
judicial intervention before exercising its right to revert, reenter
and reconvey the property.
(9) In the event title is reverted to the United States for
noncompliance or voluntarily reconveyed to the United States, the
transferee shall, at the option of HHS, be required to: reimburse the
United States for the decrease in value of the property not due to
market conditions, reasonable wear and tear, acts of God, or approved
alterations completed by the transferee to adapt the property to the
homeless use for which the property was transferred; and reimburse the
United States for any costs incurred in reverting title to or
possession of the property, including reasonable attorneys' fees.
(10) With respect to leased property, in the event of substantial
noncompliance with any of the conditions of the lease, as determined by
HHS or the landholding agency, the right of occupancy and possession
shall, at the option of HHS or the landholding agency, be terminated.
In the event a leasehold is terminated by the United States for
substantial noncompliance or is voluntarily surrendered, the lessee
shall be required, at the option of HHS, to reimburse the United States
for the decrease in value of the property not due to market conditions,
reasonable wear and tear, acts of God, or approved alterations
completed by the lessee to adapt the property to the homeless use for
which the property was leased. With respect to any termination of
leasehold resulting from noncompliance, the United States, shall, in
addition thereto, be reimbursed for such costs as may be incurred in
recovering possession of the property, including reasonable attorneys'
fees.
(11) Any other term or condition that HHS and GSA determine
appropriate or necessary.
(12) With respect to surplus property transferred by deed, the
terms and conditions including those in paragraph (f) of this section,
apply for a period of thirty (30) years of use in accordance with a
program of use approved in writing by HHS. The thirty-year (30) period
may, in HHS's sole discretion, be extended or restarted in the event
the property is not fully utilized or is retransferred to a successor
entity. Expiration of the foregoing terms and conditions does not
release the transferee from continuing compliance, as appropriate, with
any conditions that may run with the land, e.g., environmental
conditions and/or historic preservation covenants. Such conditions will
continue to be the responsibility of the transferee and successors.
[[Page 16866]]
(13) With respect to surplus property transferred by lease, the
terms and conditions including those in paragraph (f) of this section,
extend for the entire initial lease and for any subsequent renewal
periods, unless specifically excluded in writing by HHS.
(g) Related personal property may be transferred or leased as a
part of the realty and in accordance with real property procedures.
(h) Completion of Transfer Term and Reversion of Title. Transferees
will be responsible for the protection and maintenance of the property
during the time that they possess the property. Upon termination of the
lease term or reversion of title to the United States, the transferee
will be responsible for removing improvements made to the property if
directed to by the United States and, in such event, will be
responsible for restoration of the property or the costs associated
with restoring the property. If improvements made by the transferee are
not voluntarily removed by the transferee and the United States
consents, they will become the property of the United States. If the
United States does not consent, the transferee shall reimburse the
United States for reasonable costs of removal. GSA or the landholding
agency, as appropriate, will assume responsibility for protection and
maintenance of a property when the lease terminates or title reverts.
(i) Transferees, by obtaining the consent of HHS, may abrogate the
restrictions set forth in paragraph (f) of this section for all or any
portion of the property in accordance with the provisions of Sec.
12a.12.
Sec. 12a.8 Compliance With the National Environmental Policy Act of
1969 and Other Related Acts (environmental impact).
(a) HHS, prior to making a final decision to convey or lease, or to
amend, reform, or grant an approval or release with respect to a
previous conveyance or lease of, surplus property for homeless
purposes, will act in accordance with applicable provisions of the
National Environmental Policy Act of 1969, the National Historic
Preservation Act of 1966, the National Archeological Data Preservation
Act, and other related acts. No lease to use surplus property shall
allow the lessee to make, or cause to be made, any irreversible change
in the conditions of said property, and no lease shall be employed for
the purpose of delaying or avoiding compliance with the requirements of
these Acts, unless approved by the United States.
(b) Applicants shall be required to provide such information as HHS
deems necessary to make an assessment of the impact of the proposed
Federal action on the human environment. Materials contained in the
applicant's official request, responses to a standard questionnaire
prescribed by HHS, as well as other relevant information, will be used
by HHS in making said assessment.
(c) If the assessment reveals:
(1) that the proposed Federal action involved properties of
historical significance which are listed, or eligible for listing, in
the National Register of Historic Places; or
(2) that a more than insignificant impact on the human environment
is reasonably foreseeable as a result of the proposed action; or
(3) that the proposed Federal action could result in irreparable
loss or destruction of archeologically significant items or data, HHS
will, except as provided for in paragraph (d) of this section, prepare
and distribute, or cause to be prepared or distributed, such notices
and statements and obtain such approvals as are required by the above
cited Acts.
(d) If a proposed action involves other Federal agencies in a
sequence of actions, or a group of actions, directly related to each
other because of their functional interdependence, HHS may enter into
and support a lead agency agreement to designate a single lead agency
which will assume primary responsibility for coordinating the
assessment of environmental effects of proposed Federal actions,
preparing and distributing such notices and statements, or obtaining
such approvals, as are required by the above cited Acts. The procedures
of the designated lead agency will be utilized in conducting the
environmental assessment. In the event of disagreement between HHS and
another Federal agency, HHS will reserve the right to abrogate the lead
agency agreement with the other Federal agency.
Sec. 12a.9 No Applications Approved.
