[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2019 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 32

National Defense


________________________

Parts 630 to 699

                         Revised as of July 1, 2018

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2018
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 32:
    SUBTITLE A--Department of Defense (Continued)
          Chapter V--Department of the Army (Continued)              5
  Finding Aids:
      Table of CFR Titles and Chapters........................     353
      Alphabetical List of Agencies Appearing in the CFR......     373
      List of CFR Sections Affected...........................     383

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 32 CFR 631.1 refers 
                       to title 32, part 631, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2018), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
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citations for the regulations are referred to by volume number and page 
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inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
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Code users may find the text of provisions in effect on any given date 
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for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
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    (b) The matter incorporated is in fact available to the extent 
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    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
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CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
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This index is based on a consolidation of the ``Contents'' entries in 
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the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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INQUIRIES

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    The e-CFR is a regularly updated, unofficial editorial compilation 
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available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2018







[[Page ix]]



                               THIS TITLE

    Title 32--National Defense is composed of six volumes. The parts in 
these volumes are arranged in the following order: Parts 1-190, parts 
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to 
end. The contents of these volumes represent all current regulations 
codified under this title of the CFR as of July 1, 2018.

    The current regulations issued by the Department of Defense appear 
in the volumes containing parts 1-190 and parts 191-399; those issued by 
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear 
in the volume containing parts 700-799, and those issued by the 
Department of the Air Force, Defense Logistics Agency, Selective Service 
System, National Counterintelligence Center, Central Intelligence 
Agency, Information Security Oversight Office, National Security 
Council, Office of Science and Technology Policy, Office for Micronesian 
Status Negotiations, and Office of the Vice President of the United 
States appear in the volume containing part 800 to end.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                       TITLE 32--NATIONAL DEFENSE




                  (This book contains parts 630 to 699)

  --------------------------------------------------------------------

              SUBTITLE A--Department of Defense (Continued)

                                                                    Part

chapter v--Department of the Army (Continued)...............         631


Abbreviations Used in This Chapter:
    AGCT = Army General Classification Test. AGO = Adjutant General's 
  Office. APP = Army Procurement Procedure. AR = Army Regulations. ASPR 
  = Armed Services Procurement Regulations. ATC = Air Transport Command. 
  A. W. = Articles of War. AWOL = Absent Without Leave. Comp. Gen. = 
  Comptroller General. OCF = Office, Chief of Finance. ROTC = Reserve 
  Officer's Training Corps. ZI = Zone of Interior.

[[Page 3]]

              Subtitle A--Department of Defense (Continued)

[[Page 5]]



              CHAPTER V--DEPARTMENT OF THE ARMY (CONTINUED)




  --------------------------------------------------------------------

        SUBCHAPTER I--LAW ENFORCEMENT AND CRIMINAL INVESTIGATIONS
Part                                                                Page
630

[Reserved]

631             Armed Forces Disciplinary Control Boards and 
                    off-installation liaison and operations.           7
633             Individual requests for access or amendment 
                    of CID reports of investigation.........          17
634             Motor vehicle traffic supervision...........          18
635             Law enforcement reporting...................          52
637             Military Police investigation...............          63
                       SUBCHAPTER J--REAL PROPERTY
641-642

[Reserved]

643             Real estate.................................          71
644             Real estate handbook........................          86
645-649

[Reserved]

                   SUBCHAPTER K--ENVIRONMENTAL QUALITY
651             Environmental analysis of Army actions (AR 
                    200-2)..................................         281
652-654

[Reserved]

655             Radiation sources on Army land..............         347
656-667

[Reserved]

                SUBCHAPTER L--ARMY CONTRACTING [RESERVED]
668-699

[Reserved]

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        SUBCHAPTER I_LAW ENFORCEMENT AND CRIMINAL INVESTIGATIONS



                           PART 630 [RESERVED]



PART 631_ARMED FORCES DISCIPLINARY CONTROL BOARDS AND OFF-INSTALLATION
LIAISON AND OPERATIONS--Table of Contents



                            Subpart A_General

Sec.
631.1 Purpose.
631.2 Applicability.
631.3 Supervision.
631.4 Exceptions.

           Subpart B_Armed Forces Disciplinary Control Boards

631.5 General.
631.6 Responsibilities.
631.7 Composition of boards.
631.8 Participation by civil agencies.
631.9 Duties and functions of boards.
631.10 Administration.
631.11 Off-limits establishments and areas.

      Subpart C_Off-Installation Operations (Military Patrols and 
                  Investigative Activities) and Policy

631.12 Objectives.
631.13 Applicability.
631.14 Army policy.
631.15 Air Force policy.
631.16 Navy policy.
631.17 Marine Corps policy.
631.18 Operations.

Appendix A to Part 631--Armed Forces Disciplinary Control Board 
          Procedures Guide

    Authority: 10 U.S.C. 3012(b)(1)(g).

    Source: 70 FR 60729, Oct. 19, 2005, unless otherwise noted.



                            Subpart A_General



Sec.  631.1  Purpose.

    This part prescribes uniform policies and procedures for the 
establishment, and operation of the following:
    (a) Armed Forces Disciplinary Control Boards (AFDCB).
    (b) Off-installation liaison and operations.



Sec.  631.2  Applicability.

    This part applies to the following:
    (a) Active U.S. Armed Forces personnel of the Army, Air Force, Navy, 
and Marine Corps, and the Coast Guard wherever they are stationed.
    (b) U.S. Armed Forces Reserve personnel only when they are 
performing Federal duties or engaging in activities directly related to 
performing a Federal duty or function.
    (c) National Guard personnel only when called or ordered to active 
duty in a Federal status within the meaning of Title 10, United States 
Code.



Sec.  631.3  Supervision.

    The following will develop and have staff supervision over AFDCB and 
off-installation enforcement policies.
    (a) The Office of the Provost Marshal General (OPMG), Headquarters, 
Department of the Army (HQDA). This official serves as the proponent for 
this part, and has primary responsibility for its content.
    (b) U.S. Air Force Director of Security Forces and Force Protection, 
Department of the Air Force.
    (c) Director, Naval Criminal Investigative Service.
    (d) Commandant of the Marine Corps.
    (e) Commandant of the Coast Guard.
    (f) Installation commanders are authorized to convene joint service 
boards within their Army Regulation (AR) 5-9 area of responsibility.



Sec.  631.4  Exceptions.

    Requests for exceptions to policies contained in this part will be 
forwarded to HQDA (DAPM-MPD-LE), Washington, DC 20310-2800.



           Subpart B_Armed Forces Disciplinary Control Boards



Sec.  631.5  General.

    AFDCBs may be established by installation, base, or station 
commanders to advise and make recommendations to commanders on matters 
concerning eliminating conditions, which adversely affect the health, 
safety, welfare, morale, and discipline of the Armed Forces.

[[Page 8]]

    (a) For the Army, routine off-limits actions must be processed by an 
AFDCB following the procedures in Sec.  631.11.
    (b) Coast Guard commanders must have written authorization from the 
Commandant (G-WP) prior to establishing an AFDCB.



Sec.  631.6  Responsibilities.

    (a) Regional Directors of the Army Installation Management Agency, 
Air Force commanders, Navy regional commanders, Marine Corps commanders, 
and Coast Guard commanders will--
    (1) Determine level and degree of participation by subordinate 
commanders in joint Service boards, when appropriate.
    (2) Resolve differences among subordinate commanders regarding board 
areas of responsibility, and the designation of sponsoring commanders.
    (3) Evaluate board recommendations, and actions from subordinate 
sponsoring commanders.
    (4) Forward recommendations to HQDA, OPMG (DAPM-MPD-LE), WASH DC 
20310-2800, regarding circumstances that require Service headquarters 
action or programs having widespread applicability.
    (5) Ensure that subordinate commanders assess the availability of 
drug abuse paraphernalia in the vicinity of Department of Defense (DOD) 
installations through their AFDCBs, according to DOD Directive 1010.4. 
Coast Guard commanders should refer to COMDTINST M1000.6 series, chapter 
20, for guidance on Coast Guard substance abuse policies.
    (b) Military installation commanders for off-installation 
enforcement actions will--
    (1) Conduct off-installation operations as authorized by law and 
Service policy.
    (2) Coordinate off-installation operations with other Service 
commanders, as applicable, for uniformity of effort, and economy of 
resources.
    (3) Assist Federal, State, and local law enforcement agencies within 
the limits imposed by law and DOD policy.
    (c) Sponsoring commanders will provide administrative support for 
AFDCB programs to include the following--
    (1) Promulgating implementing directives, and convening the board.
    (2) Providing a recorder for the board.
    (3) Providing copies of the minutes of board meetings to other 
Service commanders who are represented on the board, and to other AFDCBs 
as appropriate.
    (4) Approving or disapproving the minutes, and recommendations of 
the board, and making appropriate distribution, as required.
    (5) Publishing lists of ``off-limits'' establishments and areas.
    (6) Ensuring that responsible individuals are notified of any 
unfavorable actions being contemplated or taken regarding their 
establishments per Annex A of appendix A of this part.
    (7) Distributing pertinent information to the following--
    (i) All units within their jurisdictional area.
    (ii) Units stationed in other areas whose personnel frequent their 
area of jurisdiction.
    (8) Ensuring that procedures are established to inform all Service 
personnel, including those who may be visiting or are in a travel 
status, of off-limits restrictions in effect within the respective 
AFDCB's jurisdictional area.



Sec.  631.7  Composition of boards.

    (a) Boards should be structured according to the needs of the 
command, with consideration given to including representatives from the 
following functional areas--
    (1) Law enforcement.
    (2) Legal counsel.
    (3) Health.
    (4) Environmental protection.
    (5) Public affairs.
    (6) Equal opportunity.
    (7) Fire and safety.
    (8) Chaplains' service.
    (9) Alcohol and drug abuse.
    (10) Personnel and community activities.
    (11) Consumer affairs.
    (b) Sponsoring commanders will designate a board president, and 
determine by position which board members will be voting members. Such 
designations will be included in a written agreement establishing the 
board.

[[Page 9]]



Sec.  631.8  Participation by civil agencies.

    (a) Civil agencies or individuals may be invited to board meetings 
as observers, witnesses or to provide assistance where they possess 
knowledge or information pertaining to problem areas within the board's 
jurisdiction.
    (b) Announcements and summaries of board results may be provided to 
appropriate civil agencies.



Sec.  631.9  Duties and functions of boards.

    The AFDCBs will--
    (a) Meet as prescribed by appendix A of this part.
    (b) Receive reports, and take appropriate action on conditions in 
their area of responsibility relating to any of the following--
    (1) Disorders and lack of discipline.
    (2) Prostitution.
    (3) Sexually transmitted disease.
    (4) Liquor violations.
    (5) Racial and other discriminatory practices.
    (6) Alcohol and drug abuse.
    (7) Drug abuse paraphernalia.
    (8) Criminal or illegal activities involving cults or hate groups.
    (9) Illicit gambling.
    (10) Areas susceptible to terrorist activity.
    (11) Unfair commercial or consumer practices.
    (12) Other undesirable conditions deemed unsafe which may adversely 
affect the health and well being of military personnel or their 
families.
    (c) Report to all major commanders in the board's area of 
responsibility--
    (1) Conditions cited in paragraph (b) of this section.
    (2) Recommended action as approved by the board's sponsoring 
commander.
    (d) Coordinate with appropriate civil authorities on problems or 
adverse conditions existing in the board's area of jurisdiction.
    (e) Make recommendations to commanders in the board's area of 
jurisdiction concerning off-installation procedures to prevent or 
control undesirable conditions.



Sec.  631.10  Administration.

    (a) Commanders are authorized to acquire, report, process, and store 
information concerning persons and organizations, whether or not 
affiliated with DOD, according to the applicable Service parts of the 
sponsoring commander, which--
    (1) Adversely affect the health, safety, morale, welfare, or 
discipline of service members regardless of status.
    (2) Describes crime conducive conditions where there is a direct 
Service interest.
    (b) Boards will function under the supervision of a president (Sec.  
631.7(b)).
    (c) Certain expenses incurred by Service members in the course of an 
official board investigation or inspection may be reimbursable per 
appropriate Service finance parts or instructions. Requests for 
reimbursement will be submitted through the sponsoring commander.
    (d) Records of board proceedings will be maintained as prescribed by 
records management policies, and procedures of the sponsoring 
commander's Service.



Sec.  631.11  Off-limits establishments and areas.

    (a) The establishment of off-limits areas is a function of Command. 
It may be used by commanders to help maintain good order and discipline, 
health, morale, safety, and welfare of service members. Off-limits 
action is also intended to prevent service members from being exposed to 
or victimized by crime-conducive conditions. Where sufficient cause 
exists, commanders retain substantial discretion to declare 
establishments or areas temporarily off-limits to personnel of their 
respective commands in emergency situations. Temporary off-limits 
restrictions issued by commanders in an emergency situation will be 
acted upon by the AFDCB as a first priority. As a matter of policy, a 
change in ownership, management, or name of any off-limits establishment 
does not, in and of itself, revoke the off-limits restriction.
    (b) Service members are prohibited from entering establishments or 
areas declared off-limits according to this part. Violations may subject 
the member to disciplinary action per applicable Service parts, and the 
Uniform Code of Military Justice (UCMJ). Family members of service 
members and others associated with the Service or installation should be 
made aware of

[[Page 10]]

off-limits restrictions. As a general policy, these establishments will 
not be visited by Service law enforcement personnel unless specifically 
determined by the installation commander that visits or surveillance are 
warranted.
    (c) Prior to initiating AFDCB action, installation commanders will 
attempt to correct adverse conditions or situations through the 
assistance of civic leaders or officials.
    (d) Prior to recommending an off-limits restriction, the AFDCB will 
send a written notice (certified mail-return receipt requested) to the 
individual or firm responsible for the alleged condition or situation. 
The AFDCB will specify in the notice a reasonable time for the condition 
or situation to be corrected, along with the opportunity to present any 
relevant information to the board. If subsequent investigation reveals 
that the responsible person has failed to take corrective action, the 
board will recommend the imposition of the off-limits restriction.
    (e) A specified time limit will not be established when an off-
limits restriction is invoked. The adequacy of the corrective action 
taken by the responsible individual will be the determining factor in 
removing an off-limits restriction.
    (f) A person whose establishment or area has been declared off-
limits may at any time petition the president of the board to remove the 
off-limits restriction. The petition will be in writing and will include 
a detailed report of action taken to eliminate the condition or 
situation that caused imposition of the restriction. The president of 
the AFDCB may direct an investigation to determine the status of 
corrective actions noted in the petition. The board will either 
recommend removal or continuation of the off-limits restriction to the 
local sponsoring commander based on the results of the investigation.
    (g) Off-limits procedures to be followed by the boards are in 
appendix A of this part. In the United States, off-limits signs will not 
be posted on civilian establishments by U.S. military authorities.
    (h) In areas Outside of the Continental United States (OCONUS), off-
limits and other AFDCB procedures must be consistent with existing 
Status of Forces Agreements (SOFAs).



      Subpart C_Off-Installation Operations (Military Patrols and 
                  Investigative Activities) and Policy



Sec.  631.12  Objectives.

    The primary objectives of off-installation operations are to--
    (a) Render assistance and provide information to Service members.
    (b) Preserve the safety, and security of service members.
    (c) Preserve good order and discipline among Service members and 
reduce off-installation incidents and offenses.
    (d) Maintain effective cooperation with civil authorities, and 
community leaders.



Sec.  631.13  Applicability.

    This subpart is not applicable to the U.S. Coast Guard.



Sec.  631.14  Army policy.

    (a) Soldiers, military and/or Department of the Army Civilian (DAC) 
police performing off-installation operations must be thoroughly 
familiar with applicable agreements, constraints of the Posse Comitatus 
Act (18 U.S.C. 1385) in the Continental United States (CONUS) and United 
States-host nation agreements in areas OCONUS.
    (b) Military and/or DAC police assigned to off-installation 
operations have the sole purpose of enforcing parts, and orders 
pertaining to persons subject to their jurisdiction.
    (c) Military and/or DAC police accompanying civilian law enforcement 
officers remain directly responsible to, and under the command of, U.S. 
Army superiors. Military and DAC police may come to the aid of civilian 
law enforcement officers to prevent the commission of a felony or injury 
to a civilian law enforcement officer.
    (d) Regional Directors of the Army Installation Management Agency 
(IMA), Commander, Army Materiel Command (AMC), and Commander, Army Test 
and Evaluation Command (ATEC) may authorize subordinate

[[Page 11]]

commanders to establish off-installation operations within the limits 
imposed by higher authority, the Posse Comitatus Act (18 U.S.C. 1385) in 
CONUS, and United States-host nation agreements in OCONUS areas--
    (1) To assist Federal, State, and local law enforcement agencies.
    (2) In conjunction with military activities.
    (3) To safeguard the health and welfare of Soldiers.
    (4) When the type of offenses or the number of Soldiers frequenting 
an area is large enough to warrant such operations.
    (e) The constraints on the authority of Soldiers and/or DAC police 
to act off-Installation, (Posse Comitatus Act (18 U.S.C. 1385) in CONUS 
and United States-host nation agreements in OCONUS areas) and the 
specific scope of off-installation operations will be clearly delineated 
in all authorizations for off-installation operations. Off-installation 
operations will be coordinated with the local installation commander 
through the Staff Judge Advocate (SJA), or higher authority, and 
appropriate civilian law enforcement agencies.



Sec.  631.15  Air Force policy.

    (a) Airmen, military and/or Department of the Air Force Civilian 
(DAFC) police performing off-installation operations must be thoroughly 
familiar with applicable agreements, constraints of the Posse Comitatus 
Act (18 U.S.C. 1385) in CONUS and United States-host nation agreements 
in areas OCONUS.
    (b) Military and/or DAFC police assigned to off-installation 
operations have the sole purpose of enforcing parts, and orders 
pertaining to persons subject to their jurisdiction.
    (c) Military and/or DAFC police accompanying civilian law 
enforcement officers remain directly responsible to, and under the 
command of, U.S. Air Force superiors. Military and DAFC police may come 
to the aid of civilian law enforcement officers to prevent the 
commission of a felony or injury to a civilian law enforcement officer.
    (d) Air Force commanders may authorize subordinate commanders to 
establish off-installation operations within the limits imposed by 
higher authority, the Posse Comitatus Act (18 U.S.C. 1385) in CONUS, and 
United States-host nation agreements in OCONUS areas--
    (1) To assist Federal, State, and local law enforcement agencies.
    (2) In conjunction with military activities.
    (3) To safeguard the health and welfare of Airmen.
    (4) When the type of offenses or the number of Airmen frequenting an 
area is large enough to warrant such operations.
    (e) The constraints on the authority of Airmen and/or DAFC police to 
act off-installation, (Posse Comitatus Act (18 U.S.C. 1385) in CONUS and 
United States-host nation agreements in OCONUS areas) and the specific 
scope of off-installation operations will be clearly delineated in all 
authorizations for off-installation operations. Off-installation 
operations will be coordinated with the local installation commander 
through the Staff Judge Advocate (SJA), or higher authority, and 
appropriate civilian law enforcement agencies.



Sec.  631.16  Navy policy.

    The following policies apply to off-installation operations--
    (a) Article 1630-020, MILPERSMAN revised August 2002, and Navy 
Parts, Article 0922 concerning the establishment and operation of a 
shore patrol.
    (b) In accordance with SECNAV 1620.7A, Navy Absentee Collection 
Units collect, and process apprehended absentees and deserters, escort 
apprehended absentees, and deserters to their parent commands or to 
designated processing activities, escort prisoners between confinement 
facilities, and provide liaison with civilian law enforcement 
authorities.
    (c) Navy personnel will be thoroughly familiar with all applicable 
agreements and Implementing standard operating procedures, to include 
the constraints of the Posse Comitatus Act (18 U.S.C. 1385), in CONUS 
and United States-host nation agreements in OCONUS areas, as applicable.
    (d) Within CONUS. (1) Installation Commanders may request authority

[[Page 12]]

from their Regional Commander, to establish off-installation 
operations--
    (i) To assist Federal, State, and local law enforcement agencies 
within the limits imposed by higher authority and the Posse Comitatus 
Act (18 U.S.C. 1385).
    (ii) In conjunction with military operations.
    (iii) To safeguard the health, and welfare of Naval personnel.
    (iv) When the type of offenses or the number of service members 
frequenting an area is large enough to warrant such operation.
    (2) Constraints on the authority of military personnel to act off-
installation (Posse Comitatus Act (18 U.S.C. 1385) and the specific 
scope of the authority will be clearly delineated in all authorizations 
for off-installation operations.
    (e) Within OCONUS, off-installation operations will be kept at the 
minimum needed for mission accomplishment. Installation commanders may 
authorize off-installation operations as required by local conditions 
and customs, as long as they are conducted in accordance with applicable 
treaties and SOFAs.
    (f) Off-installation operations will be coordinated with the local 
installation commander through the JAG or higher authority, and local 
law enforcement authorities.
    (g) Security personnel selected for off-installation operations 
must--
    (1) Have mature judgment and law enforcement experience.
    (2) Be thoroughly familiar with all applicable agreements and 
implementing standard operating procedures, to include the constraints 
of the Posse Comitatus Act (18 U.S.C. 1385), in CONUS and United States 
Host Nation agreements in OCONUS area, as applicable.
    (h) Security personnel accompanying civilian police during off-
installation operations do so only to enforce parts and orders 
pertaining to persons subject to their jurisdiction. Security personnel 
assigned off-installation operations remain directly responsible to, and 
under the command of their Navy superiors when accompanying civilian 
police. Security personnel performing such duties may come to the aid of 
civilian police in order to prevent the commission of a felony or injury 
to a civilian police officer.
    (i) Civilian police and court liaison may be established with 
concurrence of the Naval Criminal Investigative Service and is 
encouraged particularly when the intent is to reduce mishaps.



Sec.  631.17  Marine Corps policy.

    (a) Within CONUS. (1) Commanders may request authority from 
Headquarters, Marine Corps (Code POS), to establish off-installation 
operations--
    (i) To assist Federal, State, and local law enforcement agencies 
within the limits imposed by higher authority and the Posse Comitatus 
Act (18 U.S.C. 1385).
    (ii) In conjunction with military operations.
    (iii) To safeguard the health, and welfare of Marines.
    (iv) When the type of offenses or the number of service members 
frequenting an area is large enough to warrant such operations.
    (2) Constraints on the authority of military personnel to act off-
installation (Posse Comitatus Act (18 U.S.C. 1385)) and the specific 
scope of the authority will be clearly delineated in all authorizations 
for off-installation operations.
    (b) Within OCONUS, off-installation operations will be kept at the 
minimum needed for mission accomplishment. Installation commanders may 
authorize off-installation operations as required by local conditions 
and customs, as long as they are conducted in accordance with applicable 
treaties and SOFAs.
    (c) Off-installation operations will be coordinated with the local 
installation commander through the SJA, or higher authority, and local 
law enforcement authorities.
    (d) Marines selected for off-installation operations must--
    (1) Have mature judgment and law enforcement experience.
    (2) Be thoroughly familiar with all applicable agreements and 
implementing standard operating procedures, to include the constraints 
of the Posse Comitatus Act (18 U.S.C. 1385), in CONUS and United States-
host nation

[[Page 13]]

agreements in OCONUS areas, as applicable.
    (e) Marines accompanying civilian police during off-installation 
operations do so only to enforce parts and orders pertaining to persons 
subject to their jurisdiction. Marines assigned off-installation 
operations remain directly responsible to, and under the command of 
their Marine superiors when accompanying civilian police. Marines 
performing such duties may come to the aid of civilian police in order 
to prevent the commission of a felony or injury to a civilian police 
officer.
    (f) Procedures for absentee and deserter collection units to accept 
an active-duty absentee or deserter from civilian authorities may be 
established.
    (g) Civilian police and civil court liaison may be established.



Sec.  631.18  Operations.

    When an incident of substantial interest to the Service, involving 
Service property or affiliated personnel, occurs off-installation, the 
Service law enforcement organization exercising area responsibility 
will--
    (a) Obtain copies of civilian law enforcement reports for processing 
or forwarding according to applicable Service parts.
    (b) Return apprehended persons to representatives of their Service 
as soon as practicable.



  Sec. Appendix A to Part 631--Armed Forces Disciplinary Control Board 
                            Procedures Guide

    A-1. Purpose. This guide prescribes procedures for the 
establishment, operation, and coordination of AFDCBs. AFDCB proceedings 
are not adversarial in nature.
    A-2. Meetings.
    a. The board will meet quarterly. The commander establishing the 
AFDCB may specify whether the meetings will be open or closed. If not 
specified, the decision is at the discretion of the president of the 
board. Normally proceedings are closed, but may be opened to the public 
when circumstances warrant.
    b. Special meetings may be called by the president of the board. 
Except by unanimous consent of members present, final action will be 
taken only on the business for which the meeting was called.
    c. A majority of voting members constitutes a quorum for board 
proceedings.
    A-3. AFDCB composition. Voting members will be selected per section 
631.7.
    A-4. Attendance of observers or witnesses.
    a. The board may invite individual persons or organization 
representatives as witnesses or observers if they are necessary or 
appropriate for the conduct of board proceedings. The below listed 
authorities may assist in addressing installation or command concerns or 
issues.
    (1) Federal, State, and local judicial, legislative, and law 
enforcement officials.
    (2) Housing part and enforcement authorities.
    (3) Health, and social service authorities.
    (4) Environmental protection authorities.
    (5) Alcoholic beverage control authorities.
    (6) Equal employment opportunity authorities.
    (7) Consumer affairs advocates.
    (8) Chamber of Commerce representatives.
    (9) Public works or utility authorities.
    (10) Local fire marshal, and public safety authorities.
    (11) State and local school board or education officials.
    (12) Any other representation deemed appropriate by the sponsoring 
command such as, news media, union representatives, and so forth.
    b. Invited witnesses and observers will be listed in the minutes of 
the meeting.
    A-5. Appropriate areas for board consideration.
    a. Boards will study and take appropriate action on all reports of 
conditions considered detrimental to the good order and discipline, 
health, morale, welfare, safety, and morals of Armed Forces personnel. 
These adverse conditions include, but are not limited to, those 
identified in Sec.  631.9.
    b. The board will immediately forward to the local commander 
reported circumstances involving discrimination based on race, color, 
sex, religion, age, or national origin.
    A-6. Off-limit procedures.
    a. Off-limits restrictions should be invoked only when there is 
substantive information indicating that an establishment or area 
frequented by Armed Forces personnel presents conditions, which 
adversely affect their health, safety, welfare, morale, or morals. It is 
essential that boards do not act arbitrarily. Actions must not be of a 
punitive nature. Boards should work in close cooperation with local 
officials and proprietors of business establishments, and seek to 
accomplish their mission through mutually cooperative efforts. Boards 
should encourage personal visits by local military, and civilian 
enforcement or health officials to establishments considered below 
standard. AFDCBs should point out unhealthy conditions or undesirable 
practices to establishment owners or operators to produce the desired 
corrective action.

[[Page 14]]

    b. In cases involving discrimination, the board should not rely 
solely on letters written by the Equal Opportunity Office, and Military 
Affairs Committee or investigations of alleged racial discrimination.
    c. If the board decides to attempt to investigate or inspect an 
establishment, the president or a designee will prepare, and submit a 
report of findings, and recommendations at the next meeting. This 
procedure will ensure complete, and documented information concerning 
questionable adverse conditions.
    d. When the board concludes that conditions adverse to Armed Forces 
personnel do exist, the owner or manager will be sent a letter of 
notification (Annex A). This letter will advise him or her to raise 
standards by a specified date, and, if such conditions or practices 
continue, off-limits proceedings will be initiated. Any correspondence 
with the individuals responsible for adverse conditions, which may lead 
to off-limits action, will be by certified mail.
    e. If a proprietor takes remedial action to correct undesirable 
conditions previously noted the board should send a letter of 
appreciation (Annex B) recognizing this cooperation.
    f. If undesirable conditions are not corrected, the proprietor will 
be invited to appear before the AFDCB to explain why the establishment 
should not be placed off-limits (Annex C). Any proprietor may designate 
in writing a representative to appear before the board in his or her 
behalf.
    g. In cases where proprietors have been invited to appear before the 
board, the president of the board will perform the following--
    (1) Prior to calling the proprietor--
    (a) Review the findings and decision of the previous meeting.
    (b) Call for inspection reports.
    (c) Allow those present to ask questions, and discuss the case.
    (2) When the proprietor or his or her representative is called 
before the board--
    (a) Present the proprietor with a brief summary of the complaint 
concerning the establishment.
    (b) Afford the proprietor an opportunity to present matters in 
defense.
    (c) Invite those present to question the proprietor. After the 
questioning period, provide the proprietor an opportunity to make a 
final statement before being dismissed.
    (3) Deliberations on recommended actions will be in closed session, 
attended only by board members.
    h. The board should recommend an off-limits restriction only after 
the following:
    (1) The letter of notification (Annex A) has been sent.
    (2) An opportunity for the proprietor to appear before the board has 
been extended.
    (3) Further investigation indicates that improvements have not been 
made.
    i. The minutes will indicate the AFDCB's action in each case. When a 
recommendation is made to place an establishment off-limits, the minutes 
will show the procedural steps followed in reaching the decision.
    j. Recommendations of the AFDCB will be submitted to the sponsoring 
commander for consideration. The recommendations will then be forwarded 
to other installation commanders who are represented on the board (Annex 
D). If no objection to the recommendations is received within 10 days, 
the sponsoring commander will approve or disapprove the recommendations 
and forward the decision to the AFDCB president.
    k. Upon approval of the AFDCB's recommendations, the president will 
write the proprietor that the off-limits restriction has been imposed 
(Annex E).
    l. A time limit should not be specified when an off-limits 
restriction is revoked. The adequacy of the corrective action taken by 
the proprietor of the establishment must be the determining factor in 
removing the off-limits restriction.
    m. Military authorities may not post off-limits signs or notices on 
private property.
    n. In emergencies, commanders may temporarily declare establishments 
or areas off-limits to service members subject to their jurisdiction. 
The circumstances for the action will be reported as soon as possible to 
the commander sponsoring the board. Detailed justification for this 
emergency action will be provided to the board for its deliberations.
    o. Appropriate installation commanders will publish a list of off-
limits establishments and areas using command and media channels.
    A-7. Removal of off-limits restrictions.
    a. Removal of an off-limits restriction requires AFDCB action. 
Proprietors of establishments declared off-limits should be advised that 
they may appeal to the appropriate AFDCB at any time. In their appeal 
they should submit the reason why the restriction should be removed. A 
letter of notification for continuance of the off-limits restriction 
should be sent to the proprietor if the AFDCB does not remove the off-
limits restriction (Annex F). The proprietor may appeal to the next 
higher commander if not satisfied with continuance after exhausting all 
appeals at the local sponsoring commander level. Boards should make at 
least quarterly inspections of off-limits establishments. A statement 
that an inspection has been completed should be included in AFDCB 
minutes.
    b. When the board learns that the proprietor has taken adequate 
corrective measures, the AFDCB will take the following actions:
    (1) Discuss the matter at the next meeting and make an appropriate 
recommendation.

[[Page 15]]

    (2) Forward a recommendation for removal of the off-limits 
restriction to the sponsoring commander. If approved, a letter removing 
the restriction (Annexes G & H) will be sent to the proprietor.
    (3) The minutes will reflect action taken.
    A-8. Duties of the AFDCB president.
    The president of the AFDCB will--
    a. Schedule and preside at all AFDCB meetings.
    b. Provide an agenda to each voting member at least 72 hours prior 
to the meeting.
    c. Ensure records, minutes, and correspondence are prepared, 
distributed, and maintained per Sec.  631.10(d).
    A-9. Commanders.
    The installation commander, and commanders within an AFDCB's area of 
responsibility must be thoroughly acquainted with the mission and 
services provided by AFDCBs. AFDCB members should keep their respective 
commanders informed of command responsibilities pertaining to AFDCB 
functions and actions.
    A-10. Public affairs.
    a. Due to the sensitive nature of the subject matter, there will not 
be a media release in connection with AFDCB meetings. However, any AFDCB 
proceeding, which is open to the public, will also be open to 
representatives of the news media. Representatives of the news media 
will be considered observers, and will not participate in matters 
considered by the AFDCB. Members of the news media may be invited to 
participate in an advisory status in coordination with the public 
affairs office.
    b. News media interviews and releases will be handled through the 
public affairs office according to applicable Service parts.
    A-11. Minutes.
    a. Minutes will be prepared in accordance with administrative 
formats for minutes of meetings prescribed by the Service of the 
sponsoring commander (Annex I). The written minutes of AFDCB meetings 
will constitute the official record of the AFDCB proceedings. Verbatim 
transcripts of board meetings are not required. The reasons for 
approving or removing an off-limits restriction, to include a complete 
address of the establishment or area involved, should be indicated in 
the order of business. In addition, the AFDCB's action will be shown in 
the order or sequence of actions taken. A change in the name of an 
establishment or areas in an off-limits restriction will also be 
included.
    b. Distribution of the minutes of AFDCB meetings will be limited to 
the following--
    (1) Each voting member, sponsoring command, and commands and 
installations represented by the board.
    (2) Each civilian and military advisory member, if deemed 
appropriate.
    (3) Civilian and Government agencies within the State in which 
member installations are located having an interest in the functions of 
the board, if appropriate.
    c. AFDCB minutes are subject to release and disclosure in accordance 
with applicable Service parts and directives.
    d. Minutes and recommendations of the board will be forwarded to the 
sponsoring commander for approval.

                     Annex A--Letter of Notification

                              (Letterhead)

                           (Appropriate AFDCB)

Proprietor

Dear Sir:

    This letter is to inform you that it has come to the attention of 
the Armed Forces Disciplinary Control Board (AFDCB) that certain 
conditions reported at your establishment may adversely affect the 
(health, safety, or welfare) of members of the Armed Forces.
    The AFDCB is initiating action to determine whether your 
establishment (area) should be placed off-limits to members of the Armed 
Forces if (cite conditions) are not corrected by (date).
    A representative of the AFDCB will visit your establishment to 
determine if steps have been taken to correct the conditions outlined 
above.

     Sincerely,

John J. Smith,

Colonel, U.S. Army, President, Armed Forces Disciplinary Control Board.

(Note: Use certified mail, return receipt requested if mailed.)

                     Annex B--Letter of Appreciation

                              (Letterhead)

                           (Appropriate AFDCB)

Proprietor

Dear Sir:

    This is in reference to my letter of (date) concerning the 
condition(s) reported at your establishment which adversely affected the 
health and welfare of members of the Armed Forces.
    The Board appreciates your action(s) to correct the condition(s) 
previously noted and does not contemplate further action with respect to 
this specific matter.
    Your continued cooperation is solicited.

     Sincerely,

John J. Smith,

Colonel, U.S. Army, President, Armed Forces Disciplinary Control Board.


[[Page 16]]



                      Annex C--Letter of Invitation

                              (Letterhead)

Proprietor

Dear Sir:

    This is in reference to my letter of (date) concerning the condition 
reported at your establishment which adversely affects the (health, 
safety, or welfare) of members of the Armed Forces. Information has been 
received by the board which indicates you have not taken adequate 
corrective action to eliminate the reported condition.
    Reports presented to the Armed Forces Disciplinary Control Board 
(AFDCB) indicate (list and describe conditions).
    You are advised that the AFDCB will initiate action to determine 
whether your establishment should be declared off-limits to members of 
the Armed Forces.
    You may appear in person, with or without counsel, before the AFDCB 
at its next scheduled meeting on (date, time, and place). At that time 
you will have the opportunity to refute the allegation(s), or to inform 
the board of any remedial action(s) you have taken or contemplate taking 
to correct the condition. It is requested that you inform the President, 
of the AFDCB if you plan to attend.
    Any questions regarding this matter may be addressed to the 
President, Armed Forces Disciplinary Control Board, (address). Every 
effort will be made to clarify the matter for you.

     Sincerely,

John J. Smith,

Colonel, U.S. Army, President, Armed Forces Disciplinary Control Board.

(Note: Send certified mail, return receipt requested if mailed.)

                Annex D--AFDCB Off-Limits Approval Letter

                              (Letterhead)

                              Office Symbol

         MEMORANDUM FOR (Commanders of Supported Installations)

SUBJECT: Establishments or Areas Recommended for Off-Limits Designation
    1. On (date), the Armed Forces Disciplinary Control Board (AFDCB) 
recommended imposition of the following off-limits restrictions: (name 
and address of establishment)
    2. Commanders furnishing AFDCB representatives are requested to 
provide any comments within 10 days as to whether (name of establishment 
or area) should be placed off-limits.
    3. A copy of the AFDCB minutes and recommendation is enclosed.

FOR THE (SPONSORING) COMMANDER:

Encl

     Sincerely,

John J. Smith,

Colonel, U.S. Army, President, Armed Forces Disciplinary Control Board.

              Annex E--Letter of Declaration of Off-Limits

Proprietor

Dear Sir:

    This letter is to inform you that your establishment has been 
declared off-limits to members of the Armed Forces effective (date). 
Members of the Armed Forces are prohibited from entering your 
establishment (premises) as long as this order is in effect. This action 
is being taken because of (state the conditions) which are detrimental 
to the (health or welfare) of members of the Armed Forces.
    This restriction will remain in effect indefinitely in accordance 
with established Armed Forces policy. Removal of the restriction will be 
considered by the Armed Forces Disciplinary Control Board upon 
presentation of information that satisfactory corrective action has been 
taken.
    Correspondence appealing this action may be submitted to the 
President, Armed Forces Disciplinary Control Board, (cite address).

     Sincerely,

John J. Smith,

Colonel, U.S. Army, President, Armed Forces Disciplinary Control Board.

   Annex F--AFDCB Letter of Notification of Continuance of Off-Limits 
             Restrictions After Appearance before the AFDCB

                              (Letterhead)

    Proprietor

    Dear Sir:

    The Armed Forces Disciplinary Control Board (AFDCB) did not 
favorably consider your request for removal of the off-limits 
restriction now in effect at your establishment.
    This decision does not preclude further appeals or appearances 
before the AFDCB at any of its scheduled meetings. Correspondence 
pertaining to this matter should be addressed to the President, Armed 
Forces Disciplinary Control Board, (cite address).

     Sincerely,
John J. Smith,
Colonel, U.S. Army, President, Armed Forces Disciplinary Control Board.

       Annex G--AFDCB Letter of Removal of Off-Limits Restriction

                              (Letterhead)

    Proprietor


[[Page 17]]


    Dear Sir:

    This letter is to inform you that the off-limits restriction against 
(name of establishment) is removed effective (date). Members of the 
Armed Forces are permitted to patronize your establishment as of that 
date.
    The corrective actions taken in response to the concerns of the 
Armed Forces Disciplinary Control Board are appreciated.

     Sincerely,
John J. Smith,
Colonel, U.S. Army, President, Armed Forces Disciplinary Control Board.

    Annex H--AFDCB Notification of Removal of Off-Limits Restriction

                              (Letterhead)

Proprietor

Dear Sir:

    This letter is to inform you that your request for removal of the 
off-limits restriction now in effect at (name of establishment) was 
favorably considered by the Armed Forces Disciplinary Control Board 
(AFDCB).
    This restriction will be removed effective (date). Members of the 
Armed Forces will be permitted to patronize your establishment as of 
that date.
    The corrective actions taken in response to the concerns of the 
AFDCB are appreciated.

     Sincerely,
John J. Smith,
Colonel, U.S. Army, President, Armed Forces Disciplinary Control Board.

                Annex I--Format for AFDCB Meeting Minutes

                              (Letterhead)

                             MEMORANDUM FOR

            SUBJECT: Armed Forces Disciplinary Control Board

    1. Pursuant to authority contained in AR 190-24/AFI 31-213/ 
OPNAVINST 1620.2A/MCO 1620.2C/and COMDTINST 1620.1D, Armed Forces 
Disciplinary Control Boards and Off-Installation Liaison and Operations, 
the (area) Armed Forces Disciplinary Control Board convened at (place), 
(date)
    2. The following voting members were present: (List names, titles, 
and addresses.)
    3. The following military members were present: (List names, titles, 
and addresses.)
    4. The following civilian advisory members were present: (List 
names, titles, and addresses.)
    5. Order of business:
    a. Call to order.
    b. Welcome.
    c. Introduction of members and guests.
    d. Explanation of purpose of board.
    e. Reading of minutes.
    f. Unfinished or continuing business.
    g. New business (subparagraph as necessary).
    h. Recommendations.
    (1) List of areas and establishments being placed in an off-limits 
restriction.
    Include complete name and address (or adequate description of an 
area) of any establishment listed.
    (2) List of areas and establishments being removed from off-limits 
restrictions. Include complete name and address (or adequate description 
of an area) of any establishment listed.
    (3) Other matters or problems of mutual concern.
    i. Time, date, and place for next board meeting.
    j. Adjournment of the board.

(Board Recorder's Name)
(Rank, Branch of Service), Recorder, Armed Forces Disciplinary Control 
Board

Approved:

(Board President's Name)
(Rank, Branch of Service) President, Armed Forces Disciplinary Control 
Board

(Note: The minutes of the board proceedings will be forwarded by 
official correspondence from the board president to the sponsoring 
commander for approval of the board's recommendations. By return 
endorsement, the sponsoring commander will either approve or disapprove 
the board's recommendations.)



PART 633_INDIVIDUAL REQUESTS FOR ACCESS OR AMENDMENT OF CID REPORTS
OF INVESTIGATION--Table of Contents



Sec.
633.11 Access to CID reports.
633.12 Amendment to CID reports.
633.13 Submission of requests.

    Authority: Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.

    Source: 44 FR 44156, July 27, 1979, unless otherwise noted.



Sec.  633.11  Access to CID reports.

    All requests for access to CID reports made under the Privacy or 
Freedom of Information Acts will be processed in accordance with AR 340-
21 and AR 25-55, respectively.

[78 FR 29019, May 17, 2013]



Sec.  633.12  Amendment to CID reports.

    USACIDC reports of investigation (ROI) are exempt from the amendment 
provisions of the Privacy Act and AR 340-21. Requests for amendment will 
be considered only under the provisions of

[[Page 18]]

this regulation. Requests to amend USACIDC reports will be granted only 
if the individual submits new, relevant and material facts that are 
determined to warrant their inclusion in or revision of the ROI. The 
burden of proof is on the individual to substantiate the request. 
Requests to delete a person's name from the title block will be granted 
only if it is determined that there is not probable cause to believe 
that the individual committed the offense for which he or she is listed 
as a subject. It is emphasized that the decision to list a person's name 
in the title block of a USACIDC report of investigation is an 
investigative determination that is independent of whether or not 
subsequent judicial, nonjudicial or administrative action is taken 
against the individual. Within these parameters, any changes in the ROI 
rest within the sole discretion of the Commanding General. USACIDC, 
whose decision will constitute final action on behalf of the Secretary 
of the Army with respect to this regulation.



Sec.  633.13  Submission of requests.

    Requests for access to, or amendment of, USACIDC investigative 
reports will be forwarded to the Director, U.S. Army Crime Records 
Center (CICR-FP), 27130 Telegraph Road, Quantico, VA 22134.

[78 FR 29019, May 17, 2013]



PART 634_MOTOR VEHICLE TRAFFIC SUPERVISION--Table of Contents



                         Subpart A_Introduction

Sec.
634.1 Purpose.
634.2 References.
634.3 Explanation of abbreviations and terms.
634.4 Responsibilities.
634.5 Program objectives.

                      Subpart B_Driving Privileges

634.6 Requirements for driving privileges.
634.7 Stopping and inspecting personnel or vehicles.
634.8 Implied consent.
634.9 Suspension or revocation of driving or privately owned vehicle 
          registration privileges.
634.10 Remedial driver training programs.
634.11 Administrative due process for suspensions and revocations.
634.12 Army administrative actions against intoxicated drivers.
634.13 Alcohol and drug abuse programs.
634.14 Restoration of driving privileges upon acquittal of intoxicated 
          driving.
634.15 Restricted driving privileges or probation.
634.16 Reciprocal state-military action.
634.17 Extensions of suspensions and revocations.
634.18 Reinstatement of driving privileges.

                  Subpart C_Motor Vehicle Registration

634.19 Registration policy.
634.20 Privately owned vehicle operation requirements.
634.21 Department of Defense Form 2220.
634.22 Termination or denial of registration.
634.23 Specified consent to impoundment.

                      Subpart D_Traffic Supervision

634.24 Traffic planning and codes.
634.25 Installation traffic codes.
634.26 Traffic law enforcement principles.
634.27 Speed-measuring devices.
634.28 Traffic accident investigation.
634.29 Traffic accident investigation reports.
634.30 Use of traffic accident investigation report data.
634.31 Parking.
634.32 Traffic violation reports.
634.33 Training of law enforcement personnel.
634.34 Blood alcohol concentration standards.
634.35 Chemical testing policies and procedures.
634.36 Detection, apprehension, and testing of intoxicated drivers.
634.37 Voluntary breath and bodily fluid testing based on implied 
          consent.
634.38 Involuntary extraction of bodily fluids in traffic cases.
634.39 Testing at the request of the apprehended person.
634.40 General off installation traffic activities.
634.41 Compliance with State laws.
634.42 Civil-military cooperative programs.

         Subpart E_Driving Records and the Traffic Point System

634.43 Driving records.
634.44 The traffic point system.
634.45 Point system application.
634.46 Point system procedures.
634.47 Disposition of driving records.

              Subpart F_Impounding Privately Owned Vehicles

634.48 General.

[[Page 19]]

634.49 Standards for impoundment.
634.50 Towing and storage.
634.51 Procedures for impoundment.
634.52 Search incident to impoundment based on criminal activity.
634.53 Disposition of vehicles after impoundment.

            Subpart G_List of State Driver's License Agencies

634.54 List of State Driver's License Agencies.

    Authority: 10 U.S.C. 30112(g); 5 U.S.C. 2951; Pub. L. 89-564; 89-
670; 91-605; and 93-87.

    Source: 70 FR 18969, Apr. 12, 2005, unless otherwise noted.



                         Subpart A_Introduction



Sec.  634.1  Purpose.

    (a) This subpart establishes policy, responsibilities, and 
procedures for motor vehicle traffic supervision on military 
installations in the continental United States (CONUS) and overseas 
areas. This includes but is not limited to the following:
    (1) Granting, suspending, or revoking the privilege to operate a 
privately owned vehicle (POV).
    (2) Registration of POVs.
    (3) Administration of vehicle registration and driver performance 
records.
    (4) Driver improvement programs.
    (5) Police traffic supervision.
    (6) Off-installation traffic activities.
    (b) Commanders in overseas areas are authorized to modify these 
policies and procedures in the following instances:
    (1) When dictated by host nation relationships, treaties, and 
agreements.
    (2) When traffic operations under military supervision necessitate 
measures to safeguard and protect the morale, discipline, and good order 
in the Services.



Sec.  634.2  References.

    Required and related publications along with prescribed and 
referenced forms are listed in Appendix A, AR 190-5.



Sec.  634.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this subpart are explained 
in the Glossary of AR 190-5. It is available on the internet at: 
www.usapa.army.mil.



Sec.  634.4  Responsibilities.

    (a) Departmental. The Provost Marshal General, Headquarters, 
Department of the Army (HQDA); Director, Naval Criminal Investigative 
Service, U.S. Navy (USN); Headquarters, Air Force Security Forces 
Center; Headquarters, U.S. Marine Corps (USMC); Staff Director, Command 
Security Office, Headquarters, Defense Logistics Agency (DLA), and 
Chief, National Guard Bureau will--
    (1) Exercise staff supervision over programs for motor vehicle 
traffic supervision.
    (2) Develop standard policies and procedures that include 
establishing an automated records program on traffic supervision.
    (3) Maintain liaison with interested staff agencies and other 
military departments on traffic supervision.
    (4) Maintain liaison with departmental safety personnel on traffic 
safety and accident reporting systems.
    (5) Coordinate with national, regional, and state traffic officials 
and agencies, and actively participate in conferences and workshops 
sponsored by the Government or private groups at the national level.
    (6) Help organize and monitor police traffic supervision training.
    (7) Maintain liaison with the Department of Transportation (DOT) and 
other Federal departments and agencies on the National Highway Safety 
Program Standards (NHSPS) and programs that apply to U.S. military 
traffic supervision.
    (8) Participate in the national effort to reduce intoxicated 
driving.
    (b) All major commanders. Major commanders of the Army, Navy, Air 
Force, Marine Corps, and DLA will--
    (1) Manage traffic supervision in their commands.
    (2) Cooperate with the support programs of state and regional 
highway traffic safety organizations.
    (3) Coordinate regional traffic supervision activities with other 
major military commanders in assigned geographic areas of 
responsibility.
    (4) Monitor agreements between installations and host state 
authorities

[[Page 20]]

for reciprocal reporting of suspension and revocation of driving 
privileges.
    (5) Participate in state and host nation efforts to reduce 
intoxicated driving.
    (6) Establish awards and recognition programs to recognize 
successful installation efforts to eliminate intoxicated driving. Ensure 
that criteria for these awards are positive in nature and include more 
than just apprehensions for intoxicated driving.
    (7) Modify policies and procedures when required by host nation 
treaties or agreements.
    (c) Major Army commanders. Major Army commanders will ensure 
subordinate installations implement all provisions of this part.
    (d) Commanding General, U.S. Army Training and Doctrine Command (CG, 
TRADOC). The CG, TRADOC will ensure that technical training for 
functional users is incorporated into service school instructional 
programs.
    (e) Installation or activity commander, Director of Military Support 
and State Adjutant General. The installation or activity commander (for 
the Navy, the term installation shall refer to either the regional 
commander or installation commanding officer, whoever has ownership of 
the traffic program) will--
    (1) Establish an effective traffic supervision program.
    (2) Cooperate with civilian police agencies and other local, state, 
or federal government agencies concerned with traffic supervision.
    (3) Ensure that traffic supervision is properly integrated in the 
overall installation traffic safety program.
    (4) Actively participate in Alcohol Safety Action Projects (ASAP) in 
neighboring communities.
    (5) Ensure that active duty Army law enforcement personnel follow 
the provisions of AR 190-45 in reporting all criminal violations and 
utilize the Centralized Police Operations Suite (COPS) to support 
reporting requirements and procedures. Air Force personnel engaged in 
law enforcement and adjudication activities will follow the provisions 
of AFI 31-203 in reporting all criminal and traffic violations, and 
utilized the Security Forces Management Information Systems (SFMIS) to 
support reporting requirements and procedures.
    (6) Implement the terms of this part in accordance with the 
provisions of the Federal Service Labor-Management Relations Statute, 5 
U.S.C. Chapter 71.
    (7) Revoke driving privileges in accordance with this part.
    (f) Installation law enforcement officer. The installation law 
enforcement officer will--
    (1) Exercise overall staff responsibility for directing, regulating, 
and controlling traffic, and enforcing laws and regulations pertaining 
to traffic control.
    (2) Assist traffic engineering functions at installations by 
participating in traffic control studies designed to obtain information 
on traffic problems and usage patterns.
    (g) Safety officer. Safety officers will participate in and develop 
traffic accident prevention initiatives in support of the installation 
traffic safety program.
    (h) Facility engineer (public works officer at Navy installations). 
The facility engineer, engineer officer or civil engineer at Air Force 
installations, in close coordination with the law enforcement officer, 
will--
    (1) Perform that phase of engineering concerned with the planning, 
design, construction, and maintenance of streets, highways, and abutting 
lands.
    (2) Select, determine appropriate design, procure, construct, 
install, and maintain permanent traffic and parking control devices in 
coordination with the law enforcement officer and installation safety 
officer.
    (3) Ensure that traffic signs, signals, and pavement markings 
conform to the standards in the current Manual on Uniform Traffic 
Control Devices for Streets and Highways.
    (4) Ensure that planning, design, construction, and maintenance of 
streets and highways conform to the NHSPS as implemented by the Army.
    (i) Traffic engineer. The traffic engineer, in close coordination 
with the law enforcement officer, will:
    (1) Conduct formal traffic engineering studies.
    (2) Apply traffic engineering measures, including traffic control 
devices,

[[Page 21]]

to reduce the number and severity of traffic accidents. (If there is no 
installation traffic engineer, installation commanders may request these 
services through channels from the Commander, Military Surface 
Deployment and Distribution Command, 200 Stovall Street, Alexandria, VA 
22332).
    (j) Army Alcohol and Drug Control Officer (ADCO). The ADCO will 
provide treatment and education services to personnel with alcohol or 
drug abuse problems.
    (k) Navy Substance Abuse Rehabilitation Program (SARP) Directors. 
These directors will--
    (1) Supervise the alcohol/drug rehabilitation services to personnel 
with alcohol or drug abuse problems.
    (2) Provide remedial/motivational education for all persons 
identified as alcohol or drug abusers who are evaluated as not dependent 
on alcohol or drugs and who have been referred to level one 
rehabilitation by their commands.
    (l) Marine Corps Substance Abuse Program Officer. This officer will 
provide alcohol/drug education, treatment, and rehabilitation services 
to personnel with alcohol/drug abuse problems.
    (m) DLA Employee Assistance Program Officer. This officer will 
provide alcohol/drug counseling and referral services to identified 
personnel with alcohol/drug abuse problems in accordance with procedures 
prescribed by the Labor Relations Officer, Office of Human Resource, HQ 
DLA.
    (n) Alcohol/Drug Abuse Prevention Treatment (ADAPT) program. Air 
Force Commanders will refer personnel identified with alcohol/drug abuse 
problems to this program in accordance with established procedures.



Sec.  634.5  Program objectives.

    (a) The objectives of motor vehicle traffic supervision are to 
assure--
    (1) Safe and efficient movement of personnel and vehicles.
    (2) Reduction of traffic deaths, injuries, and property damage from 
traffic accidents. Most traffic accidents can be prevented. 
Investigation of motor vehicle accidents should examine all factors, 
operator status, vehicle condition, and supervisory control measures 
involved.
    (3) Integration of installation safety, engineering, legal, medical, 
and law enforcement resources into the installation traffic planning 
process.
    (4) Removal of intoxicated drivers from installation roadways.
    (b) [Reserved]



                      Subpart B_Driving Privileges



Sec.  634.6  Requirements for driving privileges.

    (a) Driving a Government vehicle or POV on military installations is 
a privilege granted by the installation commander. Persons who accept 
the privilege must--
    (1) Be lawfully licensed to operate motor vehicles in appropriate 
classifications and not be under suspension or revocation in any state 
or host country.
    (2) Comply with laws and regulations governing motor vehicle 
operations on any U. S. military installation.
    (3) Comply with installation registration requirements in subpart C 
of this part. Vehicle registration is required on all Army installations 
through use of the Vehicle Registration System (VRS). Vehicle 
registration is required on all Air Force and DLA installations and as 
directed by the Chief, National Guard Bureau.
    (4) Possess, while operating a motor vehicle and produce on request 
by law enforcement personnel, the following:
    (i) Proof of vehicle ownership or state registration if required by 
the issuing state or host nation.
    (ii) A valid state, host nation, overseas command, or international 
driver's license and/or OF 346 (U.S. Government Motor Vehicle Operator's 
Identification Card), as applicable to the class vehicle to be operated, 
supported by a DD Form 2A (U.S. Armed Forces Identification Card), 
Common Access Card (CAC) or other appropriate identification for non-
Department of Defense (DOD) civilians.
    (iii) A valid record of motor vehicle safety inspection, as required 
by the state or host nation and valid proof of insurance if required by 
the state or locality.

[[Page 22]]

    (iv) Any regulatory permits, or other pertinent documents relative 
to shipping and transportation of special cargo.
    (v) When appropriate, documents that establish identification and 
status of cargo or occupants.
    (vi) Proof of valid insurance. Proof of insurance consists of an 
insurance card, or other documents issued by the insurance company, that 
has a policy effective date and an expiration date.
    (b) Operators of Government motor vehicles must have proof of 
authorization to operate the vehicle.



Sec.  634.7  Stopping and inspecting personnel or vehicles.

    (a) Government vehicles may be stopped by law enforcement personnel 
on military installations based on the installation commander's policy.
    (1) In overseas areas, Government vehicles may be stopped on or off 
installations as determined by host nation agreement and command policy.
    (2) Stops and inspections of vehicles at installation gates or entry 
points and in restricted areas will be conducted according to command 
policy.
    (b) Stops and inspections of POVs within the military installation, 
other than at restricted areas or at an installation gate, are 
authorized only when there is a reasonable suspicion of criminal 
activity, or of a violation of a traffic regulation or of the 
installation commander's policy. Marine Corps users will be guided by 
publication of Marine Corps order and Military Rules of Evidence 311-316 
and local command regulations. DLA users, see DLAR 5700.7.
    (c) At the time of stop, the driver and occupants may be required to 
display all pertinent documents, including but not limited to:
    (1) DD Form 2A.
    (2) Documents that establish the identity and status of civilians; 
for example, Common Access Card (CAC), DD Form 1173 (Uniformed Services 
Identification and Privilege Card), DA Form 1602 (Civilian 
Identification), AF Form 354 (Civilian Identification Card), DD Form 2 
(Armed Forces of the United States Identification Card), post pass, 
national identity card, or other identification.
    (3) Proper POV registration documents.
    (4) Host nation vehicle registration documents, if applicable.
    (5) Authorization to operate a Government vehicle, if applicable.
    (6) Drivers license or OF 346 valid for the particular vehicle and 
area of operation.
    (7) Proof of insurance.



Sec.  634.8  Implied consent.

    (a) Implied consent to blood, breath, or urine tests. Persons who 
drive on the installation shall be deemed to have given their consent to 
evidential tests for alcohol or other drug content of their blood, 
breath, or urine when lawfully stopped, apprehended, or cited for any 
offense allegedly committed while driving or in physical control of a 
motor vehicle on military installations to determine the influence of 
intoxicants.
    (b) Implied consent to impoundment. Any person granted the privilege 
to operate or register a motor vehicle on a military installation shall 
be deemed to have given his or her consent for the removal and temporary 
impoundment of the POV when it is parked illegally, or for unreasonable 
periods, as determined by the installation commander or applicable 
authority, interfering with military operations, creating a safety 
hazard, disabled by accident, left unattended in a restricted or 
controlled area, or abandoned. Such persons further agree to reimburse 
the United States for the cost of towing and storage should their motor 
vehicle be removed or impounded. Existence of these conditions will be 
determined by the installation commander or designee.
    (c) Any person who operates, registers, or who is in control of a 
motor vehicle on a military installation involved in a motor vehicle or 
criminal infraction shall be informed that notice of the violation of 
law or regulation will be forwarded to the Department of Motor Vehicles 
(DMV) of the host state and/or home of record for the individual, and to 
the National Register, when applicable.

[[Page 23]]



Sec.  634.9  Suspension or revocation of driving or privately owned
vehicle registration privileges.

    The installation commander or designee may for cause, or any lawful 
reason, administratively suspend or revoke driving privileges on the 
installation. The suspension or revocation of installation driving 
privileges or POV registrations, for lawful reasons unrelated to traffic 
violations or safe vehicle operation, is not limited or restricted by 
this part.
    (a) Suspension. (1) Driving privileges are usually suspended when 
other measures fail to improve a driver's performance. Measures should 
include counseling, remedial driving training, and rehabilitation 
programs if violator is entitled to the programs. Driving privileges may 
also be suspended for up to 6 months if a driver continually violates 
installation parking regulations. The commander will determine standards 
for suspension based on frequency of parking violations and publish 
those standards. Aboard Navy installations, any vehicle parked in a fire 
lane will be towed at the owner's expense. Any vehicle parked without 
authorization in an area restricted due to force protection measures may 
subject the driver to immediate suspension by the installation 
commanding officer. Vehicle will be towed at the owner/operator's 
expense.
    (2) The installation commander has discretionary power to withdraw 
the authorization of active duty military personnel, DOD civilian 
employees, and nonappropriated funds (NAF) employees, contractors and 
subcontractors to operate Government vehicles.
    (3) Immediate suspension of installation or overseas command POV 
driving privileges pending resolution of an intoxicated driving incident 
is authorized for active duty military personnel, family members, 
retired members of the military services, DOD civilian personnel, and 
others with installation or overseas command driving privileges, 
regardless of the geographic location of the intoxicated driving 
incident. Suspension is authorized for non-DOD affiliated civilians only 
with respect to incidents occurring on the installation or in areas 
subject to military traffic supervision. After a review of available 
information as specified in Sec.  634.11, installation driving 
privileges will be immediately suspended pending resolution of the 
intoxicated driving accident in the following circumstances:
    (i) Refusal to take or complete a lawfully requested chemical test 
to determine contents of blood for alcohol or other drugs.
    (ii) Operating a motor vehicle with a blood alcohol content (BAC) of 
.08 percent by volume (.08 grams per 100 milliliters) or higher or in 
violation of the law of the jurisdiction that is being assimilated on 
the military installation.
    (iii) Operating a motor vehicle with a BAC of 0.05 percent by volume 
but less than 0.08 percent blood alcohol by volume in violation of the 
law of the jurisdiction in which the vehicle is being operated if the 
jurisdiction imposes a suspension solely on the basis of the BAC level 
(as measured in grams per 100 milliliters).
    (iv) On an arrest report or other official documentation of the 
circumstances of an apprehension for intoxicated driving.
    (b) Revocation. (1) The revocation of installation or overseas 
command POV driving privileges is a severe administrative measure to be 
exercised for serious moving violations or when other available 
corrective actions fail to produce the desired driver improvement. 
Revocation of the driving privilege will be for a specified period, but 
never less than 6 months, applies at all military installations, and 
remains in effect upon reassignment.
    (2) Driving privileges are subject to revocation when an individual 
fails to comply with any of the conditions requisite to the granting 
privilege (see Sec.  634.6). Revocation of installation driving and 
registration privileges is authorized for military personnel, family 
members, civilian employees of DOD, contractors, and other individuals 
with installation driving privileges. For civilian guests, revocation is 
authorized only with respect to incidents occurring on the installation 
or in the areas subject to military traffic supervision.
    (3) Driving privileges will be revoked for a mandatory period of not 
less than 1 year in the following circumstances:

[[Page 24]]

    (i) The installation commander or designee has determined that the 
person lawfully apprehended for driving under the influence refused to 
submit to or complete a test to measure the alcohol content in the 
blood, or detect the presence of any other drug, as required by the law 
of the jurisdiction, or installation traffic code, or by Service 
directive.
    (ii) A conviction, nonjudicial punishment, or a military or civilian 
administrative action resulting in the suspension or revocation of 
driver's license for intoxicated driving. Appropriate official 
documentation of such conviction is required as the basis for 
revocation.
    (4) When temporary suspensions under paragraph (a)(3) of this 
section are followed by revocations, the period of revocation is 
computed beginning from the date the original suspension was imposed, 
exclusive of any period during which full driving privileges may have 
been restored pending resolution of charges. (Example: privileges were 
initially suspended on January 1, 2000 for a charge of intoxicated 
driving with a BAC of 0.14 percent. A hearing was held, extreme family 
hardship was substantiated, and privileges were restored on February 1 
pending resolution of the charge. On March 1, 2000, the driver was 
convicted for intoxicated driving. The mandatory 1-year revocation 
period will consist of January 2000 plus March 2000 through January 
2001, for a total of 12 months with no installation driving privileges).
    (c) Army provost marshals will use the automated VRS to develop and 
maintain records showing that an individual's driving privileges have 
been revoked.



Sec.  634.10  Remedial driver training programs.

    (a) Navy activities will comply with OPNAVINST 5100.12 Series, and 
Marine Corps activities with current edition of MCO 5100.19C for 
establishment of remedial training programs.
    (b) Installation commanders may establish a remedial driver-training 
program to instruct and educate personnel requiring additional training. 
Personnel may be referred to a remedial program on the basis of their 
individual driving history or incidents requiring additional training. 
The curriculum should provide instruction to improve driving performance 
and compliance with traffic laws.
    (c) Installation commanders may schedule periodic courses, or if not 
practical, arrange for participation in courses conducted by local civil 
authorities.
    (d) Civilian personnel employed on the installation, contractor 
employees, and family members of military personnel may attend remedial 
courses on the installation, or similar courses off the installation 
which incur no expense to the government.



Sec.  634.11  Administrative due process for suspensions and revocations.

    (a) Individual Services will promulgate separate regulations 
establishing administrative due process procedures for suspension or 
revocation of driving privileges. The procedures in paragraphs (b) and 
(c) of this section apply to actions taken by Army commanders with 
respect to Army military personnel and family members and to civilian 
personnel operating motor vehicles on Army installations. For Marine 
Corps users, the provisions of this section apply. For Air Force users, 
a preliminary suspension for intoxicated driving remains in effect until 
the installation commander makes a final decision. Requested hearings 
must take place within a reasonable period, which is determined by the 
installation commander.
    (b) For offenses other than intoxicated driving, suspension or 
revocation of the installation driving privilege will not become 
effective until the installation commander or designee notifies the 
affected person and offers that person an administrative hearing. 
Suspension or revocation will take place 14 calendar days after written 
notice is received unless the affected person makes an application for a 
hearing within this period. Such application will stay the pending 
suspension or revocation for a period of 14 calendar days.
    (1) If, due to action by the government, a hearing is not held 
within 14 calendar days, the suspension will not

[[Page 25]]

take place until such time as the person is granted a hearing and is 
notified of the action of the installation commander or designee. 
However, if the affected person requests that the hearing be continued 
to a date beyond the 14-day period, the suspension or revocation will 
become effective immediately on receipt of notice that the request for 
continuance has been granted, and remain in force pending a hearing at a 
scheduled hearing date.
    (2) If it is determined as a result of a hearing to suspend or 
revoke the affected person's driving privilege, the suspension or 
revocation will become effective when the person receives the written 
notification of such action. In the event that written notification 
cannot be verified, either through a return receipt for mail or delivery 
through command channels, the hearing authority will determine the 
effective date on a case-by-case basis.
    (3) If the revocation or suspension is imposed after such hearing, 
the person whose driving privilege has been suspended or revoked will 
have the right to appeal or request reconsideration. Such requests must 
be forwarded through command channels to the installation commander 
within 14 calendar days from the date the individual is notified of the 
suspension or revocation resulting from the administrative hearing. The 
suspension or revocation will remain in effect pending a final ruling on 
the request. Requests for restricted privileges will be considered per 
Sec.  634.15.
    (4) If driving privileges are temporarily restored (i.e., for family 
hardship) pending resolution of charges, the period of revocation (after 
final authority determination) will still total the mandatory 12 months. 
The final date of the revocation will be adjusted to account for the 
period when the violator's privileges were temporarily restored, as this 
period does not count towards the revocation time.
    (c) For drunk driving or driving under the influence offenses, 
reliable evidence readily available will be presented promptly to an 
individual designated by the installation commander for review and 
authorization for immediate suspension of installation driving 
privileges.
    (1) The reviewer should be any officer to include GS-11 and above, 
designated in writing by the installation or garrison commander whose 
primary duties are not in the field of law enforcement.
    (2) Reliable evidence includes witness statements, military or 
civilian police report of apprehension, chemical test results if 
completed, refusal to consent to complete chemical testing, videotapes, 
statements by the apprehended individual, field sobriety or preliminary 
breath tests results, and other pertinent evidence. Immediate suspension 
should not be based solely on published lists of arrested persons, 
statements by parties not witnessing the apprehension, or telephone 
conversations or other information not supported by documented and 
reliable evidence.
    (3) Reviews normally will be accomplished within the first normal 
duty day following final assembly of evidence.
    (4) Installation commanders may authorize the installation law 
enforcement officer to conduct reviews and authorize suspensions in 
cases where the designated reviewer is not reasonably available and, in 
the judgment of the installation law enforcement officer, such immediate 
action is warranted. Air Force Security Forces personnel act in an 
advisory capacity to installation commanders. Review by the designated 
officer will follow as soon as practical in such cases. When a 
suspension notice is based on the law enforcement officer's review, 
there is no requirement for confirmation notice following subsequent 
review by the designated officer.
    (5) For active duty military personnel, final written notice of 
suspension for intoxicated driving will be provided to the individual's 
chain of command for immediate presentation to the individual. Air Force 
Security Forces provide a copy of the temporary suspension to the 
individual at the time of the incident or may provide a copy of the 
final determination at the time of the incident, as pre-determined by 
the final action authority.
    (6) For civilian personnel, written notice of suspension for 
intoxicated driving will normally be provided without delay via 
certified mail. Air Force Security Forces personnel provide a copy

[[Page 26]]

of the temporary suspension to the individual at the time of the 
incident or may provide a copy of the final determination at the time of 
the incident, as pre-determined by the final action authority. If the 
person is employed on the installation, such notice will be forwarded 
through the military or civilian supervisor. When the notice of 
suspension is forwarded through the supervisor, the person whose 
privileges are suspended will be required to provide written 
acknowledgment of receipt of the suspension notice.
    (7) Notices of suspension for intoxicated driving will include the 
following:
    (i) The fact that the suspension can be made a revocation under 
Sec.  634.9(b).
    (ii) The right to request, in writing, a hearing before the 
installation commander or designee to determine if post driving 
privileges will be restored pending resolution of the charge; and that 
such request must be made within 14 calendar days of the final notice of 
suspension.
    (iii) The right of military personnel to be represented by counsel 
at his or her own expense and to present evidence and witnesses at his 
or her own expense. Installation commanders will determine the 
availability of any local active duty representatives requested.
    (iv) The right of Department of Defense civilian employees to have a 
personal representative present at the administrative hearing in 
accordance with applicable laws and regulations.
    (v) Written acknowledgment of receipt to be signed by the individual 
whose privileges are to be suspended or revoked.
    (8) If a hearing is requested, it must take place within 14 calendar 
days of receipt of the request. The suspension for intoxicated driving 
will remain in effect until a decision has been made by the installation 
commander or designee, but will not exceed 14 calendar days after the 
hearing while awaiting the decision. If no decision has been made by 
that time, full driving privileges will be restored until such time as 
the accused is notified of a decision to continue the suspension.
    (9) Hearing on suspension actions under Sec.  634.9(a) for drunk or 
impaired driving pending resolution of charges will cover only the 
following pertinent issues of whether--
    (i) The law enforcement official had reasonable grounds to believe 
the person was driving or in actual physical control of a motor vehicle 
under the influence of alcohol or other drugs.
    (ii) The person was lawfully cited or apprehended for a driving 
under the influence offense.
    (iii) The person was lawfully requested to submit his or her blood, 
breath, or urine in order to determine the content of alcohol or other 
drugs, and was informed of the implied consent policy (consequences of 
refusal to take or complete the test).
    (iv) The person refused to submit to the test for alcohol or other 
drug content of blood, breath, or urine; failed to complete the test; 
submitted to the test and the result was .08 or higher blood alcohol 
content, or between .05 and .08 in violation of the law of the 
jurisdiction in which the vehicle is being operated if the jurisdiction 
imposes a suspension solely on the basis of the BAC level; or showed 
results indicating the presence of other drugs for an on-post 
apprehension or in violation of State laws for an off-post apprehension.
    (v) The testing methods were valid and reliable and the results 
accurately evaluated.
    (10) For revocation actions under Sec.  634.9(b) (3) for intoxicated 
driving, the revocation is mandatory on conviction or other findings 
that confirm the charge. (Pleas of nolo contendere are considered 
equivalent to guilty pleas).
    (i) Revocations are effective as of the date of conviction or other 
findings that confirm the charges. Test refusal revocations will be in 
addition to any other revocation incurred during a hearing. Hearing 
authority will determine if revocations for multiple offenses will run 
consecutively or concurrently taking into consideration if offenses 
occurred on same occasion or different times, dates. The exception is 
that test refusal will be one year automatic revocation in addition to 
any other suspension.
    (ii) The notice that revocation is automatic may be placed in the 
suspension letter. If it does not appear in the suspension letter, a 
separate letter

[[Page 27]]

must be sent and revocation is not effective until receipt of the 
written notice.
    (iii) Revocations cancel any full or restricted driving privileges 
that may have been restored during suspension and the resolution of the 
charges. Requests for restoration of full driving privileges are not 
authorized.
    (11) The Army Vehicle Registration System will be utilized to 
maintain infractions by individuals on Army installations.



Sec.  634.12  Army administrative actions against intoxicated drivers.

    Army commanders will take appropriate action against intoxicated 
drivers. These actions may include the following:
    (a) A written reprimand, administrative in nature, will be issued to 
active duty Soldiers in the cases described in this paragraph (a). Any 
general officer, and any officer frocked to the grade of brigadier 
general, may issue this reprimand. Filing of the reprimand will be in 
accordance with the provisions of AR 600-37.
    (1) Conviction by courts-martial or civilian court or imposition of 
nonjudicial punishment for an offense of drunk or impaired driving 
either on or off the installation.
    (2) Refusal to take or failure to complete a lawfully requested test 
to measure alcohol or drug content of the blood, breath, or urine, 
either on or off the installation, when there is reasonable belief of 
driving under the influence of alcohol or drugs.
    (3) Driving or being in physical control of a motor vehicle on post 
when the blood alcohol content is 0.08 percent or higher, irrespective 
of other charges, or off post when the blood alcohol content is in 
violation of the law of the State involved.
    (4) Driving, or being in physical control of a motor vehicle, either 
on or off the installation, when lawfully conducted chemical tests 
reflect the presence of illegal drugs.
    (b) Review by the commander of the service records of active duty 
soldiers apprehended for offenses described in paragraph (a) of this 
section to determine if the following action(s) should be taken--
    (1) Administrative reduction per AR 600-8-19, or
    (2) Bar to reenlistment per AR 601-280, or
    (3) Administrative separation per AR 635-200.



Sec.  634.13  Alcohol and drug abuse programs.

    (a) Commanders will refer military personnel suspected of drug or 
alcohol abuse for evaluation in the following circumstances:
    (1) Behavior indicative of alcohol or drug abuse.
    (2) Continued inability to drive a motor vehicle safely because of 
alcohol or drug abuse.
    (b) The commander will ensure military personnel are referred to the 
installation alcohol and drug abuse program or other comparable 
facilities when they are convicted of, or receive an official 
administrative action for, any offense involving driving under the 
influence. A first offender may be referred to treatment if evidence of 
substance abuse exists in addition to the offense of intoxicated 
driving. The provisions of this paragraph do not limit the commander's 
prerogatives concerning other actions that may be taken against an 
offender under separate Service/Agency polices (Army, see AR 600-85. 
Marine Corps, see MCO P1700.24B).
    (c) Active duty Army personnel apprehended for drunk driving, on or 
off the installation, will be referred to the local Army Substance Abuse 
Program (ASAP) for evaluation within 14 calendar days to determine if 
the person is dependent on alcohol or other drugs which will result in 
enrollment in treatment in accordance with AR 600-85. A copy of all 
reports on military personnel and DOD civilian employees apprehended for 
intoxicated driving will be forwarded to the installation alcohol and 
drug abuse facility.
    (d) Active duty Navy personnel apprehended for drunk driving on or 
off the installation will be screened by the respective SARP facility 
within 14 calendar days to determine if the individual is dependent on 
alcohol or other drugs. Active duty Marines apprehended for intoxicated 
driving, on or off the installation, will be referred to

[[Page 28]]

interview by a Level II substance abuse counselor within 14 calendar 
days for evaluation and determination of the appropriate level of 
treatment required. Subsequent to this evaluation, the Marine will be 
assigned to the appropriate treatment programs as prescribed by MCO 
P1700.24B.
    (e) The Services/Agencies may develop preventive treatment and 
rehabilitative programs for civilian employees with alcohol-related 
problems.
    (f) Army supervisors of civilian employees apprehended for 
intoxicated driving will advise employees of ASAP services available. 
Civilian employees apprehended for intoxicated driving while on duty 
will be referred to the ASAP or comparable facility for evaluation in 
accordance with AR 600-85. Army commanders will ensure that sponsors 
encourage family members apprehended for drunk driving seek ASAP 
evaluation and assistance.
    (g) Navy and DLA civilian personnel charged with intoxicated driving 
will be referred to the Civilian Employee Assistance Program in 
accordance with 5 CFR part 792. Such referral does not exempt the 
employee from appropriate administrative or disciplinary actions under 
civilian personnel regulations.
    (h) Marine Corps civilian employees charged with intoxicated 
driving, on or off the installation, will be referred to the Employee 
Assistance Program as prescribed by MCO P1700.24B. Marine family members 
charged with intoxicated driving, on or off the installation, will be 
provided assistance as addressed in MCO P1700.24B. Such referral and 
assistance does not exempt the individual from appropriate 
administrative or disciplinary action under current civilian personnel 
regulations or State laws.
    (i) For the Army, DLA, and the Marine Corps, installation driving 
privileges of any person who refuses to submit to, or fails to complete, 
chemical testing for blood-alcohol content when apprehended for 
intoxicated driving, or convicted of intoxicated driving, will not be 
reinstated unless the person successfully completes either an alcohol 
education or treatment program sponsored by the installation, state, 
county, or municipality, or other program evaluated as acceptable by the 
installation commander.
    (j) Active duty Air Force personnel apprehended for drunk driving, 
on or off the installation, will be referred by their respective chain 
of command to the Air Force Substance Abuse office for evaluation in 
accordance with AFI 44-121/Alcohol Drug Abuse & Treatment Program, and 
local policies within seven days.
    (k) Local installation commanders will determine if active duty Air 
Force personnel involved in any alcohol incident will immediately be 
subjected to a urinalysis for drug content. If consent is not given for 
the test, a command-directed test will be administered in accordance 
with local policies.



Sec.  634.14  Restoration of driving privileges upon acquittal of
intoxicated driving.

    The suspension of driving privileges for military and civilian 
personnel shall be restored if a final disposition indicates a finding 
of not guilty, charges are dismissed or reduced to an offense not 
amounting to intoxicated driving, or where an equivalent determination 
is made in a nonjudicial proceeding. The following are exceptions to the 
rule in which suspensions will continue to be enforced.
    (a) The preliminary suspension was based on refusal to take a BAC 
test.
    (b) The preliminary suspension resulted from a valid BAC test, 
(unless disposition of the charges was based on invalidity of the BAC 
test). In the case of a valid BAC test, the suspension will continue, 
pending completion of a hearing as specified in Sec.  634.11. In such 
instances, the individual will be notified in writing that the 
suspension will continue and of the opportunity to request a hearing 
within 14 calendar days.
    (1) At the hearing, the arrest report, the commander's report of 
official disposition, information presented by the individual, and such 
other information as the hearing officer may deem appropriate will be 
considered.
    (2) If the hearing officer determines by a preponderance of evidence 
that the individual was engaged in intoxicated driving, the revocation 
will be

[[Page 29]]

for 1 year from the date of the original preliminary suspension.
    (c) The person was driving or in physical control of a motor vehicle 
while under a preliminary suspension or revocation.
    (d) An administrative determination has been made by the state or 
host nation licensing authority to suspend or revoke driving privileges.
    (e) The individual has failed to complete a formally directed 
substance abuse or driver's training program.



Sec.  634.15  Restricted driving privileges or probation.

    (a) For the Navy, Air Force, Marine Corps, and DLA, the installation 
commander, or his or her designee may modify a suspension or revocation 
of driving privileges in certain cases per paragraph (d) of this 
section.
    (b) Army requests for restricted driving privileges subsequent to 
suspension or revocation of installation driving privileges will be 
referred to the installation commander or designee, except for 
intoxicated driving cases, which must be referred to the General Court 
Martial Convening Authority. Withdrawal of restricted driving privileges 
is within the installation commander's discretion.
    (c) Probation or restricted driving privileges will not be granted 
to any person whose driver license or right to operate motor vehicles is 
under suspension or revocation by a state, Federal, or host nation 
licensing authority. Prior to application for probation or restricted 
driving privileges, a state, Federal, or host nation driver's license or 
right to operate motor vehicles must be reinstated. The burden of proof 
for reinstatement of driving privileges lies with the person applying 
for probation or restricted driving privileges. Revocations for test 
refusals shall remain.
    (d) The installation commander or designee may grant restricted 
driving privileges or probation on a case-by-case basis provided the 
person's state or host nation driver's license or right to operate motor 
vehicles remains valid to accommodate any of the following reasons:
    (1) Mission requirements.
    (2) Unusual personal or family hardships.
    (3) Delays exceeding 90 days, not attributed to the person 
concerned, in the formal disposition of an apprehension or charges that 
are the basis for any type of suspension or revocation.
    (4) When there is no reasonably available alternate means of 
transportation to officially assigned duties. In this instance, a 
limited exception can be granted for the sole purpose of driving 
directly to and from the place of duty.
    (e) The terms and limitations on a restricted driving privilege (for 
example, authorization to drive to and from place of employment or duty, 
or selected installation facilities such as hospital, commissary, and or 
other facilities) will be specified in writing and provided to the 
individual concerned. Persons found in violation of the restricted 
privilege are subject to revocation action as prescribed in Sec.  634.9.
    (f) The conditions and terms of probation will be specified in 
writing and provided to the individual concerned. The original 
suspension or revocation term in its entirety may be activated to 
commence from the date of the violation of probation. In addition, 
separate action may be initiated based on the commission of any traffic, 
criminal, or military offense that constitutes a probation violation.
    (g) DOD employees and contractors, who can demonstrate that 
suspension or revocation of installation driving privileges would 
constructively remove them from employment, may be given a limiting 
suspension/revocation that restricts driving on the installation or 
activity (or in the overseas command) to the most direct route to and 
from their respective work sites (5 U.S.C. 2302(b) (10)). This is not to 
be construed as limiting the commander from suspension or revocation of 
on-duty driving privileges or seizure of OF 346, even if this action 
would constructively remove a person from employment in those instances 
in which the person's duty requires driving from place to place on the 
installation.



Sec.  634.16  Reciprocal state-military action.

    (a) Commanders will recognize the interests of the states in matters 
of

[[Page 30]]

POV administration and driver licensing. Statutory authority may exist 
within some states or host nations for reciprocal suspension and 
revocation of driving privileges. See subpart D of this part for 
additional information on exchanging and obtaining information with 
civilian law enforcement agencies concerning infractions by Armed 
Service personnel off post. Installation commanders will honor the 
reciprocal authority and direct the installation law enforcement officer 
to pursue reciprocity with state or host nation licensing authorities. 
Upon receipt of written or other official law enforcement communication 
relative to the suspension/revocation of driving privileges, the 
receiving installation will terminate driving privileges as if 
violations occurred within its own jurisdiction.
    (b) When imposing a suspension or revocation for an off-installation 
offense, the effective date should be the same as civil disposition, or 
the date that state or host-nation driving privileges are suspended or 
revoked. This effective date can be retroactive.
    (c) If statutory authority does not exist within the state or host 
nation for formal military reciprocity, the procedures below will be 
adopted:
    (1) Commanders will recognize official documentation of suspensions/
revocations imposed by state or host nation authorities. Administrative 
actions (suspension/revocations, or if recognized, point assessment) for 
moving traffic violations off the installation should not be less than 
required for similar offenses on the installation. When notified by 
state or host nation authorities of a suspension or revocation, the 
person's OF 346 may also be suspended.
    (2) In CONUS, the host and issuing state licensing authority will be 
notified as soon as practical when a person's installation driving 
privileges are suspended or revoked for any period, and immediately for 
refusal to submit to a lawful BAC test. The notification will be sent to 
the appropriate state DMV(s) per reciprocal agreements. In the absence 
of electronic communication technology, the appropriate state DMV(s) 
will be notified by official certified mail. The notification will 
include the basis for the suspension/revocation and the BAC level if 
applicable.
    (d) OCONUS installation commanders must follow provisions of the 
applicable Status of Forces Agreement (SOFA), the law of the host nation 
concerning reciprocal suspension and revocation, and other international 
agreements. To the extent an agreement concerning reciprocity may be 
permitted at a particular overseas installation, the commander must have 
prior authorization to negotiate and conclude such an international 
agreement in accordance with applicable international agreements, DODD 
5530.3, International Agreements, June 87, and other individual Service 
instructions.



Sec.  634.17  Extensions of suspensions and revocations.

    (a) Driving in violation of a suspension or revocation imposed under 
this part will result in the original period of suspension or revocation 
being increased by 2 years. In addition, administrative action may be 
initiated based on the commission of any traffic, criminal, or military 
offenses, for example, active duty military personnel driving on the 
installation in violation of a lawful order.
    (b) For each subsequent determination within a 5-year period that 
revocation is authorized under Sec.  634.9, military personnel, DOD 
civilians, contractors and NAF employees will be prohibited from 
obtaining or using an OF 346 for 6 months for each such incident. A 
determination whether DOD civilian personnel should be prohibited from 
obtaining or using an OF 346 will be made in accordance with the laws 
and regulations applicable to civilian personnel. This does not preclude 
a commander from imposing such prohibition for a first offense, or for a 
longer period of time for a first or subsequent offense, or for such 
other reasons as may be authorized.
    (c) Commanders may extend a suspension or revocation of driving 
privileges on personnel until completion of an approved remedial driver 
training course or alcohol or drug counseling programs after proof is 
provided.
    (d) Commanders may extend a suspension or revocation of driving 
privileges on civilian personnel convicted of

[[Page 31]]

intoxicated driving on the installation until successful completion of a 
state or installation approved alcohol or drug rehabilitation program.
    (e) For Navy personnel for good cause, the appropriate authority may 
withdraw the restricted driving privilege and continue the suspension or 
revocation period (for example, driver at fault in the traffic accident, 
or driver cited for a moving violation.



Sec.  634.18  Reinstatement of driving privileges.

    Reinstatement of driving privileges shall be automatic, provided all 
revocations applicable have expired, proper proof of completion of 
remedial driving course and/or substance abuse counseling has been 
provided, and reinstatement requirements of individual's home state and/
or state the individual may have been suspended in, have been met.



                  Subpart C_Motor Vehicle Registration



Sec.  634.19  Registration policy.

    (a) Motor vehicles will be registered according to guidance in this 
part and in policies of each Service and DLA. A person who lives or 
works on an Army, DLA, Air Force, Navy, or Marine Corps installation, or 
Army National Guard of the U.S. (ARNGUS) facility, or often uses the 
facilities is required to register his or her vehicle. Also, individuals 
who access the installation for regular activities such as use of 
medical facilities and regular recurring activities on the installation 
should register their vehicles according to a standard operating 
procedure established by the installation commander. The person need not 
own the vehicle to register it, but must have a lease agreement, power 
of attorney, or notarized statement from the owner of the vehicle 
specifying the inclusive dates for which permission to use the vehicle 
has been granted.
    (b) Vehicles intended for construction and material handling, or 
used solely off the road, are usually not registered as motor vehicles. 
Installation commanders may require registration of off-road vehicles 
and bicycles under a separate local system.
    (c) Commanders can grant limited temporary registration for up to 30 
days, pending permanent registration, or in other circumstances for 
longer terms.
    (d) Except for reasons of security, all installations and activities 
of the Services and DLA within the United States and its territories 
with a vehicle registration system will use and honor the DD Form 2220, 
(Department of Defense Registration Decal). Registration in overseas 
commands may be modified in accordance with international agreements or 
military necessity.
    (e) Army Installation commanders will establish local visitor 
identification for individuals who will be on installation for less than 
30 days. The local policy will provide for use of temporary passes that 
establish a start and end date for which the pass is valid. Army 
installation commanders must refer to AR 190-16 Chapter 2 for guidance 
concerning installation access control. (Air Force, see AFI 31-204). 
Other Armed Services and DLA may develop and issue visitor passes 
locally.
    (f) The conditions in Sec.  634.20 must be met to operate a POV on 
an Army and DLA Installation. Other Armed Services that do not require 
registration will enforce Sec.  634.20 through traffic enforcement 
actions. Additionally, failure to comply with Sec.  634.20 may result in 
administrative suspension or revocation of driving privileges.



Sec.  634.20  Privately owned vehicle operation requirements.

    Personnel seeking to register their POVs on military installations 
within the United States or its territories and in overseas areas will 
comply with the following requirements. (Registration in overseas 
commands may be modified in accordance with international agreements or 
military necessity.)
    (a) Possess a valid state, overseas command, host nation or 
international drivers license (within appropriate classification), 
supported by DD Form 2, or other appropriate identification for DOD 
civilians, contractors and retirees. DA Form 1602, Civilian 
Identification Card, is limited for identification on Army installations 
only.

[[Page 32]]

    (b) Possess a certificate of state registration as required by the 
state in which the vehicle is registered.
    (c) Comply with the minimum requirements of the automobile insurance 
laws or regulations of the state or host nation. In overseas commands 
where host nation laws do not require minimum personal injury and 
property damage liability insurance, the major overseas commander will 
set reasonable liability insurance requirements for registration and/or 
operation of POVs within the confines of military installations and 
areas where the commander exercises jurisdiction. Prior to 
implementation, insurance requirements in host states or nations should 
be formally coordinated with the appropriate host agency.
    (d) Satisfactorily complete a safety and mechanical vehicle 
inspection by the state or jurisdiction in which the vehicle is 
licensed. If neither state nor local jurisdiction requires a periodic 
safety inspection, installation commanders may require and conduct an 
annual POV safety inspection; however, inspection facilities must be 
reasonably accessible to those requiring use. Inspections will meet 
minimum standards established by the National Highway Traffic Safety 
Administration (NHTSA) in 49 CFR 570.1 through 570.10. Lights, turn 
signals, brake lights, horn, wipers, and pollution control devices and 
standards in areas where applicable, should be included in the 
inspection. Vehicles modified from factory standards and determined 
unsafe may be denied access and registration.
    (e) Possess current proof of compliance with local vehicle emission 
inspection if required by the state, and maintenance requirements.
    (f) Vehicles with elevated front or rear ends that have been 
modified in a mechanically unsafe manner are unsafe and will be denied 
registration. 49 CFR 570.8 states that springs shall not be extended 
above the vehicle manufacturer's design height.



Sec.  634.21  Department of Defense Form 2220.

    (a) Use. DD Form 2220 will be used to identify registered POVs on 
Army, Navy, Air Force, Marine Corps, and DLA installations or 
facilities. The form is produced in single copy for conspicuous 
placement on the front of the vehicle only (windshield or bumper). If 
allowed by state laws, the decal is placed in the center by the rear 
view mirror or the lower portion of the driver's side windshield. The 
requirement to affix the DD Form 2220 to the front windshield or bumper 
of registered vehicles is waived for General Officers and Flag Officers 
of all Armed Services, Armed Service Secretaries, Political Appointees, 
Members of Congress, and the Diplomatic Corps.
    (1) Each Service and DLA will procure its own forms and installation 
and expiration tabs. For the Army, the basic decal will be ordered 
through publications channels and remain on the vehicle until the 
registered owner disposes of the vehicle, separates from active duty or 
other conditions specified in paragraph (a)(2) of this section. Air 
Force, DLA, and Army retirees may retain DD Form 2220. Army retirees are 
required to follow the same registration and VRS procedures as active 
duty personnel. Upon termination of affiliation with the service, the 
registered owner or authorized operator is responsible for removing the 
DD Form 2220 from the vehicle and surrender of the decal to the issuing 
office. Army installation commanders are responsible for the costs of 
procuring decals with the name of their installation and related 
expiration tabs. Air Force installations will use the installation tag 
(4 by \1/2\) to identify the Air Force 
Installation where the vehicle is registered. Air Force personnel may 
retain the DD Form 2220 upon reassignment, retirement, or separation 
provided the individual is still eligible for continued registration, 
the registration is updated in SFMIS, and the installation tab is 
changed accordingly. Position the decal directly under the DD Form 2220.
    (2) For other Armed Services and DLA, DD Form 2220 and installation 
and expiration tabs will be removed from POV's by the owner prior to 
departure from their current installation, retirement, or separation 
from military or government affiliation, termination of ownership, 
registration, liability insurance, or other conditions further 
identified by local policy.