(a) At the end of the 30-day holding period described in Sec.
12a.4(a), HHS will notify GSA, or the landholding agency, as
appropriate, if an expression of interest has been received for a
certain property. Where there is no expression of interest, GSA or the
landholding agency, as appropriate, will proceed with disposal in
accordance with applicable law.
(b) Upon notice from HHS that all applications have been
disapproved, or if no initial applications have been received within 75
days after an expression of interest, or no final application has been
received within 45 days after an approved initial application, disposal
may proceed in accordance with applicable law.
Sec. 12a.10 Utilization and Enforcement.
(a) Sanctions. For instances of substantial noncompliance relating
to surplus property transfers, HHS may impose, in its sole discretion,
any or all of the following sanctions, as applicable:
(1) Where property or any portion thereof was not used or is not
being used for the purposes for which transferred, or is sold, leased
or subleased, encumbered, disposed of, or used for purposes other than
those in the approved program and plan of use, without the prior
written consent of HHS, HHS may require the transferee to--
(i) Place the property into immediate use for an approved purpose
and extend the period of restriction in the transfer document for an
additional term as determined by HHS;
(ii) Hold in trust all revenues and the reasonable value of other
benefits received by the transferee directly or indirectly from that
use for the United States subject to the direction and control of HHS;
(iii) Return title to such property to the United States or to
relinquish any leasehold interest therein;
(iv) Abrogate the conditions and restrictions of the transfer, as
set forth in Sec. 12a.12;
(v) Make cash payments to the United States, as directed by HHS,
equivalent to the current fair market rental value of the surplus
property, as transferred, for each month during which the program and
plan of use has not been implemented and continues to not be
implemented; or
(vi) Any other remedy that HHS determines appropriate or necessary.
(2) Where the transferee desires to place the property into
temporary use to assist the homeless other than that for which the
property was transferred, written approval from HHS must be obtained,
and will be conditioned upon HHS's authority to permit the use and such
terms as HHS may impose.
(3) If HHS or the landholding agency determines that a lessee or
sublessee of a transferee is in substantial noncompliance with a term
or condition of the lease, or if the lessee voluntarily surrenders the
premises, HHS may require termination of the lease and impose sanctions
described in paragraph (a)(1) of this section, as appropriate.
(b) Reversion. When HHS recommends reversion of the property for
noncompliance, HHS will seek
[[Page 16867]]
GSA's concurrence. GSA will respond to HHS's concurrence request within
30 days of its receipt. If GSA concurs, HHS will work with GSA to
complete the reversion of the property. If GSA does not concur to the
reversion recommendation, GSA will issue, to HHS, a written
determination: stating the reason(s) for the disapproval; and
acknowledging that HHS has recommended reversion and, therefore, the
property is no longer within HHS's Title V program. The Federal
government will implement a response to the noncompliance that is in
its best interests.
Sec. 12a.11 Other Uses.
A transferee may permit the use of all or a portion of the surplus
property by another eligible entity as described in Sec. 12a.1(d) for
homeless assistance purposes, only upon those terms and conditions HHS
determines appropriate, if:
(a) The transferee submits a written request to HHS explaining the
purpose of and need for another eligible entity's use of the property,
program plan, and other relevant information requested by HHS;
(b) HHS determines that the proposed use would not substantially
limit the program and plan of use by the transferee and that the use
will not unduly burden the Federal government;
(c) HHS's written consent is obtained by the transferee in advance;
(d) HHS approves the use instrument in advance and in writing; and
(e) HHS advises GSA and there is no disapproval by GSA within
thirty (30) days.
Sec. 12a.12 Abrogation.
(a) HHS may abrogate the conditions and restrictions in the
transfer document if:
(1) The transferee submits to HHS a written request that HHS
abrogate the conditions and restrictions in the transfer document as to
all or any portion of the surplus property;
(2) HHS determines the terms and conditions of the proposed
abrogation and determines that the proposed abrogation is in the best
interest of the United States; and
(3) HHS transmits the abrogation request to GSA and there is no
disapproval by GSA within 30 days after notice is given. If GSA
disapproves, GSA will state, in writing, to HHS the reason(s) for the
disapproval.
(b) HHS abrogates the conditions and restrictions in the transfer
document only upon receipt of the appropriate consideration, including
cash payment, to the United States, as directed by HHS, which is based
on the formula contained in the transfer document, and any other terms
and conditions HHS deems appropriate to protect the interest of the
United States.
Sec. 12a.13 Compliance Inspections and Reports.
Transferees are required to allow HHS to conduct compliance
inspections and to submit such compliance reports and actions as are
deemed necessary by HHS. At a minimum, the transferee will be required
to submit an annual utilization report regarding the operation and
maintenance of the property, including current images of the entire
property and such information as HHS shall require.
Sec. 12a.14 No Right of Administrative Review for Agency Decisions.
There is no right to administrative review within HHS, including
requests for reconsideration or appeal, of agency decisions on
applications and other discretionary decisions.
Marcia L. Fudge,
Secretary, HUD.
Robin Carnahan,
Administrator, GSA.
Xavier Becerra,
Secretary, HHS.
[FR Doc. 2023-04353 Filed 3-17-23; 8:45 am]
BILLING CODE 4210-67-P; 6820-14-P; 4150-24-P