[[Page 33]]

    (b) Specifications. (1) DD Form 2220 and installation and expiration 
tabs will consist of international blue borders and printing on a white 
background. Printer information will include the following:
    (i) Form title (Department of Defense Registered Vehicle).
    (ii) Alphanumeric individual form identification number.
    (iii) DOD seal.
    (2) Name of the installation will be specified on a separate tab 
abutting the decal. Each Service or DLA may choose optional color codes 
for the registrant. Army and installations having vehicle registration 
programs will use the following standard color scheme for the 
installation tab:
    (i) Blue-officers.
    (ii) Red-enlisted.
    (iii) Green DA civilian employees (including NAF employees).
    (iv) Black-contractor personnel and other civilians employed on the 
installation. White will be used for contract personnel on Air Force 
installations.
    (3) An expiration tab identifying the month and year (6-2004), the 
year (2000) or simply ``00'' will be abutted to right of the decal. For 
identification purposes, the date of expiration will be shown in bold 
block numbers on a lighter contrasting background such as traffic 
yellow, lime, or orange.
    (4) DD Form 2220 and any adjoining tabs will be theft resistant when 
applied to glass, metal, painted, or rubberized surfaces and 
manufactured so as to obliterate or self destruct when removal is 
attempted. Local policy guided by state or host nation laws will specify 
the exact placement of DD Form 2220.
    (5) For Navy and Marine Corps military personnel the grade insignia 
will be affixed on placards, approximately 5 inches by 8 inches in size, 
and placed on the driver's side dashboard. Placards should be removed 
from view when the vehicle is not located on a military installation.



Sec.  634.22  Termination or denial of registration.

    Installation commanders or their designated representatives will 
terminate POV registration or deny initial registration under the 
following conditions (decal and tabs will be removed from the vehicle 
when registration is terminated):
    (a) The owner fails to comply with the registration requirements.
    (b) The owner sells or disposes of the POV, is released from active 
duty, separated from the Service, or terminates civilian employment with 
a military Service or DOD agency. Army and Air Force personnel on a 
permanent change of station will retain the DD Form 2220 if the vehicle 
is moved to their new duty station.
    (c) The owner is other than an active duty military or civilian 
employee and discontinues regular operations of the POV on the 
installation.
    (d) The owner's state, overseas command, or host nation driver's 
license is suspended or revoked, or the installation driving privilege 
is revoked. Air Force does not require removal of the DD Form 2220 when 
driving privileges are suspended for an individual. When vehicle 
registration is terminated in conjunction with the revocation of 
installation driving privileges, the affected person must apply to re-
register the POV after the revocation expires. Registration should not 
be terminated if other family members having installation driving 
privileges require use of the vehicle.



Sec.  634.23  Specified consent to impoundment.

    Personnel registering POVs on DOD installations must consent to the 
impoundment policy. POV registration forms will contain or have appended 
to them a certificate with the following statement: ``I am aware that 
(insert number and title of separate Service or DLA directive) and the 
installation traffic code provide for the removal and temporary 
impoundment of privately owned motor vehicles that are either parked 
illegally, or for unreasonable periods, interfering with military 
operations, creating a safety hazard, disabled by accident, left 
unattended in a restricted or control area, or abandoned. I agree to 
reimburse the United States for the cost of towing and storage should my 
motor vehicle(s), because of such circumstances, be removed and 
impounded.''

[[Page 34]]



                      Subpart D_Traffic Supervision



Sec.  634.24  Traffic planning and codes.

    (a) Safe and efficient movement of traffic on an installation 
requires traffic supervision. A traffic supervision program includes 
traffic circulation planning and control of motor vehicle traffic; 
publication and enforcement of traffic laws and regulations; and 
investigation of motor vehicle accidents.
    (b) Installation commanders will develop traffic circulation plans 
that provide for the safest and most efficient use of primary and 
secondary roads. Circulation planning should be a major part of all 
long-range master planning at installations. The traffic circulation 
plan is developed by the installation law enforcement officer, engineer, 
safety officer, and other concerned staff agencies. Highway engineering 
representatives from adjacent civil communities must be consulted to 
ensure the installation plan is compatible with the current and future 
circulation plan of the community. The plan should include the 
following:
    (1) Normal and peak load routing based on traffic control studies.
    (2) Effective control of traffic using planned direction, including 
measures for special events and adverse road or weather conditions.
    (3) Point control at congested locations by law enforcement 
personnel or designated traffic directors or wardens, including trained 
school-crossing guards.
    (4) Use of traffic control signs and devices.
    (5) Efficient use of available parking facilities.
    (6) Efficient use of mass transportation.
    (c) Traffic control studies will provide factual data on existing 
roads, traffic density and flow patterns, and points of congestion. The 
installation law enforcement officer and traffic engineer usually 
conduct coordinated traffic control studies to obtain the data. Accurate 
data will help determine major and minor routes, location of traffic 
control devices, and conditions requiring engineering or enforcement 
services.
    (d) The (Military) Surface Deployment and Distribution Command 
Transportation Engineering Agency (SDDCTEA) will help installation 
commanders solve complex highway traffic engineering problems. SDDCTEA 
traffic engineering services include--
    (1) Traffic studies of limited areas and situations.
    (2) Complete studies of traffic operations of entire installations. 
(This can include long-range planning for future development of 
installation roads, public highways, and related facilities.)
    (3) Assistance in complying with established traffic engineering 
standards.
    (e) Installation commanders should submit requests for traffic 
engineering services in accordance with applicable service or agency 
directives.



Sec.  634.25  Installation traffic codes.

    (a) Installation or activity commanders will establish a traffic 
code for operation of motor vehicles on the installation. Commanders in 
overseas areas will establish a traffic code, under provisions of this 
part, to the extent military authority is empowered to regulate traffic 
on the installation under the applicable SOFA. Traffic codes will 
contain the rules of the road (parking violations, towing instructions, 
safety equipment, and other key provisions). These codes will, where 
possible, conform to the code of the State or host nation in which the 
installation is located. In addition, the development and publication of 
installation traffic codes will be based on the following:
    (1) Highway Safety Program Standards (23 U.S.C. 402).
    (2) Applicable portions of the Uniform Vehicle Code and Model 
Traffic Ordinance published by the National Committee on Uniform Traffic 
Laws and Ordinances.
    (b) The installation traffic code will contain policy and procedures 
for the towing, searching, impounding, and inventorying of POVs. These 
provisions should be well publicized and contain the following:
    (1) Specific violations and conditions under which the POV will be 
impounded and towed.
    (2) Procedures to immediately notify the vehicle owner.
    (3) Procedures for towing and storing impounded vehicles.

[[Page 35]]

    (4) Actions to dispose of the vehicle after lawful impoundment.
    (5) Violators are responsible for all costs of towing, storage and 
impounding of vehicles for other than evidentiary reasons.
    (c) Installation traffic codes will also contain the provisions 
discussed as follows: (Army users, see AR 385-55).
    (1) Motorcycles and mopeds. For motorcycles and other self-
propelled, open, two-wheel, three-wheel, and four-wheel vehicles powered 
by a motorcycle-type engine, the following traffic rules apply:
    (i) Headlights will be on at all times when in operation.
    (ii) A rear view mirror will be attached to each side of the 
handlebars.
    (iii) Approved protective helmets, eye protection, hard-soled shoes, 
long trousers and brightly colored or reflective outer upper garment 
will be worn by operators and passengers when in operation.
    (2) Restraint systems. (i) Restraint systems (seat belts) will be 
worn by all operators and passengers of U.S. Government vehicles on or 
off the installation.
    (ii) Restraint systems will be worn by all civilian personnel 
(family members, guests, and visitors) driving or riding in a POV on the 
installation.
    (iii) Restraint systems will be worn by all military service members 
and Reserve Component members on active Federal service driving or 
riding in a POV whether on or off the installation.
    (iv) Infant/child restraint devices (car seats) will be required in 
POVs for children 4 years old or under and not exceeding 45 pounds in 
weight.
    (v) Restraint systems are required only in vehicles manufactured 
after model year 1966.
    (3) Driver distractions. Vehicle operators on a DoD Installation and 
operators of Government owned vehicles shall not use cell phones unless 
the vehicle is safely parked or unless they are using a hands-free 
device. The wearing of any other portable headphones, earphones, or 
other listening devices (except for hand-free cellular phones) while 
operating a motor vehicle is prohibited. Use of those devices impairs 
driving and masks or prevents recognition of emergency signals, alarms, 
announcements, the approach of vehicles, and human speech. DoD Component 
safety guidance should note the potential for driver distractions such 
as eating and drinking, operating radios, CD players, global positioning 
equipment, etc. Whenever possible this should only be done when the 
vehicle is safely parked.
    (d) Only administrative actions (reprimand, assessment of points, 
loss of on-post driving privileges, or other actions) will be initiated 
against service members for off-post violations of the installation 
traffic code.
    (e) In States where traffic law violations are State criminal 
offenses, such laws are made applicable under the provisions of 18 
U.S.C. 13 to military installations having concurrent or exclusive 
Federal jurisdiction.
    (f) In those States where violations of traffic law are not 
considered criminal offenses and cannot be assimilated under 18 U.S.C., 
DODD 5525.4, enclosure 1 expressly adopts the vehicular and pedestrian 
traffic laws of such States and makes these laws applicable to military 
installations having concurrent or exclusive Federal jurisdiction. It 
also delegates authority to installation commanders to establish 
additional vehicular and pedestrian traffic rules and regulations for 
their installations. Persons found guilty of violating the vehicular and 
pedestrian traffic laws made applicable on the installation under 
provisions of that directive are subject to a fine as determined by the 
local magistrate or imprisonment for not more than 30 days, or both, for 
each violation. In those States where traffic laws cannot be 
assimilated, an extract copy of this paragraph (f) and a copy of the 
delegation memorandum in DODD 5525.4, enclosure 1, will be posted in a 
prominent place accessible to persons assigned, living, or working on 
the installation.
    (g) In those States where violations of traffic laws cannot be 
assimilated because the Federal Government's jurisdictional authority on 
the installation or parts of the installation is only proprietary, 
neither 18 U.S.C. 13 nor the delegation memorandum in DoDD

[[Page 36]]

5525.4, enclosure 1, will permit enforcement of the State's traffic laws 
in Federal courts. Law enforcement authorities on those military 
installations must rely on either administrative sanctions related to 
the installation driving privilege or enforcement of traffic laws by 
State law enforcement authorities.



Sec.  634.26  Traffic law enforcement principles.

    (a) Traffic law enforcement should motivate drivers to operate 
vehicles safely within traffic laws and regulations and maintain an 
effective and efficient flow of traffic. Effective enforcement should 
emphasize voluntary compliance by drivers and can be achieved by the 
following actions:
    (1) Publishing a realistic traffic code well known by all personnel.
    (2) Adopting standard signs, markings, and signals in accordance 
with NHSPS and the Manual on Uniform Traffic Control Devices for Streets 
and Highways.
    (3) Ensuring enforcement personnel establish courteous, personal 
contact with drivers and act promptly when driving behavior is improper 
or a defective vehicle is observed in operation.
    (4) Maintaining an aggressive program to detect and apprehend 
persons who drive while privileges are suspended or revoked.
    (5) Using sound discretion and judgment in deciding when to 
apprehend, issue citations, or warn the offender.
    (b) Selective enforcement will be used when practical. Selective 
enforcement deters traffic violations and reduces accidents by the 
presence or suggested presence of law enforcement personnel at places 
where violations, congestion, or accidents frequently occur. Selective 
enforcement applies proper enforcement measures to traffic congestion 
and focuses on selected time periods, conditions, and violations that 
cause accidents. Law enforcement personnel use selective enforcement 
because that practice is the most effective use of resources.
    (c) Enforcement activities against intoxicated driving will 
include--
    (1) Detecting, apprehending, and testing persons suspected of 
driving under the influence of alcohol or drugs.
    (2) Training law enforcement personnel in special enforcement 
techniques.
    (3) Enforcing blood-alcohol concentration standards. (See Sec.  
634.34).
    (4) Denying installation driving privileges to persons whose use of 
alcohol or other drugs prevents safe operation of a motor vehicle.
    (d) Installation officials will formally evaluate traffic 
enforcement on a regular basis. That evaluation will examine procedures 
to determine if the following elements of the program are effective in 
reducing traffic accidents and deaths:
    (1) Selective enforcement measures;
    (2) Suspension and revocation actions; and
    (3) Chemical breath-testing programs.



Sec.  634.27  Speed-measuring devices.

    Speed-measuring devices will be used in traffic control studies and 
enforcement programs. Signs may be posted to indicate speed-measuring 
devices are being used.
    (a) Equipment purchases. Installations will ensure operators attend 
an appropriate training program for the equipment in use.
    (b) Training and certification standards. (1) The commander of each 
installation using traffic radar will ensure that personnel selected as 
operators of such devices meet training and certification requirements 
prescribed by the State (or SOFA) in which the installation is located. 
Specific information on course dates, costs, and prerequisites for 
attending may be obtained by contacting the State agency responsible for 
police traffic radar training.
    (2) Installation commanders located in States or overseas areas 
where no formal training program exists, or where the military personnel 
are unable or ineligible to participate in police traffic radar training 
programs, may implement their own training program or use a selected 
civilian institution or manufacturer's course.
    (3) The objective of the civilian or manufacturer-sponsored course 
is to improve the effectiveness of speed enforcement through the proper 
and efficient use of speed-measurement radar.

[[Page 37]]

On successful completion, the course graduate must be able to--
    (i) Describe the association between excessive speed and accidents, 
deaths, and injuries, and describe the traffic safety benefits of 
effective speed control.
    (ii) Describe the basic principles of radar speed measurement.
    (iii) Identify and describe the Service's policy and procedures 
affecting radar speed measurement and speed enforcement.
    (iv) Identify the specific radar instrument used and describe the 
instrument's major components and functions.
    (v) Demonstrate basic skills in checking calibration and operating 
the specific radar instrument(s).
    (vi) Demonstrate basic skills in preparing and presenting records 
and courtroom testimony relating to radar speed measurement and 
enforcement.
    (c) Recertification. Recertification of operators will occur every 3 
years, or as prescribed by State law.



Sec.  634.28  Traffic accident investigation.

    Installation law enforcement personnel must make detailed 
investigations of accidents described in this section:
    (a) Accidents involving Government vehicles or Government property 
on the installation involving a fatality, personal injury, or estimated 
property damage in the amount established by separate Service/DLA 
policy. (Minimum damage limits are: Army, $1,000; Air Force, as 
specified by the installation commander; Navy and Marine Corps, $500.) 
The installation motor pool will provide current estimates of the cost 
of repairs. Investigations of off-installation accidents involving 
Government vehicles will be made in cooperation with the civilian law 
enforcement agency.
    (b) POV accidents on the installation involving a fatality, personal 
injury, or when a POV is inoperable as a result of an accident.
    (c) Any accident prescribed within a SOFA agreement.



Sec.  634.29  Traffic accident investigation reports.

    (a) Accidents requiring immediate reports. The driver or owner of 
any vehicle involved in an accident, as described in Sec.  634.28, on 
the installation, must immediately notify the installation law 
enforcement office. The operator of any Government vehicle involved in a 
similar accident off the installation must immediately notify the local 
civilian law enforcement agency having jurisdiction, as well as law 
enforcement personnel of the nearest military installation.
    (b) Investigation records. Installation law enforcement officials 
will record traffic accident investigations on Service/DLA forms. 
Information will be released according to Service/DLA policy, the 
Privacy Act, and the Freedom of Information Act.
    (c) Army law enforcement officers. These officers provide the local 
Safety Office copies of traffic accident investigation reports 
pertaining to accidents investigated by military police that resulted in 
a fatality, personal injury, or estimated damage to Government vehicles 
or property in excess of $1,000.
    (d) POV accidents not addressed in Sec.  634.28. Guidance for 
reporting these cases is provided as follows:
    (1) Drivers or owners of POVs will be required to submit a written 
report to the installation law enforcement office within 24 hours of an 
accident in the following cases, with all information listed in 
paragraph (d)(3) of this section:
    (i) The accident occurs on the installation.
    (ii) The accident involves no personal injury.
    (iii) The accident involves only minor damage to the POV and the 
vehicle can be safely and normally driven from the scene under its own 
power.
    (2) Information in the written report cannot be used in criminal 
proceedings against the person submitting it unless it was originally 
categorized a hit and run and the violator is the person submitting the 
report. Rights advisement will be given prior to any criminal traffic 
statements provided by violators.

[[Page 38]]

Within the United States, the installation law enforcement official may 
require such reporting on Service forms or forms of the State 
jurisdiction.
    (3) Reports required in paragraph (d) (1) of this section by the 
Army will include the following about the accident:
    (i) Location, date, and time.
    (ii) Identification of all drivers, pedestrians, and passengers 
involved.
    (iii) Identification of vehicles involved.
    (iv) Speed and direction of travel of each vehicle involved, 
including a sketch of the collision and roadway with street names and 
north arrow.
    (v) Property damage involved.
    (vi) Environmental conditions at the time of the incident (weather, 
visibility, road surface condition, and other factors).
    (vii) A narrative description of the events and circumstances 
concerning the accident.



Sec.  634.30  Use of traffic accident investigation report data.

    (a) Data derived from traffic accident investigation reports and 
from vehicle owner accident reports will be analyzed to determine 
probable causes of accidents. When frequent accidents occur at a 
location, the conditions at the location and the types of accidents 
(collision diagram) will be examined.
    (b) Law enforcement personnel and others who prepare traffic 
accident investigation reports will indicate whether or not seat 
restraint devices were being used at the time of the accident.
    (c) When accidents warrant, an installation commander may establish 
a traffic accident review board. The board will consist of law 
enforcement, engineer, safety, medical, and legal personnel. The board 
will determine principal factors leading to the accident and recommend 
measures to reduce the number and severity of accidents on and off the 
installation. (The Air Force will use Traffic Safety Coordinating 
Groups. The Navy will use Traffic Safety Councils per OPNAVINST 5100.12 
Series).
    (d) Data will be shared with the installation legal, engineer, 
safety, and transportation officers. The data will be used to inform and 
educate drivers and to conduct traffic engineering studies.
    (e) Army traffic accident investigation reports will be provided to 
Army Centralized Accident Investigation of Ground Accidents (CAIG) 
boards on request. The CAIG boards are under the control of the 
Commander, U.S. Army Safety Center, Fort Rucker, AL 36362-5363. These 
boards investigate Class A, on-duty, non-POV accidents and other 
selected accidents Army-wide (See AR 385-40). Local commanders provide 
additional board members as required to complete a timely and accurate 
investigation. Normally, additional board members are senior equipment 
operators, maintenance officer, and medical officers. However, specific 
qualifications of the additional board members may be dictated by the 
nature of the accident.
    (f) The CAIG program is not intended to interfere with, impede, or 
delay law enforcement agencies in the execution of regulatory 
responsibilities that apply to the investigation of accidents for a 
determination of criminal intent or criminal acts. Criminal 
investigations have priority.
    (g) Army law enforcement agencies will maintain close liaison and 
cooperation with CAIG boards. Such cooperation, particularly with 
respect to interviews of victims and witnesses and in collection and 
preservation of physical evidence, should support both the CAIG and law 
enforcement collateral investigations.



Sec.  634.31  Parking.

    (a) The most efficient use of existing on- and off-street parking 
space should be stressed on a nonreserved (first-come, first-served) 
basis.
    (b) Reserved parking facilities should be designated as parking by 
permit or numerically by category of eligible parkers. Designation of 
parking spaces by name, grade, rank, or title should be avoided.
    (c) Illegal parking contributes to congestion and slows traffic flow 
on an installation. Strong enforcement of parking restrictions results 
in better use of available parking facilities and eliminates conditions 
causing traffic accidents.

[[Page 39]]

    (d) The ``Denver boot'' device is authorized for use as a technique 
to assist in the enforcement of parking violations where immobilization 
of the POV is necessary for safety. Under no circumstances should the 
device be used to punish or ``teach a lesson'' to violators. Booting 
should not be used if other reasonably effective but less restrictive 
means of enforcement (such as warnings, ticketing, reprimands, 
revocations, or suspensions of on-post driving privileges) are 
available. Procedures for booting must be developed as follows:
    (1) Local standing operating procedures (SOPs) must be developed to 
control the discretion of enforcers and limit booting to specific 
offenses. SOPs should focus on specific reasons for booting, such as 
immobilization of unsafe, uninspected, or unregistered vehicles or 
compelling the presence of repeat offenders. All parking violations must 
be clearly outlined in the installation traffic code.
    (2) Drivers should be placed on notice that particular violations or 
multiple violations may result in booting. Also, drivers must be 
provided with a prompt hearing and an opportunity to obtain the release 
of their property.
    (3) To limit liability, drivers must be warned when a boot is 
attached to their vehicle and instructed how to have the boot removed 
without damaging the vehicle.



Sec.  634.32  Traffic violation reports.

    (a) Most traffic violations occurring on DOD installations (within 
the UNITED STATES or its territories) should be referred to the proper 
U.S. Magistrate. (Army, see AR 190-29; DLA, see DLAI 5720.4; and Air 
Force, see AFI 51-905). However, violations are not referred when--
    (1) The operator is driving a Government vehicle at the time of the 
violation.
    (2) A Federal Magistrate is either not available or lacks 
jurisdiction to hear the matter because the violation occurred in an 
area where the Federal Government has only proprietary legislative 
jurisdiction.
    (3) Mission requirements make referral of offenders impractical.
    (4) A U.S. Magistrate is available but the accused refuses to 
consent to the jurisdiction of the court and the U.S. Attorney refuses 
to process the case before a U.S. District Court. For the Navy, DUI and 
driving under the influence of drugs cases will be referred to the 
Federal Magistrate.
    (b) Installation commanders will establish administrative procedures 
for processing traffic violations.
    (1) All traffic violators on military installations will be issued 
either a DD Form 1408 (Armed Forces Traffic Ticket) or a DD Form 1805 
(United States District Court Violation Notice), as appropriate. Unless 
specified otherwise by separate Service/DLA policy, only on-duty law 
enforcement personnel (including game wardens) designated by the 
installation law enforcement officer may issue these forms. Air Force 
individuals certified under the Parking Traffic Warden Program may issue 
DD Form 1408 in areas under their control.
    (2) A copy of all reports on military personnel and DOD civilian 
employees apprehended for intoxicated driving will be forwarded to the 
installation alcohol and drug abuse facility.
    (c) Installation commanders will establish procedures used for 
disposing of traffic violation cases through administrative or judicial 
action consistent with the Uniform Code of Military Justice (UCMJ) and 
Federal law.
    (d) DD Form 1805 will be used to refer violations of State traffic 
laws made applicable to the installation (Assimilative Crimes Act (18 
U.S.C. 13) and the delegation memorandum in DoDD 5525.4, enclosure 1, 
and other violations of Federal law) to the U.S. Magistrate. (Army 
users, see AR 190-29.)
    (1) A copy of DD Form 1805 and any traffic violation reports on 
military personnel and DOD civilian employees will be forwarded to the 
commander or supervisor of the violator. DA form 3975 may be used to 
forward the report.
    (2) Detailed instructions for properly completing DD Form 1805 are 
contained in separate Service policy directives.
    (3) The assimilation of State traffic laws as Federal offenses 
should be identified by a specific State code reference in the CODE 
SECTION block of the DD

[[Page 40]]

Form 1805 (or in a complaint filed with the U.S. Magistrate).
    (4) The Statement of Probable Cause on the DD Form 1805 will be used 
according to local staff judge advocate and U.S. Magistrate court 
policy. The Statement of Probable Cause is required by the Federal 
misdemeanor rules to support the issuance of a summons or arrest 
warrant.
    (5) For cases referred to U.S. Magistrates, normal distribution of 
DD Form 1805 will be as follows:
    (i) The installation law enforcement official will forward copy 1 
(white) and copy 2 (yellow) to the U.S. District Court (Central 
Violation Bureau).
    (ii) The installation law enforcement office will file copy 3 
(pink).
    (iii) Law enforcement personnel will provide copy 4 (envelope) to 
the violator.
    (e) When DD Form 1408 is used, one copy (including written warnings) 
will be forwarded through command channels to the service member's 
commander, to the commander of the military family member's sponsor, or 
to the civilian's supervisor or employer as the installation commander 
may establish.
    (1) Previous traffic violations committed by the offender and points 
assessed may be shown.
    (2) For violations that require a report of action taken, the DD 
Form 1408 will be returned to the office of record through the reviewing 
authority as the installation commander may establish.
    (3) When the report is received by the office of record, that office 
will enter the action on the violator's driving record.



Sec.  634.33  Training of law enforcement personnel.

    (a) As a minimum, installation law enforcement personnel will be 
trained to do the following:
    (1) Recognize signs of alcohol and other drug impairment in persons 
operating motor vehicles.
    (2) Prepare DD Form 1920 (Alcohol Influence Report).
    (3) Perform the three field tests of the improved sobriety testing 
techniques (Sec.  634.36 (b)).
    (4) Determine when a person appears intoxicated but is actually 
physically or mentally ill and requires prompt medical attention.
    (5) Understand the operation of breath-testing devices.
    (b) Each installation using breath-testing devices will ensure that 
operators of these devices--
    (1) Are chosen for integrity, maturity, and sound judgment.
    (2) Meet certification requirements of the State where the 
installation is located.
    (c) Installations located in States or overseas areas having a 
formal breath-testing and certification program should ensure operators 
attend that training.
    (d) Installations located in States or overseas areas with no formal 
training program will train personnel at courses offered by selected 
civilian institutions or manufacturers of the equipment.
    (e) Operators must maintain proficiency through refresher training 
every 18 months or as required by the State.



Sec.  634.34  Blood alcohol concentration standards.

    (a) Administrative revocation of driving privileges and other 
enforcement measures will be applied uniformly to offenders driving 
under the influence of alcohol or drugs. When a person is tested under 
the implied consent provisions of Sec.  634.8, the results of the test 
will be evaluated as follows:
    (1) If the percentage of alcohol in the person's blood is less than 
0.05 percent, presume the person is not under the influence of alcohol.
    (2) If the percentage is 0.05 but less than 0.08, presume the person 
may be impaired. This standard may be considered with other competent 
evidence in determining whether the person was under the influence of 
alcohol.
    (3) If the percentage is 0.08 or more, or if tests reflect the 
presence of illegal drugs, the person was driving while intoxicated.
    (b) Percentages in paragraph (a) of this section are percent of 
weight by volume of alcohol in the blood based on grams of alcohol per 
100 milliliters of blood. These presumptions will be considered with 
other evidence in determining intoxication.

[[Page 41]]



Sec.  634.35  Chemical testing policies and procedures.

    (a) Validity of chemical testing. Results of chemical testing are 
valid under this part only under the following circumstances:
    (1) Blood, urine, or other bodily substances are tested using 
generally accepted scientific and medical methods and standards.
    (2) Breath tests are administered by qualified personnel (Sec.  
634.33).
    (3) An evidential breath-testing device approved by the State or 
host nation is used. For Army, Air Force, and Marine Corps, the device 
must also be listed on the NHTSA conforming products list published in 
the ``Conforming Products List for instruments that conform to the Model 
Specification for Evidential Breath Testing Devices (58 FR 48705), and 
amendments.''
    (4) Procedures established by the State or host nation or as 
prescribed in paragraph (b) of this section are followed.
    (b) Breath-testing device operational procedures. If the State or 
host nation has not established procedures for use of breath-testing 
devices, the following procedures will apply:
    (1) Screening breath-testing devices will be used--
    (i) During the initial traffic stop as a field sobriety testing 
technique, along with other field sobriety testing techniques, to 
determine if further testing is needed on an evidential breath-testing 
device.
    (ii) According to manufacture operating instructions. (For Army, Air 
Force and Marine Corps, the screening breath-testing device must also be 
listed on the NHTSA conforming products list published in the ``Model 
Specifications for Evidential Breath Testers'' (September 17, 1993, 58 
FR 48705).
    (2) Evidential breath-testing devices will be used as follows:
    (i) Observe the person to be tested for at least 15 minutes before 
collecting the breath specimen. During this time, the person must not 
drink alcoholic beverages or other fluids, eat, smoke, chew tobacco, or 
ingest any substance.
    (ii) Verify calibration and proper operation of the instrument by 
using a control sample immediately before the test.
    (iii) Comply with operational procedures in the manufacturer's 
current instruction manual.
    (iv) Perform preventive maintenance as required by the instruction 
manual.
    (c) Chemical tests of personnel involved in fatal accidents. (1) 
Installation medical authorities will immediately notify the 
installation law enforcement officer of--
    (i) The death of any person involved in a motor vehicle accident.
    (ii) The circumstances surrounding such an accident, based on 
information available at the time of admission or receipt of the body of 
the victim.
    (2) Medical authorities will examine the bodies of those persons 
killed in a motor vehicle accident to include drivers, passengers, and 
pedestrians subject to military jurisdiction. They will also examine the 
bodies of dependents, who are 16 years of age or older, if the sponsors 
give their consent. Tests for the presence and concentration of alcohol 
or other drugs in the person's blood, bodily fluids, or tissues will be 
made as soon as possible and where practical within 8 hours of death. 
The test results will be included in the medical reports.
    (3) As provided by law and medical conditions permitting, a blood or 
breath sample will be obtained from any surviving operator whose vehicle 
is involved in a fatal accident.



Sec.  634.36  Detection, apprehension, and testing of intoxicated drivers.

    (a) Law enforcement personnel usually detect drivers under the 
influence of alcohol or other drugs by observing unusual or abnormal 
driving behavior. Drivers showing such behavior will be stopped 
immediately. The cause of the unusual driving behavior will be 
determined, and proper enforcement action will be taken.
    (b) When a law enforcement officer reasonably concludes that the 
individual driving or in control of the vehicle is impaired, field 
sobriety tests should be conducted on the individual. The DD Form 1920 
may be used by law enforcement agencies in examining, interpreting, and 
recording results of such tests. Law enforcement personnel should use a 
standard field sobriety test (such as one-leg stand or walk and

[[Page 42]]

turn) horizontal gaze nystagmus tests as sanctioned by the National 
Highway Traffic and Safety Administration, and screening breath-testing 
devices to conduct field sobriety tests.



Sec.  634.37  Voluntary breath and bodily fluid testing based on
implied consent.

    (a) Implied consent policy is explained in Sec.  634.8.
    (b) Tests may be administered only if the following conditions are 
met:
    (1) The person was lawfully stopped while driving, operating, or in 
actual physical control of a motor vehicle on the installation.
    (2) Reasonable suspicion exists to believe that the person was 
driving under the influence of alcohol or drugs.
    (3) A request was made to the person to consent to the tests 
combined with a warning that failure to voluntarily submit to or 
complete a chemical test of bodily fluids or breath will result in the 
revocation of driving privileges.
    (c) As stated in paragraphs (a) and (b) of this section, the law 
enforcement official relying on implied consent will warn the person 
that driving privileges will be revoked if the person fails to 
voluntarily submit to or complete a requested chemical test. The person 
does not have the right to have an attorney present before stating 
whether he or she will submit to a test, or during the actual test. 
Installation commanders will prescribe the type or types of chemical 
tests to be used. Testing will follow policies and procedures in Sec.  
634.35. The results of chemical tests conducted under the implied 
consent provisions of this part may be used as evidence in courts-
martial, nonjudicial proceedings under Article 15 of the UCMJ, 
administrative actions, and civilian courts.
    (d) Special rules exist for persons who have hemophilia, other 
blood-clotting disorders, or any medical or surgical disorder being 
treated with an anticoagulant. These persons--
    (1) May refuse a blood extraction test without penalty.
    (2) Will not be administered a blood extraction test to determine 
alcohol or other drug concentration or presence under this part.
    (3) May be given breath or urine tests, or both.
    (e) If a person suspected of intoxicated driving refuses to submit 
to a chemical test, a test will not be administered except as specified 
in Sec.  634.38.



Sec.  634.38  Involuntary extraction of bodily fluids in traffic cases.

    (a) General. The procedures outlined in this section pertain only to 
the investigation of individuals stopped, apprehended, or cited on a 
military installation for any offense related to driving a motor vehicle 
and for whom probable cause exists to believe that such individual is 
intoxicated. Extractions of body fluids in furtherance of other kinds of 
investigations are governed by the Manual for Courts-Martial, United 
States, Military Rule of Evidence 315 (2002) (MRE 315), and regulatory 
rules concerning requesting and granting authorizations for searches.
    (1) Air Force policy on nonconsensual extraction of blood samples is 
addressed in AFI 44-102.
    (2) Army and Marine Corps personnel should not undertake the 
nonconsensual extraction of body fluids for reasons other than a valid 
medical purpose without first obtaining the advice and concurrence of 
the installation staff judge advocate or his or her designee.
    (3) DLA policy on nonconsensual taking of blood samples is contained 
in DLAR 5700.7.
    (b) Rule. Involuntary bodily fluid extraction must be based on valid 
search and seizure authorization. An individual subject to the UCMJ who 
does not consent to chemical testing, as described in Sec.  634.37, may 
nonetheless be subjected to an involuntary extraction of bodily fluids, 
including blood and urine, only in accordance with the following 
procedures:
    (1) An individual subject to the UCMJ who was driving a motor 
vehicle and suspected of being under the influence of an intoxicant may 
be subjected to a nonconsensual bodily fluid extraction to test for the 
presence of intoxicants only when there is a probable cause to believe 
that such an individual was driving or in control of a vehicle while 
under the influence of an intoxicant.

[[Page 43]]

    (i) A search authorization by an appropriate commander or military 
magistrate obtained pursuant to MRE 315, is required prior to such 
nonconsensual extraction.
    (ii) A search authorization is not required under such circumstances 
when there is a clear indication that evidence of intoxication will be 
found and there is reason to believe that the delay necessary to obtain 
a search authorization would result in the loss or destruction of the 
evidence sought.
    (iii) Because warrantless searches are subject to close scrutiny by 
the courts, obtaining an authorization is highly preferable. Warrantless 
searches generally should be conducted only after coordination with the 
servicing staff judge advocate or legal officer, and attempts to obtain 
authorization from an appropriate official prove unsuccessful due to the 
unavailability of a commander or military magistrate.
    (2) If authorization from the military magistrate or commander 
proves unsuccessful due to the unavailability of such officials, the 
commander of a medical facility is empowered by MRE 315, to authorize 
such extraction from an individual located in the facility at the time 
the authorization is sought.
    (i) Before authorizing the involuntary extraction, the commander of 
the medical facility should, if circumstances permit, coordinate with 
the servicing staff judge advocate or legal officer.
    (ii) The medical facility commander authorizing the extraction under 
MRE 315 need not be on duty as the attending physician at the facility 
where the extraction is to be performed and the actual extraction may be 
accomplished by other qualified medical personnel.
    (iii) The authorizing official may consider his or her own 
observations of the individual in determining probable cause.
    (c) Role of medical personnel. Authorization for the nonconsensual 
extraction of blood samples for evidentiary purposes by qualified 
medical personnel is independent of, and not limited by, provisions 
defining medical care, such as the provision for nonconsensual medical 
care pursuant to AR 600-20, section IV. Extraction of blood will be 
accomplished by qualified medical personnel. (See MRE 312(g)).
    (1) In performing this duty, medical personnel are expected to use 
only that amount of force that is reasonable and necessary to administer 
the extraction.
    (2) Any force necessary to overcome an individual's resistance to 
the extraction normally will be provided by law enforcement personnel or 
by personnel acting under orders from the member's unit commander.
    (3) Life endangering force will not be used in an attempt to effect 
nonconsensual extractions.
    (4) All law enforcement and medical personnel will keep in mind the 
possibility that the individual may require medical attention for 
possible disease or injury.
    (d) Nonconsensual extractions of blood will be done in a manner that 
will not interfere with or delay proper medical attention. Medical 
personnel will determine the priority to be given involuntary blood 
extractions when other medical treatment is required.
    (e) Use of Army medical treatment facilities and personnel for blood 
alcohol testing has no relevance to whether or not the suspect is 
eligible for military medical treatment. The medical effort in such 
instances is in support of a valid military mission (law enforcement), 
not related to providing medical treatment to an individual.



Sec.  634.39  Testing at the request of the apprehended person.

    (a) A person subject to tests under Sec.  634.8 may request that an 
additional test be done privately. The person may choose a doctor, 
qualified technician, chemist, registered nurse, or other qualified 
person to do the test. The person must pay the cost of the test. The 
test must be a chemical test approved by the State or host nation in an 
overseas command. All tests will be completed as soon as possible, with 
any delay being noted on the results.
    (b) If the person requests this test, the suspect is responsible for 
making all arrangements. If the suspect fails to or cannot obtain any 
additional test, the results of the tests that were done at the 
direction of a law enforcement official are not invalid and may still be 
used to support actions under separate

[[Page 44]]

Service regulations, UCMJ, and the U.S. Magistrate Court.



Sec.  634.40  General off installation traffic activities.

    In areas not under military control, civil authorities enforce 
traffic laws. Law enforcement authorities will establish a system to 
exchange information with civil authorities. Army and Air Force 
installation law enforcement authorities will establish a system to 
exchange information with civil authorities to enhance the chain of 
command's visibility of a soldier's and airman's off post traffic 
violations. These agreements will provide for the assessment of traffic 
points based on reports from state licensing authorities involving Army 
military personnel. The provisions of subpart E of this part and the VRS 
automated system provide for the collection of off post traffic incident 
reports and data. As provided in AR 190-45, civilian law enforcement 
agencies are considered routine users of Army law enforcement data and 
will be granted access to data when available from Army law enforcement 
systems of records. Off-installation traffic activities in overseas 
areas are governed by formal agreements with the host nation government. 
Procedures should be established to process reports received from civil 
authorities on serious traffic violations, accidents, and intoxicated 
driving incidents involving persons subject to this part. The exchange 
of information is limited to Army and Air Force military personnel. 
Provost marshals will not collect and use data concerning civilian 
employees, family members, and contract personnel except as allowed by 
state and Federal laws.



Sec.  634.41  Compliance with State laws.

    (a) Installation commanders will inform service members, contractors 
and DOD civilian employees to comply with State and local traffic laws 
when operating government motor vehicles.
    (b) Commanders will coordinate with the proper civil law enforcement 
agency before moving Government vehicles that exceed legal limits or 
regulations or that may subject highway users to unusual hazards. (See 
AR 55-162/OPNAVINST 4600.11D/AFJI 24-216/MCO 4643.5C).
    (c) Installation commanders will maintain liaison with civil 
enforcement agencies and encourage the following:
    (1) Release of a Government vehicle operator to military authorities 
unless one of the following conditions exists.
    (i) The offense warrants detention.
    (ii) The person's condition is such that further operation of a 
motor vehicle could result in injury to the person or others.
    (2) Prompt notice to military authorities when military personnel or 
drivers of Government motor vehicles have--
    (i) Committed serious violations of civil traffic laws.
    (ii) Been involved in traffic accidents.
    (3) Prompt notice of actions by a State or host nation to suspend, 
revoke, or restrict the State or host nation driver's license (vehicle 
operation privilege) of persons who--
    (i) Operate Government motor vehicles.
    (ii) Regularly operate a POV on the installation. (See also Sec.  
634.16).



Sec.  634.42  Civil-military cooperative programs.

    (a) State-Armed Forces Traffic Workshop Program. This program is an 
organized effort to coordinate military and civil traffic safety 
activities throughout a State or area. Installation commanders will 
cooperate with State and local officials in this program and provide 
proper support and participation.
    (b) Community-Installation Traffic Workshop Program. Installation 
commanders should establish a local workshop program to coordinate the 
installation traffic efforts with those of local communities. Sound and 
practical traffic planning depends on a balanced program of traffic 
enforcement, engineering, and education. Civilian and military legal and 
law enforcement officers, traffic engineers, safety officials, and 
public affairs officers should take part.

[[Page 45]]



         Subpart E_Driving Records and the Traffic Point System



Sec.  634.43  Driving records.

    Each Service and DLA will use its own form to record vehicle traffic 
accidents, moving violations, suspension or revocation actions, and 
traffic point assessments involving military and DOD civilian personnel, 
their family members, and other personnel operating motor vehicles on a 
military installation. Army installations will use DA Form 3626 (Vehicle 
Registration/Driver Record) for this purpose. Table 5-1 of Part 634 
prescribes mandatory minimum or maximum suspension or revocation 
periods. Traffic points are not assessed for suspension or revocation 
actions.

 Table 5-1 of Part 634 Suspension/Revocation of Driving Privileges (See 
                             Notes 1 and 2)

    Assessment 1: Two-year revocation is mandatory on determination of 
facts by installation commander. (For Army, 5-year revocation is 
mandatory.)
    Violation: Driving while driver's license or installation driving 
privileges are under suspension or revocation.
    Assessment 2: One-year revocation is mandatory on determination of 
facts by installation commander.
    Violation: Refusal to submit to or failure to complete chemical 
tests (implied consent).
    Assessment 3: One-year revocation is mandatory on conviction.
    Violation: A. Manslaughter (or negligent homicide by vehicle) 
resulting from the operation of a motor vehicle.
    B. Driving or being in actual physical control of a motor vehicle 
while under the influence of intoxicating liquor (0.08% or greater on 
DOD installations; violation of civil law off post).
    C. Driving a motor vehicle while under the influence of any 
narcotic, or while under the influence of any other drug (including 
alcohol) to the degree rendered incapable of safe vehicle operation.
    D. Use of a motor vehicle in the commission of a felony. Fleeing the 
scene of an accident involving death or personal injury (hit and run).
    E. Perjury or making a false statement or affidavit under oath to 
responsible officials relating to the ownership or operation of motor 
vehicles.
    F. Unauthorized use of a motor vehicle belonging to another, when 
the act does not amount to a felony.
    Assessment 4: Suspension for a period of 6 months or less or 
revocation for a period not to exceed 1 year is discretionary.
    Violation: A. Mental or physical impairment (not including alcohol 
or other drug use) to the degree rendered incompetent to drive.
    B. Commission of an offense in another State which, if committed on 
the installation, would be grounds for suspension or revocation.
    C. Permitting an unlawful or fraudulent use of an official driver's 
license.
    D. Conviction of fleeing, or attempting to elude, a police officer.
    E. Conviction of racing on the highway.
    Assessment 5: Loss of OF 46 for minimum of 6 months is 
discretionary.
    Violation: Receiving a second 1-year suspension or revocation of 
driving privileges within 5 years.

                                  Notes

    1. When imposing a suspension or revocation because of an off-
installation offense, the effective date should be the same as the date 
of civil conviction, or the date that State or host-nation driving 
privileges are suspended or revoked. This effective date can be 
retroactive.
    2. No points are assessed for revocation or suspension actions. 
Except for implied consent violations, revocations must be based on a 
conviction by a civilian court or courts-martial, nonjudicial punishment 
under Article 15, UCMJ, or a separate hearing as addressed in this part. 
If revocation for implied consent is combined with another revocation, 
such as 1 year for intoxicated driving, revocations may run 
consecutively (total of 24 months) or concurrently (total of 12 months). 
The installation commander's policy should be applied systematically and 
not on a case-by-case basis.



Sec.  634.44  The traffic point system.

    The traffic point system provides a uniform administrative device to 
impartially judge driving performance of Service and DLA personnel. This 
system is not a disciplinary measure or a substitute for punitive 
action. Further, this system is not intended to interfere in any way 
with the reasonable exercise of an installation commander's prerogative 
to issue, suspend, revoke, deny, or reinstate installation driving 
privileges.



Sec.  634.45  Point system application.

    (a) The Services and DLA are required to use the point system and 
procedures prescribed in this section without change.

[[Page 46]]

    (b) The point system in table 5-2 of this part applies to all 
operators of U.S. Government motor vehicles, on or off Federal property. 
The system also applies to violators reported to installation officials 
in accordance with Sec.  634.32.
    (c) Points will be assessed when the person is found to have 
committed a violation and the finding is by either the unit commander, 
civilian supervisor, a military or civilian court (including a U.S. 
Magistrate), or by payment of fine, forfeiture of pay or allowances, or 
posted bond, or collateral.

  Table 5-2 of Part 634 Point Assessment for Moving Traffic Violations 
                              (See Note 1)

A. Violation: Reckless driving (willful and wanton disregard for the 
          safety of persons or property).
 Points assessed: 6
B. Violation: Owner knowingly and willfully permitting a physically 
          impaired person to operate the owner's motor vehicle.
 Points assessed: 6
C. Violation: Fleeing the scene (hit and run)-property damage only.
 Points assessed: 6
D. Violation: Driving vehicle while impaired (blood-alcohol content more 
          than 0.05 percent and less than 0.08 percent).
 Points assessed: 6
E. Violation: Speed contests.
 Points assessed: 6
F. Violation: Speed too fast for conditions.
 Points assessed: 2
G. Violation: Speed too slow for traffic conditions, and/or impeding the 
          flow of traffic, causing potential safety hazard.
 Points assessed: 2
H. Violation: Failure of operator or occupants to use available 
          restraint system devices while moving (operator assessed 
          points).
 Points assessed: 2
I. Violation: Failure to properly restrain children in a child restraint 
          system while moving (when child is 4 years of age or younger 
          or the weight of child does not exceed 45 pounds).
 Points assessed: 2
J. Violation: One to 10 miles per hour over posted speed limit.
 Points assessed: 3
K. Violation: Over 10 but not more than 15 miles per hour above posted 
          speed limit.
 Points assessed: 4
L. Violation: Over 15 but not more than 20 miles per hour above posted 
          speed limit.
 Points assessed: 5
M. Violation: Over 20 miles per hour above posted speed limit.
 Points assessed: 6
N. Violation: Following too close.
 Points assessed: 4
O. Violation: Failure to yield right of way to emergency vehicle.
 Points assessed: 4
P. Violation: Failure to stop for school bus or school-crossing signals.
 Points assessed: 4
Q. Violation: Failure to obey traffic signals or traffic instructions of 
          an enforcement officer or traffic warden; or any official 
          regulatory traffic sign or device requiring a full stop or 
          yield of right of way; denying entry; or requiring direction 
          of traffic.
 Points assessed: 4
R. Violation: Improper passing.
 Points assessed: 4
S. Violation: Failure to yield (no official sign involved).
 Points assessed: 4
T. Violation: Improper turning movements (no official sign involved).
 Points assessed: 3
U. Violation: Wearing of headphones/earphones while driving motor 
          vehicles (two or more wheels).
 Points assessed: 3
V. Violation: Failure to wear an approved helmet and/or reflectorized 
          vest while operating or riding on a motorcycle, MOPED, or a 
          three or four-wheel vehicle powered by a motorcycle-like 
          engine.
 Points assessed: 3
W. Violation: Improper overtaking.
 Points assessed: 3
X. Violation: Other moving violations (involving driver behavior only).
 Points assessed: 3
Y. Violation: Operating an unsafe vehicle. (See Note 2).
 Points assessed: 2
Z. Violation: Driver involved in accident is deemed responsible (only 
          added to points assessed for specific offenses).
 Points assessed: 1

                                  Notes

    1. When two or more violations are committed on a single occasion, 
points may be assessed for each individual violation.
    2. This measure should be used for other than minor vehicle safety 
defects or when a driver or registrant fails to correct a minor defect 
(for example, a burned out headlight not replaced within the grace 
period on a warning ticket).



Sec.  634.46  Point system procedures.

    (a) Reports of moving traffic violations recorded on DD Form 1408 or 
DD Form 1805 will serve as a basis for determining point assessment. For 
DD Form 1408, return endorsements will be required from commanders or 
supervisors.

[[Page 47]]

    (b) On receipt of DD Form 1408 or other military law enforcement 
report of a moving violation, the unit commander, designated supervisor, 
or person otherwise designated by the installation commander will 
conduct an inquiry. The commander will take or recommend proper 
disciplinary or administrative action. If a case involves judicial or 
nonjudicial actions, the final report of action taken will not be 
forwarded until final adjudication.
    (c) On receipt of the report of action taken (including action by a 
U.S. Magistrate Court on DD Form 1805), the installation law enforcement 
officer will assess the number of points appropriate for the offense, 
and record the traffic points or the suspension or revocation of driving 
privileges on the person's driving record. Except as specified otherwise 
in this part and other Service/DLA regulations, points will not be 
assessed or driving privileges suspended or revoked when the report of 
action taken indicates that neither disciplinary nor administrative 
action was taken.
    (d) Installation commanders may require the following driver 
improvement measures as appropriate:
    (1) Advisory letter through the unit commander or supervisor to any 
person who has acquired six traffic points within a 6-month period.
    (2) Counseling or driver improvement interview, by the unit 
commander, of any person who has acquired more than six but less than 12 
traffic points within a 6-month period. This counseling or interview 
should produce recommendations to improve driver performance.
    (3) Referral for medical evaluation when a driver, based on 
reasonable belief, appears to have mental or physical limits that have 
had or may have an adverse affect on driving performance.
    (4) Attendance at remedial driver training to improve driving 
performance.
    (5) Referral to an alcohol or drug treatment or rehabilitation 
facility for evaluation, counseling, or treatment. This action is 
required for active military personnel in all cases in which alcohol or 
other drugs are a contributing factor to a traffic citation, incident, 
or accident.
    (e) An individual's driving privileges may be suspended or revoked 
as provided by this part regardless of whether these improvement 
measures are accomplished.
    (f) Persons whose driving privileges are suspended or revoked (for 
one violation or an accumulation of 12 traffic points within 12 
consecutive months, or 18 traffic points within 24 consecutive months) 
will be notified in writing through official channels (Sec.  634.11). 
Except for the mandatory minimum or maximum suspension or revocation 
periods prescribed by table 5-1 of this part, the installation commander 
will establish periods of suspension or revocation. Any revocation based 
on traffic points must be no less than 6 months. A longer period may be 
imposed on the basis of a person's overall driving record considering 
the frequency, flagrancy, severity of moving violations, and the 
response to previous driver improvement measures. In all cases, military 
members must successfully complete a prescribed course in remedial 
driver training before driving privileges are reinstated.
    (g) Points assessed against a person will remain in effect for point 
accumulation purposes for 24 consecutive months. The review of driver 
records to delete traffic points should be done routinely during records 
update while recording new offenses and forwarding records to new duty 
stations. Completion of a revocation based on points requires removal 
from the driver record of all points assessed before the revocation.
    (h) Removal of points does not authorize removal of driving record 
entries for moving violations, chargeable accidents, suspensions, or 
revocations. Record entries will remain posted on individual driving 
records for the following periods of time.
    (1) Chargeable nonfatal traffic accidents or moving violations--3 
years.
    (2) Nonmandatory suspensions or revocations--5 years.
    (3) Mandatory revocations--7 years.



Sec.  634.47  Disposition of driving records.

    Procedures will be established to ensure prompt notice to the 
installation law enforcement officer when a person

[[Page 48]]

assigned to or employed on the installation is being transferred to 
another installation, being released from military service, or ending 
employment.
    (a) If persons being transferred to a new installation have valid 
points or other entries on the driving records, the law enforcement 
officer will forward the records to the law enforcement officer of the 
gaining installation. Gaining installation law enforcement officers must 
coordinate with applicable commanders and continue any existing 
suspension or revocation based on intoxicated driving or accumulation of 
traffic points. Traffic points for persons being transferred will 
continue to accumulate as specified in Sec.  634.46 (g).
    (b) Driving records of military personnel being discharged or 
released from active duty will be retained on file for 2 years and then 
destroyed. In cases of immediate reenlistment, change of officer 
component or military or civilian retirement when vehicle registration 
is continued, the record will remain active.
    (c) Driving records of civilian personnel terminating employment 
will be retained on file for 2 years and then destroyed.
    (d) Driving records of military family members containing point 
assessments or other entries will be forwarded to the sponsor's gaining 
installation in the same manner as for service members. At the new 
installation, records will be analyzed and made available temporarily to 
the sponsor's unit commander or supervisor for review.
    (e) Driving records of retirees electing to retain installation 
driving privileges will be retained. Points accumulated or entries on 
the driver record regarding suspensions, revocations, moving violations, 
or chargeable accidents will not be deleted from driver records except 
per Sec.  634.46 (g) and (h).
    (f) Army users will comply with paragraphs (a) and (d) of this 
section by mailing the individual's DA Form 3626 to the gaining 
installation provost marshal.



              Subpart F_Impounding Privately Owned Vehicles



Sec.  634.48  General.

    This subpart provides the standards and procedures for law 
enforcement personnel when towing, inventorying, searching, impounding, 
and disposing of POVs. This policy is based on:
    (a) The interests of the Services and DLA in crime prevention, 
traffic safety, and the orderly flow of vehicle traffic movement.
    (b) The vehicle owner's constitutional rights to due process, 
freedom from unreasonable search and seizure, and freedom from 
deprivation of private property.



Sec.  634.49  Standards for impoundment.

    (a) POVs should not be impounded unless the vehicles clearly 
interfere with ongoing operations or movement of traffic, threaten 
public safety or convenience, are involved in criminal activity, contain 
evidence of criminal activity, or are stolen or abandoned.
    (b) The impoundment of a POV would be inappropriate when reasonable 
alternatives to impoundment exist.
    (1) Attempts should be made to locate the owner of the POV and have 
the vehicle removed.
    (2) The vehicle may be moved a short distance to a legal parking 
area and temporarily secured until the owner is found.
    (3) Another responsible person may be allowed to drive or tow the 
POV with permission from the owner, operator, or person empowered to 
control the vehicle. In this case, the owner, operator, or person 
empowered to control the vehicle will be informed that law enforcement 
personnel are not responsible for safeguarding the POV.
    (c) Impounding of POVs is justified when any of the following 
conditions exist:
    (1) The POV is illegally parked--
    (i) On a street or bridge, in a tunnel, or is double parked, and 
interferes with the orderly flow of traffic.
    (ii) On a sidewalk, within an intersection, on a cross-walk, on a 
railroad track, in a fire lane, or is blocking a driveway, so that the 
vehicle interferes

[[Page 49]]

with operations or creates a safety hazard to other roadway users or the 
general public. An example would be a vehicle parked within 15 feet of a 
fire hydrant or blocking a properly marked driveway of a fire station or 
aircraft-alert crew facility.
    (iii) When blocking an emergency exit door of any public place 
(installation theater, club, dining hall, hospital, and other facility).
    (iv) In a ``tow-away'' zone that is so marked with proper signs.
    (2) The POV interferes with--
    (i) Street cleaning or snow removal operations and attempts to 
contact the owner have been unsuccessful.
    (ii) Emergency operations during a natural disaster or fire or must 
be removed from the disaster area during cleanup operations.
    (3) The POV has been used in a crime or contains evidence of 
criminal activity.
    (4) The owner or person in charge has been apprehended and is unable 
or unwilling to arrange for custody or removal.
    (5) The POV is mechanically defective and is a menace to others 
using the public roadways.
    (6) The POV is disabled by a traffic incident and the operator is 
either unavailable or physically incapable of having the vehicle towed 
to a place of safety for storage or safekeeping.
    (7) Law enforcement personnel reasonably believe the vehicle is 
abandoned.



Sec.  634.50  Towing and storage.

    (a) Impounded POVs may be towed and stored by either the Services 
and DLA or a contracted wrecker service depending on availability of 
towing services and the local commander's preference.
    (b) The installation commander will designate an enclosed area on 
the installation that can be secured by lock and key for an impound lot 
to be used by the military or civilian wrecker service. An approved 
impoundment area belonging to the contracted wrecker service may also be 
used provided the area assures adequate accountability and security of 
towed vehicles. One set of keys to the enclosed area will be maintained 
by the installation law enforcement officer or designated individual.
    (c) Temporary impoundment and towing of POVs for violations of the 
installation traffic code or involvement in criminal activities will be 
accomplished under the direct supervision of law enforcement personnel.



Sec.  634.51  Procedures for impoundment.

    (a) Unattended POVs. (1) DD Form 2504 (Abandoned Vehicle Notice) 
will be conspicuously placed on POVs considered unattended. This action 
will be documented by an entry in the installation law enforcement desk 
journal or blotter.
    (2) The owner will be allowed 3 days from the date the POV is tagged 
to remove the vehicle before impoundment action is initiated. If the 
vehicle has not been removed after 3 days, it will be removed by the 
installation towing service or the contracted wrecker service. If a 
contracted wrecker service is used, a DD Form 2505 (Abandoned Vehicle 
Removal Authorization) will be completed and issued to the contractor by 
the installation law enforcement office.
    (3) After the vehicle has been removed, the installation law 
enforcement officer or the contractor will complete DD Form 2506 
(Vehicle Impoundment Report) as a record of the actions taken.
    (i) An inventory listing personal property will be done to protect 
the owner, law enforcement personnel, the contractor, and the commander.
    (ii) The contents of a closed container such as a suitcase inside 
the vehicle need not be inventoried. Such articles should be opened only 
if necessary to identify the owner of the vehicle or if the container 
might contain explosives or otherwise present a danger to the public. 
Merely listing the container and sealing it with security tape will 
suffice.
    (iii) Personal property must be placed in a secure area for 
safekeeping.
    (4) DD Form 2507 (Notice of Vehicle Impoundment) will be forwarded 
by certified mail to the address of the last known owner of the vehicle 
to advise the owner of the impoundment action, and request information 
concerning

[[Page 50]]

the owner's intentions pertaining to the disposition of the vehicle.
    (b) Stolen POVs or vehicles involved in criminal activity. (1) When 
the POV is to be held for evidentiary purposes, the vehicle should 
remain in the custody of the applicable Service or DLA until law 
enforcement purposes are served.
    (2) Recovered stolen POVs will be released to the registered owner, 
unless held for evidentiary purposes, or to the law enforcement agency 
reporting the vehicle stolen, as appropriate.
    (3) A POV held on request of other authorities will be retained in 
the custody of the applicable Service or DLA until the vehicle can be 
released to such authorities.



Sec.  634.52  Search incident to impoundment based on criminal activity.

    Search of a POV in conjunction with impoundment based on criminal 
activity will likely occur in one of the following general situations:
    (a) The owner or operator is not present. This situation could arise 
during traffic and crime-related impoundments and abandoned vehicle 
seizures. A property search related to an investigation of criminal 
activity should not be conducted without search authority unless the 
item to be seized is in plain view or is readily discernible on the 
outside as evidence of criminal activity. When in doubt, proper search 
authority should be obtained before searching.
    (b) The owner or operator is present. This situation can occur 
during either a traffic or criminal incident, or if the operator is 
apprehended for a crime or serious traffic violation and sufficient 
probable cause exists to seize the vehicle. This situation could also 
arise during cases of intoxicated driving or traffic accidents in which 
the operator is present but incapacitated or otherwise unable to make 
adequate arrangements to safeguard the vehicle. If danger exists to the 
police or public or if there is risk of loss or destruction of evidence, 
an investigative type search of the vehicle may be conducted without 
search authority. (Air Force, see AFP 125-2).



Sec.  634.53  Disposition of vehicles after impoundment.

    (a) If a POV is impounded for evidentiary purposes, the vehicle can 
be held for as long as the evidentiary or law enforcement purpose 
exists. The vehicle must then be returned to the owner without delay 
unless directed otherwise by competent authority.
    (b) If the vehicle is unclaimed after 120 days from the date 
notification was mailed to the last known owner or the owner released 
the vehicle by properly completing DD Form 2505, the vehicle will be 
disposed of by one of the following procedures:
    (1) Release to the lienholder, if known.
    (2) Processed as abandoned property in accordance with DOD 4160.21-
M.
    (i) Property may not be disposed of until diligent effort has been 
made to find the owner; or the heirs, next of kin, or legal 
representative of the owner.
    (ii) The diligent effort to find one of those mentioned in paragraph 
(a) of this section shall begin not later than 7 days after the date on 
which the property comes into custody or control of the law enforcement 
agency.
    (iii) The period for which this effort is continued may not exceed 
45 days.
    (iv) If the owner or those mentioned in Sec.  634.52 are determined, 
but not found, the property may not be disposed of until the expiration 
of 45 days after the date when notice, giving the time and place of the 
intended sale or other disposition, has been sent by certified or 
registered mail to that person at his last known address.
    (v) When diligent effort to determine those mentioned in paragraph 
(b)(2)(iv) of this section is unsuccessful, the property may be disposed 
of without delay, except that if it has a fair market value of more than 
$500, the law enforcement official may not dispose of the property until 
45 days after the date it is received at the storage point.
    (c) All contracts for the disposal of abandoned vehicles must comply 
with 10 U.S.C. 2575.

[[Page 51]]



            Subpart G_List of State Driver's License Agencies



Sec.  634.54  List of State Driver's License Agencies.

    Notification of State driver's license agencies. The installation 
commander will notify the State driver's license agency of those 
personnel whose installation driving privileges are revoked for 1 year 
or more, following final adjudication of the intoxicated driving offense 
or for refusing to submit to a lawful blood-alcohol content test in 
accordance with Sec.  634.8. This notification will include the basis 
for the suspension and the blood alcohol level. The notification will be 
sent to the State in which the driver's license was issued. State 
driver's license agencies are listed as follows:

Alabama: Motor Vehicle Division, 2721 Gunter Park Drive, Montgomery, AL 
    36101, (205) 271-3250.
Alaska: Motor Vehicle Division, P.O. Box 100960, Anchorage, AK 99510, 
    (907) 269-5572.
Arizona: Motor Vehicle Division, 1801 West Jefferson Street, Phoenix, AZ 
    85007, (602) 255-7295.
Arkansas: Motor Vehicle Division, Joel & Ledbetter Bldg., 7th and Wolfe 
    Streets, Little Rock, AR 72203, (501) 371-1886.
California: Department of Motor Vehicles, P.O. Box 932340, Sacramento, 
    CA 94232, (916) 445-0898.
Colorado: Motor Vehicle Division, 140 West Sixth Avenue, Denver, CO 
    80204, (303) 866-3158.
Connecticut: Department of Motor Vehicles, 60 State Street, 
    Wethersfield, CT 06109, (203) 566-5904.
Delaware: Motor Vehicle Director, State Highway Administration Bldg., 
    P.O. Box 698, Dover, DE 19903, (302) 736-4421.
District of Columbia: Department of Transportation, Bureau of Motor 
    Vehicles, 301 C Street, NW., Washington, DC 20001, (202) 727-5409.
Florida: Division of Motor Vehicles, Neil Kirkman Building, Tallahassee, 
    FL 32301, (904) 488-6921.
Georgia: Motor Vehicle Division, Trinity-Washington Bldg., Room 114, 
    Atlanta, GA 30334, (404) 656-4149.
Hawaii: Division of Motor Vehicle and Licensing, 1455 S. Benetania 
    Street, Honolulu, HI 96814, (808) 943-3221.
Idaho: Transportation Department, 3311 State Street, P.O. Box 34, Boise, 
    ID 83731, (208) 334-3650.
Illinois: Secretary of State, Centennial Building, Springfield, IL 
    62756, (217) 782-4815.
Indiana: Bureau of Motor Vehicles, State Office Building, Room 901, 
    Indianapolis, IN 46204, (317) 232-2701.
Iowa: Department of Transportation Office of Operating Authority, Lucas 
    Office Bldg., Des Moines, IA 50319, (515) 281-5664.
Kansas: Department of Revenue, Division of Vehicles, Interstate 
    Registration Bureau, State Office Bldg., Topeka, KS 66612, (913) 
    296-3681.
Kentucky: Department of Transportation, New State Office Building, 
    Frankfort, KY 40622, (502) 564-4540.
Louisiana: Motor Vehicle Administrator, S. Foster Drive, Baton Rouge, LA 
    70800, (504) 925-6304.
Maine: Department of State, Motor Vehicle Division, Augusta, ME 04333, 
    (207) 289-5440.
Maryland: Motor Vehicle Administration, 6601 Ritchie Highway, NE., Glen 
    Burnie, MD 21062, (301) 768-7000.
Massachusetts: Registry of Motor Vehicle, 100 Nashua Street, Boston, MA 
    02114, (617) 727-3780.
Michigan: Department of State, Division of Driver Licenses and Vehicle 
    Records, Lansing, MI 48918, (517) 322-1486.
Minnesota: Department of Public Safety, 108 Transportation Building, St. 
    Paul, MN 55155, (612) 296-2138.
Mississippi: Office of State Tax Commission, Woolfolk Building, Jackson, 
    MS 39205, (601) 982-1248.
Missouri: Department of Revenue, Motor Vehicles Bureau, Harry S. Truman 
    Bldg., 301 W. High Street, Jefferson City, MO 65105, (314) 751-3234.
Montana: Highway Commission, Box 4639, Helena, MT 59604, (406) 449-2476.
Nebraska: Department of Motor Vehicles, P.O. Box 94789, Lincoln, NE 
    68509, (402) 471-3891.
Nevada: Department of Motor Vehicles, Carson City, NV 89711, (702) 885-
    5370.
New Hampshire: Department of Safety, Division of Motor Vehicles, James 
    H.

[[Page 52]]

    Haynes Bldg., Concord, NH 03305, (603) 271-2764.
New Jersey: Motor Vehicle Division, 25 S. Montgomery Street, Trenton, NJ 
    08666, (609) 292-2368.
New Mexico: Motor Transportation Division, Joseph M. Montoya Building, 
    Santa Fe, NM 87503, (505) 827-0392.
New York: Division of Motor Vehicles, Empire State Plaza, Albany, NY 
    12228, (518) 474-2121.
North Carolina: Division of Motor Vehicles, Motor Vehicles Bldg., 
    Raleigh, NC 27697, (919) 733-2403.
North Dakota: Motor Vehicle Department, Capitol Grounds, Bismarck, ND 
    58505, (701) 224-2619.
Ohio: Bureau of Motor Vehicles, P.O. Box 16520, Columbus, OH 43216, 
    (614) 466-4095.
Oklahoma: Oklahoma Tax Commission, Motor Vehicle Division, 2501 Lincoln 
    Boulevard, Oklahoma City, OK 73194, (405) 521-3036
Oregon: Motor Vehicles Division, 1905 Lana Avenue, NE., Salem, OR 97314, 
    (503) 378-6903.
Pennsylvania: Department of Transportation, Bureau of Motor Vehicles, 
    Transportation and Safety Bldg., Harrisburg, PA 17122, (717) 787-
    3130.
Rhode Island: Department of Motor Vehicles, State Office Building, 
    Providence, RI 02903, (401) 277-6900.
South Carolina: Motor Vehicle Division, P.O. Drawer 1498, Columbia, SC 
    29216, (803) 758-5821.
South Dakota: Division of Motor Vehicles, 118 W. Capitol, Pierre, SD 
    57501, (605) 773-3501.
Tennessee: Department of Revenue, Motor Vehicle Division, 500 Deaderick 
    Street, Nashville, TN 37242, (615) 741-1786.
Texas: Department of Highways and Public Transportation, Motor Vehicle 
    Division, 40th and Jackson Avenue, Austin, TX 78779, (512) 475-7686.
Utah: Motor Vehicle Division State Fairgrounds, 1095 Motor Avenue, Salt 
    Lake City, UT 84116, (801) 533-5311.
Vermont: Department of Motor Vehicles, State Street, Montpelier, VT 
    05603, (802) 828-2014.
Virginia: Department of Motor Vehicles, 2300 W. Broad Street, Richmond, 
    VA 23220, (804) 257-1855.
Washington: Department of Licensing, Highways-Licenses Building, 
    Olympia, WA 98504, (206) 753-6975.
West Virginia: Department of Motor Vehicles, 1800 Washington Street, 
    East, Charleston, WV 25317, (304) 348-2719.
Wisconsin: Department of Transportation Reciprocity and Permits, P.O. 
    Box 7908, Madison, WI 53707, (608) 266-2585.
Wyoming: Department of Revenue, Policy Division, 122 W. 25th Street, 
    Cheyenne, WY 82002, (307) 777-5273.
Guam: Deputy Director, Revenue and Taxation, Government of Guam, Agana, 
    Guam 96910, (no phone number available).
Puerto Rico: Department of Transportation and Public Works, Bureau of 
    Motor Vehicles, P.O. Box 41243, Minillas Station, Santurce, Puerto 
    Rico 00940, (809) 722-2823.



PART 635_LAW ENFORCEMENT REPORTING--Table of Contents



                    Subpart A_Records Administration

Sec.
635.1 General.
635.2 Safeguarding official information.
635.3 Special requirements of the Privacy Act of 1974.
635.4 Police intelligence/Criminal information.
635.5 Name checks.
635.6 Registration of sex offenders on Army installations (inside and 
          outside the Continental United States).
635.7 Collection of deoxyribonucleic acid.

                    Subpart B_Release of Information

635.8 General.
635.9 Release of information.
635.10 Release of information under the Freedom of Information Act 
          (FOIA).
635.11 Release of information under the Privacy Act of 1974.
635.12 Amendment of records.
635.13 Accounting for military police record disclosure.
635.14 Release of law enforcement information furnished by foreign 
          governments or international organizations.

                       Subpart C_Offense Reporting

635.15 DA Form 4833 (Commander's Report of Disciplinary or 
          Administrative Action) for Civilian Subjects.
635.16 Fingerprint Card and Final Disposition Report Submission 
          Requirements.

[[Page 53]]

635.17 Release of domestic incidents reports to the Army Family Advocacy 
          Program (FAP).
635.18 Domestic violence.
635.19 Protection Orders.
635.20 Establishing Memoranda of Understanding.
635.21 Suspicious Activity Reporting (SAR).

           Subpart D_Victim and Witness Assistance Procedures

635.22 Procedures.

           Subpart E_National Crime Information Center Policy

635.23 Standards.

    Authority: 28 U.S.C. 534, 42 U.S.C. 10601, 18 U.S.C. 922, 10 U.S.C. 
1562, 10 U.S.C. Chap. 47, 42 U.S.C. 16901 et seq., 10 U.S.C. 1565, 42 
U.S.C. 14135a.

    Source: 80 FR 28549, May 19, 2015, unless otherwise noted.



                    Subpart A_Records Administration



Sec.  635.1  General.

    The proponent of this part is the Provost Marshal General. The 
proponent has the authority to approve exceptions or waivers to this 
Part that are consistent with controlling law and regulations. In 
distributing information on juvenile victims or subjects, the 
installation Freedom of Information Act (FOIA) Office will ensure that 
only individuals with a need to know of the personally identifiable 
information (PII) of a juvenile are provided the identifying information 
on the juvenile. For example, a community commander is authorized to 
receive pertinent information on juveniles under their jurisdiction. 
When a Law Enforcement Report identifying juvenile offenders must be 
provided to multiple commanders or supervisors, the FOIA Office must 
sanitize each report to withhold juvenile information not pertaining to 
that commander's area of responsibility.

[80 FR 28549, May 19, 2015, as amended at 81 FR 17386, Mar. 29, 2016]



Sec.  635.2  Safeguarding official information.

    (a) Military police records are unclassified except when they 
contain national security information as defined in AR 380-5 (Available 
at http://www.apd.army.mil/pdffiles/r380--5.pdf), Department of the Army 
Information Security Program.
    (b) Military police records will also be released to Federal, state, 
local or foreign law enforcement agencies as prescribed by 32 CFR part 
505, The Army Privacy Program. Expanded markings will be applied to 
these records.



Sec.  635.3  Special requirements of the Privacy Act of 1974.

    (a) Certain PII is protected in accordance with the provisions of 
the Privacy Act of 1974, 5 U.S.C. 552a, as implemented by 32 CFR part 
310, DoD Privacy Program, 32 CFR part 505, The Army Privacy Program, and 
OMB guidance defining PII.
    (b) Pursuant to 5 U.S.C. 552a(e)(3), when an Army activity asks an 
individual for his or her PII that will be maintained in a system of 
records, the activity must provide the individual with a Privacy Act 
Statement (PAS). A PAS notifies individuals of the authority, purpose, 
and use of the collection, whether the information is mandatory or 
voluntary, and the effects of not providing all or any part of the 
requested information.
    (c) Army law enforcement personnel performing official duties often 
require an individual's PII, including SSN, for identification purposes. 
This PII can be used to complete law enforcement reports and records. In 
addition to Executive Order 9397, as amended by Executive Order 13478, 
the solicitation of the SSN is authorized by paragraph 2.c.(2) of DoD 
Instruction 1000.30, ``Reduction of Social Security Number (SSN) Use 
Within DoD'' (available at http://www.dtic.mil/whs/directives/corres/
pdf/100030p.pdf). The purpose is to provide commanders and law 
enforcement officials with means by which information may accurately be 
identified. The SSN is used as an additional/alternate means of 
identification to facilitate filing and retrieval. The following 
procedures will be used for identification:
    (1) Retired military personnel are required to produce their Common 
Access Card or DD Form 2 (Ret) (U.S. Armed Forces of the United States

[[Page 54]]

General Convention Identification Card), or other government issued 
identification, as appropriate.
    (2) Family members of sponsors will be requested to produce their DD 
Form 1173 (Uniformed Services Identification and Privilege Card). 
Information contained thereon (for example, the sponsor's SSN) will be 
used to verify and complete applicable sections of law enforcement 
reports and related forms.
    (3) Non-Department of Defense (DoD) civilians, including military 
family members and those whose status is unknown, will be advised of the 
provisions of the Privacy Act Statement when requested to disclose their 
PII, including SSN, as required.
    (d) Notwithstanding the requirement to furnish an individual with a 
PAS when his or her PII will be maintained in a system of records, AR 
340-21, The Army Privacy Program, http://www.apd.army.mil/pdffiles/
r340--21.pdf, provides that records contained in SORN A0190-45, Military 
Police Reporting Program Records (MRRP), http://dpcld.defense.gov/
Privacy/SORNsIndex/tabid/5915/Article/6066/a0190-45-opmg.aspx, that fall 
within 5 U.S.C. 552a(j)(2) are exempt from the requirement in 5 U.S.C. 
552a(e)(3) to provide a PAS.

[80 FR 28549, May 19, 2015, as amended at 81 FR 17386, Mar. 29, 2016]



Sec.  635.4  Police intelligence/Criminal information.

    (a) The purpose of gathering police intelligence is to identify 
individuals or groups of individuals in an effort to anticipate, 
prevent, or monitor possible criminal activity. Police intelligence aids 
criminal investigators in developing and investigating criminal cases. 
32 CFR part 633 designates the U.S. Army Criminal Investigation Command 
(USACIDC) as having the primary responsibility to operate a criminal 
intelligence program. Criminal Intelligence will be reported through the 
Army Criminal Investigation and Criminal Intelligence (ACI2) System and 
other criminal intelligence products. The crimes listed in paragraphs 
(a)(1)-(9) of this section, as well as the reportable incidents, 
behavioral threat indicators, and other matters of counterintelligence 
interest specified by AR 381-12, Threat Awareness and Reporting Program, 
(available at http://www.apd.army.mil/pdffiles/r381--12.pdf) will be 
reported to the nearest Army counterintelligence office.
    (1) Sedition;
    (2) Aiding the enemy by providing intelligence to the enemy;
    (3) Spying;
    (4) Espionage;
    (5) Subversion;
    (6) Treason;
    (7) International terrorist activities or material support to 
terrorism (MST);
    (8) Unreported contacts with foreigners involved in intelligence 
activities;
    (9) Unauthorized or intentional disclosure of classified info.
    (b) Information on persons and organizations not affiliated with DoD 
may not normally be acquired, reported, processed or stored. Situations 
justifying acquisition of this information include, but are not limited 
to--
    (1) Theft, destruction, or sabotage of weapons, ammunition, 
equipment facilities, or records belonging to DoD units or 
installations.
    (2) Protection of Army installations and activities from potential 
threat.
    (3) Information received from the FBI, state, local, or 
international law enforcement agencies which directly pertains to the 
law enforcement mission and activity of the installation Provost Marshal 
Office/Directorate of Emergency Services (PMO/DES), Army Command (ACOM), 
Army Service Component Command (ASCC) or Direct Reporting Unit (DRU) 
PMO/DES, or that has a clearly identifiable military purpose and 
connection. A determination that specific information may not be 
collected, retained or disseminated by intelligence activities does not 
indicate that the information is automatically eligible for collection, 
retention, or dissemination under the provisions of this part. The 
policies in this section are not intended and will not be used to 
circumvent any federal law that restricts gathering, retaining or 
dissemination of information on private individuals or organizations.
    (c) Retention and disposition of information on non-DoD affiliated 
individuals and organizations are subject to the provisions of DoD 
Directive 5200.27

[[Page 55]]

(available at http://www.dtic.mil/whs/directives/corres/pdf/520027p.pd), 
AR 380-13, Acquisition and Storage of Information Concerning Non-
Affiliated Persons and Organizations (available at http://
www.apd.army.mil/pdffiles/r380--13.pdf) and AR 25-400-2, The Army 
Records Information Management System (ARIMS) (available at http://
www.apd.army.mil/pdffiles/r25--400--2.pdf).
    (d) Local police intelligence files may be exempt from 32 CFR part 
518 and the FOIA's disclosure requirements.



Sec.  635.5  Name checks.

    (a) Information contained in military police records will be 
released under the provisions of 32 CFR part 505, The Army Privacy 
Program, to authorized personnel for valid background check purposes. 
Examples include child care/youth program providers, sexual assault 
response coordinator, unit victim advocate, access control, unique or 
special duty assignments, security clearance procedures and suitability 
and credentialing purposes. Any information released must be restricted 
to that necessary and relevant to the requester's official purpose. 
Provost Marshals/Directors of Emergency Services (PM/DES) will establish 
written procedures to ensure that release is accomplished in accordance 
with 32 CFR part 505.
    (b) Checks will be accomplished by a review of the Army's Law 
Enforcement Reporting and Tracking System (ALERTS). Information will be 
disseminated according to subpart B of this part.
    (c) In response to a request for local files or name checks, PM/DES 
will release only founded offenses with final disposition. Offenses 
determined to be unfounded will not be released. These limitations do 
not apply to requests submitted by law enforcement agencies for law 
enforcement purposes, and counterintelligence investigative agencies for 
counterintelligence purposes.
    (d) A successful query of ALERTS would return the following 
information:
    (1) Military Police Report Number;
    (2) Report Date;
    (3) Social Security Number;
    (4) Last Name;
    (5) First Name;
    (6) Protected Identity (Y/N);
    (7) A link to view the military police report; and
    (8) Whether the individual is a subject, victim, or a person related 
to the report disposition.
    (e) Name checks will include the information derived from ALERTS and 
the United States Army Crime Records Center (USACRC). All of the 
policies and procedures for such checks will conform to the provisions 
of this part. Any exceptions to this policy must be coordinated with 
Headquarters Department of the Army (HQDA), Office of the Provost 
Marshal General (OPMG) before any name checks are conducted. The 
following are examples of appropriate uses of the name check feature of 
ALERTS:
    (1) Individuals named as the subjects of serious incident reports.
    (2) Individuals named as subjects of investigations who must be 
reported to the USACRC.
    (3) Individuals seeking employment as child care/youth program 
providers.
    (4) Local checks of the ALERTS as part of placing an individual in 
the ALERTS.
    (5) Name checks for individuals seeking employment in law 
enforcement positions.

[80 FR 28549, May 19, 2015, as amended at 81 FR 17386, Mar. 29, 2016]



Sec.  635.6  Registration of sex offenders on Army installations 
(inside and outside the Continental United States).

    (a) Sex Offenders on US Army Installations. Garrison Commander's 
responsibilities: Garrison Commanders will ensure that sex offenders, as 
defined in paragraph (b) of this section that reside or are employed on 
an Army Installation register with the installation PM/DES. This 
includes service members, civilian employees, accompanying dependent 
family members, and contractors subject to the incorporation of the sex 
offender registration requirement into the contract.
    (b) Sex offender is defined as:
    (1) Any person, including but not limited to a Service member, 
Service member's family member, Civilian employee, Civilian employee's 
family member, or contractor, who either is registered or required to 
register as a

[[Page 56]]

sex offender by any law, regulation or policy of the United States, the 
Department of Defense, the Army, a State, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, America Samoa, The Northern Mariana 
Islands, the United States Virgin Islands, or a Federally recognized 
Indian tribe. This definition is not limited to persons convicted for 
felony sex offenses but includes all persons who are registered or 
required to register as a sex offender regardless of the classification 
of their offenses, including felonies, misdemeanors, and offenses not 
classified as a felony or misdemeanor.
    (2) The persons who are sex offenders as defined in paragraph (b)(1) 
include those convicted by a foreign government of an offense equivalent 
or closely analogous to a covered offense under the Uniform Code of 
Military Justice as provided in AR 27-10, Military Justice (available at 
http://www.apd.army.mil/pdffiles/r27--10.pdf), Chapter 24.'' See 42 
U.S.C. 16911(5)(B) and U.S. Department of Justice, Office of the 
Attorney General, The National Guidelines for Sex Offender Registration 
and Notification, Final Guidelines, 73 FR 38030, 38050-1 (July 2, 2008) 
for guidelines and standards. Contact the servicing Office of the Staff 
Judge Advocate for assistance in interpreting or applying this 
provision.
    (c) Sex Offender Registration Requirements. Sex offenders, as 
defined in paragraph (b)(1) of this section must register with the 
installation PMO/DES within three working days of first arriving on an 
installation. Sex offenders must provide the installation PMO/DES with 
evidence of the qualifying conviction. The PMO/DES will enter the 
registering sex offender's conviction information on a Raw Data File as 
an information entry into the Army's Law Enforcement Reporting and 
Tracking System (ALERTS) with the state the sex offender was convicted, 
date of conviction, and results of conviction, to include length of time 
required to register and any specific court ordered restrictions. 
Registration with the PMO/DES does not relieve sex offenders of their 
legal obligation to comply with applicable state and local registration 
requirements for the state in which they reside, work, or attend school 
(see, AR 190-47 (available at http://www.apd.army.mil/pdffiles/r190--
47.pdf), chapter 14 and AR 27-10 (available at http://www.apd.army.mil/
pdffiles/r27--10.pdf), chapter 24). Registration with the state is also 
required under the Sex Offender Registration and Notification Act 
(SORNA), 42 U.S.C. 16901 et seq., and implemented by AR 27-10 (Available 
at http://www.apd.army.mil/pdffiles/r27--10.pdf), Military Justice, and 
DoDI 1325.7 (Available at http://www.dtic.mil/whs/directives/corres/pdf/
132507p.pdf). In addition, upon assignment, reassignment, or change of 
address, sex offenders will inform the installation PM/DES within three 
working days. Failure to comply with registration requirements is 
punishable under Federal or State law and/or under the UCMJ. ``State'' 
in this paragraph includes any jurisdiction listed in paragraph (b)(1) 
of this section in which a sex offender is required to register.
    (d) Installation PMOs and DESs will maintain and update a monthly 
roster of current sex offenders names and provide it to the Sexual 
Assault Review Board; the Army Command PM and DES and the garrison 
commander.
    (e) Installation PMs and DESs will complete the following procedures 
for all other sex offenders required to register on the installation--
    (1) Complete a Raw Data File as an information entry into ALERTS.
    (2) Ensure the sex offender produces either evidence of the 
qualifying conviction or the sex offender registration paperwork in 
order to complete the narrative with the state in which the sex offender 
was convicted, date of conviction, and results of conviction, to include 
length of time required to register and any specific court ordered 
restrictions.
    (f) DoD civilians, contractors, and family members that fail to 
register at the installation PMO/DES are subject to a range of 
administrative sanctions, including but not limited to a complete or 
limited bar to the installation and removal from military housing.

[80 FR 28549, May 19, 2015, as amended at 81 FR 17386, Mar. 29, 2016; 81 
FR 78912, Nov. 10, 2016]

[[Page 57]]



Sec.  635.7  Collection of deoxyribonucleic acid.

    (a) Army Law Enforcement (LE) personnel will collect 
deoxyribonucleic acid (DNA) pursuant to DoDI 5505.14 (available at 
http://www.dtic.mil/whs/directives/corres/pdf/550514p.pdf), DNA 
Collection Requirements for Criminal Investigations. Per this subpart, a 
sample of an individual's DNA is to allow for positive identification 
and to provide or generate evidence to solve crimes through database 
searches of potentially matching samples. DNA samples will not be 
collected from juveniles.
    (b) Army LE personnel will obtain a DNA sample from a civilian in 
their control at the point it is determined there is probable cause to 
believe the detained person violated a Federal statute equivalent to the 
offenses identified in DoDI 5505.11 (available at http://www.dtic.mil/
whs/directives/corres/pdf/550511p.pdf), Fingerprint Card and Final 
Disposition Report Submission Requirements, and 32 CFR part 310, 
Department of Defense Privacy Program, except for the listed violations 
that are exclusively military offenses. For the purposes of this rule, 
DNA shall be taken from all civilian drug offenders, except those who 
are arrested or detained for the offenses of simple possession and 
personal use.
    (1) When Army LE personnel make a probable cause determination 
concerning a civilian not in their control, Army LE personnel are not 
required to collect DNA samples. Likewise, Army LE personnel are not 
required to obtain DNA samples when another LE agency has, or will, 
obtain the DNA.
    (2) Army LE personnel will use the U.S. Army Criminal Investigation 
Laboratory (USACIL) DNA kit which includes a DNA sample card and the 
USACIL DNA database collection eform. Army LE personnel will forward 
civilian DNA samples to the USACIL. Army LE personnel will document, in 
the appropriate case file, when civilian LE agencies handle any aspect 
of the DNA processing and whether the civilian LE agency forwarded the 
DNA sample to the FBI laboratory.
    (c) DoD Instruction 5505.14 (available at http://www.dtic.mil/whs/
directives/corres/pdf/550514p.pdf) details the procedures former 
Soldiers and civilians must follow to request expungement of their DNA 
records. Former Soldiers and civilians from whom DNA samples have been 
taken, but who were not convicted of any offense giving rise to the 
collection of DNA, do not submit requests to have their DNA record 
expunged through installation PMO/DES channels. To request expungement 
of DNA records for civilians pursuant to Sections 14132 of title 42, 
United States Code, the requestor or legal representative must submit a 
written request to: FBI, Laboratory Division, 2501 Investigation 
Parkway, Quantico, VA 22135, Attention: Federal Convicted Offender 
Program Manager.



                    Subpart B_Release of Information



Sec.  635.8  General.

    (a) The policy of HQDA is to conduct activities in an open manner 
and provide the public accurate and timely information. Accordingly, law 
enforcement information will be released to the degree permitted by law 
and Army regulations.
    (b) Any release of military police records or information compiled 
for law enforcement purposes, whether to persons within or outside the 
Army, must be in accordance with the FOIA and the Privacy Act.
    (c) Requests by individuals for access to military police records 
about themselves will be processed in compliance with FOIA and the 
Privacy Act.
    (d) Military police records in the temporary possession of another 
organization remain the property of the originating law enforcement 
agency. The following procedures apply to any organization authorized 
temporary use of military police records:
    (1) Any request from an individual seeking access to military police 
records will be immediately referred to the originating law enforcement 
agency for processing. The temporary custodian of military police 
records does not have the authority to release those records.
    (2) When the temporary purpose of the using organization has been 
satisfied, the military police records will be

[[Page 58]]

returned to the originating law enforcement agency or the copies will be 
destroyed.
    (3) A using organization may maintain information from military 
police records in their system of records, if approval is obtained from 
the originating law enforcement agency. This information may include 
reference to a military police record (for example, Law Enforcement 
Report number or date of offense), a summary of information contained in 
the record, or the entire military police record. When a user includes a 
military police record in its system of records, the originating law 
enforcement agency will delete portions from that record to protect 
special investigative techniques, maintain confidentiality, preclude 
compromise of an investigation, and protect other law enforcement 
interests.

[80 FR 28549, May 19, 2015, as amended at 81 FR 17386, Mar. 29, 2016]



Sec.  635.9  Release of information.

    (a) Release of information from Army records to agencies outside DoD 
will be governed by 32 CFR part 518, 32 CFR part 505, AR 600-37, 
Unfavorable Information (Available at http://www.apd.army.mil/pdffiles/
r600--37.pdf), and this part. Procedures for release of certain other 
records and information is contained in AR 20-1, Inspector General 
Activities and Procedures (available at http://www.apd.army.mil/
pdffiles/r20--1.pdf), AR 27-20, Claims (available at http://
www.apd.army.mil/pdffiles/r27--20.pdf), AR 27-40, Litigation (available 
at http://www.apd.army.mil/pdffiles/r27--40.pdf), AR 40-66, Medical 
Record Administration and Healthcare Documentation (available at http://
www.apd.army.mil/pdffiles/r40--66.pdf), AR 195-2, Criminal Investigation 
Activities (available at http://www.apd.army.mil/pdffiles/r195--2.pdf), 
AR 360-1, The Army Public Affairs Program (available at http://
www.apd.army.mil/pdffiles/r360--1.pdf), and AR 600-85, The Army 
Substance Abuse Program (available at http://www.apd.army.mil/pdffiles/
r600--85.pdf). Installation drug and alcohol offices may be provided an 
extract of DA Form 3997 (Military Police Desk Blotter) for offenses 
involving the use of alcohol or drugs (for example, drunk driving, drunk 
and disorderly conduct, or positive urinalysis).
    (b) Installation PM/DES are the release authorities for military 
police records under their control. They may release criminal record 
information to other activities as prescribed in 32 CFR part 518 and 32 
CFR part 505, and this part.
    (c) Authority to deny access to criminal records information rests 
with the initial denial authority (IDA) for the FOIA and the denial 
authority for Privacy Acts cases, as addressed in 32 CFR part 518 and 32 
CFR part 505.



Sec.  635.10  Release of information under the Freedom of Information
Act (FOIA).

    (a) The release and denial authorities for all FOIA requests 
concerning military police records include PM/DES and the Commander, 
USACIDC. Authority to act on behalf of the Commander, USACIDC is 
delegated to the Director, USACRC.
    (b) FOIA requests from members of the press will be coordinated with 
the installation public affairs officer prior to release of records 
under the control of the installation PM/DES. When the record is on file 
at the USACRC the request must be forwarded to the Director, USACRC.
    (c) Requests will be processed as prescribed in 32 CFR part 518 and 
as follows:
    (1) The installation FOIA Office will review requested reports to 
determine if any portion is exempt from release.
    (2) Statutory and policy questions will be coordinated with the 
local staff judge advocate (SJA).
    (3) Coordination will be completed with the local USACIDC activity 
to ensure that the release will not interfere with a criminal 
investigation in progress or affect final disposition of an 
investigation.
    (4) If it is determined that a portion of the report, or the report 
in its entirety will not be released, the request to include a copy of 
the Military Police Report or other military police records will be 
forwarded to the Director, USACRC, ATTN: CICR-FP, 27130 Telegraph Road, 
Quantico, VA 22134. The requestor will be informed that their

[[Page 59]]

request has been sent to the Director, USACRC, and provided the mailing 
address for the USACRC. When forwarding FOIA requests, the outside of 
the envelope will be clearly marked ``FOIA REQUEST.''
    (5) A partial release of information by an installation FOIA Office 
is permissible when it is acceptable to the requester. (An example would 
be the redaction of a third party's social security number, home 
address, and telephone number, as permitted by law). If the requester 
agrees to the redaction of exempt information, such cases do not 
constitute a denial. If the requester insists on the entire report, a 
copy of the report and the request for release will be forwarded to the 
Director, USACRC. There is no requirement to coordinate such referrals 
at the installation level. The request will simply be forwarded to the 
Director, United States Army Crime Records Center (USACRC) for action.
    (6) Requests for military police records that have been forwarded to 
USACRC and are no longer on file at the installation PMO/DES will be 
forwarded to the Director, USACRC for processing.
    (7) Requests concerning USACIDC reports of investigation or USACIDC 
files will be referred to the Director, USACRC. In each instance, the 
requestor will be informed of the referral and provided the Director, 
USACRC address.
    (8) Requests concerning records that are under the supervision of an 
Army activity, or other DoD agency, will be referred to the appropriate 
agency for response.



Sec.  635.11  Release of information under the Privacy Act of 1974.

    (a) Military police records may be released according to provisions 
of the Privacy Act of 1974, 5 U.S.C. 552a, as implemented by 32 CFR part 
310, DoD Privacy Program, 32 CFR part 505, The Army Privacy Program, and 
this part.
    (b) The release and denial authorities for all Privacy Act cases 
concerning military police records are provided in Sec.  635.9.
    (c) Privacy Act requests for access to a record, when the requester 
is the subject of that record, will be processed as prescribed in 32 CFR 
part 505.



Sec.  635.12  Amendment of records.

    (a) Policy. An amendment of records is appropriate when such records 
are established as being inaccurate, irrelevant, untimely, or 
incomplete. Amendment procedures are not intended to permit challenging 
an event that actually occurred. Requests to amend reports will be 
granted only if the individual submits new, relevant and material facts 
that are determined to warrant their inclusion in or revision of the 
police report. The burden of proof is on the individual to substantiate 
the request. Requests to delete a person's name from the title block 
will be granted only if it is determined that there is not probable 
cause to believe that the individual committed the offense for which he 
or she is listed as a subject. It is emphasized that the decision to 
list a person's name in the title block of a police report is an 
investigative determination that is independent of whether or not 
subsequent judicial, non-judicial or administrative action is taken 
against the individual.
    (b) In compliance with DoD policy, an individual will still remain 
entered in the Defense Clearance Investigations Index (DCII) to track 
all reports of investigation.



Sec.  635.13  Accounting for military police record disclosure.

    (a) 32 CFR part 505 prescribes accounting policies and procedures 
concerning the disclosure of military police records.
    (b) PM/DES will develop local procedures to ensure that disclosure 
of military police records as described in 32 CFR part 505 are available 
on request.
    (c) In every instance where records are disclosed; individuals, 
agencies or components are reminded that use or further disclosure of 
any military police reports, Military Police Investigator (MPI) reports, 
or other information received must be in compliance with DoDI 5505.7 
(available at http://www.dtic.mil/whs/directives/corres/pdf/
550507p.pdf), paragraph 6.5.2. which states that ``judicial or adverse 
administrative actions shall not be taken against individuals or 
entities based

[[Page 60]]

solely on the fact that they have been titled or indexed due to a 
criminal investigation.''



Sec.  635.14  Release of law enforcement information furnished by
foreign governments or international organizations.

    (a) Information furnished by foreign governments or international 
organizations is subject to disclosure, unless exempted by 32 CFR part 
518 and 32 CFR part 505, federal statutes or executive orders.
    (b) Release of U.S. information (classified military information or 
controlled unclassified information) to foreign governments is 
accomplished per AR 380-10 (available at http://www.apd.army.mil/
pdffiles/r380--10.pdf).



                       Subpart C_Offense Reporting



Sec.  635.15  DA Form 4833 (Commander's Report of Disciplinary or
Administrative Action) for Civilian Subjects.

    Civilian Subjects titled by Army Law Enforcement. PM/DES and USACIDC 
will complete and submit disposition reports to USACRC for civilian 
subjects, not subject to the UCMJ, who are titled by Army law 
enforcement. PM/DES and USACIDC will complete the DA Form 4833 and 
submit the form to USACRC for these subjects. PM/DES and USACIDC will 
not include these completed DA Form 4833 for civilian personnel in 
reporting compliance statistics for commanders. This ensures records of 
dispositions of civilian subjects titled by military LE are available in 
CJIS to support NCIC background checks for firearms purchases, 
employment, security clearances etc.



Sec.  635.16  Fingerprint Card and Final Disposition Report Submission
Requirements.

    (a) General. This paragraph implements DoDI 5505.11, Fingerprint 
Card and Final Disposition Report Submission Requirements, which 
prescribes procedures for Army LE to report offender criminal history 
data, by submitting FBI Form FD 249 (Suspect Fingerprint Card) to 
USACRC. USACRC forwards this data to the Criminal Justice Information 
Services (CJIS) division of the FBI for inclusion in the Next Generation 
Identification Database. This paragraph does not eliminate other 
requirements to provide criminal history data, including those 
concerning the DIBRS.
    (b) Installation PM/DES will submit offender criminal history data 
to USACRC, based on a probable cause standard determined in conjunction 
with the servicing SJA or legal advisor for all civilians investigated 
for offenses equivalent to those listed in DoDI 5505.11. This includes 
foreign nationals, persons serving with or accompanying an armed force 
in the field in time of declared war or contingency operations, and 
persons subject to Public Law 106-523 in accordance with DoDI 5525.11 
(Available at http://www.dtic.mil/whs/directives/corres/pdf/
552511p.pdf), Criminal Jurisdiction Over Civilians Employed By or 
Accompanying the Armed Forces Outside the United States, Certain Service 
Members, and Former Service Members.
    (c) For purposes of this paragraph commanders will notify their 
installation PMO/DES when they become aware that a non-DoD and/or 
foreign LE organization has initiated an investigation against a 
Soldier, military dependent, or DoD civilian employee or contractor, for 
the equivalent of an offense listed in DoDI 5525.11 (available at http:/
/www.dtic.mil/whs/directives/corres/pdf/552511p.pdf), Enclosure 2, or 
punishable pursuant to the U.S.C.



Sec.  635.17  Release of domestic incidents reports to the Army Family
Advocacy Program (FAP).

    (a) Installation PM/DES will comply with the reporting requirements 
set forth in AR 608-18 (available at http://www.apd.army.mil/pdffiles/
r608--18.pdf).
    (b) In addition to substantiated incidents of domestic violence, 
installation PM/DES will notify the Family Advocacy Program Manager 
(FAPM) and Social Work Services (SWS) of all incidents in which a 
preponderance of indicators reveal a potential risk of reoccurrence and 
increasing severity of maltreatment which could lead to domestic 
violence or child abuse. Installation PM/DES will ensure these 
notifications are recorded in the official military police journal in 
ALERTS. This is to:

[[Page 61]]

    (1) Establish a history of incidents that indicate an emerging 
pattern of risk of maltreatment/victimization to Soldiers and or Family 
members. See AR 608-18 for incidents that define maltreatment.
    (2) Develop a trend history of unsubstantiated-unresolved incidents 
in order to prevent possible violence or maltreatment from occurring.

[80 FR 28549, May 19, 2015, as amended at 81 FR 17386, Mar. 29, 2016]



Sec.  635.18  Domestic violence.

    (a) Responding to incidents of domestic violence requires a 
coordinated effort by LE, medical, and social work personnel, to include 
sharing information and records as permitted by law and regulation. AR 
608-18, Chapter 3, contains additional information about domestic 
violence and protective orders. AR 608-18, Glossary, Section II refers 
to domestic violence as including the use, attempted use, or threatened 
use of force or violence against a person or a violation of a lawful 
order issued for the protection of a person, who is:
    (1) A current or former spouse;
    (2) A person with whom the abuser shares a child in common; or
    (3) A current or former intimate partner with whom the abuser shares 
or has shared a common domicile.
    (b) All domestic violence incidents will be reported to the local 
installation PMO/DES.



Sec.  635.19  Protection Orders.

    (a) A DD Form 2873, Military Protective Order (MPO) is a written 
lawful order issued by a commander that orders a Soldier to avoid 
contact with those persons identified in the order. MPOs may be used to 
facilitate a ``cooling-off'' period following domestic violence and 
sexual assault incidents, to include incidents involving children. The 
commander should provide a written copy of the order within 24 hours of 
its issuance to the person with whom the member is ordered not to have 
contact and to the installation LE activity.
    (b) Initial notification. In the event a MPO is issued against a 
Soldier and any individual involved in the order does not reside on a 
Army installation at any time during the duration of the MPO, the 
installation PMO/DES will notify the appropriate civilian authorities 
(local magistrate courts, family courts, and local police) of:
    (1) The issuance of the protective order;
    (2) The individuals involved in the order;
    (3) Any change made in a protective order;
    (4) The termination of the protective order.
    (c) A Civilian Protective Order (CPO) is an order issued by a judge, 
magistrate or other authorized civilian official, ordering an individual 
to avoid contact with his or her spouse or children. Pursuant to the 
Armed Forces Domestic Security Act, 10 U.S.C. 1561a, a CPO has the same 
force and effect on a military installation as such order has within the 
jurisdiction of the court that issued the order.



Sec.  635.20  Establishing Memoranda of Understanding.

    (a) Coordination between military law enforcement personnel and 
local civilian law enforcement personnel is essential to improve 
information sharing, especially concerning investigations, arrests, and 
prosecutions involving military personnel. PM/DES or other law 
enforcement officials shall seek to establish formal Memoranda of 
Understanding (MOU) with their civilian counterparts to establish or 
improve the flow of information between their agencies, especially in 
instances involving military personnel. MOUs can be used to clarify 
jurisdictional issues for the investigation of incidents, to define the 
mechanism whereby local law enforcement reports involving active duty 
service members will be forwarded to the appropriate installation law 
enforcement office, to encourage the local law enforcement agency to 
refer victims of domestic violence to the installation Family Advocacy 
office or victim advocate, and to foster cooperation and collaboration 
between the installation law enforcement agency and local civilian 
agencies.
    (b) Installation commanders are authorized to contract for local, 
state, or

[[Page 62]]

federal law enforcement services (enforcement of civil and criminal laws 
of the state) from civilian police departments. (Section 120 of the 
Water Resources Development Act of 1976). Section 120(a) of the Water 
Resources Development Act of 1976 authorizes the Secretary of the Army, 
acting through the Chief of Engineers, to contract with States and their 
political subdivisions for the purpose of obtaining increased law 
enforcement services at water resource development projects under the 
jurisdiction of the Secretary of the Army to meet needs during peak 
visitation periods.
    (c) MOUs will address the following issues at a minimum:
    (1) A general statement of the purpose of the MOU.
    (2) An explanation of jurisdictional issues that affect respective 
responsibilities to and investigating incidents occurring on and off the 
installation. This section should also address jurisdictional issues 
when a civilian order of protection is violated on military property 
(see 10 U.S.C. 1561a).
    (3) Procedures for responding to incidents that occur on the 
installation involving a civilian alleged offender.
    (4) Procedures for local law enforcement to immediately (within 4 
hours) notify the installation law enforcement office of incidents/
investigations involving service members.
    (5) Procedures for transmitting incident/investigation reports and 
other law enforcement information involving active duty service members 
from local civilian law enforcement agencies to the installation law 
enforcement office.
    (6) Notification that a Solider is required to register as a sex 
offender either as the result of military judicial proceedings or 
civilian judicial proceedings.
    (7) Procedures for transmitting civilian protection orders (CPOs) 
issued by civilian courts or magistrates involving active duty service 
members from local law enforcement agencies to the installation law 
enforcement office.
    (8) Designation of the title of the installation law enforcement 
recipient of such information from the local law enforcement agency.
    (9) Procedures for transmitting military protection orders (MPOs) 
from the installation law enforcement office to the local civilian law 
enforcement agency with jurisdiction over the area in which any person 
named in the order resides.
    (10) Designation of the title of the local law enforcement agency 
recipient of domestic violence and CPO information from the installation 
law enforcement agency.
    (11) Respective responsibilities for providing information to 
victims regarding installation resources when either the victim or the 
alleged offender is an active duty service member.
    (12) Sharing of information and facilities during the course of an 
investigation in accordance with the Privacy Act of 1974 (see 5 U.S.C. 
552a(b)(7)).
    (13) Regular meetings between the local civilian law enforcement 
agency and the installation law enforcement office to review cases and 
MOU procedures.



Sec.  635.21  Suspicious Activity Reporting (SAR).

    (a) The Army will use eGuardian to report, share and analyze 
unclassified suspicious activity information regarding potential threats 
or suspicious activities affecting DoD personnel, facilities, or forces 
in transit in both CONUS and OCONUS. USACIDC is the Army's eGuardian 
program manager.
    (b) eGuardian is the Federal Bureau of Investigation's (FBI) 
sensitive-but-unclassified web-based platform for reporting, and in some 
instances, sharing, suspicious activity and threat related information 
with other federal, state, tribal, and territorial law enforcement and 
force protection entities. Information entered into eGuardian by the 
Army may be either shared with all eGuardian participants or reported 
directly to the FBI. All information entered into eGuardian by the Army 
will comply with the policy framework for the system and any existing 
agency agreements, which incorporate privacy protections. Analysis of 
SARs will assist CRIMINTEL analysts and commanders in mitigating 
potential threats and vulnerabilities, and developing annual threat 
assessments.

[[Page 63]]

    (c) Any concerned soldier or citizen can submit a SAR to the nearest 
installation PMO/DES, CI or CID office. The receiving office will then 
be responsible for reviewing the information and determining whether it 
is appropriate for submission into eGuardian.



           Subpart D_Victim and Witness Assistance Procedures



Sec.  635.22  Procedures.

    (a) As required by DoDD 1030.01 (Available at http://www.dtic.mil/
whs/directives/corres/pdf/103001p.pdf), Army personnel involved in the 
detection, investigation, and prosecution of crimes must ensure that 
victims and witnesses rights are protected. Victim's rights include-
    (1) The right to be treated with fairness, dignity, and a respect 
for privacy.
    (2) The right to be reasonably protected from the accused offender.
    (3) The right to be notified of court proceedings.
    (4) The right to be present at all public court proceedings related 
to the offense, unless the court determines that testimony by the victim 
would be materially affected if the victim heard other testimony at 
trial, or for other good cause.
    (5) The right to confer with the attorney for the Government in the 
case.
    (6) The right to restitution, if appropriate.
    (7) The right to information regarding conviction, sentencing, 
imprisonment, and release of the offender from custody.
    (b) [Reserved]



           Subpart E_National Crime Information Center Policy



Sec.  635.23  Standards.

    The use of NCIC is limited to authorized criminal justice purposes 
such as, stolen vehicle checks or wants and warrants. Subject to FBI 
regulations and policy, NCIC checks of visitors to a military 
installation may be authorized by the Installation/Garrison Commander as 
set forth in DoD 5200.08-R (Available at http://www.dtic.mil/whs/
directives/corres/pdf/520008r.pdf) and DoDI 5200.08 (Available at http:/
/www.dtic.mil/whs/directives/corres/pdf/520008p.pdf). Visitors to Army 
installations are non-DoD affiliated personnel.



PART 637_MILITARY POLICE INVESTIGATION--Table of Contents



                        Subpart A_Investigations

Sec.
637.1 General.
637.2 Use of MPI and DAC Detectives/Investigators.
637.3 Installation Commander.
637.4 Military Police and the USACIDC.
637.5 Off-post investigations.
637.6 Customs investigations.
637.7 Drug enforcement activities.
637.8 Identification of MPI.
637.9 Access to U.S. Army facilities and records.
637.10 Authority to apprehend or detain.
637.11 Authority to administer oaths.
637.12 Legal considerations.
637.13 Retention of property.
637.14 Use of National Crime Information Center (NCIC).
637.15 Polygraph activities.
637.16 Evidence.
637.17 Police Intelligence.
637.18 Electronic equipment procedures.
637.19 Overseas MP desk.
637.20 Security surveillance systems.
637.21 Recording interviews and interrogations.

Subpart B [Reserved]

    Authority: 28 U.S.C. 534 note, 42 U.S.C. 10601, 18 U.S.C. 922, 42 
U.S.C. 14071, 10 U.S.C. 1562, 10 U.S.C. Chap. 47.

    Source: 70 FR 36029, June 22, 2005, unless otherwise noted.



                        Subpart A_Investigations



Sec.  637.1  General.

    (a) Military Police Investigators (MPI) and Department of the Army 
Civilian (DAC) detectives/investigators fulfill a special need for an 
investigative element within the military police to investigate many 
incidents, complaints, and matters not within U.S. Army Criminal 
Investigation Command (USACIDC) jurisdiction, but which cannot be 
resolved immediately through routine military police operations. 
Investigative personnel are assets of the installation or activity 
commander, under the supervision of the

[[Page 64]]

local provost marshal. USACIDC elements will provide investigative 
assistance in the form of professional expertise, laboratory 
examinations, polygraph examinations, or any other assistance requested 
which does not distract from the USACIDC mission of investigating 
serious crimes. A spirit of cooperation and close working relationship 
is essential between USACIDC and the provost marshal office in order to 
accomplish the mission and project a professional police image.
    (b) Creation of a formalized investigation program does not 
constitute the establishment of a dual ``detective'' force. The 
separation of investigative responsibilities is very distinct. The MPI 
Program is neither a career program nor a separate Military Occupational 
Specialty (MOS). Individuals in the MPI Program are specially selected, 
trained, and experienced military or civilian men and women performing 
traditional military police functions. Military personnel are identified 
by their additional skill identifiers (ASI V5) and may be employed in 
any assignment appropriate to their grade and MOS.
    (c) The provost marshal may authorize wearing of civilian clothing 
for the MPI investigative mission.
    (d) MPI and DAC detective/investigator personnel must be familiar 
with and meet the requirements of Army Regulation (AR) 190-14 (Carrying 
of Firearms and Use of Force for Law Enforcement and Security Duties).



Sec.  637.2  Use of MPI and DAC Detectives/Investigators.

    Only those matters requiring investigative development will be 
referred to the MPI for investigation. Provost marshals will develop 
procedures to determine which incidents will be referred to the MPI for 
completion and which will be retained and completed by uniformed MP 
personnel. Except as otherwise provided, MPI and DAC detectives/
investigators will normally be employed in the following investigations:
    (a) Offenses for which the maximum punishment listed in the Table of 
Maximum Punishment, Manual for Courts-Martial, United States, 2002 is 
confinement for 1 year or less. Provisions of the Federal Assimilative 
Crimes Act will also be considered when assigning cases to MPI. The same 
punishment criteria apply.
    (b) Property-related offenses when the value is less than $1,000 
provided the property is not of a sensitive nature, such as government 
firearms, ammunition, night vision devices, or controlled substances.
    (c) Offenses involving use and/or possession of non-narcotic 
controlled substances when the amounts are indicative of personal use 
only. Military police will coordinate with the local USACIDC element in 
making determinations of ``personal use''. MPI and DAC detectives/
investigators may be employed in joint MPI/USACIDC drug suppression 
teams; however, the conduct of such operations and activities remain the 
responsibility of USACIDC. When employed under USACIDC supervision, MPI 
and DAC detectives/investigators may also be utilized to make controlled 
buys of suspected controlled substances.
    (d) Activities required for the security and protection of persons 
and property under Army control, to include support of Armed Forces 
Disciplinary Control Boards as prescribed in AR 190-24. If MPI detect a 
crime-conducive condition during the course of an investigation, the 
appropriate physical security activity will be promptly notified. Crime-
conducive conditions will also be identified in military police reports.
    (e) Allegations against MP personnel, when not within the 
investigative responsibilities of USACIDC.
    (f) Offenses committed by juveniles, when not within the 
investigative responsibilities of USACIDC.
    (g) Gang or hate crime related activity, when not within the 
investigative responsibilities of USACIDC.



Sec.  637.3  Installation Commander.

    The installation commander, whose responsibilities include ensuring 
good order and discipline on his installation, has authority to order 
the initiation of a criminal investigation upon receipt of information 
of activity of a criminal nature occurring on the installation.

[[Page 65]]



Sec.  637.4  Military Police and the USACIDC.

    (a) The military police or the USACIDC are authorized to investigate 
allegations of criminal activity occurring on the installation. Nothing 
in this paragraph is intended to conflict with or otherwise undermine 
the delineation of investigative responsibilities between the military 
police and the USACIDC as set forth in AR 195-2.
    (b) When investigative responsibility is not clearly defined, and 
the matter cannot be resolved between military police investigations 
supervisors and USACIDC duty personnel, or between military police 
investigations supervisors and unit commanders, the provost marshal will 
be informed and will resolve the matter with the appropriate USACIDC 
activity commander/Special Agent in Charge (SAC) or unit commander.
    (c) The control and processing of a crime scene and the collection 
and preservation of the evidence are the exclusive responsibilities of 
the investigator or supervisor in charge of the crime scene when the 
military police have investigative responsibility. To prevent the 
possible loss or destruction of evidence, the investigator or supervisor 
in charge of the crime scene is authorized to exclude all personnel from 
the scene. The exercise of this authority in a particular case may be 
subject to the requirement to preserve human life and the requirement 
for continuing necessary operations and security. These should be 
determined in conjunction with the appropriate commander and, where 
applicable, local host country law enforcement authorities.
    (d) Unit commanders should consult with the installation provost 
marshal concerning all serious incidents. Examples of incidents 
appropriate for investigation at the unit level include simple assaults 
not requiring hospitalization and not involving a firearm, or wrongful 
damage to property of a value under $1,000. Other incidents should be 
immediately referred to the installation provost marshal.
    (e) The military police desk is the official point of contact for 
initial complaints and reports of offenses. The provisions of AR 190-45 
are to be followed for all military police records, reports, and 
reporting.
    (1) When incidents are reported directly to a USACIDC field element, 
USACIDC may either direct the reporting person to the MP desk or report 
the incident to the MP desk themselves.
    (2) Upon receipt of the complaint or report of offense, the MP desk 
will dispatch an available patrol to the scene of the incident. The 
patrol will take appropriate measures to include locating the 
complainant, witnesses, suspects, and victims, apprehending offenders, 
securing the crime scene, rendering emergency assistance, determining 
and reporting to the MP desk, by the most expeditious means possible, 
the appropriate activity having investigative responsibility.
    (f) In those cases in which the USACIDC has an ongoing investigation 
(typically fraud and narcotics matters), they may delay notification to 
the military police to avoid compromising their investigation.
    (g) Procedures will be developed to ensure mutual cooperation and 
support between MPI, DAC detectives/investigators and USACIDC elements 
at each investigative level; however, MPI, DAC detectives/investigators 
and USACIDC personnel will remain under command and control of their 
respective commanders at all times.
    (1) With the concurrence of the commander concerned, MPI and DAC 
detectives/investigators may provide assistance to USACIDC whenever 
elements assume responsibility for an investigation from MPI.
    (2) When requested by a USACIDC region, district, or the special 
agent-in-charge of a resident agency, the provost marshal may provide 
MPI or DAC detective/investigator assistance to USACIDC on a case-by-
case basis or for a specified time period.
    (3) With the concurrence of the appropriate USACIDC commander, CID 
personnel may be designated to assist MPI or DAC detectives/
investigators on a case-by-case basis without assuming control of the 
investigation.
    (4) Modification of investigative responsibilities is authorized on 
a local basis if the resources of either USACIDC or the military police 
cannot

[[Page 66]]

fully support their investigative workload and suitable alternatives are 
not available. Such modifications will be by written agreement signed by 
the provost marshal and the supporting USACIDC commander. Agreements 
will be in effect for no more than two years unless sooner superseded by 
mutual agreement.



Sec.  637.5  Off-post investigations.

    (a) In Continental United States (CONUS), civilian law enforcement 
agencies, including state, county, or municipal authorities, or a 
Federal investigative agency normally investigate incidents occurring 
off-post. When an incident of substantial interest to the U.S. Army 
occurs off-post, involving U.S. Army property or personnel, the military 
police exercising area responsibility will request copies of the 
civilian law enforcement report.
    (b) In Overseas areas, off-post incidents will be investigated in 
accordance with Status of Forces Agreements and other appropriate U.S. 
host nation agreements.



Sec.  637.6  Customs investigations.

    (a) Customs violations will be investigated as prescribed in AR 190-
41. When customs authorities find unauthorized material such as 
contraband, explosives, ammunition, unauthorized or illegal weapons or 
property, which may be property of the U.S. Government, notification 
must be made via electronic message or facsimile to HQDA, Office of the 
Provost Marshal General (DAPM-MPD-LE). All such notifications will be 
made to the military police and investigated by CID or the military 
police, as appropriate.
    (b) Military police will receipt for all seized or confiscated U.S. 
Government property and contraband shipped by U.S. Army personnel. 
Property receipted for by military police will be accounted for, and 
disposed of, in accordance with evidence procedures outlined in AR 195-
5.
    (c) When it has been determined that the subject of an MP customs 
investigation is no longer a member of the U.S. Army, the investigation 
will be terminated, a final report submitted indicating the subject was 
released from the U.S. Army, and an information copy of the report 
furnished to the appropriate civil investigative agency.
    (d) Recovery of weapons and significant amounts of ammunition will 
be reported by the U.S. Army element receipting for them from the U.S. 
Customs Service in accordance with AR 190-11 and AR 190-45.



Sec.  637.7  Drug enforcement activities.

    Provost marshals and U.S. Army law enforcement supervisors at all 
levels will ensure that active drug enforcement programs are developed 
and maintained, and that priorities for resources reflect the critical 
and important nature of the drug enforcement effort.
    (a) MPI and DAC detectives/investigators will conduct investigations 
of offenses involving use and possession of non-narcotic controlled 
substances. A copy of all initial, interim and final military police 
reports concerning drug investigations will be provided to the USACIDC 
at the local level. Enforcement activities will be coordinated with the 
USACIDC at the local level.
    (b) Any investigation of offenses involving possession/use of non-
narcotic controlled substances generated as a result of another USACIDC 
investigation may be transferred to MPI with the concurrence of both the 
supporting USACIDC commander and provost marshal.
    (c) Elements of USACIDC will be provided the opportunity to 
interview subjects, suspects or witnesses in MPI or DAC detective 
investigations involving controlled substances without assuming 
responsibility for the investigation. MPI and DAC detectives/
investigators may also interview subjects, suspects or witnesses of 
USACIDC investigations.



Sec.  637.8  Identification of MPI.

    (a) During the conduct of investigations, MPI will identify 
themselves by presenting their credentials and referring to themselves 
as ``INVESTIGATOR.'' When signing military police records the title 
``Military Police Investigator'' may be used in lieu of military titles. 
Civilian personnel will refer to themselves as ``INVESTIGATOR'' if they 
are classified in the 1811 series, and as ``DETECTIVE'' if they are in

[[Page 67]]

the 083 series. Civilian personnel will use the title ``DAC 
Investigator'' or ``DAC Detective''; corresponding to their 
classification series.
    (b) The use of titles such as ``Mr.'', ``Mrs.'', ``Miss'' or ``Ms.'' 
in connection with an individual's identification as an MPI is 
prohibited, except when employed in a covert investigative role. When 
MPI or DAC detectives/investigators are employed in covert roles, 
supervisors will ensure that coordination with USACIDC or civilian law 
enforcement agencies is accomplished as appropriate.



Sec.  637.9  Access to U.S. Army facilities and records.

    (a) MPI and DAC detectives/investigators will be granted access to 
all U.S. Army facilities, records or information when necessary for an 
ongoing investigation, consistent with the investigator's clearance for 
access to classified national defense information, the requirements of 
medical confidentiality, and the provisions of applicable regulations.
    (b) Upon presentation of proper identification when conducting an 
official investigation, MPI and DAC detectives/investigators will be 
authorized access to information contained in medical records and may 
request extracts or transcripts. Medical records will remain under the 
control of the records custodian who will make them available for 
courts-martial or other legal proceedings. Procedures for obtaining 
information from medical records are contained in AR 40-66.



Sec.  637.10  Authority to apprehend or detain.

    MPI and DAC detectives/investigators have authority to make 
apprehensions in accordance with Article 7, Uniform Code of Military 
Justice (UCMJ); Rule for Courts-Martial 302 (b)(1), Manual for Courts-
Martial, United States 2002 (Revised Edition). They may detain personnel 
for identification and remand custody of persons to appropriate civil or 
military authority as necessary. Civilians committing offenses on U.S. 
Army installations may be detained until they can be released to the 
appropriate Federal, state, or local law enforcement agency.



Sec.  637.11  Authority to administer oaths.

    MPI and DAC detectives/investigators have authority pursuant to 
Article 136(b)(4), UCMJ to administer oaths to military personnel who 
are subject to the UCMJ. The authority to administer oaths to civilians 
who are not subject to the UCMJ is 5 U.S.C. 303(b).



Sec.  637.12  Legal considerations.

    (a) Coordination between installation judge advocates and 
investigators must occur during the conduct of investigations.
    (b) The use of the DA Form 3881 (Rights Warning Procedure/Waiver 
Certificate) to warn accused or suspected persons of their rights is 
encouraged.
    (c) When necessary, investigators will coordinate with a judge 
advocate or civilian attorney employed in the Office of the Staff Judge 
Advocate for the purpose of establishing a legal opinion as to whether 
sufficient credible evidence has been established to title an individual 
in a report. Investigators should also coordinate with the Office of the 
Staff Judge Advocate in drafting search warrants and in determining 
whether probable cause exists to conduct a search.



Sec.  637.13  Retention of property.

    Reports of investigation, photographs, exhibits, handwritten notes, 
sketches, and other materials pertinent to an investigation, including 
copies, negatives or reproductions, are the property of the U.S. 
Government, either as owner, or custodian.



Sec.  637.14  Use of National Crime Information Center (NCIC).

    Provost marshals will make maximum use of NCIC terminals available 
to them, and will establish liaison with the U.S. Army Deserter 
Information Point (USADIP) as necessary to ensure timely exchange of 
information on matters concerning deserters. The USADIP will ensure 
replies to inquiries from provost marshals on subjects of MP 
investigations are transmitted by the most expeditious means. Use of 
NCIC will be in accordance with AR 190-27.

[[Page 68]]



Sec.  637.15  Polygraph activities.

    MPI and DAC detectives/investigators will utilize the polygraph to 
the full extent authorized. Requests for polygraph examination 
assistance will be forwarded to the supporting USACIDC element in 
accordance with provisions of AR 195-6. The investigative or 
intelligence element requesting approval to conduct a polygraph 
examination will submit a completed DA Form 2805 (Polygraph Examination 
Authorization) to the authorizing official. A request may also be sent 
via an electronic message or electronic mail or media provided all 
elements of the DA Form 2805 are included in the request. Approvals will 
be obtained prior to the conduct of an examination. Telephonic requests, 
followed with written requests, may be used in emergencies. The 
requesting official will include the following data on every polygraph 
examination request for criminal investigations:
    (a) The offense, which formed the basis of the investigation, is 
punishable under Federal law or the UCMJ by death or confinement for a 
term of 1 year or more. Even though such an offense may be disposed of 
with a lesser penalty, the person may be given a polygraph examination 
to eliminate suspicion.
    (b) The person to be examined has been interviewed and there is 
reasonable cause to believe that the person has knowledge of, or was 
involved in, the matter under investigation.
    (c) Consistent with the circumstances, data to be obtained by 
polygraph examination are needed for further conduct of the 
investigation.
    (d) Investigation by other means has been as thorough as 
circumstances permit.
    (e) Examinee has been interviewed on all relevant subjects requested 
for testing and the polygraph examination is essential and timely.



Sec.  637.16  Evidence.

    Military police are authorized to receive, process, safeguard and 
dispose of evidence, to include non-narcotic controlled substances, in 
accordance with AR 195-5. If no suitable facility is available for the 
establishment of a military police evidence depository or other 
operational circumstances so dictate, the evidence custodian of the 
appropriate USACIDC element may be requested to receipt for and assume 
responsibility for military police evidence. Personnel selected as 
military police evidence custodians need not be trained as MPI and 
should not be issued MPI credentials, unless they are also employed as 
operational MPI. Further information concerning evidence collection and 
examination procedures can be found in Field Manual (FM) 3-19.13, Law 
Enforcement Investigations.



Sec.  637.17  Police Intelligence.

    (a) The purpose of gathering police intelligence is to identify 
individuals or groups of individuals in an effort to anticipate, 
prevent, or monitor possible criminal activity. If police intelligence 
is developed to the point where it factually establishes a criminal 
offense, an investigation by the military police, (USACIDC) or other 
investigative agency will be initiated.
    (b) Police intelligence will be actively exchanged between 
Department of Defense (DOD) law enforcement agencies, military police, 
USACIDC, local, state, federal, and international law enforcement 
agencies. One tool under development by DOD for sharing police 
intelligence is the Joint Protection Enterprise Network (JPEN). JPEN 
provides users with the ability to post, retrieve, filter, and analyze 
real-world events. There are seven reporting criteria for JPEN:
    (1) Non-specific threats;
    (2) Surveillance;
    (3) Elicitation;
    (4) Tests of Security;
    (5) Repetitive Activities;
    (6) Bomb Threats/Incidents; and
    (7) Suspicious Activities/Incidents.
    (c) If a written extract from local police intelligence files is 
provided to an authorized investigative agency, the following will be 
included on the transmittal documents: ``This document is provided for 
information and use. Copies of this document, enclosures thereto, and 
information therefrom, will not be further released without the prior 
approval of the installation Provost Marhsall.

[[Page 69]]

    (d) Local police intelligence files may be exempt from certain 
disclosure requirements by AR 25-55 and the Freedom of Information Act 
(FOIA).



Sec.  637.18  Electronic equipment procedures.

    (a) DOD Directive 5505.9 and AR 190-53 provide policy for the 
wiretap, investigative monitoring and eavesdrop activities by DA 
personnel. The recording of telephone communications at MP operations 
desks is considered to be a form of command center communications 
monitoring which may be conducted to provide an uncontroversial record 
of emergency communications. This includes reports of emergencies, 
analysis of reported information, records of instructions, such as 
commands issued, warnings received, requests for assistance, and 
instructions as to the location of serious incidents.
    (b) The following procedures are applicable to the recording of 
emergency telephone and/or radio communications at MP operations desks 
within the 50 states of the United States, the District of Columbia, the 
Commonwealth of Puerto Rico, Panama, and Guam.
    (1) All telephones connected to recording equipment will be 
conspicuously marked ``For Official Use Only-connected to recording 
device'' and access to use will be restricted to MP operations desk 
personnel.
    (2) The connection of voice-recording equipment or private-line 
service with the telecommunications network will be in accordance with 
applicable telephone company tariffs which permit direct electrical 
connection through telephone company recorder-connector equipment. An 
automatic audible-tone device is not required.
    (3) Official emergency telephone numbers for MP desks will be listed 
in appropriate command, activity, or installation telephone directories 
with a statement that emergency conversations will be recorded for 
accuracy of record purposes. Other forms of pre-warning are not 
required.
    (4) Recordings, which contain conversations described in this 
section, will be retained for a period of 60 days. Transcripts may be 
made for permanent files, as appropriate.
    (5) The recording of telephone communications or radio transmissions 
by MP personnel for other than emergency purposes is prohibited. If an 
investigator requires the use of electronic surveillance equipment, 
assistance must be requested from the USACIDC. This policy is 
established pursuant to Department of Defense directives that limit such 
activity to the criminal investigative organizations of the Services and 
DOD.
    (6) Commanders having general courts-martial convening authority 
will issue written authorizations for the recording of emergency 
telephone communications at MP operations desks. The letter of 
authorization will contain specific authority for the type of equipment 
to be used, the phone numbers identified as emergency lines and 
instructions limiting recordings to calls received on the phones so 
designated. One copy of the authorization will be forwarded to the 
Office of the Provost Marshal General (OPMG), 2800 Army Pentagon, 
Washington, DC 20310-2800.



Sec.  637.19  Overseas MP desk.

    The recording of telephone communications at MP operations desks 
outside the United States will be conducted within restrictions 
contained in international agreements between the U.S. and host nations.



Sec.  637.20  Security surveillance systems.

    Closed circuit video recording systems, to include those with an 
audio capability, may be employed for security purposes in public places 
so long as notices are conspicuously displayed at all entrances, 
providing persons who enter with a clear warning that this type of 
monitoring is being conducted.



Sec.  637.21  Recording interviews and interrogations.

    The recording of interviews and interrogations by military police 
personnel is authorized, provided the interviewee is on notice that the 
testimony or statement is being recorded. This procedure is a long-
accepted law enforcement procedure, not precluded by DA policies 
pertaining to wiretap, investigative monitoring, and eavesdrop 
activities.

[[Page 70]]

Subpart B [Reserved]

[[Page 71]]



                       SUBCHAPTER J_REAL PROPERTY



                        PARTS 641	642 [RESERVED]



PART 643_REAL ESTATE--Table of Contents



                            Subpart A_General

Sec.
643.1 Purpose.
643.2 Applicability.
643.3 Authority to grant use of real estate.
643.4 Responsibilities of the Chief of Engineers (COE).
643.5 Responsibilities of major commands (MACOMS) and special staff 
          agencies.
643.6 Responsibilities of overseas commanders.
643.7 Preparation of report of availability.
643.8 Approval of report of availability.
643.9 Approval of availability outside the United States.
643.10 Reports to DOD and the congressional committees on Armed 
          Services.
643.11 Rights of entry.
643.12 Preparation and signing of instruments.
643.13 Military requirement for real estate under grant.
643.14 Inspection to assure compliance with terms of outgrants.
643.15 Unauthorized use.

                            Subpart B_Policy

643.21 Policy--Surveillance.
643.22 Policy--Public safety: Requirement for early identification of 
          lands containing dangerous materials.
643.23 Policy--Preference.
643.24 Policy--Competition.
643.25 Policy--Grants which may embarrass the Department of the Army.
643.26 Policy--Commercial advertising on reservations.
643.27 Policy--Environmental considerations.
643.28 Policy--Historic and cultural environment.
643.29 Policy--Archeological surveys.
643.30 Policy--Construction projects and activities; protection of 
          historical and archeological data.
643.31 Policy--Flood hazards.
643.32 Policy--Endangered species.
643.33 Policy--Costal zone management.
643.34 Policy--Public utilities on installations.
643.35 Policy--Mineral leasing on lands controlled by the Department of 
          the Army.
643.36 Policy--Interim leasing of excess properties to facilitate 
          economic readjustment.
643.37 Policy--Requests to search for treasure trove.
643.38 Policy--Utility rates.
643.39 Policy--American National Red Cross.
643.40 Policy--Young Men's Christian Association (YMCA).
643.41 Policy--National Guard use.
643.42 Policy--Consents for crossing of rights-of-way and similar 
          interests owned by the United States.

                            Subpart C_Leases

643.51 Additional items concerning leasing.
643.52 Term.
643.53 Consideration.
643.54 Receipts.
643.55 Mandatory revocation clause in lease.
643.56 Taxation of lessee's interest.
643.57 Subleasing or assignment.

                           Subpart D_Licenses

643.71 Additional items concerning licenses.
643.72 License.
643.73 Term.
643.74 Consideration.

                           Subpart E_Easements

643.81 Additional items concerning easements.
643.82 Term.
643.83 Consideration.
643.84 Easement--Grantees relocate or replace needed facilities.
643.85 Easement grantees--Payment for removal or destruction of unneeded 
          improvements.
643.86 Easements for various purposes with relinquishment of legislative 
          jurisdiction.

                            Subpart F_Permits

643.101 Additional items concerning permits.
643.102 Permit.
643.103 Term.
643.104 Consideration.

              Subpart G_Additional Authority of Commanders

643.111 Additional authority.
643.112 Army exchange activities.
643.113 Banks.
643.114 Civil disturbances.
643.115 Contractors--Permission to erect structures.
643.116 Credit unions.
643.117 Hunting, trapping, and fishing.
643.118 Nonappropriated funds--Authority to permit erection of 
          structures.

[[Page 72]]

643.119 Licenses incidental to post administration.
643.120 Post offices.
643.121 Private organizations on DA installations.
643.122 Reserve facilities--Air Force and Navy use.
643.123 Reserve facilities--Local civic organizations.
643.124 Rights-of-way for ferries and livestock.
643.125 Trailer sites.
643.126 Transportation licenses.
643.127 Quarters.
643.128 Veterans' conventions.
643.129 Youth groups.
643.130 Joint carrier Military Traffic Offices (JAMTO, JBMTO, JRMTO, 
          SAMTO).

    Authority: 10 U.S.C. 2667.

    Source: 43 FR 29748, July 10, 1978, unless otherwise noted.



                            Subpart A_General



Sec.  643.1  Purpose.

    (a) This regulation sets forth the authority, policy, 
responsibility, and procedure for making military real estate, under the 
control of the Department of the Army, available for use by other 
military departments, Federal agencies, State and local governmental 
agencies, private organizations or individuals.
    (b) This regulation implements Department of Defense Directives and 
Instructions (4165 series), which include policies and procedures 
concerning use of military real estate.



Sec.  643.2  Applicability.

    This regulation is applicable to Army military real estate, which 
includes land and improvements thereon and is also referred to as real 
property.



Sec.  643.3  Authority to grant use of real estate.

    (a) The United States Constitution (Article IV, Section 3), provides 
that the Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property 
belonging to the United States.
    (b) One of the principal authorities for the use of military real 
estate for commercial purposes is title 10 U.S.C., section 2667, which 
authorizes the Secretary of the Army (SA), whenever it is considered to 
be advantageous to the United States, to lease such real or personal 
property under Army control, which is not for the time needed for public 
use, upon such terms and conditions as the SA considers will promote the 
national defense or be in the public interest.
    (c) Grants under statutory authorities cited in this regulation of 
real property pertaining to river and harbor, water resource development 
and flood control projects, will be under the policies and general 
guidelines set forth in this regulation.
    (d) The SA may, under the general administrative powers vested in 
the office, authorize the use of real estate in the absence of statutory 
authority, in unusual circumstances, provided the property is not for 
the time being required for public use, the grant conveys no interest in 
the real estate and the proposed use will be of a direct benefit to the 
United States. Under this authority, the right to use real estate may 
also be granted to other military departments or Federal agencies.
    (e) Except as otherwise provided in this regulation, an interest in 
real estate will not be granted unless authorized by law.
    (f) Other laws authorizing grants for non-Army use of real estate 
for various purposes and Table of Related Army Regulations are set forth 
in appendixes A and B, respectively.



Sec.  643.4  Responsibilities of the Chief of Engineers (COE).

    (a) After it is determined that real estate located in the United 
States, Puerto Rico, American Virgin Islands and the Panama Canal Zone, 
is available for non-Army use, the COE, except as otherwise provided in 
this regulation, is charged with responsibility for arranging for the 
use of real estate within the scope of this regulation. In the 
performance of this function, the COE is authorized to obtain such 
technical assistance from the using service as may be deemed necessary.
    (b) COE has staff responsibility over real estate matters in Guam, 
American Samoa, Trust Territory of the Pacific Islands (TTPI), and in 
foreign countries.

[[Page 73]]

    (c) Except as otherwise provided in this regulation, determinations 
that real estate is available for non-Army use must be approved by the 
COE.
    (d) The authority of the COE to grant use of real estate will be 
delegated, to the extent feasible, to U.S. Army Division and District 
Engineers (DE).
    (e) The COE is responsible for the granting of temporary use of real 
estate reported excess to the General Services Administration (GSA), to 
the extent authorized by regulations issued pursuant to the Federal 
Property and Administrative Services Act of 1949, as amended (40 U.S.C. 
471, et seq.), and as provided in title 10 U.S.C., section 2667(f). The 
COE is also responsible for supervision and the issuance of instructions 
covering the granting of use of real estate within the scope of this 
regulation. Where Army or installation commanders are authorized to 
grant use of real estate, they are authorized to obtain technical 
assistance from the appropriate DE.
    (f) In reviewing Army requirements for real estate (AR 405-10), the 
COE will consider the availability and adequacy of other military or 
federally-owned real estate to satisfy Army requirements before leasing 
privately-owned real estate, or renewing existing leases.



Sec.  643.5  Responsibilities of major commands (MACOMS) and special
staff agencies.

    Except as otherwise provided herein, determinations of availability 
will be approved by the COE or higher authority. MACOMS and special 
staff agencies are responsible for determining the real estate which can 
be made available for non-Army use, specifying the authorized uses of 
the property which will not be incompatible with military requirements 
for the property, the length of the term and any restrictions to be 
imposed on the grantee's use. Upon approval of the determination of 
availability, the real estate grant will be issued by the DE or as 
otherwise provided in this regulation.



Sec.  643.6  Responsibilities of overseas commanders.

    Overseas commanders are charged with responsibility for the granting 
of use of real estate in overseas areas (Puerto Rico, Guam, the American 
Virgin Islands, American Samoa, TTPI, and the Canal Zone), and in 
foreign countries, for non-Army use under the policy and guidance 
expressed in this regulation, provided such use is consistent with the 
Status of Forces Agreements, Treaties, or the Agreements under which the 
Army controls such real estate.



Sec.  643.7  Preparation of report of availability.

    A report of availability will be prepared by the installation 
commander or head of the special staff agency, when it is determined 
that for the time being the real estate is not required for Army use and 
can be made available, either concurrently with the Army, or 
exclusively, for use by another military department, by other Federal 
agencies, by State or local governmental agencies, private organizations 
or individuals. The installation commander's recommendation will be made 
as far in advance as possible so as to minimize the time lapse between 
the determination of availability and the date of use of the property by 
the grantee. Where real estate suitable for agricultural or grazing 
purposes is involved, the normal season for planting and grazing should 
be taken into consideration so that the property may be advertised in a 
timely manner. A copy of each report will be furnished to the 
appropriate DE for information. The report of availability will contain 
the information outlined in appendix C.



Sec.  643.8  Approval of report of availability.

    The recommendation that real estate is determined available for non-
Army use will be submitted by the installation commander to the major 
commander for approval, through the echelon of command. The major 
commander will approve such recommendation and submit it to the 
appropriate DE for action, except recommendations involving the 
following actions will be forwarded to the COE:
    (a) A lease or license, including licenses to States for National 
Guard purposes, if the estimated annual rental value exceeds $50,000.

[[Page 74]]

    (b) A permit, license, or other grant of real estate, regardless of 
value, which results in a significant reduction or redirection of 
installation mission objectives;
    (c) A lease of land where the proposed lease term is in excess of 25 
years for banks and Federal credit untions and/or the building to be 
constructed exceeds DOD space criteria;
    (d) Any permit, license, agreement, or other grant to another 
military department or to a Federal agency of large or significant real 
estate holdings for a period in excess of 5 years (including renewal 
options);
    (e) A grant of an easement which involves the replacement or 
relocation of Army facilities at an estimated cost in excess of 
$100,000;
    (f) A grant of an easement where the estimated annual fair market 
value of the easement exceeds $50,000.
    (g) A grant which is controversial or unusual in nature and may 
embarrass the DA;
    (h) A grant involving search for treasure trove;
    (i) A grant for vehicle speed contests;
    (j) A grant at an active industrial installation, excluding 
unimproved land areas.
    Note: The Commander, U.S. Army Materiel Development & Readiness 
Command (DARCOM), is authorized to approve determinations of 
availability at standby industrial installations where the estimated 
annual rental value does not exceed $50,000.



Sec.  643.9  Approval of availability outside the United States.

    Overseas commanders may authorize the use by another military 
department or a Federal agency of an installation or portion thereof 
located in designated overseas areas and in foreign countries when the 
real estate is not for the time needed for Army purposes or its 
concurrent use for other purposes will not interfere with the mission of 
the installation and such other use is not inconsistent with the 
agreement under which the property was acquired. Overseas commanders may 
also authorize any use of such property which is necessary in the 
accomplishment of the DA mission for which the property was acquired. 
All other proposed uses will be coordinated with the United States 
diplomatic mission in the country involved prior to submission to HQDA 
(DAEN-REM) WASH DC 20314, for approval. Where the overseas commander is 
authorized to approve such use, the commander or designee will prepare 
and execute the necessary grant.



Sec.  643.10  Reports to DOD and the congressional committees on
Armed Services.

    (a) The grants set forth in 1-8a. through f., with respect to real 
estate in the United States, Puerto Rico, American Virgin Islands, Guam, 
American Samoa, and the TTPI, require prior approval of the Assistant 
Secretary of Defense (I&L), and recommendations should contain 
information in justification thereof.
    (b) The grants set forth in 1-8a., with respect to real estate in 
the United States and in designated overseas areas (excluding the Canal 
Zone), except leases for agricultural or grazing purposes, require a 
report to the Committees on Armed Services of the Senate and House of 
Representatives as provided in title 10 U.S.C., section 2662.



Sec.  643.11  Rights of entry.

    Pending the signing of the formal instrument, no right of entry will 
be granted unless authorized by the office wherein the instrument will 
be signed, except where contrary instructions have previously been 
issued by the DA. When authorized, rights of entry will be granted by 
the DE, or overseas commander, as appropriate.



Sec.  643.12  Preparation and signing of instruments.

    Instuments granting temporary use of real estate will be prepared as 
provided in this regulation. Except where authority has been otherwise 
granted, the COE or designee will approve, execute, and distribute 
instruments to the extent authorized by the SA; otherwise they will be 
prepared and submitted for execution by direction of the appropriate 
Assistant Secretary of the Army.



Sec.  643.13  Military requirement for real estate under grant.

    When a military requirement arises for real estate which is being 
used under a grant of non-Army use, the

[[Page 75]]

withdrawal of availability will be approved at the same level of command 
as that required for determining the property available for non-Army 
use. The office responsible for effecting temporary use of the property 
should be promptly notified of the withdrawal of availability for non-
Army use and the latest date the property will be required for military 
purposes. Termination of the use will be in accordance with the 
provisions of the grant unless military necessity requires other action. 
In order to avoid possible claims for damages and in the interest of 
good community relations and in furtherance of the Army's leasing 
program, the grantee will be allowed, when practicable, a reasonable 
time after notice of revocation, to vacate the premises, remove his 
property and, if required, restore the premises. In controversial cases, 
or where a claim for damages or litigation is anticipated, HQDA (DAEN-
REM) WASH DC 20314, will be notified of the circumstances prior to 
sending notification of termination of the grant to the grantee.



Sec.  643.14  Inspection to assure compliance with terms of outgrants.

    Commanders will provide general surveillance over areas made 
available for non-Army use and will advise the DE if and when there are 
any irregularities. Real estate which is being used for non-military 
purposes will be inspected at least once each year by the COE, or by his 
representative, to determine whether grantees or occupants are complyng 
with the terms of the instruments authorizing use and occupancy, except 
with respect to easements and licenses for rights-of-way for roads, 
streets, powerlines, pipelines, underground communication lines and 
similar facilities. The COE will make compliance inspections for such 
easements and licenses at least once during each 5-year period. However, 
the DE will check with installation commanders annually to assure that 
there are no situations which might need correction prior to the 
inspection. The installation commander will make interim inspections of 
all real estate being used for non-military purposes as are necessary 
for timely observation of the extent of compliance with grant provisions 
designed to protect and preserve the real estate for military 
requirements, and will furnish the appropriate DE a copy of a written 
report of the inspection reflecting findings and recommendations. In 
order that the grantee's operations not be unreasonably disrupted, the 
annual compliance inspection made by the DE will be coordinated with the 
installation commander so that, if feasible, only one inspection will be 
made. Where necessary, corrective action in accordance with applicable 
regulations will be taken for the enforcement of the terms of the grant 
by the responsible officer who granted the use. Overseas commanders are 
responsible for inspection of real estate under their jurisdiction and 
necessary corrective action.



Sec.  643.15  Unauthorized use.

    Whenever it is observed that real estate under the control of the DA 
is being used and/or occupied by private parties without proper 
authority, corrective action will be taken to cause such unauthorized 
use to be discontinued or to formalize such use and occupancy by an 
appropriate grant in accordance with this regulation. In either event, 
compensation will be obtained for the unauthorized use of such property.



                            Subpart B_Policy



Sec.  643.21  Policy--Surveillance.

    Installation Commanders will maintain constant surveillance over 
real estate under their jurisdiction to determine whether any of it is 
excess to requirements, or may be made available for other Army use, or 
may be made available for use for other than Army purposes and will 
process such determinations expeditiously in accordance with the 
provisions of this regulation. From time to time DOD, DA and GSA surveys 
will be made pursuant to Executive Order 11954, 7 January 1977, which 
enunciated a uniform policy for the Executive Branch of the Federal 
Government with respect to the identification of excess and under-
utilized real estate (AR 405-70). Real estate for which is retained for 
future use will be a requirement which will be disposed of in accordance 
with AR 405-90. Real estate

[[Page 76]]

which the Army does not currently need but which is retained for future 
use will be made available to others for use either exclusively or 
concurrently with the Army. When an installation is in an inactive 
status, the presumption is that it is available for other military or 
Federal use or for leasing unless there are cogent reasons that such 
action should not be taken. The purpose of this rule is to put to 
beneficial use Federal property, which is not for the time required for 
its basic use, for the benefit of other Federal agencies, the local 
economy, or for the benefits accruing to the United States from the 
income and/or savings of maintenance, protection, repair, or 
restoration.



Sec.  643.22  Policy--Public safety: Requirement for early identification
of lands containing dangerous materials.

    (a) DA will not make available to others any real estate which is 
contaminated with explosives or with toxic materials or other innately 
or potentially harmful elements until such elements have been removed or 
have been rendered harmless, unless the proposed user of the area is 
aware of the condition of the area and is technically qualified and 
certified to make use of the area in its contaminated state.
    (b) It is imperative that commanders keep records on and have a 
continuing awareness of the state of contamination of lands by 
explosives, military chemical or other dangerous materials.
    (c) Procedures with respect to action to neutralize or decontaminate 
the area are set forth in AR 405-90.



Sec.  643.23  Policy--Preference.

    Army real estate under the control of DA which is made available for 
use for other than Army purposes will be made available for use by other 
military departments or DOD activities and agencies, other Federal 
departments, activities or agencies, State or local governmental bodies 
and other private parties, in that order.



Sec.  643.24  Policy--Competition.

    The use of real estate under the control of DA for private purposes 
will be granted only after reasonable efforts have been made to obtain 
competition for its use, through advertising. Advertising is any method 
of public announcement intended to aid directly or indirectly in 
obtaining offers on a competitive basis. Advertising may be accomplished 
by circulating and posting notices and by paid advertising in newspapers 
and trade journals. The purpose of seeking competition is to afford all 
qualified persons equal opportunity to bid for the use of the property, 
to secure for the Government the benefits which flow from competition, 
and to prevent criticism that favoritism has been shown by officers or 
employees of the Government in making public property available for 
private use. Although the lease of Government real estate to civilians 
employed by the military departments or officers or enlisted personnel 
of the Armed Forces is not prohibited by law, it is essential that 
extreme care be exercised to avoid favoritism or the appearance of 
favoritism. Generally leases to Federal Government personnel will be 
granted only after competitive bid under the sealed bid method. The 
provisions of this paragraph do not affect the authority contained in AR 
210-10 and 210-50 for furnishing quarters to civilian employees of DA. 
Also the provisions of this paragraph do not affect the use of Federal 
facilities by uniformed personnel as may be otherwise provided for. 
Other exceptions to the advertising policy are as follows:
    (a) Granting easements, leases and licenses to public agencies and 
public utilities.
    (b) Granting permits to other Federal agencies.
    (c) Leasing cable pairs.
    (d) Leases or licenses to utility companies having an exclusive 
franchise in the area, for space on Government-owned poles for attaching 
their electric transmission communication lines.
    (e) COE is authorized to grant a waiver of competition upon a 
determination that it will promote the national defense or will be in 
the public interest or upon a determination that competition is 
impracticable.

[[Page 77]]



Sec.  643.25  Policy--Grants which may embarrass the Department of the Army.

    The use of property under DA control will not be authorized for any 
purpose when the proposed use or the revocation thereof might prove 
embarrassing to the DA.



Sec.  643.26  Policy--Commercial advertising on reservations.

    DA will not authorize the posting of notices or erection of 
billboards or signs for commercial purposes on property under its 
control.



Sec.  643.27  Policy--Environmental considerations.

    DA will not authorize the use of real estate, water and other 
natural resources when such use is not in harmony with the goals and 
intent of the following legislation and/or similar legislation which 
establishes a firm Federal policy and provides procedures to enhance the 
overall environmental quality.
    (a) National Environmental Policy Act of 1969 (NEPA), (42 U.S.C. 
4321), (AR 200-1, chapters 1 and 2).
    (b) National Historic Preservation Act of 1966 (Pub. L. 89-665, 16 
U.S.C. 470-47M, 1970), as amended by 16 U.S.C. 470h, 470i, 470l-470n, 
Supp. 1973).
    (c) Federal Water Pollution control Act of 1972, as amended.
    (d) Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
    (e) Coastal Zone Management Act of 1972 (16 U.S.C. 1451).
    (f) Clean Air Act of 1970, as amended, (42 U.S.C. 1857), (AR 200-1, 
chapter 4).
    (g) Marine Protection, Research and Sanctuaries Act of 1972 (16 
U.S.C. 1431), (AR 200-1, chapter 3).
    (h) Solid Waste Disposal Act, as amended (42 U.S.C. 3251), (AR 200-
1, chapter 6).
    (i) Federal Insecticide, Fungicide and Rodenticide Act, as amended 
by the Federal Environmental Pesticide Control Act of 1972 (7 U.S.C. 
136), (AR 200-1, chapter 6).
    (j) Noise Control Act of 1972 (42 U.S.C. 4901), (AR 200-1, chapter 
7).



Sec.  643.28  Policy--Historic and cultural environment.

    (a) Executive Order 11593, 36 Federal Register 8921 (Appendix D) 
provides in part that the Federal Government shall provide leadership in 
preserving, restoring and maintaining the historic and cultural 
environment of the Nation; that Federal agencies shall:
    (1) Administer the cultural properties under their control in a 
spirit of stewardship and trusteeship for future generations;
    (2) Initiate measures necessary to direct their policies, plans and 
programs in such a way that federally owned sites, structures and 
objects of historical, architectural, or archeological significance are 
preserved, restored and maintained for the inspection and benefit of the 
people; and
    (3) In consultation with the Advisory Council on Historic 
Preservation (16 U.S.C. 470i) institute procedures to assure that 
Federal plans and programs contribute to the preservation and 
enhancement of non-federally owned sites, structures and objects of 
historical, architectural, or archeological significance (AR 200-1, 
chapter 8 and App. A).
    (b) Outgrants will include conditions to assure protection of real 
estate as contemplated in paragraph (a) of this section.



Sec.  643.29  Policy--Archeological surveys.

    The SA under the authority of 16, 432, may allow the examination of 
ruins, the excavation of archeological sites, and the gathering of 
objects of antiquity upon Army lands by institutions which are deemed 
properly qualified to conduct such examinations, excavations, and 
gatherings (AR 200-1, chapter 8).



Sec.  643.30  Policy--Construction projects and activities; protection
of historical and archeological data.

    The Archeological and Historical Preservation Act of 1974 (16 U.S.C. 
469 et seq.) provides for the preservation of historical and 
archeological data on all Federal or Federally-assisted construction 
projects or in connection with any federally licensed activities or 
programs.

[[Page 78]]



Sec.  643.31  Policy--Flood hazards.

    Each Determination of Availability Report will include an evaluation 
of the flood hazards, if any, relative to the property involved in the 
proposed outgrant action, pursuant to the provisions of Executive Order 
11296, August 10, 1966. DA will not authorize the use of lands in flood 
plains for habitation purposes or any other use which may be 
uneconomical, hazardous, or unnecessary.



Sec.  643.32  Policy--Endangered species.

    The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), 
declares the intention of Congress to conserve threatened and endangered 
species of fish, wildlife and plants, and the ecosystems on which those 
species depend. The Act provides that Federal agencies must utilize 
their authorities in furtherance of its purposes by carrying out 
programs for the conservation of endangered or threatened species, and 
by taking such necessary action to insure that any action authorized by 
that agency will not jeopardize the continued existence of such 
endangered or threatened species or result in the destruction or 
modification of habitat of such species which is determined by the 
Secretaries of the Departments of Commerce or Interior, as appropriate, 
to be critical.



Sec.  643.33  Policy--Coastal zone management.

    (a) The Coastal Zone Management Act of 1972 (16 U.S.C. 1456), 
directs all Federal agencies conducting or supporting activities 
directly affecting the coastal zone of a state, to conduct or support 
those activities in a manner which is, to the maximum extent 
practicable, consistent with approved state management programs. The 
opinion of the Attorney General of the United States is that Federal 
lands are excluded from mandatory compliance with the state's coastal 
zone management program, regardless of the type of Federal jurisdiction 
exercised thereover. However, it is Army policy that its activities will 
comply, to the extent practicable, with a state's approved coastal zone 
management program.
    (b) Applications for grants for use of real estate affecting land or 
water uses in the coastal zone of a state will include a certification 
that the proposed activity complies with the state's approved program 
and that applicant's activity will be conducted in a manner consistent 
with the law.
    (c) An activity affecting land or water uses in the coastal zone of 
a state which will not be conducted in a manner consistent with an 
approved state program will be exempted from this certification 
requirement only if the Secretary of Commerce, on his own initiative or 
upon appeal of the applicant, determines that the activity is consistent 
with the objectives of the Coastal Zone Management Act or is otherwise 
necessary in the interest of national security.



Sec.  643.34  Policy--Public utilities on installations.

    (a) Contracting officers, with the approval of Installation 
Commanders, are authorized to permit the extension of public utilities 
upon installations, as part of the contract for furnishing to the 
Government electricity, water, and gas, where such extension is 
necessary solely to serve the installation and not in part to serve 
private consumers outside the installation. The above authorization is 
covered by the provisions of the contract for purchase of utilities 
services contained in Armed Services Procurement Regulations.
    (b) Contracts or agreements for the sale of surplus utilities 
services as authorized by law or regulations will include similar 
authority for the purchaser to install and maintain such facilities on 
the installation as necessary in connection with the sale of such 
utilities services, in accordance with AR 420-41 and AR 105-23.



Sec.  643.35  Policy--Mineral leasing on lands controlled by the
Department of the Army.

    (a) Acquired lands--(1) General. The Coal Leasing Amendments Act of 
1975, hereinafter referred to as the act, amended the Mineral Leasing 
Act for Acquired Lands (30 U.S.C. 352) and permits the Secretary of 
Interior (SI), with the consent of the Secretary of

[[Page 79]]

Defense, to lease deposits of coal, phosphate, oil, oil shale, gas, 
sodium, potassium and sulfur which are within acquired lands of the 
United States which have been set aside for military or naval purposes. 
The consent requirement is to insure the adequate utilization of the 
lands for the primary purposes for which they have been acquired or are 
being administered. Leasing is subject to the same conditions as 
contained in the leasing provisions of the mineral leasing laws (see 30 
U.S.C. 351). Authority in this paragraph does not permit leasing of 
mineral deposits lying in tidelands, submerged lands, nor in certain 
coastal waters.
    (2) Notwithstanding the generality of the foregoing, leasing of coal 
and lignite deposits is subject to special restrictions. The act permits 
such leasing, provided the Secretary of Defense concurs, only to a 
governmental entity (including any corporation primarily acting as an 
agency or instrumentality of a State) which provides electrical energy 
for sale to the public if such governmental entity is located in the 
State in which such lands are located.
    (b) Public domain lands. Deposits of coal, phosphate, sodium, 
potassium, oil, oil shale, native asphalt, solid and semi-solid bitumen, 
bituminous rock and gas located on public domain lands under the 
jurisdiction of the Department of the Army may be leased by the SI 
pursuant to 30 U.S.C. 181 et seq. with the concurrence of the Secretary 
of the Army.



Sec.  643.36  Policy--Interim leasing of excess properties to facilitate
economic readjustment.

    Interim outleasing of excess real property is authorized to lessen 
the economic impact on the local community, caused by an installation 
inactivation, closure or realignment. These outleases may be granted to 
State or local governmental bodies in consideration for care, custody, 
management and routine maintenance. Income derived from the use of the 
property in excess of the cost of care, custody, management and routine 
maintenance will be covered into the Treasury as miscellaneous receipts. 
The outleasing will generally conform to an economic recovery plan 
outlined by the Office of Economic Adjustment, OASD (I&L), will require 
coordination with the DASD (I&H) and concurrence by the GSA. Leases are 
limited to one year and must be revocable by the Government on 30 days 
notice.



Sec.  643.37  Policy--Requests to search for treasure trove.

    Section 3755 of the Revised Statutes (40 U.S.C. 310) authorizes the 
Administrator of the GSA to make such contracts and provisions as he 
deems necessary to protect the interests of the Government in searches 
for and sales of treasure trove. All searches and sales authorized by 
GSA under this statute are subject to the Act for the Preservation of 
American Antiquities (16 U.S.C. 432) and will only be permitted after 
consent of the Department of the Army has been obtained.



Sec.  643.38  Policy--Utility rates.

    (a) Rates for utilities furnished by the Army will be in accordance 
with AR 420-41.
    (b) Payments for utilities or services furnished will be deposited 
to the Treasurer of the United States to the credit of the appropriation 
from which the costs of furnishing them was paid. Collection for 
utilities and services furnished by the Army is the responsibility of 
the officer having immediate jurisdiction over the property in 
accordance with AR 37-19 and AR 37-27.



Sec.  643.39  Policy--American National Red Cross.

    (a) Title 10 U.S.C. 2670, authorizes the SA to grant revocable 
licenses permitting the erection and maintenance by the American 
National Red Cross on military reservations, of buildings suitable for 
the storage of supplies for the aid of the civilian population in case 
of serious national disaster, or the occupation for that purpose of 
buildings erected by the United States.
    (b) Installation Commanders will furnish office space and quarters 
for Red Cross activities and personnel when assigned to duty with the 
Armed Forces in accordance with AR 930-5.

[[Page 80]]



Sec.  643.40  Policy--Young Men's Christian Association (YMCA).

    Title 10 U.S.C. 4778, authorizes the SA to grant revocable licenses 
pemitting the erection and maintenance by the YMCA on military 
reservations, of such buildings as their work for the promotion of the 
social, physical, intellectual, and moral welfare of the garrisons may 
require.



Sec.  643.41  Policy--National Guard use.

    Pursuant to the authority contained in 32 U.S.C. 503, the SA is 
authorized to grant revocable licenses to the States and territories for 
the use and occupancy of installations or portions thereof by the 
National Guard. A license may not be granted for the erection of a 
permanent National Guard Armory without specific congressional 
authority.



Sec.  643.42  Policy--Consents for crossing of rights-of-ways and
similar interests owned by the United States.

    Under the various easement authorities or under the administrative 
power in cases outside the purview of those authorities, the SA may 
consent to the granting of an easement by the owner of the servient 
estate, subject to such conditions as may be required to protect the 
Government's interest.



                            Subpart C_Leases



Sec.  643.51  Additional items concerning leasing.

    In addition to the general and policy matters covered in Chapters I 
and II of Title 32, the following also apply with respect to the leasing 
of Army real estate.



Sec.  643.52  Term.

    Each lease will be for a period not exceeding five years unless the 
SA determines that a longer period will promote the national defense or 
will be in the public interest.



Sec.  643.53  Consideration.

    (a) Unless otherwise authorized by this regulation or directed by 
the SA, the consideration for a lease of real estate will be the 
appraised fair market rental value. However, the value of the 
maintenance, protection, repair, or restoration by the lessee of the 
property leased, or of the entire unit or installation where a 
substantial part of it is leased, may be accepted as all or part of the 
consideration. The value of the maintenance, protection, repair or 
restoration, when added to the amount of the monetary payment to be made 
by the lessee, must equal the appraised fair market rental value of the 
property leased.
    (b) Buildings and space may be leased to a State or political 
subdivision thereof for public school purposes, limited to use for 
classrooms and closely related academic instructions, through high 
school level, at no monetary consideration. Where bare land is leased 
for construction of a school through high school level, the acreage will 
not exceed criteria established by the appropriate State authority or 
the Department of Health, Education, and Welfare (HEW), the rental will 
be $1 for the term of the lease and any renewal thereof. Leases of bare 
land will be for a term of 25 years, with an option on tenant's part to 
renew for another term of 25 years. Real estate may also be leased for 
educational purposes to public educational institutions at a reduced 
rental, after consultation with the HEW, and taking into account any 
benefits accruing to the United States through the use of such property. 
In any event, the lessee will be required to assume the cost of 
maintenance, protection, repair, or restoration of the property leased 
and the administrative costs incident thereto.
    (c) Lease granted for agricultural, grazing, or haying purposes will 
have attached thereto the land-use regulations furnished by the 
installation commander specifying the items required to be performed by 
the lessee as part of the lease obligations. It is the policy of the DA 
that land leased for agricultural, grazing or haying purposes be 
returned to the Government in as good or better condition than when 
initially leased. The land-use regulations will include those activities 
of maintenance, protection, repair, or restoration of the property 
leased which the lessee will be required to perform as part or all of 
the consideration for

[[Page 81]]

the lease. Generally, an activity will qualify as an offset from rental 
if it is:
    (1) Performed on the leased premises, or when it constitutes a 
substantial part of the entire rental unit or installation,
    (2) Of direct benefit to the installation in its authorized current 
or mobilization mission, as distinguished from desired programs, or in 
furtherance of the Army's leasing program,
    (3) Generally related to the lessee's use of the leased property. 
Where all of the above criteria are met, the following activities may be 
authorized: Control of erosion, conservation of natural resources, and 
maintenance of the viability of the land for continuing leasing, such as 
mowing, weed control, seeding, fertilizing, mulching, crop rotation, 
selected cutting, and soil conservation measures such as terraces, check 
dams, wells, springs, ponds, title, or open channels or culverts for 
drainage, firebreaks, inside fencing and cattle guards. Maintenance, 
protection, repair or restoration of buildings, roads, perimeter 
fencing, and similar improvements are not authorized as offsets from 
rental unless the property is leased to and beneficially used by the 
lessee, or on a rental unit or installation in which the leased premises 
constitutes a substantial part or as otherwise approved by HQDA (DAEN-
REM), Washington, DC 20314. Also, lessee may be required to perform 
activities in support of recreation and welfare, fish and wildlife, 
beautification, and esthetic programs and the cost of establishing and 
maintaining recreation, swimming and fishing areas, wildlife habitats, 
food plots, and similar activities when the following conditions have 
been met:
    (1) The activities to be offset are in furtherance of the 
installation natural resources plan as approved by the MACOM.
    (2) The overall plan for the term of the lease, has been approved by 
ASA (IL & FM).
    (3) MACOM approval has been obtained for each lease when any 
activity to be offset exceeds $1,000.

Total of the offsets in any year will never exceed the annual rental.



Sec.  643.54  Receipts.

    Receipts will be deposited into the Treasury as miscellaneous 
receipts.



Sec.  643.55  Mandatory revocation clause in lease.

    Each lease will contain a provision permitting the SA to revoke the 
lease at any time, unless it is determined that the omission of such 
provision from the lease will promote the national defense or will be in 
the public interest. In any event, the lease will be revocable by the SA 
during a national emergency.



Sec.  643.56  Taxation of lessee's interest.

    The lessee's interest in leased property may be taxed by State or 
local governments as provided in 10 U.S.C. 2667(e). Each lease will 
contain a provision that if and to the extent that the property owned by 
the Government and included in the lease, as opposed to the leasehold 
interest of the lessee therein, is later made taxable by State or local 
governments under an act of Congress, the lease will be renegotiated.



Sec.  643.57  Sublease or assignment.

    A lease of real estate will not be subleased or assigned for direct 
or indirect use by another Federal agency. Except as specifically 
provided in the lease, a sublease or assignment of the lease will not be 
authorized without prior approval of HQDA (DAEN-REM), Washington, DC 
20314.



                           Subpart D_Licenses



Sec.  643.71  Additional items concerning licenses.

    In addition to the general and policy matters covered in subparts A 
and B, the following also apply with respect to the granting of 
licenses.



Sec.  643.72  License.

    A license is a bare authority to do a specified act upon the 
property of the licensor without acquiring any estate therein. The 
principal effect of a license is to authorize an act which in the 
absence of the licensee would constitute a trespass.

[[Page 82]]



Sec.  643.73  Term.

    The term of a license will be limited to a period reasonably 
necessary to accomplish the purpose for which the license is being 
granted, but in no event will the term exceed five years, without the 
approval of COE.



Sec.  643.74  Consideration.

    When a license is granted under the authority of an easement or 
leasing statute, the same rules will apply in regard to consideration as 
is applicable to the granting of an easement or lease under the statute. 
Since the administrative power may be relied upon for the grant of a 
license only when such grant is of direct benefit to the Government, 
such grants may be made without consideration.



                           Subpart E_Easements



Sec.  643.81  Additional items concerning easements.

    In addition to the general and policy matters covered in subparts A 
and B, the following also apply with respect to the granting of 
easements.



Sec.  643.82  Term.

    The term for which an easement is granted will be guided by the type 
of easement, the period for which the land can be made available and the 
limitations of the authorizing statute.



Sec.  643.83  Consideration.

    Although the statutes authorizing grants of rights of way or 
easements do not make it mandatory that compensation be paid to the 
United States, such grants will reserve consideration in an amount equal 
to the fair market value as established by recognized appraisal 
practices. As an exception to this rule, grants to States, counties, 
municipalities, or political subdivisions thereof, will not require fair 
market value when the purpose of the easement is to serve the public 
interest or is to benefit the Federal Government.



Sec.  643.84  Easement--Grantees relocate or replace needed facilities.

    In easement grants, grantees usually will be required to repair and 
restore damage done to Government land and improvements and to relocate 
or replace buildings and other needed facilities rendered useless or 
less useful by the exercise of the easement rights granted. DOD policy 
requires that in keeping the Army whole, the relocation or replacement 
of facilities will be limited to those for which there is a continuing 
requirement. By specific exclusion, establishment of a different 
category of facility is not authorized. (DODI 4165.12 III C)



Sec.  643.85  Easement grantees--Payment for removal or destruction of
unneeded improvements.

    Where a proposed right-of-way will require removal or destruction of 
improvements which are not required to be relocated or replaced to meet 
military needs, such improvements will be disposed of as excess property 
in accordance with AR 405-90, and a condition of the easement grant will 
be payment for such improvements as follows:
    (a) Where the easement grant is to be made at fair market value to 
entities not entitled to grants of rights of way without charge, the 
charge for the grant will include the in-place fair market value of the 
improvements.
    (b) Where the proposed grantee is a State or local Government agency 
normally granted a right of way without charge under Army policy and the 
grantee's project is subsidized wholly by an agency of the Federal 
Government, no charge will be made for the improvements thus lost, since 
any charge made would not reflect a net return to the Government.
    (c) Where the proposed grantee is a State or local Government agency 
normally granted a right of way without charge under Army policy, and 
the grantee's project is not subsidized, or is subsidized only in part, 
the charge for such improvements removed or destroyed and not replaced 
will be the salvage value thereof.



Sec.  643.86  Easements for various purposes with relinquishment of
legislative jurisdiction.

    Title 40 U.S.C. 319, and delegation of authority thereunder from the 
Secretary of Defense authorizes the SA to grant easements and 
concurrently to

[[Page 83]]

relinquish to the State in which the affected land is located such 
legislative jurisdiction as is deemed necessary or desirable. 
Ordinarily, 40 U.S.C. 319 will not be used for easement grants which may 
be accomplished pursuant to authorities set forth in preceding 
paragraphs except where retrocession of legislative jurisdiction is 
intended.



                            Subpart F_Permits



Sec.  643.101  Additional items concerning permits.

    In addition to the general and policy matters covered in subparts A 
and B, the following also apply with respect to the granting of permits.



Sec.  643.102  Permit.

    A permit is the temporary authority conferred on a Government agency 
to use real property under the jurisdiction of another Government 
agency.



Sec.  643.103  Term.

    A permit may be granted to another military department, a DOD 
component, or Federal agency for a mutually agreeable period. if the 
permit is on a permanent or irrevocable basis, it is considered 
tantamount to a transfer and must be granted under special statutory 
authority. Where the real property involved is estimated to exceed 
$50,000 in value, a report must be made to the Congressional Committees 
on Armed Services, pursuant to title 10 U.S.C. 2662.



Sec.  643.104  Consideration.

    (a) Permits are usually granted on a rent-free basis.
    (b) The Army is authorized, however, to charge for space and space-
related services provided non-DOD Federal agencies. Charges will be at 
rates established by GSA for the particular location pursuant to 40 
U.S.C. 490 (j) and (k). Exceptions to this policy will be real property 
and related services provided to an organization which is solely in the 
support of the installation's mission. (For example: Space assigned to a 
FAA air controller on an Army airfield; GAO activity auditing 
installation programs.) Proceeds which are in excess of the actual 
operating and maintenance costs of providing the service shall be 
credited to miscellaneous receipts unless otherwise authorized by law. 
Reimbursement for utilities and services furnished to the permittee is 
the responsibility of the officer having immeditate jurisdiction over 
the real estate. Where the use of real estate by a Federal agency under 
permit is authorized and the correspondence does not include information 
regarding charges to be made for the real estate, clarifying information 
will be obtained from HQDA (DAEN-REM), Washington, DC 20314.
    (c) Where real property is leased to or otherwise used by the Army 
and a rental or charge is paid therefor, any use of the real estate, for 
non-Army use, either under permit or other grant, will provide for 
reimbursement of a proportionate part of the rental or charge, unless 
otherwise approved by OCE. Reimbursement is the responsibility of the 
DE. Any other officer authorizing such use is responsible for notifying 
the DE of the non-Army use.



              Subpart G_Additional Authority of Commanders



Sec.  643.111  Additional authority.

    In addition to authorities and responsibilities set forth above, the 
following grants may be made by commanders as indicated.



Sec.  643.112  Army exchange activities.

    Use of space and structures by the Army Exchange and its 
concessionaires is governed by AR 60-10.



Sec.  643.113  Banks.

    (a) The establishment of banks, branch banks, and banking facilities 
on Army installations is governed by AR 210-135.
    (b) The Treasury Department determines whether a banking facility is 
self-sustaining and notifies the Commander, U.S. Army Finance and 
Accounting Center.
    (c) Banking facilities which are not self-sustaining will be 
furnished space, utilities and custodial services without charge by the 
Installation Commander, provided space and services are available from 
existing resources.
    (d) Banking facilities which are self-sustaining will be granted a 
lease by

[[Page 84]]

the DE, at fair market value, and reimbursement will be required for 
utilities and services furnished.
    (e) A bank building may not be constructed on an Army installation 
without the prior approval of COE, SA, and DOD.



Sec.  643.114  Civil disturbances.

    Without reference to higher authority, and when it is found to be in 
the public interest, MACOM and heads of agencies having command 
responsibility may grant, without consideration, revocable licenses for 
joint use of active Army and USAR facilities during civil disturbance 
for not more than 30 days to the National Guard and to municipal, 
county, and State officials and law enforcement agencies. Licensees must 
agree that the privileges granted will be without expense to the DA, 
that the use will be subject to the control of the officer having 
jurisdiction over the property, that it will remove its property from 
the premises when the license is terminated, that it will pay the cost 
of any services furnished to it by the DA, and, if a non-Federal agency, 
that it will hold the Government harmless from any damages or claims 
arising out of the use. Where it is proposed to allow such use beyond 30 
days, the proposal must be submitted to HQDA (DAEN-REZ) Washington, DC 
20314, for approval. Federal task force commanders, acting under 
instructions from the Chief of Staff, in a civil disturbance control 
operation may approve requests for the use of installations under their 
control (ref. AR 500-50).



Sec.  643.115  Contractors--Permission to erect structures.

    Installation commanders are authorized to permit the erection of 
temporary structures for use solely in connection with a Government 
contract for construction and related work for the period of the 
contract and with provision for removal and restoration of the premises 
upon expiration of the contract; Provided, That, in the interest of the 
United States, any structure suitable for military use may, in lieu of 
removal, be relinquished to and become the property of the United 
States. If the structure is to be used for any purpose other than the 
fulfillment of the contract, application will be made to the DE for such 
use in order that a proper real estate instrument may be processed.



Sec.  643.116  Credit unions.

    The establishment of credit unions on Army installations is governed 
by AR 210-24. Installation commanders are authorized to allot space in 
existing buildings, without charge for rent or services, to any credit 
union organized under State law or to any Federal credit union organized 
in accordance with the Federal Credit Union Act, (12 U.S.C. 1770), 
provided that, in either case, that 95 percent of the membership is 
composed of Federal employees, including former Federal employees who 
acquire membership while employed by the Federal Government and retained 
such membership.



Sec.  643.117  Hunting, trapping, and fishing.

    Applications to hunt, trap, and fish on military reservations are 
governed by AR 420-74.



Sec.  643.118  Nonappropriated funds--Authority to permit erection
of structures.

    The authority of installation commanders to permit structures to be 
erected on military installations with nonappropriated funds, as well as 
the title status of each, is defined in AR 60-10 and AR 210-55. Use of 
existing space and structures for activities of a civilian 
nonappropriated fund is governed by AR 230-81.



Sec.  643.119  Licenses incidental to post administration.

    Installation commanders may authorize the use of property incidental 
to post administration which in the absence of such authority would 
amount to a trespass, such as licenses to merchants to enter the 
reservation to make deliveries. The authority noted herein may not be 
used to grant licenses in situations otherwise covered by this 
regulation.



Sec.  643.120  Post offices.

    Title 10 U.S.C. 4779b, provides that the SA shall assign suitable 
space for

[[Page 85]]

post office purposes at military posts where post offices have been 
established. Space assignment will be accomplished by arrangement 
between the postmaster and installation commander.



Sec.  643.121  Private organizations on DA installations.

    (a) AR 210-1 defines and classifies private organizations, such as 
thrift shops and child-care centers, located on Army installations and 
provides policy guidance for their authorization and operation. 
Installation commanders may authorize the use of available facilities or 
space to such private organizations, without monetary consideration, 
when the use is on a nonexclusive basis and subject to immediate 
termination when possession is required by the installation commander 
for another purpose.
    (b) Where the private organization desires exclusive use of 
facilities or space, or for a specified period of time, the matter will 
be considered a leasing action, the lease will be granted by the DE and 
will provide for payment of a rental consideration. The installation 
commander will consult with the DE if there is a question whether a 
proposed use of facilities or space by a private organization should be 
authorized by the DE under lease or by the installation commander by the 
issuance of a license.



Sec.  643.122  Reserve facilities--Air Force and Navy use.

    MACOM may approve local agreements with other Army, DOD, and Reserve 
elements covering temporary use of existing Army Reserve facilities, 
Provided, however, That the DA is reimbursed in proportionate share for 
the services furnished and that the cost of any alterations that may be 
desired will be borne by the military service concerned. Although no 
specific form is prescribed for those operational agreements, the 
agreements constitute interservice support agreements subject to joint 
AR 1-35/SECNAV INST 4000.20B/AFR 400.27. Nothing in such joint 
regulation disallows use of DE outgrants to supplement coverages of 
interservice support agreements when requested and approved in 
accordance with this regulation. The terms used in the interservice 
agreements and/or DE outgrants will be those acceptable to the commands 
concerned. Agreements, however, which provide for the exclusive use of 
such property by the Air Force or Navy Reserve, or which involve a 
transfer of funds between services for other than minor utility 
services, or which involve an increase in personnel strength, or other 
complications, will be routed to the appropriate DE for execution of a 
formal permit.



Sec.  643.123  Reserve facilities--Local civic organizations.

    In order to promote community relations in areas where Army Reserve 
Centers have been constructed, local civic and similar nonprofit 
organizations may be permitted to use the armory facilities during such 
periods that will not cause any interference with the primary use 
thereof for the administration and training of the Reserve components of 
the Armed Services of the United States. Procedures and policy are 
outlined in AR 140-488.



Sec.  643.124  Rights-of-way for ferries and livestock.

    Installation commanders are authorized to grant permits for the 
landing of ferries and driving of livestock over military reservations 
under authority of 10 U.S.C. 4777.



Sec.  643.125  Trailer sites.

    (a) Installation commanders are authorized to grant revocable leases 
to military personnel and civilian personnel qualified to occupy public 
quarters for use and occupancy of individual trailer sites within 
approved trailer camp areas, and to revoke or renew such leases. (See AR 
210-50.) Leases will be granted pursuant to 10 U.S.C. 2667. Necessary 
utilities will be provided on a reimbursable basis. In no event will the 
terms of the lease exceed a period of 2 years. DA Form 373 (Lease or 
Trailer Sites) will be used exclusively for this purpose.
    (b) Leases may be revoked for nonpayment of rent, or breach of any 
condition of the lease or military necessity.

[[Page 86]]

    (c) Rents will be collected locally and turned over to the nearest 
Army Finance and Accounting Officer for deposit in accordance with 
procedure set forth in AR 37-103. A copy of the Cash Collection Voucher 
(DD Form 1131) will be forwarded to the appropriate DE.



Sec.  643.126  Transportation licenses.

    Installation commanders are authorized to grant revocable licenses 
and to revoke such licenses in the name of an by authority of the SA, 
for bus and taxicab service on installations. The following policy will 
be observed in granting such licenses; however, if real estate is 
required to be leased in accordance with paragraph (e) of this section, 
no commitment will be made to grant licenses until approval is received 
for the lease.
    (a) One or more licenses (revocable at will and for a period not to 
exceed 5 years) may be granted, based upon the free competitive 
proposals of all available companies or individuals.
    (b) DD Form 694 (Transportation License Military Reservation) will 
be used for this purpose.
    (c) Only duly licensed operators will be permitted to operate on 
installations.
    (d) No distinction will be drawn between taxicab and bus 
transportation.
    (e) If use of Government property is desired for such purposes as at 
bus station, waiting rooms, storage space, offices in connection with 
the proposed transportation service, application for a lease will be 
forwarded to the appropriate DE for processing.
    (f) Licenses may be revoked by the installation commander for breach 
of any condition of the license and for military necessity.
    (g) The installation commander will furnish a copy of each such 
license, through channels, to the MACOM or to the head of the agency 
having command responsibility.



Sec.  643.127  Quarters.

    The assignment and rental of quarters to civilian employees and 
other nonmilitary personnel will be accomplished in accordance with AR 
210-50. Responsibility of the Corps of Engineers for the establishment 
of rental rates for quarters rented to civilian and military personnel 
is set forth in AR 210-12.



Sec.  643.128  Veterans' conventions.

    Without reference to higher authority, MACOM may lend certain Army 
real property (including the use of unoccupied barracks) to national 
veterans' organizations for use at State or national conventions or for 
national youth, athletic, or recreational tournaments sponsored by those 
organizations in accordance with AR 725-1.



Sec.  643.129  Youth groups.

    (a) Installation commanders may grant revocable-at-will licenses for 
one-time use, or for intermittent or continuing use of available meeting 
room facilities, without monetary consideration, to on-post youth groups 
such as the Boy Scouts, Girl Scouts, and Little League.
    (b) Installation commanders may grant revocable-at-will licenses for 
one-time use, or for intermittent or continuing use, to off-post youth 
groups such as the Boy Scouts, Girl Scouts, and the Little League for 
nonexclusive use of recreational areas or unimproved land areas within 
military reservations for recreational or camping purposes. Licenses 
will be granted for up to a period of 1 year without monetary 
consideration and will provide for a hold-harmless clause with respect 
to any and all claims against the Government and will require the repair 
of any damage or destruction resulting from such use.



Sec.  643.130  Joint Carrier Military Traffic Offices 
(JAMTO, JBMTO, JRMTO, SAMTO).

    Installation commanders will furnish office space without charge for 
JCMTO offices established in accordance with AR 55-355.



PART 644_REAL ESTATE HANDBOOK--Table of Contents



                       Subpart A_Project Planning

Sec.
644.1 Preface.

                               Civil Works

644.2 General.
644.3 Navigation projects.

[[Page 87]]

644.4 Reservoir projects.
644.5 Mineral acquisition practices.
644.6 Feasibility Reports and Design Memoranda.
644.7 Acquisition lines.
644.8 Planning and scheduling real estate activities.

        Military (Army and Air Force) and Other Federal Agencies

644.21 General.
644.22 Site selection.
644.23 Real Estate Planning Documents.
644.24 Acquisition by Transfer from other Government Departments or 
          Agencies (except Public Domain).
644.25 Withdrawal of Public Domain for Defense Purposes.
644.26 Required clearances.
644.27 Authority to issue Real Estate Directives.
644.28 Responsibility for acquisition.
644.29 Authority to proceed with acquisition.
644.30 Preliminary real estate work.

                           Subpart B_Appraisal

644.41 General.
644.42 Appraisal report.
644.43 Gross appraisals.
644.44 Fee appraisals.
644.45 Rental value.
644.46 Easements.
644.47 Appraisal of other interests.
644.48 Review and approval.
644.49 Contracts.

                          Subpart C_Acquisition

      Procurement of Title Evidence, Title Clearance, and Closings

644.61 General.
644.62 Title evidence.
644.63 Contracting for title evidence.
644.64 Award of contracts.
644.65 Ordering title evidence.
644.66 Payment for title services.
644.67 Approval of Title by the Attorney General.
644.68 Title Clearance--Certificate of Title and Title Insurance.
644.69 Title Clearance--Easements.
644.70 Closing of cases.
644.71 Final title assembly.
644.72 Transfer to condemnation.

             Acquisition by Purchase, Donation, and Transfer

644.81 General.
644.82 Prerequisites to acquisition.
644.83 Negotiations.
644.84 Counteroffers.
644.85 General negotiation procedures.
644.86 Exceptions and reservations.
644.87 Preparation and execution of offers.
644.88 Other acquisition.

              Involuntary Acquisition by the United States

644.101 General.
644.102 Examples of involuntary acquisitions.
644.103 Litigation Reports.
644.104 Procurement of deed and title assembly.

                 Acquisition by Condemnation Proceedings

644.111 General
644.112 Applicable statutes in condemnation proceedings
644.113 Filing of complaint without declaration of taking
644.114 Acquisition by declaration of taking
644.115 Revestment of title by stipulation
644.116 Distribution, reservations, and title evidence
644.117 Procedure prior to trial
644.118 Awards
644.119 Procedure after final judgment
644.120 Condemnation for local cooperation projects
644.121 Leasehold condemnation requirements

                         Acquisition by Leasing

644.131 General.
644.132 Authority.
644.133 Responsibilities.
644.134 Definitions.
644.135 Lease authorization and approvals.
644.136 Leasing guidelines.
644.137 Maneuver agreements.
644.138 Family housing leasing program.
644.139 Leases for civil works purposes.
644.140 Physical protection.
644.141 Alterations and construction on leased real property.
644.142 Lease forms and instructions.

                     Acquisition of Rights-of-Entry

644.155 General.
644.156 Definition.
644.157 Procedures.

    Procurement of Options prior to Real Estate Directives (Military)

644.165 Purpose and scope.
644.166 Authority and applicability.
644.167 Implementation.
644.168 Exercise of options.

                 Subpart D_Relocation Assistance Program

644.175 Cross reference.

Subpart E [Reserved]

                           Subpart F_Disposal

644.311 General.
644.312 Applicability.

[[Page 88]]

644.313 Authority.
644.314 Rules and regulations of the General Services Administration 
          (GSA).
644.315 Disposal priorities.
644.316 Environmental considerations.
644.317 Preserving historic landmarks and properties.
644.318 Compliance with State coastal zone management programs.
644.319 Protection of wetlands
644.320 Floodplain management
644.321 Nondiscrimination covenant.
644.322 Disposition of proceeds from disposal.
644.323 Neutral language.
644.324-644.325 [Reserved]

          Procedure for Placing Real Property in Excess Status

644.326 Army military real property.
644.327 Air Force military real property.
644.328 Army military leased property.
644.329 Army civil works real property.
644.330-644.332 [Reserved]

         Screening, Reassignment, and Transfer of Real Property

644.333 Screening for defense needs.
644.334 Reassignment and transfer procedures.
644.335 Screening of excess DOD property for nondefense Federal agency 
          needs.
644.336 Notices to Departments of Interior (DI); Health and Human 
          Resources. (HHR); Education; and Housing and Urban Development 
          (HUD).
644.337-644.339 [Reserved]

                 Clearances--Army Military Real Property

644.340 Reports to the Armed Services committees.
644.341 Clearance with the Armed Services committees.
644.342 Prior approval of Department of Defense.
644.343 Additional data for clearance with the committees.
644.344 Coordination with GSA.
644.345-644.347 [Reserved]

Reports of Excess Real Property and Related Personal Property to General 
                      Services Administration (GSA)

644.348 Delegation of authority to division and district engineers.
644.349 Excess property reported for disposal.
644.350 Excess property reported for screening.
644.351 Excess property exempted from reporting.
644.352 Evaluation and reporting of flood hazards.
644.353 Determination of values for reporting.
644.354 Conditional reports of excess.
644.355 Preparation and submission of reports of excess.
644.356 Report on Government title.
644.357 Outgrant instruments, appraisals, and muniments of title.
644.358 Deposit of proceeds from disposal of family housing in the 
          family housing management account.
644.359 Supplemental information.
644.360 Reports submitted for screening.
644.361 Distribution of report of excess.
644.362 Notice of receipt.
644.363 Withdrawals or corrections of reports of excess.
644.364 Supply of forms.
644.365-644.367 [Reserved]

             Care and Custody of Excess and Surplus Property

644.368 Procedures and responsibilities for care, custody, 
          accountability, and maintenance.
644.369 Guidelines for protection and maintenance of excess and surplus 
          real property.
644.370 Transfer of custody to General Services Administration (GSA).
644.371 Contracting for care and custody.
644.372 Care and custody through interim use.
644.373-644.375 [Reserved]

 Return of Public Domain Lands and Lands Obtained on a Temporary Basis 
                       From Another Federal Agency

644.376 Procedure for disposal of public domain land.
644.377 Formal revocation of public land withdrawals and reservations.
644.378 Cancellation of permits.
644.379 Procedure for cancellation of permits.
644.380 Restoration of lands made available by other government 
          agencies.
644.381 Disposal of buildings and other improvements.
644.382-644.384 [Reserved]

                           Predisposal Action

644.385 Record of excess classification
644.386 Utilization for other needs.
644.387 Suspension of acquisition action on installations proposed for 
          disposal.
644.388 Army Military--screening, clearance, preliminary report of 
          excess, except where an EO 11954 survey has been made.
644.389 Army Military--modified predisposal procedures where EO 11954 
          surveys have been made.
644.390 Executive Order 11954 surveys of civil works properties.
644.391 Predisposal conference.
644.392 Air Force--preliminary report of excess.

[[Page 89]]

644.393 Final report of excess to GSA.
644.394 Protection of disposal information.
644.395 Coordination on disposal problems.
644.396 Assignment of personnel to administer.
644.397-644.399 [Reserved]

       Disposal of Fee-Owned Real Property and Easement Interests

644.400 Authorities--general.
644.401 Transfers--general.
644.402 Transfers among the armed services.
644.403 Transfers to Tennessee Valley Authority.
644.404 Transfers to Federal Prison Industries, Inc.
644.405 Transfers to Veterans Administration.
644.406 Transfers to Secretary of Transportation and the National 
          Weather Service.
644.407 Transfers to District of Columbia.
644.408 Interchange of national forest and military and civil works 
          lands.
644.409 Procedures for Interchange of National Forest Lands.
644.410 Procedure for other transfers.
644.411 Form of inter-agency transfer instrument.
644.412 Transfer of custody and accountability.
644.413 Exchanges of fee-owned and easement interests.
644.414 MCA acts.
644.415 Army military and Air Force lands--$50,000 limitation.
644.416 Army civil works lands.
644.417 For MCA family housing.
644.418 Procedure for exchange.
644.419 Public Law 87-852 easements.
644.420 Disposal of property in which the military departments have a 
          continuing interest under special acts of Congress.
644.421 Highway purposes.
644.422 Authorized widening of a public highway, street, or alley.
644.423 Airport development.
644.424 Development of public port or industrial facilities.
644.425 Authority and procedure for disposal of surplus property by DA 
          to eligible public agencies.
644.426 Classification.
644.427 Notice to eligible public agencies.
644.428 Airport property.
644.429 Wildlife purposes.
644.430 Shrines, memorials, or religious purposes.
644.431 Power transmission lines.
644.432 Assignment to Department of Health, Education, and Welfare or 
          successor agencies for health or educational purposes.
644.433 Surplus disposal to private parties.
644.434 Cottage site disposal.
644.435 Procedure.
644.436 Appraisal.
644.437 Disposal plan for fee-owned land.
644.438 Disposal plan for easements.
644.439 Sale and conveyance.
644.440 Application of antitrust laws.
644.441 Preparation and execution of deeds.
644.442-644.443 [Reserved]

            Disposal of Leaseholds and Leasehold Improvements

644.444 Authority.
644.445 Procedure for termination of leases.
644.446 Vacation and protection of premises.
644.447 Joint survey of premises.
644.448 Limits on government obligation to restore.
644.449 Requirement for notice by lessor.
644.450 Items excluded from usual restoration obligation.
644.451 Nature of required restoration.
644.452 Minor restoration cases--determining extent of restoration 
          required.
644.453 Major restoration cases--determining extent of restoration 
          required.
644.454 Negotiating restoration settlements.
644.455 Claims for loss or damage of personal property.
644.456 Rent during the period required for restoration.
644.457 Settlement where part of the premises is surrendered.
644.458 Documenting lease terminations and restoration settlements.
644.459 Preparation of supplemental agreements effecting settlement.
644.460 Supplemental agreement assembly.
644.461 Payment for restoration or settlement in lieu of restoration.
644.462 Performance of restoration work by district engineer--extension 
          of time.
644.463 Termination and settlement of leasehold condemnation 
          proceedings.
644.464 Negotiating stipulation where proposed settlement not 
          acceptable.
644.465 Physical restoration where stipulation not obtained.
644.466 Release and record of physical restoration.
644.467 Condition reports.
644.468 Settlement of claims.
644.469-644.471 [Reserved]

 Disposal of Buildings and Other Improvements (Without the Related Land)

644.472 Authority.
644.473 Methods of disposal.
644.474 Determining method of disposal.
644.475 Excessing Army military and Air Force property.
644.476 Excessing civil works property.
644.477 Civil works property--reimbursement of appropriations.
644.478 Demolition of buildings and other improvements for utilization 
          of salvage material.
644.479 Authority for transfer of buildings and improvements to other 
          Federal agencies.

[[Page 90]]

644.480 Procedure for transfer.
644.481 Responsibility of transferee.
644.482 Assignment to Department of HEW or successor agencies.
644.483 Notification of Department of HEW or successor agencies.
644.484 Procedure for disposal through the Department of HEW or 
          successor agencies.
644.485 Sale of buildings and other improvements.
644.486 Disposal of buildings and improvements constructed under 
          emergency plant facilities (EPF) or similar contracts.
644.487 Procedure for disposal of surplus chapels.
644.488 Soliciting applications for purchase of chapels.
644.489 Conditions of sale of chapels.
644.490 Determining price and provisions of sale for chapels.
644.491 Coordination with the Chief of Chaplains.
644.492 Report on disposal of chapel.
644.493 Release of restrictions on chapels sold.
644.494 Donation, abandonment or destruction.
644.495 Donation to a public body.
644.496 Abandonment.
644.497 Destruction.
644.498-644.500 [Reserved]

Disposal of Standing Timber, Crops, and Embedded Gravel, Sand, and Stone

644.501 Authority.
644.502 Determination of excess status.
644.503 Methods of disposal.
644.504 Disposal plan for timber.
644.505 Disposal plan for embedded gravel, sand or stone.
644.506 Procedure for transfer to another Federal agency.
644.507 Sales.
644.508 Agreement with Small Business Administration (SBA) on sale of 
          timber.
644.509 Status as small business.
644.510 Information for SBA on timber sales.
644.511 Certificate of competency by SBA.
644.512 DA-SBA joint set-aside determination.
644.513-644.515 [Reserved]

  Clearance of Explosive Hazards and Other Contamination From Proposed 
                      Excess Land and Improvements

644.516 Clearance of Air Force lands.
644.517 Clearance of Army lands.
644.518 Determination of categories.
644.519 Responsibilities.
644.520 Contaminated industrial property.
644.521 Limitations on clearance cost.
644.522 Clearance of military scrap.
644.523 Restricting future of artillery and other ranges.
644.524 Reporting contaminated land to the General Services 
          Administration.
644.525 Statement of clearance in reporting excess property to GSA.
644.526 Reporting target ranges.
644.527 Recording statements of clearance.
644.528 Return of contaminated leased land to owners.
644.529 Supplemental agreement with owner of contaminated leased land.
644.530 Conditions in conveying land suspected of contamination.
644.531 Warning to public of danger in handling explosive missiles.
644.532 Reporting accidents.
644.533 Contamination discovered after return of land to owner, or sale.
644.534 Return of public domain land.
644.535 Support in clearance of Air Force lands.
644.536-644.539 [Reserved]

                             Sale Procedure

644.540 Advertising.
644.541 Award of contract.
644.542 Application of anti-trust laws.
644.543 Determination of acceptable offers after advertising.
644.544 Negotiated sales.
644.545 Form of invitation for bids and contract of sale.
644.546 Credit.
644.547 Extensions of time.
644.548 Abstract of bids.
644.549 Payments.
644.550 Sale to employees or military personnel.
644.551 Equal opportunity--sales of timber, embedded sand, gravel, stone 
          and surplus structures.
644.552 Statement of contingent or other fees.
644.553 Preparation and distribution of sales documents and reports of 
          sales.
644.554 Insurance against loss or damages to buildings and improvements 
          by fire or acts of God.
644.555-644.557 [Reserved]

        Inspections to Insure Compliance With Disposal Conditions

644.558 Properties requiring compliance inspections.
644.559 Civilian component training facilities.
644.560 Inspections of civilian component training facilities and other 
          properties conveyed subject to conditions.
644.561 Inspections of civil works properties.

    Authority: 5 U.S.C. 301; 10 U.S.C. 3012, unless otherwise noted.

    Source: 44 FR 3168, Jan. 15, 1979, unless otherwise noted.

[[Page 91]]



                       Subpart A_Project Planning



Sec.  644.1  Preface.

    Subpart A sets out basic procedures to be followed in planning and 
scheduling for the acquisition of lands in connection with Military and 
Civil Works projects. It is not intended to be taken as absolute, 
without modification, but more as a guide to insure all aspects involved 
and potential problems are fully considered in planning for the 
acquisition of additional lands. Proper planning in the initial stages 
of any project can and should eliminate unnecessary delays during the 
acquisition phase.

                               Civil Works



Sec.  644.2  General.

    (a) Purpose. Sections 644.2 through 644.8 describe the authorities 
and procedures of the Corps of Engineers relating to real estate 
planning and project authorization for the acquisition of land and 
interests therein for all water resource projects.
    (b) Applicability. These sections are applicable to all Division and 
District Engineers having civil works real estate responsibilities.
    (c) River and harbor and flood control projects--(1) River and 
Harbor Projects. The Act of Congress approved April 24, 1888 (33 U.S.C. 
591) authorizes acquisition of land for river and harbor purposes. These 
include the construction, operation, maintenance and improvement of both 
natural and artificial waterways, the construction of locks and dams, 
dikes, bulkheads, jetties, revetment and other bank protection works, 
and spoil disposal dikes and retaining structures for construction and 
maintenance. Unless otherwise specified by Congress, local interests 
furnish, free of cost to the United States, all lands, easements and 
rights-of-way required for initial construction, operation and 
subsequent maintenance. A cash contribution may also be required if 
enhancement of land values results from disposal of spoil dredged from 
project areas (ER 1150-2-301 and EM 1120-2-101).
    (2) Flood control projects. The Act of Congress approved March 1, 
1917 (33 U.S.C. 701) authorizes acquisition of land for flood control 
purposes, and section 2 of the Act of Congress approved June 28, 1938, 
as amended (33 U.S.C. 701c-1), authorizes the acquisition of land and 
interests therein for dam and reservoir projects, channel improvements, 
and rectification projects for flood control at Federal expense. Dam, 
reservoir and lake projects are generally constructed entirely at the 
expense of the United States and are maintained and operated with the 
use of Federal funds. Local interests are not required to furnish lands, 
easements and rights-of-way for dam and reservoir projects, unless 
specifically authorized by law for small reservoirs which provide 
localized flood protection (EM 1120-2-101). For local flood protection 
projects, except channel improvement or channel rectification projects 
authorized by the Flood Control Acts of 1936, 1937 and 1938, local 
interests must provide, without cost to the United States, all necessary 
lands, easements, and rights-of-way. They must also hold and save the 
United States free from damages due to the construction, operation and 
maintenance of the project, except where such damages are due to the 
fault or negligence of the United States or its contractors, and 
maintain and operate all the works after completion, in accordance with 
regulations prescribed by the Secretary of the Army. Channel improvement 
and channel rectification projects authorized by the Acts of 1936, 1937 
and 1938 are built entirely at Federal expense and no local cooperation 
is required. Exceptions to these rules are provided by law in the case 
of certain specific projects such as hurricane protection, shore 
protection, beach erosion control or other purposes. As in river and 
harbor projects, a cash contribution may also be required if enhancement 
of land values results from disposal of spoil dredged from project areas 
(ER 1150-2-301 and EM 1120-2-101).
    (d) The navigational servitude. As a general rule the United States 
does not acquire interests in real estate which it already possesses or 
over which jurisdiction is or can be legally exercised. Irrespective of 
the ownership of the banks and bed of a stream below ordinary high water 
mark, and irrespective of western water rights under the prior

[[Page 92]]

appropriation doctrine, no further Federal interest is required for 
navigation projects in navigable streams below the ordinary high water 
limit. It is required, therefore, that the acquisition plan consider the 
extent of the navigational servitude.
    (1) ER 1165-2-302 contains the practice and procedures regarding 
navigation.
    (2) The navigational servitude affects abutting uplands, in that the 
special site value attributable to their location near a navigable 
stream is noncompensable. However, this has been partially changed by 
section 111 of Pub. L. 91-611. In all cases where real property is 
acquired by the United States for public use in connection with any 
improvements of rivers, harbors, canals or waterways of the United 
States, the compensation to be paid shall be the fair market value of 
such real property based upon all uses to which such real property may 
reasonably be put, including its highest and best use, any of which uses 
may be dependent upon access to or utilization of such navigable waters. 
In cases of partial acquisitions of real property, no depreciation in 
the value of any remaining real property shall be recognized, and no 
compensation shall be paid for any severance to the remaining real 
property which results from loss of or reduction of access from the 
remaining real property to the navigable waters because of the 
acquisition of real property or the purposes for which the real property 
is acquired.
    (3) Injury to private property within or abutting non-navigable 
streams is compensable if inflicted in the course of an exercise of the 
navigation power limited to the navigable mainstream. U.S. v. Kansas 
City Life Ins. Co., 339 U.S. 799 (1950), U.S. v Cress, 243 U.S. 316 
(1917).
    (e) Buildings. Buildings for human occupancy, as well as other 
structures which would interfere with the operation of the project, or 
which would be substantially damaged by inundation, are prohibited below 
the guide acquisition line unless otherwise specifically approved by the 
Chief of Engineers.
    (f) Estates. Standard estates for acquisition of land or interests 
therein are contained in subpart C. Non-standard estates should be 
submitted to HQDA (DAEN-REA-P) WASH DC 20314 for approval.



Sec.  644.3  Navigation projects.

    (a) Land to be acquired in fee. All lands necessary for permanent 
structures, construction areas, public access areas and fish and 
wildlife purposes will be acquired in fee. No interests need be acquired 
in areas subject to the Government's right of navigational servitude. 
Spoil disposal areas may be acquired in fee upon approval of HQDA (DAEN-
REA-P).
    (b) Lands over which easements are to be acquired. (1) Permanent 
easements are required for channel improvements, navigation pools, 
navigation aids, and spoil disposal areas for future maintenance. 
Requirements for navigation aids should be coordinated by the District 
Engineer with the local Coast Guard District Commander.
    (2) Temporary easements may be acquired for temporary disposal of 
spoil, and temporary construction and borrow areas.
    (3) In navigation-only projects, the right to permanently flood 
should be acquired in all lands located within the navigation pool and 
the right to occasionally flood should be acquired in lands above the 
pool. However, when the area to be occasionally flooded above the 
navigation pool consists of a narrow band of land, the right to 
permanently flood may be taken therein, to avoid acquisition of two 
different estates from the same ownership, and/or to reduce overall 
costs of acquisition.



Sec.  644.4  Reservoir projects.

    (a) Joint land acquisition policy for reservoir projects. The joint 
policies of the Department of the Interior and the Department of the 
Army, governing the acquisition of land for reservoir projects, are 
published in the Federal Register, dated February 22, 1962, Volume 27, 
page 1734. On July 2, 1966, the Joint Policy was again published in 31 
FR 9108 as follows:

    A joint policy statement of the Department of the Interior and the 
Department of the Army was inadvertently issued as a Notice in 27 FR 
1734. Publication should have been made as a final rule replacing 
regulations then appearing in 43 CFR part 8. The

[[Page 93]]

policy as it appears in 27 FR 1734 has been the policy of the Department 
of the Interior and the Department of the Army since its publication as 
a Notice and is now codified as set forth below.

   Joint Policies of the Departments of the Interior and of the Army 
                   Relative to Reservoir Project Lands

Sec.
8.0 Acquisition of lands for reservoir projects.
8.1 Lands for reservoir construction and operation.
8.2 Additional lands for correlative purposes.
8.3 Easements.
8.4 Blocking out.
8.5 Mineral rights.
8.6 Buildings.

    Authority: The provisions of this Part 8 issued under Sec. 7, 32 
Stat. 389, sec. 14, 53 Stat. 1197; 43 U.S.C. 421, 389.

    8.0 Acquisition of lands for reservoir projects. Insofar as 
permitted by law, it is the policy of the Departments of the Interior 
and of the Army to acquire, as a part of reservoir project construction, 
adequate interest in lands necessary for the realization of optimum 
values for all purposes including additional land areas to assure full 
realization of optimum present and future outdoor recreational and fish 
and wildlife potentials of each reservoir.
    8.1 Lands for reservoir construction and operation. The fee title 
will be acquired to the following:
    (a) Lands necessary for permanent structures.
    (b) Lands below the maximum flowage line of the reservoir including 
lands below a selected freeboard where necessary to safeguard against 
the effects of saturation, wave action, and bank erosion and to permit 
induced surcharge operation.
    (c) Lands needed to provide for public access to the maximum flowage 
line as described in paragraph 1b, or for operation and maintenance of 
the project.
    8.2 Additional lands for correlative purposes. The fee title will be 
acquired for the following:
    (a) Such lands as are needed to meet present and future requirements 
for fish and wildlife as determined pursuant to the Fish and Wildlife 
Coordination Act.
    (b) Such lands as are needed to meet present and future public 
requirements for outdoor recreation, as may be authorized by Congress.
    8.3 Easements. Easements in lieu of fee title may be taken only for 
lands that meet all of the following conditions:
    (a) Lands lying above the storage pool.
    (b) Lands in remote portions of the project area.
    (c) Lands determined to be of no substantial value for protection or 
enhancement of fish and wildlife resources, or for public outdoor 
recreation.
    (d) It is to the financial advantage of the Government to take 
easements in lieu of fee title.
    8.4 Blocking out. Blocking out will be accomplished in accordance 
with sound real estate practices, for example, on minor sectional 
subdivision lines; and normally, land will not be acquired to avoid 
severance damage if the owner will waive such damage.
    8.5 Mineral rights. Mineral, oil and gas rights will not be acquired 
except where the development thereof would interfere with project 
purposes, but mineral rights not acquired will be subordinated to the 
Government's right to regulate their development in a manner that will 
not interfere with the primary purposes of the project, including public 
access.
    8.6 Buildings. Buildings for human occupancy as well as other 
structures which would interfere with the operation of the project for 
any project purpose will be prohibited on reservoir project lands.

    (b) Application of joint policy by Corps of Engineers. In order to 
assure that the water and land areas of reservoirs constructed by the 
Corps are available to the public, the lands which provide access along 
the shore of the reservoir will be supplemented at selected locations 
for concentrated public use. Where projects have either recreation or 
fish and wildlife, or both, as project purposes, additional lands will 
be acquired as set out in the authorization and specified in design 
memoranda. The policy contemplates that the United States own in fee a 
continuous area of land around the reservoir above the water level to 
insure ready access along the shore. However, certain exceptions have 
been adopted, as set forth hereinafter. Under the Joint Policy the Corps 
will take an adequate interest in lands, including areas required for 
public access, to accomplish all of the authorized purposes of the 
project and thereby obtain maximum public benefits therefrom. The 
statements in the policy which define the land interests to be acquired 
in particular areas are guidelines in application of policy.
    (1) Land to be acquired in fee. (i) Lands necessary for the dam 
site, construction areas and permanent structures.
    (ii) The lands below a guide contour line (guide acquisition line) 
established

[[Page 94]]

with a reasonable freeboard allowance above the top pool elevation for 
storing water for flood control, navigation, power, irrigation, and 
other purposes, referred to in this paragraph as the ``full pool'' 
elevation. In nonurban areas generally, this freeboard allowance will be 
established to include allowances for induced surcharge operations plus 
a reasonable additional freeboard to provide for adverse effects of 
saturation, wave action and bank erosion. Factors such as estimated 
frequency of occurrence, probable accuracy of estimates, and relocation 
costs, will be taken into consideration. Where this freeboard does not 
provide a minimum of 300 feet horizontally from the conservation pool, 
defined as the top of all planned storage not devoted exclusively to 
flood control, then the guide acquisition line will be increased to that 
extent. In the vicinity of urban communities or other areas of highly 
concentrated developments, the total freeboard allowance between the 
full pool elevation and the acquisition line may be greater than 
prescribed for nonurban areas generally, and shall be sufficient to 
assure that major hazards to life or unusually severe property damages 
would not result from floods up to the magnitude of the standard project 
flood. In such circumstances, however, consideration may be given to 
easements rather than fee acquisition for select sections if found to be 
in the public interest. However, when the project design provides a high 
level spillway, the crest of which for economy of construction is 
substantially higher than the storage elevation required to regulate the 
reservoir design flood, the upper level of fee acquisition will normally 
be at least equal to the top elevation of spillway gates or crest 
elevation of ungated spillway, and may exceed this elevation if 
necessary to conform with other criteria prescribed herein.
    (iii) Lands to be acquired for public use, being those reflected in 
the Recreation Resources Appendix of the Phase I General Design 
Memorandum (ER 1120-2-400). The Phase I General Design Memorandum is 
required to be prepared and submitted for approval prior to submission 
of the Real Estate Design Memorandum.
    (iv) Lands required for operation and maintenance of the project 
for:
    (A) Frequently used operational areas.
    (B) Clearing and disposition of debris.
    (C) Maintenance, repair, and restoration.
    (D) Anticipated erosion.
    (E) Safeguarding public health, and malaria and mosquito control.
    (F) Sanitation.
    (v) Lands specifically authorized by the Congress for recreation and 
fish and wildlife purpose as defined by the Federal Water Project 
Recreation Act (Pub. L. 89-72) and Fish and Wildlife Coordination Act of 
1958 (Pub. L. 85-624, 16. U.S.C. 661 et seq).
    (A) All lands to be acquired for fish and wildlife purposes, either 
mitigation enhancement lands or estates therein required for other 
project purposes, will be presented in such a way as to distinguish 
clearly all such lands under each of the separate authorities involved. 
Specific guidance on fish and wildlife resources is contained in ER 
1120-2-400 and ER 1120-2-404.
    (B) The purpose of Pub. L. 89-72 is to provide a uniform policy with 
respect to recreation and fish and wildlife benefits and costs of 
Federal multiple-purpose water resource projects, and for other 
purposes.
    (1) Pub. L. 89-72, as amended by section 77 of Pub. L. 93-251, does, 
however, create a unique provision relating to local participation in 
the recreation and fish and wildlife developments in water resource 
projects. Provisions of that Act, as amended, must be adhered to and 
contracts for administration of project lands and cost-sharing shall 
follow the amendments contained in section 77 of Pub. L. 93-251.
    (2) Section 3(b) of Pub. L. 89-72 further provides that, 
notwithstanding the absence of an indication of intent as specified 
above, lands may be provided in project planning which would preserve 
the recreation and fish and wildlife potential of the project for 
subsequent development by local interests. The act prescribes that local 
interests must within 10 years after initial operation of the project 
enter into agreements specified above. In the event such agreements are 
not obtained, the

[[Page 95]]

proposed facilities cannot be constructed and the Corps may utilize the 
lands acquired for any lawful purpose within the Corps' jurisdiction or 
may offer said land for sale to its immediate prior owner or his 
immediate heirs at its appraised fair market value at the time of 
disposal. In the event that an agreement with the prior owner or his 
heirs cannot be reached in 90 days, disposal of the property will ensue 
pursuant to usual disposal procedures.
    (3) The provisions of Pub. L. 89-72, as amended, are construed to 
apply to planning for projects authorized in 1965 or thereafter. 
Accordingly, all planning for future projects must be coordinated with 
local interests as defined in the law and all design memoranda relating 
to land acquisition or development of recreation or fish and wildlife 
areas must clearly set forth the potential of the project for such 
development and the intent of local interests in fulfilling the 
requirements of this law.
    (4) Public Law 89-72, as amended, does not impose a requirement for 
local participation in all recreation and fish and wildlife areas. 
Development of recreation areas and planning for fish and wildlife areas 
will be in accordance with the guidelines set forth in this Chapter and 
related regulations.
    (vi) Lands for resource preservation and/or enhancement in 
fulfillment of the National Environmental Policy Act of 1969 (Pub. L. 
91-190, 83 Stat. 852) and Executive Order 11514 will be those approved 
in the authorizing document and/or those approved in the Recreation 
Resources Appendix of the General Design memorandum.
    (vii) Uneconomic remnants required to be purchased in fee under 
section 301(9) of Pub. L. 91-646.
    (viii) Recommendations may be made in the Real Estate Design 
Memorandum to eliminate lands from acquisition located within the 
approved guide acquisition line but above the guide contour line which 
are highly developed or devoted to public uses such as parks, golf 
courses, cemeteries, etc. Also, where for reasons of steep terrain, 
presence of highways and railroads, severe severance, or for other 
reasons, sound real estate practice indicates requirement for some 
adjustments in the area above the guide contour line, recommendations 
for such adjustments will be included in the real estate design 
memorandum, or will be subsequently submitted with proposed final real 
property acquisition lines, for approval of the Division Engineer in 
accordance with Sec.  644.7.
    (ix) Lands which will be covered by any sediment delta that is 
expected to form as the result of aggradation of streams draining into 
the reservoir. The estimate of this area shall be based upon the 
probable sediment inflow for a period at least equal to the economic 
life of the project.
    (2) Lands over which easements are to be Acquired. (i) Lands in 
reservoir areas of flood-control-only projects, which do not provide 
conservation pools, except as required for public access.
    (ii) Lands required for a relatively short time for temporary 
structures or for use during the construction period only.
    (iii) The Joint Policy of 1962 provides that flowage easements may 
be acquired in reservoir projects if all four conditions of Section 8-3 
of the Joint Policy are met. For the purposes of land acquisition, to 
distinguish between fee and flowage easement ``remote portions of the 
project area'' as referred to in Section 8-3 of the Joint Policy are 
defined as those lands lying upstream from the conservation pool (the 
top elevation of all storage other than that devoted exclusively to 
flood control use) on the main stream and all significant tributaries 
thereof.
    (iv) Lands downstream from the dam and required only for operational 
purposes.
    (v) In flood control projects which do not have conservation pools, 
the right to occasionally flood should be acquired in all lands, except 
that the right to permanently flood should be acquired in those lands 
which may be subjected to permanent flooding, as in the case of a trash 
pool.
    (3) Levees in lieu of acquisition. Where construction of levees or 
flood walls and necessary associated facilities for protection of lands 
and properties located within potential flowage limits of a reservoir is 
proposed in lieu of acquisition of fee title or easements over

[[Page 96]]

such properties, the protective structures shall meet the following 
minimum functional requirements:
    (i) In urban communities or other areas of highly concentrated 
developments where overtopping of levees would result in major hazards 
to life or unusually severe property damage under anticipated future 
conditions, levee grades and designs shall be adequate to withstand 
without failure the occurrence of the standard project flood, assuming 
the reservoir is filled to highest level that is reasonably likely to 
prevail at the beginning of such a flood.
    (ii) Under circumstances where it can be reasonably shown that 
possible overtopping of protective levees or flood walls as proposed 
would not result in unusual hazards to life or major property damage, 
levee grades shall be as high as economically practicable in 
consideration of apparent risks and costs involved, and flowage 
easements or other appropriate assurances from local interests shall be 
obtained insofar as necessary to protect the Government in the event the 
protective structures are overtopped.



Sec.  644.5  Mineral acquisition practices.

    (a) Procedure. The procedure of the Corps of Engineers in acquiring 
the necessary land or interests therein to accommodate projects 
authorized by the Congress is to permit the reservation of the minerals 
in the land, unless the reservation is inimical to the operation of the 
project. In all cases wherein a reservation is permitted, the mineral 
interests are subordinated to the primary project purposes, including 
public access and preservation of environmental quality.
    (b) General. (1) The multiplicity of ownerships in mineral 
interests, the variety of minerals and the different methods of mineral 
exploration, recovery and production make it impracticable to define in 
advance specific guidelines concerning the reservation of mineral 
interests and their subordination to primary project purposes in any 
given project. The initial planning documents, real estate design 
memoranda, and master plans will fully discuss and consider the extent 
of acquisition and/or reservation of mineral interests.
    (2) Generally fee title to all subsurface interests will be acquired 
in areas required for all structures, areas required for project 
operations and public use including access, and in areas where the value 
of the subsurface interests is nominal. Reservation of coal, oil, gas 
and other minerals will be permitted whenever any aspect of mineral 
development will not interfere with project purposes. The reservation of 
mineral rights will be predicated upon the Government's right to so 
regulate their development as to eliminate any interference with project 
purposes and to minimize any adverse impact on the environment including 
aesthetic values.
    (c) Reservation of minerals. (1) When it has been determined that 
the reservation of minerals will not interfere with the purposes of the 
project, the minerals will be subordinated in accordance with the 
following guidelines:
    (i) The estate providing for the subordination will not be utilized 
unless approved by HQDA (DAEN-REA).
    (ii) Any subordination agreement, together with additional 
regulations incorporated by reference, must clearly define:
    (A) The rights and obligations of the Government and the mineral 
owner, operator, and/or lessee.
    (B) The control to be exercised over site development for mining 
purposes.
    (C) Required land reclamation or restoration.
    (D) Restrictions against pollution and degradation of project 
environment and aesthetics.
    (E) Provisions for compliance inspection by the Government of all 
site development and mining activities over which the Government has 
control under paragraph (c)(1)(ii)(B) of this section.
    (2) After execution of a subordination agreement as provided above, 
the District Engineer will develop a program for the surveillance of 
mineral activities at each project.
    (3) The representatives of the Division and District Engineers are 
to be fully informed concerning the rights and responsibilities of the 
Government and the mineral owner and/or operator

[[Page 97]]

under the terms of the estates acquired for the subordination of 
minerals, and will periodically inspect all mining activities to insure 
compliance with the terms of the subordination agreement and any plan 
incorporated by reference into such agreement.
    (d) Off-project mineral activity. In connection with all drainage 
basins, where there is present or potential mineral activity upstream 
from a project or nearby lands outside the project limits, the District 
Engineer will:
    (1) Establish and maintain liaison with Federal and State agencies 
having responsibility for the regulation of mineral activities and the 
control of environment in order to prevent adverse effects of mining on 
the project.
    (2) Institute a system for monitoring adverse effects on the project 
such as sedimentation and acid drainage.
    (3) Take steps to insure that Corps personnel in charge of the 
project are familiar with State and Federal laws governing the control 
of mineral recovery and the environment, as well as the Federal or State 
agencies responsible for the enforcement of such laws.
    (4) Division and District Engineers are requested to use the Refuse 
Act of 1899 and any other legal remedies that may be appropriate in a 
particular situation in order to protect the interests of the United 
States and preserve the integrity of the project.



Sec.  644.6  Feasibility Reports and Design Memoranda.

    (a) Feasibility investigations and reports. Survey investigations 
and reports are the studies and reports, specifically authorized by 
Congress and made by Division and District Engineers as assigned by the 
Chief of Engineers, to determine the scope, justification, and degree of 
Federal interest in protection and development of harbors, waterways, 
shores and beaches, and river basins. For water resource projects the 
reports include determination of needs of alternative plans of 
protection and development to be considered for recommendation to 
Congress for authorization as Federal projects. Survey reports should 
clearly specify real estate requirements, both immediate and 
prospective, and the responsibilities of Federal and non-Federal 
agencies relative thereto. The real estate estimates in the reports 
should be recent enough to be meaningful for the purpose intended. 
Documentation regarding the estimates, such as when and by whom made, 
nature and extent of field investigation, search for comparable sales 
and similar factual material, shall be maintained.
    (b) Phase I and Phase II General Design Memoranda. (1) The General 
Design Memorandum (GDM) is a report on an authorized project. Its form 
and content are set forth in ER 1110-2-1150. It includes a real estate 
section, which consists of a general discussion of real estate 
requirements for the project, recommendations as to estates to be 
acquired, a gross appraisal of the necessary land and interests therein, 
and other features considered desirable to present all major real estate 
problems and to recommend solutions. Subject to the availability of 
data, minerals in the project area should be covered in the manner set 
forth in Sec.  644.5. Detailed sales data are not necessary, but may be 
included if it is anticipated that recommendations will be made for 
early acquisition of interior tracts.
    (2) Real Estate personnel will prepare the real estate section of 
the GDM. The requirements for current real estate estimates and 
necessary documentation thereof contained in Sec.  644.6(a) are also 
applicable to this paragraph.
    (c) Real Estate Design Memoranda. (1) Following approval of the 
Phase I GDM, a Real Estate Design Memorandum (REDM) will be prepared by 
the Division or District Engineer. Approval of the REDM shall be in 
accordance with ER 1110-2-1150, para 21b(2)(j). No land shall be 
acquired for the project without approval of the initial REDM except (i) 
in the case of an advance land acquisition situation, (ii) acquisition 
for local cooperation project, or (iii) when a letter-type REDM has been 
submitted. The REDM will include the following in the order set forth 
below:
    (A) A statement that this REDM is tentative in nature for planning 
purposes only and that both the final real property acquisition lines 
and the estimate of value are subject to change even after approval of 
this REDM.

[[Page 98]]

    (B) Project authorization, designation, location and date of 
approval of GDM Phase I, including the Recreation Resources Appendix 
(App A, ER 1110-2-1150).
    (C) General description of the area and estimated total acreage. The 
total acreage will be broken down as to fee and easement areas. The fee 
will be further broken down to indicate, separately, the estimated 
acreage required for the various authorized project purposes.
    (D) If any Government-owned land is within the area, indicate the 
Government's estate, degree of interest required for project purposes, 
and views of the local representative of the controlling agency as to 
use for project purposes (see Act of July 26, 1956 (70 Stat. 656) with 
respect to national forest land).
    (E) Appraisal information containing a general statement as to 
character, present use and highest and best use of the land, local 
economic conditions which may affect the trend of real estate values in 
the community and the gross estimate of value for the area to be 
acquired under the REDM. The gross appraisal on which this estimate is 
based should be forwarded concurrently to HQDA (DAEN-REE) WASH DC 20314.
    (F) Information necessary to ascertain responsibility under Pub. L. 
91-646 including but not limited to the following:
    (1) The number of persons, farms and businesses to be displaced.
    (2) An estimate of all costs, including contingencies to be incurred 
as a result of compliance with Pub. L. 91-646. Part 641 of this 
subchapter sets out the items to be considered in estimating these 
costs.
    (3) Information regarding the availability of replacement housing.
    (G) Estimated cost to the United States of lands, easements, and 
rights-of-way necessary for acquisition by the United States for:
    (1) Access roads to project area. A statement will be included as to 
whether existing public roads will be utilized within the purview of 33 
U.S.C. 701r-1 or new rights-of-way for access roads will be acquired, 
with the estimated cost of such new rights-of-way. The proposed plan of 
access during construction will be fully described.
    (2) Relocation of highways, roads, railroads, pipelines, and 
utilities (ER 1180-1-1, Section 73). Statement will be included as to 
whether the Government or the owner(s) will acquire new rights-of-way, 
if any, necessary for the various relocations.
    (H) Number of structures and facilities which will come within the 
purview of section 111 of the Act of Congress approved July 3, 1958 
(Pub. L. 85-500), and a preliminary estimate of Government costs (ER 
1180-1-1, Section 73).
    (I) A study, in accordance with Sec.  644.5, of present or 
anticipated mineral activity in the vicinity of the project which may 
affect the operation thereof. A recommendation including cost estimate, 
if applicable, regarding the acquisition of the minerals should also be 
included in this section of the REDM.
    (J) A discussion of standing timber and other vegetative cover in 
proposed recreation areas and other areas above the conservation pool 
which have recreation or scenic value. Recommendations should be made as 
to the significance of such timber and cover and as to whether 
reservation of standing timber should be permitted in the various parts 
of the fee area.
    (K) A map(s) showing the area which is the subject of the REDM, 
indicating the acquisition guide line, contour line, the tentative 
blocked out fee line, multipurpose pool, and lands in which the 
acquisition of easements is recommended. The map(s) will show, where 
appropriate, the dam site, construction area, borrow areas, spoil areas, 
public access areas, fish and wildlife areas, and recreation areas. In 
addition, the appropriate map(s) will have outlined thereon the items of 
construction or major project features. Access roads and railroad 
rights-of-way required for these areas will also be shown. Chapter 3 of 
ER 405-1-12 relates to the preparation of maps. With respect to a 
project where it is planned to submit several REDMs covering portions of 
the project, the initial REDM will contain a map showing the entire 
project, with the information shown thereon as indicated above, insofar 
as this information covering the entire

[[Page 99]]

project is then available. All subsequent REDMs will contain the same 
type of map, on which will be shown the area(s) on which REDMs have been 
previously submitted with each such area keyed to the number of its 
REDM. Maps shall be of sufficient scale to be legible and to permit 
ready interpretation of pertinent features.
    (L) An aerial mosaic, if available, to provide a pictorial support 
to the rest of the report concerning involved problems.
    (M) Discussion relating to the acquisition or relocation of towns 
and cemeteries within the project area (ER 1180-1-1, Section 73).
    (N) A realistic estimate of administrative costs, giving due 
recognition to existing and foreseeable conditions. To assure direct 
relationship between costs and estimates, the breakdown of these 
estimates will conform to the prescribed acquisition activity cost items 
as set forth under Real Estate Schedule/Cost and Performance, ENG Form 
4564, or any further breakdown which the District Engineer may consider 
desirable. Included as a minimum requirement will be: Estimated 
administrative costs for mapping, surveying, and boundary monumentation, 
appraising, title evidence, negotiating and closing direct purchases, 
condemnation, and relocation assistance.
    (O) Summary of project real estate costs, total all project real 
estate costs by category, i.e., land cost, improvements, severance, Pub. 
L. 91-646 costs, relocations, minerals, contingencies, administrative 
costs, etc.
    (P) Schedule of acquisition.
    (Q) Discussion and recommendations concerning the nonstandard 
estates proposed for acquisition and the real property boundary lines.
    (R) The extent of the existing navigational servitude (ER 1165-2-
302).
    (S) The REDMs will be assigned a single basic number for each 
project; succeeding REDMs will be given alphabetical suffixes to the 
basic assigned number--for example, REDM Nos. 5, 5A, 5B, etc. Copies of 
the letter of transmittal and indorsements thereon will be inserted in 
the front of each copy of the REDM. A cover sheet will list 
chronologically all REDMs (including supplements thereto and brief 
letter-type memoranda) previously submitted, and will show dates 
submitted by the District Engineer and, if approved, dates of approval 
thereof.
    (2) Upon approval of each REDM, the Division or District Engineer 
may, subject to the availability of funds, proceed with the acquisition 
of land and/or interests therein. The REDM, as approved, will constitute 
the overall real estate plan for acquisition of the area covered by the 
REDM. Whenever changes in the approved REDM are required, a 
supplementary REDM describing the proposed changes and setting forth the 
reasons therefor will be submitted. Approval of a supplemental REDM is 
required before acquisition can proceed in the area in which the changes 
are proposed.
    (3) Prior to the approval of the REDM, Division and District 
Engineers should, subject to the availability of funds, proceed with 
preliminary real estate work, in the same manner as set out in Sec.  
644.30. No action will be taken to solicit an offer from a landowner for 
the purchase of his land until the acquisition has been approved and 
subject to availability of funds and compliance with the applicable 
provisions of Pub. L. 91-646.
    (4) An REDM is not required for projects authorized by the Congress 
subject to the condition that local interests furnish without cost to 
the United States the necessary lands, easements, and rights-of-way. 
However, the GDM should include a statement enumerating the requirements 
of local cooperation, the name of the local interests proposing to 
fulfill said requirements, an estimate of land costs, and any other 
information pertinent thereto.
    (5) Number and content of Real Estate Design Memorandum.
    (i) With respect to reservoir projects involving an extensive real 
estate program, it is considered preferable that more than one REDM be 
prepared so that each will cover a segment or group of segments, making 
up the total project, consistent with the planned schedule of 
acquisition.
    (ii) For those projects, requiring two or more REDMs to cover the 
project area, each REDM will include all contiguous lands for each 
public access

[[Page 100]]

point and recreational site proposed within the area covered by that 
REDM. Noncontiguous areas planned for these purposes that are located 
beyond the limits of the REDM involved will be omitted therefrom. This 
procedure does not apply to areas authorized for fish and wildlife 
purposes. Lands authorized specifically for fish and wildlife purposes 
may be included either in a conventional REDM, along with other project 
lands or be submitted as a separate REDM, depending on convenience in 
preparation and size of the area. However, in either event, whenever 
practicable, the entire area proposed for this purpose should be covered 
in one REDM, as a unit.
    (iii) For smaller projects, not involving an extensive real estate 
program, all real estate requirements, including those for public 
access, fish and wildlife, and recreation, may be covered in a single 
REDM.
    (d) Blocking out. The following are guidelines to be observed to the 
extent possible in preparing the REDM. These guidelines will be adhered 
to by the Division Engineer in his approval of the final real estate 
acquisition lines.
    (1) Close blocking out will be accomplished in accordance with sound 
real estate practices.
    (2) For land acquired in fee, the blocked out final real estate 
acquisition line will be established in such manner as to minimize costs 
and cause the least disruption in the use of the remainder of the 
ownership.
    (3) Severance damages will be avoided to the extent possible 
consistent with real estate requirements for the project. In accordance 
with section 301 of Pub. L. 91-646, if the acquisition of part of a 
tract will render the remainder an uneconomic unit, an offer must be 
made to purchase the entire tract.
    (4) It is conceivable that, in certain instances, acquisition of an 
easement will result in an uneconomic remainder and this requires 
application of section 301 of Pub. L. 91-646, as in paragraph (d)(3) of 
this section.
    (5) A remnant without access need not be acquired if:
    (i) The owner desires to retain the property and releases the 
Government from damages for lack of access, and
    (ii) The obtaining of such release in lieu of acquisition is 
concurred in, in writing, by the local road authority, and the local 
road authority is released from damages due to loss of access.
    (6) For lands to be acquired in fee or easements, close tangent will 
be used, generally following the acquisition line.
    (7) When small portions of additional properties, not otherwise 
needed for the project, are within the acquisition line, they may be 
omitted if to do so will not materially affect the operation and 
maintenance of the project as determined by operational elements.



Sec.  644.7  Acquisition lines.

    (a) Tentative acquisition lines. As indicated in Sec.  
644.6(c)(1)(iii)(K), tentative acquisition lines are shown on maps which 
are part of the REDM. However, at that time, the lines will, to some 
extent, be irregular and located without full regard to their effect 
upon fringe tracts. It will, therefore, be necessary to establish final 
acquisition lines, in accordance with sound real estate practices. 
Accordingly, fringe tracts will not be acquired until the final 
acquisition lines are approved by the Division Engineer.
    (b) Submission. As soon as possible after authority has been granted 
to acquire the land and/or interest therein, the District Engineer will 
complete appraisals covering the fringe tracts. Thereupon, a map showing 
proposed final acquistion lines will be submitted to the Division 
Engineer, accompanied by justification and reasons therefor. This 
submission may be for an entire project or by segments or units. 
However, if the final map is submitted on a segment or unit basis, each 
segment or unit must be complete in itself and not be dependent on 
another segment or unit not submitted for approval.
    (c) Approval. The Division Engineer is authorized to approve final 
acquisition lines, but shall not delegate this responsibility to 
District Engineers. This authority is subject to the following:
    (1) Except for the addition or deletion of individial ownerships, or 
portions thereof, on the basis of the criteria contained in Sec.  
644.6(d), approval of any changes in the overall plan will be in 
compliance with ER 1110-2-1150.

[[Page 101]]

    (2) Estates in individual tracts may be changed if consistent with 
the overall plan. Approval, however, will be required from HQDA (DAEN-
REA-P) if the estates are non-standard.



Sec.  644.8  Planning and scheduling real estate activities.

    (a) Normal scheduling. (1) The objective of a planned program is to 
provide for the early acquistion of land to avoid enhancement in land 
prices and a minimum of inconvenience to the property owners. Also, it 
is essential that there be adequate planning of the land acquisition 
program to insure that there is no interference with unacquired 
properties as a result of construction activities.
    (2) It is essential that adequate funds be programmed on ENG Form 
2213, Advance Engineering and Design Planning Schedule (PB-2B), to 
proceed with real estate planning; preparation of Real Estate Design 
Memoranda; determination of final project boundaries; and preliminary 
real estate work to the point where land acquisition can be started as 
soon as construction funds become available.
    (3) Surveys and boundary monumentation and/or marking shall be 
completed prior to acquistion.
    (4) Funds will be programmed for acquisition of lands for the 
construction area and/or other areas initially required within the first 
year, and for acquisition of lands for the other features of the project 
as rapidly as necessary real estate data can be assembled. For projects 
with major impoundment features and with scheduled construction periods 
of more than two years, funds will be programmed at a uniform level so 
that total real estate requirements will be covered by accepted offers 
to sell or declarations of taking filed in court by the end of two-
thirds of the overall construction period.
    (b) Public information. (1) The real estate activities of the Corps 
are extremely sensitive, since they disrupt the lives of individuals and 
take their homes, farms and businesses. Therefore, the importance of 
keeping landowners and others having an interest in the land informed of 
the land acquisition program is emphasized. In order to avoid false 
rumors and to permit the affected owners to formulate plans for the 
future, information concerning the land acquisition program, procedures 
with respect thereto, and the specific effect on the individual 
properties, will be furnished to the affected owners at the outset of 
the project.
    (2) Section 302 of Pub. L. 86-645 (33 U.S.C. 597) is quoted, in 
part, for guidance:

    Within six months after the date that Congress authorizes 
construction of a water resource development project under the 
jurisdiction of the Secretary of the Army, the Corps of Engineers shall 
make reasonable effort to advise owners and occupants in and adjacent to 
the project area as to the probable timing for the acquisition of lands 
for the project and for incidental rights-of-way, relocations, and any 
other requirements affecting owners and occupants. Within a reasonable 
time after initial appropriations are made for land acquisition or 
construction, including relocations, the Corps of Engineers shall 
conduct public meetings at locations convenient to owners and tenants to 
be displaced by the project in order to advise them of the proposed 
plans for acquisition and to afford them an opportunity to comment. To 
carry out the provisions of this section, the Chief of Engineers shall 
issue regulations to provide, among other things, dissemination of the 
following information to those affected: (1) Factors considered in 
making the appraisals; (2) desire to purchase property without going to 
court; (3) legal right to submit to condemnation proceedings; (4) 
Payments for moving expenses or other losses not covered by appraised 
market value; (5) occupancy during construction; (6) removal of 
improvements; (7) payments required from occupants of Government-
acquired land; (8) withdrawals by owners of deposits made in court by 
Government; and (9) use of land by owner when easement is acquired.

    (3) Within a reasonable time after initial appropriations are made 
for land acquisition or construction, including relocations, Division 
and District Engineers will conduct meetings with landowners. The United 
States Senators of the state or states and Members of the House of 
Representatives of the district or districts in which the project is 
located should be invited to attend. Normally, the public meetings 
should be scheduled prior to the commencement of the land acquisition 
program. The agenda for the meetings will include not only the nine 
specific items listed in section 302, Pub. L. 86-645, but all other 
items of a nature

[[Page 102]]

that will assist landowners and tenants in understanding all of the 
Corps' real estate procedures such as, but not limited to: Acquisition 
schedules, the type of land interests to be acquired under the Joint 
Policy, approximate acquisition lines, management of the project, etc. 
In addition to the foregoing, pamphlets containing this information and 
the information brochure explaining the benefits to landowners under 
Pub. L. 91-646 will be given wide distribution at approximately the same 
time the landowners meeting program is initiated, and copies will be 
furnished to the appropriate United States Senators and Members of the 
House of Representatives.
    (4) Inquiries, comments of landowners and tenants, and problems 
developed at the landowners meetings should be recorded or, at least, a 
detailed written resume made. HQDA (DAEN-REA-P) should be informed as to 
the outcome of these meetings. Effective follow-up to supply any 
information not available at the meeting, or to consider any particular 
problems presented, is essential to realize the full advantage of the 
public relations program.
    (5) The provisions of this paragraph are applicable to all water 
resource development projects, including all local cooperation projects 
for which real estate is to be acquired in whole or in part by local 
interests. Initial information as to such projects for which real estate 
acquisition is exclusively a local interest responsibility may be given, 
within six months after project authorization, by either the local 
interest or Federal Government, through the media best adaptable under 
the circumstances. Advice should be given as to the timing of 
acquisition of the lands and lesser interests, and also as to the extent 
to which acquisition will be accomplished by the local interests. After 
appropriations, the local interests should be encouraged to sponsor and 
conduct a landowners meeting with attendance by Corps of Engineers 
representatives. If there is a joint responsibility for real estate 
acquisition, the local interests should explain the scheduled 
requirement for possession of the lands involved and their acquisition 
procedures, and the Corps of Engineers representatives should explain 
the procedures followed when lands are condemned by the Federal 
Government on behalf of local interests, and the authority for each 
action.
    (6) If local interests refuse to call a landowners meeting, the 
District Engineer should call such a meeting, to explain the general 
construction features of the project, to inform the landowners and 
tenants that local interests are obligated to acquire the necessary 
lands, to state that we cannot explain the exact procedures which will 
be followed by local interests, but to explain the procedures followed 
when lands are condemned by the Federal Government on behalf of local 
interests. If only a very few landowners and tenants are involved, local 
interests may hold their meeting in the District Engineer's office or at 
a location more convenient to the landowners and tenants. While this 
would not be a formal meeting, the same type of information would be 
furnished. Here, also the District Engineer should call such a meeting 
if local interests refuse to do so.
    (7) To summarize, public (landowners) meetings are required by 
section 302 of Pub. L. 86-645. This requirement applies to local 
cooperation projects as well as to the large Federal water resources 
development projects. The meetings will be held by Division/District 
Engineers, to comply with the law, if local interests refuse to call 
meetings at which information would normally be furnished jointly by the 
local interests and by the Corps of Engineers representatives.
    (8) Real Estate personnel and the Public Affairs Officers of the 
Division and District Engineers should cooperate closely in planning 
vigorous public relations programs as contemplated in this paragraph and 
through the press, radio, and television.
    (c) Land acquisition funds for land acquisition in advance of 
project construction. (1) A Land Acquisition Fund in the amount of $2 
million was established as a part of the appropriations contained in the 
Public Works for Water, Pollution Control, and Power Development and 
Atomic Energy Commission Appropriation Act, 1971 (Pub. L. 91-439). 
Comments of the House Appropriations Committee in establishing

[[Page 103]]

the Fund are contained in House Committee Report No. 91-1219, 91st 
Congress, 1st Session, as follows:

    New land acquisition fund. The committee has approved the budget 
proposal to allocate $2 million to establish a fund for land 
acquisition, in advance of project construction, to alleviate severe 
hardship cases and to avoid price escalation. The proposal has been 
approved with the understanding that prior committee approval will be 
obtained for initial purchases in each project area and that use of the 
fund shall be confined to those projects on which planning has 
progressed to the point that the damsite has been finalized, and it is 
known with certainty the lands to be acquired for the project.


This fund was increased to $3 million by the Public Works for Water and 
Power Development and Atomic Energy Commission Appropriation Act of 1973 
(Pub. L. 92-405).
    (2) Applicability. Expenditures from the Fund are applicable to 
authorized water resource development projects for which land 
acquisition is a Federal responsibility.
    (3) Guidelines for utilization of the Fund for Advance Land 
Acquisitions. (i) The Fund will be used to acquire private and non-
Federal publicly-owned properties at authorized water resource 
development projects on which planning has progressed to the point that 
the damsite has been finalized and it is established with certainty that 
the individual properties will be required for the project.
    (ii) Only those individual properties will be considered for 
acquisition where it can be shown that advance acquisition of the 
properties will alleviate severe hardship to the landowner and/or will 
avoid unusual land price escalation. Unusual price escalation cases 
involve those individually owned properties where it can be demonstrated 
that the land value will materially escalate, prior to commencement of 
the land acquisition program for the project from future appropriations 
for land acquisition or construction, because of imminent actions which 
will change the highest and best use of land, such as zoning actions, 
planned construction on the land and other changes in real estate market 
factors which will materially escalate land values. Normal land 
escalation occurring to all properties in general within a project will 
not be considered as a basis for acquisition. Hardship cases include, 
but are not necessarily limited to, cases involving the following:
    (A) The landowner has a valid contract to purchase a replacement 
property and failure to dispose of his property inside the project will 
force him to default the contract, forfeit his deposit, or otherwise 
lose the benefits of the contract, and other replacement property is not 
available within the same area under similar terms;
    (B) The property owner is forced to relocate from the area due to 
his employment or other circumstances beyond his control, and the 
Government's project has so affected the sale of properties within the 
project area as to make a sale to another private party at a fair and 
reasonable price extremely difficult; and
    (C) Illness of the owner or other members of his family, or other 
personal hardship makes his relocation from the area necessary and the 
Government's project has so affected the sale of properties within the 
project area as to make a sale to another private party at a fair and 
reasonable price extremely difficult.
    (D) As indicated above, these examples are not intended to exclude 
other cases where, in the exercise of sound judgment, actual hardship is 
found to exist.
    (iii) Individual tract ownerships recommended for advance 
acquisition by Division and District Engineers and approved by OCE will 
be acquired by direct purchase or through the filing of condemnation 
proceedings, in accordance with normal procedures.
    (4) Procedures. Individual tract ownerships which Division and 
District Engineers consider are hardship cases or involve unusual price 
escalation, within the guidelines set forth in paragraph (c)(3) of this 
section should be recommended to OCE for acquisition.
    (i) Full justification must be submitted to HQDA (DAEN-CWB) WASH DC 
20314 in support of the recommendation to acquire the individual 
ownerships.
    (ii) If the recommendation is approved, action will be taken by OCE 
to

[[Page 104]]

obtain approval of the House and Senate Committees on Appropriations. 
Upon receipt of Committee approvals, the Division Engineer will be 
authorized to proceed with the acquisition action if sufficient funds 
are available from the Land Acquisition Fund.
    (iii) Appropriate records will be maintained by District or Division 
Engineers of allocations made from the Fund which are used for approved 
acquisition cases. These funds will be accounted for under a designated 
account number.
    (iv) When appropriations for land acquisition or construction of the 
Federal project are specifically made by the Congress, the initial 
allowance of funds to the project will be reduced by the amount 
previously allotted from the Land Acquisition Fund in order to replenish 
the Fund for use at other projects.
    (d) Acquisition for State or local interests--Resettlement sites. 
(1) Section 209 of Pub. L. 90-483 (82 Stat. 745) enacted August 13, 
1968, provides that the Secretary of the Army may, prior to the approval 
of title by the Attorney General, acquire, enter upon, and take 
possession of lands or interests in lands by purchase, donation, 
condemnation or otherwise, whenever any State, or any agency or 
instrumentality of a State or local Government, or any nonprofit 
incorporated body organized or chartered under the law of the State, or 
any nonprofit association, shall undertake to secure any lands or 
interests therein as a site for the resettlement of families, 
individuals, and business concerns displaced by a river and harbor 
improvement, flood control or other duly authorized water resource 
project, and
    (i) It is determined by the Secretary of the Army that the State or 
local interest is unable to acquire the necessary land, or unable to 
acquire it with sufficient promptness, and
    (ii) The Governor of the State in which the site is located has 
requested such acquisition.
    (2) Cost of acquisition. The Act also provides that:
    (i) All expenses of acquisition accomplished under the authority of 
the Act, including any award that may be made in a condemnation 
proceeding, the cost of title evidence, appraisals and any other costs 
incident to such acquisition, shall be paid by the State, agency, 
instrumentality or nonprofit body.
    (ii) The State, agency, instrumentality or nonprofit body may repay 
such amount from any funds made available to it by any Federal 
department, agency, or instrumentality, other than the Department of the 
Army.
    (iii) Pending such payment, the Secretary of the Army may expend 
from any funds appropriated for the project such sums as may be 
necessary to carry out section 209, Pub. L. 90-483.
    (iv) To secure such payment, the State, agency, instrumentality or 
nonprofit body may be required to execute a proper bond before 
acquisition is commenced.
    (v) Any sums paid by a State, agency, instrumentality or nonprofit 
body under section 209 shall be credited to the appropriation for the 
project.
    (3) Determinations required before application of section 209. No 
acquisition by the Department of the Army may be undertaken under this 
section until the Secretary of the Army has determined, after 
consultation with appropriate Federal, State and local government 
agencies, that:
    (i) The development of a site is necessary in order to alleviate 
hardships to displaced persons;
    (ii) The location of the site is suitable for development in 
relation to present or potential sources of employment; and
    (iii) A plan for development of the site has been approved by 
appropriate local government authorities in the area or community in 
which the site is located.
    (4) Action by District or Division Engineer. When the District 
Engineer is of the opinion that section 209 may be applicable to a given 
situation, after consultation with State and State agency officials, the 
Governor of the State should be advised of the pertinent provisions of 
the law and the assistance that can be rendered by the Secretary of the 
Army under the terms and conditions of the law at the request of the 
Governor. If planning towards resettlement is undertaken by a State, 
agency, instrumentality or nonprofit body, the District Engineer will 
keep advised of

[[Page 105]]

the progress of such local planning and will furnish guidelines and 
consultation to the local interests during development of the plan.
    (5) Implementation of the Plan of Resettlement. When the final plan 
has been developed and approved by the appropriate Federal, State and 
local governmental agencies (which will include information showing that 
the site is necessary to alleviate hardships to displaced persons and 
suitable for development in relation to present or potential sources of 
employment), a showing has been made that the State is unable to acquire 
the necessary lands or interests therein or is unable to acquire the 
lands with sufficient promptness, the Governor has executed a request 
that the Secretary of the Army acquire the lands under the terms and 
conditions of the Act, and the State or agency of the State has executed 
a proper bond in an amount deemed necessary to cover total expenditures 
to be made by the Army for the land acquisition, the District Engineer 
should submit to HQDA (DAEN-REA-P) WASH DC 20314 a brief Real Estate 
Design Memorandum covering the land to be acquired under the plan. The 
REDM should be accompanied by the final approved plan and the 
information listed above in order that the Secretary may make the 
determinations as required by section 209(b) of Pub. L. 90-483. No 
action will be taken by the District Engineer to acquire the land, 
proposed for acquisition in the plan and the REDM, until receipt of 
authority from DAEN-REA-P to proceed with the acquisition. A complete 
record will be maintained of all land and administrative costs incident 
to the acquisition as a basis for a request for reimbursement to the 
State and/or the State agency or agencies. Upon authorization to the 
District Engineer to proceed with land acquisitions of the site, normal 
Corps land acquisitions procedures will be followed.
    (6) Conveyance of the site to the State or State agency or agencies. 
In accordance with section 209(c) of Pub. L. 90-483, upon completion of 
the acquisition of the site, a proper deed will be submitted to HQDA 
(DAEN-REA-P) WASH DC 20314 for execution by the Secretary of the Army, 
for conveyance of the land to the State or State agency, as appropriate. 
Evidence must be submitted that the terms and conditions of the deed 
have the approval of the Governor and the agency to which conveyance is 
to be made. The deed will not be delivered until reimbursement has been 
made to the United States for the land and administrative costs expended 
by the District Engineer incident to the acquisition of the site.

        Military (Army and Air Force) and Other Federal Agencies



Sec.  644.21  General.

    (a) Purpose. Sections 644.21 through 644.30 describe the procedures 
of the Corps of Engineers relating to real estate planning and project 
authorization for the acquisition of land and interests therein for 
military projects, for the Department of Energy (DOE), and for other 
Federal agencies as required.
    (b) Applicability. Provisions of these sections are applicable to 
the Office of the Chief of Engineers and all Division and District 
Engineers having real estate responsibilities.
    (c) General procedures. (1) AR 405-10 and AFR 87-1 outline the 
policies of the Department of the Army and the Department of the Air 
Force, respectively, with respect to real estate acquisitions.
    (2) The policies of the Department of Energy (DOE) with respect to 
acquisition of real estate are generally set forth in requests of that 
agency for preparation of real estate design memorandums.
    (3) The purpose of the planning function is to establish a sound 
basis for the acquisition of land and interests therein in accordance 
with existing law and broad procedures of higher authority; to collect 
all necessary real estate data; to correlate and evaluate these data 
from the standpoint of establishing the necessity for the proposed 
acquisition; to establish that no Government-owned or Government-
controlled lands are available for the intended use; to determine the 
required estate, in accordance with existing policies, sufficient to 
protect the interests of the Government; and in general, to prepare each 
project for submission

[[Page 106]]

to the head of the interested department or agency, or his designee, 
and, where necessary, to the Department of Defense and the Committees on 
Armed Services of the Senate and House of Representatives, for approval.
    (4) In the preparation of Real Estate Planning Reports, or Real 
Estate Summaries, consideration will be given to the procedures and 
criteria expressed in the regulations cited herein.



Sec.  644.22  Site selection.

    When a requirement develops for a new installation or the extension 
of an existing installation, site selection will be the primary 
responsibility of the using service. A representative of the appropriate 
Division or District Engineer will participate in selection of sites for 
the Department of the Army and, upon request, in Department of the Air 
Force site selection and preliminary investigations. Commanders and site 
boards should be informed of any available lands, including marginal 
lands in civil works projects and available lands under the control of 
other departments and agencies, suitable for the desired purpose. The 
using service will request the Chief of Engineers or the appropriate 
Division or District Engineer to prepare a Real Estate Planning Report 
or Real Estate Summary, making reference to the prior Site Selection 
Report if one was prepared.



Sec.  644.23  Real Estate Planning Documents.

    (a) Real Estate Planning Reports. (1) A Real Estate Planning Report 
(REPR), as shown in Figure 2-1 in ER 405-1-12, will be prepared by the 
Division or District Engineer for all major fee and easement projects 
other than Reserve Component projects and extinguishment of grazing 
privileges on Federal lands. The request for such REPR may be initiated 
by any command or echelon of the Army or Air Force (or by the Washington 
Headquarters or field operations offices of DOE for a Real Estate Design 
Memorandum). Certain items contained in Figure 2-1 (ER 405-1-12) relate 
only to Department of the Air Force land acquisition programs for 
runways and approach zones and are not applicable to other projects. 
Such items will be omitted from REPRs where not applicable. When 
forwarding the REPR, a copy of the Reviewing Appraiser Comment, 
concerning the estimated land values assigned therein, should be 
included as an inclosure to the transmittal letter.
    (2) On Department of the Air Force projects where estimated cost is 
not in excess of $25,000, brief REPRs are to be prepared for issuance of 
directives by the approprate Air Force Regional Civil Engineer (AFRCE). 
Such reports need not be submitted to the Chief of Engineers except in 
those cases in which the major command submits a copy to Headquarters, 
USAF. This report should contain adequate information on the items 
listed in the following outline but need not be limited thereto:
    (i) Requirement for the property.
    (ii) Cost estimate of the property with indication of the method 
used in arriving at the estimate.
    (iii) Summary sheet showing the acreages, interests to be acquired, 
improvements and estimated costs, including the administrative costs of 
acquiring the real property and all costs in connection with the Uniform 
Relocation Assistance and Real Property Acquisition Policies Act of 1970 
(Pub. L. 91-646).
    (iv) Map showing property to be acquired, ownerships, and relation 
to existing installation, where appropriate.
    (v) In reports covering the acquisition of runway clearance 
easements, a profile, topographic, and obstruction drawing should be 
furnished.
    (vi) Discussions of any peculiar or unusual problems anticipated in 
connection with the proposed acquisition including relocation assistance 
required by Pub. L. 91-646.
    (vii) Recommendations of the office preparing the report.
    (b) Planning Documents for Reserve Component Acquisitions. Figure 2-
2 in ER 405-1-12 is a sample of an REPR for use in acquisition of land 
for the U.S. Army Reserve Program. This report omits some items which 
appear in the usual planning report but includes other items 
particularly applicable to U.S. Army Reserve sites.

[[Page 107]]

    (1) Real Estate Planning Report. The REPR for Reserve Component 
acquisitions should contain the following:
    (i) A list of all sites inspected with reasons for rejection of the 
other sites.
    (ii) Description of physical characteristics of the site.
    (iii) Type and extent of grading and drainage required.
    (iv) Soil and foundation conditions with classification of 
overburden materials (to be determined by test borings only if 
conditions indicate this necessity).
    (v) Availability of adequate access, water supply, electricity, gas 
for space heating, sewage disposal, drainage conditions, and telephone 
services. Where it is necessary to construct or extend streets, water, 
sewer, or other utility facilities to serve the selected site, a written 
commitment will be obtained from the municipal authorities assuring the 
United States that the municipality will perform such work without cost 
to the United States, or indicating the proportionate share of the costs 
the municipality will bear. This commitment will be made a part of the 
REPR.
    (vi) Cost estimates of supporting facilities and any unusual 
building foundations, itemized to the degree practicable to indicate 
items, quantities, sizes, unit prices and totals.
    (vii) A preliminary site plan, showing existing conditions and 
proposed layout, to insure adequacy of the site for its intended 
ultimate use.
    (viii) A formal legal commitment in the form of a resolution or 
other instrument authorizing a long-term, nominal-rental lease or a 
donation, together with a reference to the authority to grant the lease 
or make the donation, in instances where land is owned by a State, 
county, city or other political subdivision.
    (ix) A draft of the proposed lease in terms acceptable to the 
lessor, taking into consideration the requirements in DOD Directive 
4165.16.
    (2) Agreements for Joint National Guard-Army Reserve Center. Title 
10, U.S.C., 2231 through 2238, DOD Directives 1225.2 and 1225.5, and AR 
140-478 contain policy and directions for the establishment of this type 
of training facility. The Division or District Engineer will participate 
in negotiation of the joint-use agreement and preparation of the 
necessary instruments, in coordination with local Army Reserve and 
National Guard representatives. A copy of the agreement so negotiated 
will be attached to each copy of the REPR prior to its distribution for 
review. DOD Directive 1225.2 provides in part: ``The agreement shall 
remain in full force and effect for the fixed term of years which 
represents the estimated useful life of the facility.'' This provision 
has generally been interpreted as fixing the use term at 25 years, 
although the probably useful life of a well-maintained armory type 
structure is much longer. The DOD provision states a minimum 
requirement; however, it does not preclude the Army from securing a 
longer period of use. In order to secure a use term more commensurate 
with the Government investment, joint-use agreements, at a minimum, will 
be set up on a 25-year basis, with the option on the part of the 
Government to renew for an additional 25-year period under the same 
terms and conditions.
    (3) Real Estate Summary. Considerable time, effort and funds can be 
saved if REPRs are foregone in those cases involving acquisition of 
property for U.S. Army Reserve and Army National Guard use by transfer 
from another military department or the General Services Administration. 
The Real Estate document in support of such proposed acquisitions will 
be a Real Estate Summary which will contain the following elements only:
    (i) Authority for request.
    (ii) Acreage and estate.
    (iii) Estimated gross fair market value.
    (iv) Map.
    (v) Excess status of land.
    (vi) Description of improvements (including building numbers and 
square feet).
    (vii) Justification for use of the property as provided by the 
Command. Proposed construction (if any) should be included.
    (viii) Engineering Feasibility Study (if construction is planned).
    (ix) Draft Acquisition Report is required for clearance under title 
10

[[Page 108]]

U.S.C. 2662 if estimated gross fair market value is over $50,000 for 
acquisition by transfer from another military department.
    (c) Lease Planning Reports. Reference is made to AR 405-10 and AFR 
87-1, concerning requests for leasehold acquisitions. A Lease Planning 
Report will be submitted upon request of the Chief of Engineers or the 
using service. Figure 2-3 in ER 405-1-12 is a sample of a Lease Planning 
Report.
    (d) Grazing Land Reports. (1) When Federal grazing lands are a part 
of a project and it is proposed to cancel, or to prevent the use of, 
grazing privileges thereon, under authority contained in the Act of 
Congress approved July 9, 1942, as amended (43 U.S.C. 315q), the REPR 
will be utilized with appropriate changes. The report will disclose each 
of the ranch units comprising grazing privileges, indicating, in 
tabulated form, the name of each operator, acreage owned in fee, acreage 
of State-owned land held under lease, acreage of railroad land held 
under lease, acreage of other privately owned land held under lease, 
acreage under Federal grazing permits or licenses, total acreage in 
ranch unit, total carrying capacity of ranch unit, and actual number of 
stock being carried on each ranch unit; whether project will be 
classified as a permanent or temporary installation; other acquisition 
problems, such as mining and water rights or claims, which may be 
encountered; and a project map indicating project boundaries, Federal 
and State-owned lands, and location of mining and water rights or 
claims.
    (2) The cost estimate will be prepared in accordance with subpart B.
    (e) Distribution and approval of planning reports--(1) Army 
projects. Upon completion of a fee and/or easement planning report or a 
Lease Planning Report, the report will be processed as outlined in AR 
405-10. Information will be included in the transmittal letter 
concerning status of environmental assessment or impact statement.
    (2) Air Force projects. (i) Upon the completion, review and approval 
of a fee and/or easement planning report, the District Engineer will 
forward copies of the planning report to the Division Engineer who will 
forward the original and one copy with appropriate recommendations to 
HQDA (DAEN-REA-L) WASH DC 20314. Simultaneously with this action, the 
Division Engineer will furnish the Major Air Command with six copies of 
the planning report for review, approval, and subsequent transmittal to 
Headquarters, USAF.
    (ii) After preparation, review and approval, the District Engineer 
will submit the Lease Planning Report, wherein the estimated annual 
rental is in excess of $25,000, to the Division Engineer. Upon review 
and approval, the Division Engineer will forward the original and a 
copy, with appropriate recommendations, to DAEN-REA-L. Simultaneously 
with this action, the Division Engineer will furnish the Major Air 
Command with two copies of the report. The Chief of Engineers will 
review the report and forward the original to Headquarters, USAF, with 
appropriate recommendations.
    (3) DOE projects. Upon completion of a fee and/or easement real 
estate design memorandum and review and approval by the District 
Engineer and, in turn, the Division Engineer, a copy of the report will 
be submitted to the appropriate DOE office for review and approval. When 
notice of approval is received, the District Engineer will transmit, 
through the Division Engineer, the original and two copies of the REDM, 
with recommendations, and evidence of approval by the DOE field office, 
to HQDA (DAEN-REA-P) WASH DC 20314. Upon review and approval, the Chief 
of Engineers will transmit the original and one copy of the REDM to 
Headquarters, DOE, for approval and further action.



Sec.  644.24  Acquisition by Transfer from other Government Departments
or Agencies (except Public Domain).

    When a requirement develops for the acquisition of Government-owned 
real property and an appropriate request is received for the 
acquisition, the District Engineer will prepare and submit, through the 
Division Engineer, to HQDA (DAEN-REA-L) WASH DC 20314 a Real Estate 
Planning Report (Figure 2-1 in ER 405-1-12) (or a brief report, if it is 
determined this would be sufficient) setting forth the requirements

[[Page 109]]

for the property, the market value thereof, the ``in place'' value of 
existing improvements, the estimated cost of the proposed construction, 
attitude of the local representative of the department or agency having 
control, and such other items as are necessary to give full discussion 
of the real estate implications, for consideration and the obtaining of 
a real estate directive for the acquisition by transfer.



Sec.  644.25  Withdrawal of Public Domain for Defense Purposes.

    (a) The Act of Congress approved February 28, 1958 (Pub. L. 85-337, 
72 Stat. 27) provides that all withdrawals and reservations of public 
domain land, water, or land and water, or restrictions on use of areas 
in the Continental Shelf, aggregating an area of more than 5,000 acres 
for any one defense project, shall be by Act of Congress. Upon receipt 
of a request for withdrawal or reservation of lands of the public domain 
or for restrictions on exploration and exploitation in the Continental 
Shelf, and in order that the Chief of Engineers may present the project 
to higher authority for approval and submission to the Congress, if 
approved, the District Engineer will prepare and submit, through the 
Division Engineer, to HQDA (DAEN-REA-L) WASH DC 20314 a Real Estate 
Planning Report, including the following items.
    (1) A copy of the request from the Army or the using service.
    (2) Complete information relative to the eight items specified in 
section 3 of Pub. L. 85-337 (43 U.S.C. 156).
    (3) If the proposed withdrawal constitutes an expansion of an 
existing installation, pertinent data relative to the lands constituting 
the existing installation.
    (4) Information relative to outstanding mineral, grazing, water and 
other rights.
    (5) A statement as to the estimated cost:
    (i) Of extinguishing such rights; and
    (ii) Of suspending the exercise of such rights on a leasehold 
(annual rental) basis.
    (6) Map(s) indicating the exterior boundaries of the project; 
excepted areas, if any; location of mineral rights, water rights, and 
other resources discussed in the report.
    (b) The District Engineer will also prepare and include a draft of 
application for withdrawal covering the eight items specified in section 
3 of Pub. L. 85-337.
    (c) Upon receipt of the REPR and draft of application for 
withdrawal, the Chief of Engineers will prepare a Real Estate Directive.
    (d) The REPR, draft of application for withdrawal, and Real Estate 
Directive will be transmitted through the Chief of Staff and the 
appropriate Assistant Secretary of the Army to the Assistant Secretary 
of Defense (Manpower, Reserve Affairs and Logistics) for approval of the 
acquisition and for coordination with the Department of the Interior 
(Bureau of Land Management). Upon receipt of approval from the ASD 
(MRA&L), the Chief of Engineers will dispatch the application to the 
Department of the Interior and will draft the necessary legislation for 
processing through normal legislative channels.
    (e) It has been determined that the words ``in the aggregate'' in 
section 2 of Pub. L. 85-337 shall be interpreted as applying only to 
withdrawals of land since enactment of Pub. L. 85-337. For example, if 
4,500 acres of public land had been withdrawn prior to enactment of Pub. 
L. 85-337 and the new application for withdrawal covers 1,000 acres, the 
requirements of Pub. L. 85-337 do not have to be satisfied. If the new 
application covering 1,000 acres is honored and the withdrawal completed 
and a later requirement for 4,500 acres of public lands developed, the 
requirements of Pub. L. 85-337 would have to be satisfied.
    (f) Pub. L. 85-337 and the above instructions do not relate to the 
use of public lands under permit.
    (g) In Department of Air Force cases, the District Engineer will 
continue to prepare such REPR's and to furnish such other services as 
are requested by the Major Air Commands.
    (h) When the REPR contains a proposal for the acquisition of 
minerals, the local office of the Bureau of Land Management, Department 
of the Interior, will be furnished with a copy of

[[Page 110]]

the Mineral Section of the planning report, which will indicate the 
number and types of claims, areas involved, and the gross appraisal. 
Accompanying this Mineral Section will be a request that the Bureau of 
Land Management place an item in the next available budget for the funds 
required for the validation of the mineral claims involved. A copy of 
the Mineral Section, together with a copy of the request to the local 
office of the Bureau of Land Management, will be forwarded to HQDA 
(DAEN-REA-L) WASH DC 20314 for coordination with the Director, Bureau of 
Land Management, Department of the Interior, Washington, DC 20240.



Sec.  644.26  Required clearances.

    (a) As stated in AR 405-10 and AFR 87-1, no real estate or interests 
therein will be acquired until there is legislative authorization for 
the acquisition (41 U.S.C. 14) and an appropriation available for the 
purpose.
    (b) AR 405-10 and AFR 87-1 also outline the clearances which must be 
made within the Departments of the Army and the Air Force, with the 
Department of Defense, and with the Committees on Armed Services of the 
Senate and the House of Representatives before acquisition may proceed. 
The Chief of Engineers is responsible for initiating all clearance 
actions as to Army acquisitions. The Director of Engineering and 
Services (AF/PRE) and the Director of Planning, Programming and Analysis 
(AF/RDXI), as to industrial installations, of Headquarters, USAF, are 
responsible for initiating all clearance actions as to Air Force 
acquisitions.



Sec.  644.27  Authority to issue Real Estate Directives.

    Where there is legislative authorization, an appropriation is 
available, and necessary clearances have been obtained, the formal Real 
Estate Directive (designating the land to be acquired, the estate to be 
acquired, and the amount of funds available for the acquisition) will be 
issued by the head of the interested department or agency, or his 
designee.
    (a) Authority to issue all Department of the Army Real Estate 
Directives is vested in the Chief of Engineers. The Chief of Engineers 
has been delegated authority from the Secretary of the Army, and has 
redelegated to Division and District Engineers authority, to approve:
    (1) Acquisition of permits from other Government departments and 
agencies, excepting the use of space in the National Capital Region.
    (2) The making of minor boundary changes in approved projects to 
avoid severance damages, by including or excluding small tracts of land 
which will not decrease the usefulness of the project for the purpose 
for which being acquired.
    (b) The delegated authority referred to in paragraph (a) of this 
section was redelegated to Division and District Engineers, provided it 
can be accomplished without the allotment of additional funds: And 
provided, That there is an existing Real Estate Directive. When there is 
a change in scope (area and/or funds), recommendation will be made to 
the Chief of Engineers for amendment of the directive.
    (c) The Chief of Engineers has been delegated authority to approve 
for the Secretary of the Army leasehold acquisitions, including renewals 
and extensions, and space assignments from the General Services 
Administration, where the estimated annual rental for any single project 
is not in excess of $50,000 and the acquisition is not controversial, 
unusual, or inconsistent with Department of the Army policies, excepting 
the acquisition by lease of industrial and commercial facilities; 
projects requiring a certificate of necessity in accordance with the Act 
of Congress approved June 30, 1932, as amended (40 U.S.C. 278a); and 
space in the National Capital Region. This authority has been 
redelegated to the Division Engineer where the annual rental does not 
exceed $25,000.
    (d) Authority to issue all Department of the Air Force Real Estate 
Directives is vested in the Real Property Division, Directorate of 
Engineering and Services, HQ, USAF. Major Air Commands and Air Force 
Regional Civil Engineers may issue Real Estate Directives for 
acquisitions not exceeding $50,000 in cost.
    (1) Division Engineers will assign numbers to Real Estate Directives

[[Page 111]]

issued by Air Force Regional Civil Engineers. The numbers will be in a 
consecutive series for each Division and will be preceded by a symbol 
identifying the Division to which the directive is issued.
    (2) All revisions to Real Estate Directives will be designated as 
amendments to the basic Real Estate Directive and will be appropriately 
numbered.
    (3) Division Engineers will forward the original and one copy of 
each Directive, and each amendment thereto to HQDA (DAEN-REA-L) WASH DC 
20314.
    (4) Commanders of Major Air Commands will approve requests for 
leases, lease renewals, and space assignments from the General Services 
Administration, where the estimated cost of the project does not exceed 
$50,000 per annum, and subject to any necessary clearances, excepting, 
however, the leasehold acquisitions listed in AFR 87-1.
    (e) Authority to issue DOE Real Estate Directives has been delegated 
by the General Manager to the Directors of Operating Divisions, DOE.



Sec.  644.28  Responsibility for acquisition.

    HQDA (DAEN-REA-L) is responsible for acquiring real estate for the 
Departments of the Army (military) and Air Force. HQDA (DAEN-REA-P) is 
responsible for acquiring real estate for the Department of the Army 
(civil works), DOE, and other Federal agencies as required.



Sec.  644.29  Authority to proceed with acquisition.

    (a) Upon receipt of the formal Real Estate Directive by the Chief of 
Engineers, with necessary clearances made and an allotment of funds to 
the District Engineer, the Division Engineer will be authorized to 
proceed with acquisition in accordance with the directive and the 
procedures outlined in subpart C and Pub. L. 91-646 instructions. Where 
authority has been delegated, the Division or District Engineer may 
proceed with the acquisition upon receipt of proper directive, any 
necessary clearances, and allotment of funds.
    (b) Under no circumstances will offers be made to landowners or 
construction initiated prior to the issuance of instructions from the 
Chief of Engineers to proceed with the acquisition.
    (c) The Division or District Engineer will maintain liaison with the 
local commander and advise him when possession of the land is available.



Sec.  644.30  Preliminary real estate work.

    (a) Preliminary real estate work is defined as that action taken 
with regard to the individual ownerships leading up to, but not 
including, solicitation of offers from landowners. It includes 
preparation or procurement of tract ownership data (ENG Form 900--Tract 
Ownership Data, where its use is considered desirable), legal 
descriptions and mapping, title evidence, and individual tract 
appraisals. At this stage of the acquisition program, it will be 
necessary to make some contact with landowners, tenants, or other 
interested persons; for example, the appraiser's discussion of the 
property with the owner, his agent, or other representative (Pub. L. 91-
646, sec. 301(2)). In any such contacts, information should be confined 
to the fact that acquisition of the real property is being considered; 
no acquisition action can be taken until funds are made available; and, 
after acquisition is approved, as much advance notice as possible will 
be given to all interested parties. Supply of ENG Form 900 may be 
requisitioned from the OCE Publications Depot in the prescribed manner.
    (b) Preliminary real estate work on Army projects will be conducted 
as soon as design has progressed to the point at which the exact land 
needed has been firmly determined, or as soon as the District Engineer 
has determined that it is practicable to proceed.
    (c) Preliminary real estate work on Air Force projects will be 
conducted upon request of Headquarters, USAF, or Major Air Command 
installations, and at the request of any of those persons designated for 
industrial acquisitions.



                           Subpart B_Appraisal



Sec.  644.41  General.

    (a) Purpose. (1) Subpart B describes the general procedures and 
standards

[[Page 112]]

governing all appraisal work undertaken in connection with the real 
estate responsibilities of the Corps of Engineers.
    (2) These guidelines are to promote and encourage the utilization of 
uniform appraisal methods, standards, and techniques. Their use should 
result in the most effective solutions to the many appraisal problems 
with which the Corps of Engineers is confronted in the implementation of 
its real estate programs involving acquisition, disposal, and management 
of all kinds of real property. They are to encourage the appraiser to 
include in his appraisal process sufficient factual data and other 
supporting information to develop sound, unbiased, and independent 
market value estimates; promote appraisal reporting techniques that 
reflect acceptable judicial concepts, intelligent and convincing 
reasoning; and provide a sound basis for negotiations and valid 
testimony in court.
    (b) Applicability. Provisions of this subpart are applicable to the 
Office of the Chief of Engineers and all field operating agencies having 
real estate responsibilities.
    (c) Procedures and standards. (1) In acquiring, disposing, and 
managing real estate, or any interest therein, it is the practice of the 
Department of the Army to impartially protect the interests of all 
concerned.
    (2) The fair market value of the pertinent real estate interest in 
each parcel or tract of real property being acquired, disposed of or 
managed will be developed by a competent appraiser preparing an adequate 
appraisal report indicating sound estimates of values of each estate 
required. The appraisal may be prepared by either a staff employee or by 
a self-employed contract appraiser; however, each must have demonstrated 
the ability to exercise good judgment and must have had adequate 
experience in estimating the market value of the particular type of 
property involved. The qualifications and selection of staff appraisers 
will be based on the Civil Service Standards for the GS-1171 Series. A 
contract appraiser must also meet the experience requirements set forth 
in the Civil Service Standards.
    (3) It is the practice of the Chief of Engineers to engage the 
services of competent appraisers and consultants to augment staff 
capabilities in the appraisal of various real estate interests to be 
acquired, disposed of or managed by the Corps. Preference will be given 
to local appraisers and consultants, if qualified, and the costs of 
their services will be paid by the Government. Any appraiser having an 
interest in the property being appraised or any relationship, family or 
business, to the owner thereof, will be disqualified from appraising 
that particular tract.
    (4) Normally, only one appraisal per ownership or tract will be 
obtained. However, in cases involving controversial appraisal problems 
or precedent setting patterns of value in first priority areas of large 
projects, more than one appraisal of the same property may be obtained 
if considered necessary by the Division or District Engineer. If 
negotiations with the owners have reached an impasse and it appears that 
the filing of condemnation proceedings will be necessary to acquire the 
land or interest therein, the joint Corps of Engineers-Department of 
Justice policy provides that in fee takings, where the value of the 
property is between $50,000 and $100,000 only one appraisal need be 
provided to the Department of Justice so long as it is a contract 
appraisal; two appraisals will be provided for values exceeding 
$100,000. In the filing of condemnation proceedings for easement takings 
in excess of $50,000 two appraisals will be required. At least one of 
the two appraisals must be made by a contract appraiser. More often than 
not, both will be by contract appraisers.
    (5) Each appraisal report will be carefully reviewed and acted upon 
by a qualified reviewing appraiser.
    (6) It is essential that negotiations for any required real estate 
interests be conducted on the basis of an approved appraisal that 
reflects current fair market value. Any appraisal report with an 
effective date of six months or more prior to initiation of negotiations 
with the landowner or the date of filing of a condemnation action is 
considered outdated and should be reviewed and brought up to date to 
reflect current market conditions.

[[Page 113]]

    (7) The appraiser may be called upon, in condemnation proceedings or 
otherwise, to establish the validity and competence of his estimates. He 
must familiarize himself with basic rules of trial evidence so that his 
testimony will be admissible and of probative value. Since, as a 
witness, he must be prepared to offer convincing testimony, his report 
should contain an analysis of all factual data upon which his estimates 
are based.
    (8) Local representatives of the Department of Justice are available 
for consultation in matters pertaining to acquisitions and legal 
principles involved in valuation problems.
    (9) Appraised valuations and the supporting appraisal reports, for 
acquisition or disposal purposes, are privileged information and the 
appraiser should not divulge his findings and opinions to anyone except 
authorized officials of the Government. Section 301(3), Pub. L. 91-646, 
January 2, 1971, dictates that written statement of, and summary of the 
basis for, the amount of the estimate of just compensation, shall be 
furnished the property owner. This does not mean that the appraisal 
report or any part of it should be given to the landowner, but only a 
summary of the amount and methods of appraisal.
    (10) The appraiser is usually the first personal contact the owner 
has with a representative of the Government. The owner is generally the 
prime source of information pertaining to the history, condition, 
management, and operation of the property. It has always been the Corps' 
practice for the appraiser to contact and consult with the owner of a 
property prior to and during the inspection of the tract. Section 
301(2), Pub. L. 91-646, January 2, 1971, dictates that ``* * * the owner 
shall be given an opportunity to accompany the appraiser during his 
inspection of the property.'' Before the appraiser makes his first visit 
to the property, he must make every effort to contact the owner and 
invite him or his designated agent or representative to accompany him on 
his actual field inspection. If personal contact is not possible, a 
registered letter should be sent to the owner. The appraisal report 
should reflect when and how the owner or his representative was 
contacted, whether or not he accompanied the appraiser, and any other 
pertinent comments.
    (d) Definition of market value. ``Under established law the 
criterion for just compensation is the fair market value of the property 
at the time of the taking. `Fair market value' is defined as the amount 
in cash, or on terms reasonably equivalent to cash, for which in all 
probability the property would be sold by a knowledgeable owner willing 
but not obligated to sell to a knowledgeable purchaser who desired but 
is not obligated to buy. In ascertaining that figure, consideration 
should be given to all matters that might be brought forward and 
reasonably be given substantial weight in bargaining by persons of 
ordinary prudence, but no consideration whatever should be given to 
matters not affecting market value. The cash or on terms reasonably 
equivalent to cash, requirement is important and numerous courts have 
noted this factor.'' (Source: ``Uniform Appraisal Standards For Federal 
Land Acquisitions,'' Interagency Land Acquisition Conference, 
Washington, DC, 1973.) This definition is considered to be consistent 
with another definition approved by the American Institute of Real 
Estate Appraisers which sets out market value ``as the highest price 
estimated in terms of money which a property will bring if exposed for 
sale in the open market, allowing a reasonable time to find a purchaser 
who buys with knowledge of all the uses to which it is adapted and for 
which it is capable of being used.''
    (e) Use of appraisal procedures. (1) The appraisal of real estate is 
the estimation of the fair market value of a specified interest in a 
particular ownership of property, and the appraisal profession has 
developed certain basic appraisal techniques and procedures. There are 
three approaches to value which have become standardized--the cost 
approach; the market approach; and the income approach.
    (2) In the COST APPROACH, the appraiser estimates the cost of 
reproduction of the buildings and land improvements. A deduction is made 
for depreciation due to physical deterioration, and also for functional 
and economic obsolescence. The value of the land is

[[Page 114]]

then estimated by comparison with sales of similar unimproved tracts and 
added to the depreciated value of the improvements. This procedure is 
also referred to as the Summation Approach. This approach is always 
applicable in the valuation of publicly owned structures such as 
schools, fire houses, etc.
    (3) In the MARKET APPROACH, the appraiser compares the subject 
property on an overall basis with similar properties which have recently 
sold. Adjustments are made for all factors of dissimilarity. All known 
sales are considered, but the appraiser selects only those which are 
verified to be good ``arms length transactions'' and considered to be 
most similar to the property appraised. After these sales are analyzed 
and adjusted to the subject, this data is then correlated into a final 
estimate of value as indicated by the market.
    (4) In the INCOME APPROACH, the appraiser estimates the probable 
gross and net income to be expected from the rental of the property, 
adjusts for the quality and durability of this income stream, and 
processes this income into a value estimate by use of an appropriate 
capitalization rate.
    (5) The appraiser then correlates the indicated value estimates from 
the three approaches into a final estimated market value. Consideration 
is given to the relative strengths and weaknesses of each approach. 
Normally, the most weight is given to the approach commonly used by the 
typical purchasers of the type of property appraised. In almost all 
routine appraisals the market approach is most applicable.
    (f) Importance of the appraisal function. The measure of success or 
failure in any real estate transaction is inseparably bound up in the 
matter of price. The heart of the real estate business is the price 
estimate or appraisal. The importance of sound appraisals for the 
Department of the Army cannot be over-emphasized. The courts have 
established basic rules governing exercise of the power of eminent 
domain.
    (g) Appraisal is an ``Estimate.'' The market value of any real 
estate interest is not a matter of exact determination, and the 
appraiser does not ``establish'' or ``determine'' the value. An 
appraisal is an ``estimate'' of current value based upon and supported 
by an analysis of all the factors, physical, economic, and social which 
influence the present and future benefits to be derived from the 
ownership of the property appraised.
    (h) The appraisal format. In order to establish a degree of 
uniformity throughout the Corps as to an appraisal format, all staff 
appraisers and contract appraisers will follow the outline as set forth 
in the ``Uniform Appraisal Standards For Federal Land Acquisition'' and 
Sec.  644.42.



Sec.  644.42  Appraisal report.

    (a) Preface. The appraisal report is an important document which 
serves as a material aid in the acquisition of required real estate 
interests. It is also an indispensable factor in justifying expenditures 
of public funds. It is essential that the report indicates conclusively 
that the appraiser has considered and analyzed all available data and 
used logical reasoning and judgment in developing his value conclusions.
    (b) Scope of reports. (1) It is the Corps' practice that all 
appraisal reports will be prepared in narrative form. The report will 
include, as a minimum, all essential data which will disclose the 
purpose, the scope of the problem and the principal techniques and 
approaches employed. The report should contain all the pertinent 
supporting data required to sustain the appraiser's final conclusion of 
market value.
    (2) The use of preprinted narrative sales data sheets is authorized. 
Care should be exercised to properly relate each sale to subject in the 
narrative. Use of individual forms is also authorized for tabular 
exercises, such as the ``cost approach.'' In every instance the 
narrative should reflect the appraiser's reasoning.
    (c) Narrative report format. (1) The following report format is 
taken verbatim from ``Uniform Appraisal Standards For Federal Land 
Acquisitions,'' published by the Interagency Land Acquisition 
Conference, 1973.

    B-1. Contents of appraisal report: The text of the appraisal report 
shall be divided into four parts as outlined below:

[[Page 115]]

                          PART I--INTRODUCTION

    1. TITLE PAGE. This shall include (a) the name and street address of 
the property, (b) the name of the individual making the report, and (c) 
the effective date of the appraisal.
    2. TABLE OF CONTENTS.
    3. LETTER OF TRANSMITTAL.
    4. PHOTOGRAPHS. Pictures shall show at least the front elevation of 
the major improvements, plus any unusual features. There should also be 
views of the abutting properties on either side and that property 
directly opposite. When a large number of buildings are involved, 
including duplicates, one picture may be used for each type. Views of 
the best comparables should be included whenever possible. Except for 
the overall view, photographs may be bound as pages facing the 
discussion or description which the photographs concern. All graphic 
material shall include captions.
    5. STATEMENT OF LIMITING CONDITIONS AND ASSUMPTIONS.
    6. REFERENCES. If preferred, may be shown with applicable approach.

                          PART II--FACTUAL DATA

    7. PURPOSE OF THE APPRAISAL. This shall include the reason for the 
appraisal, and a definition of all values required, and property rights 
appraised.
    8. LEGAL DESCRIPTION. This description shall be so complete as to 
properly identify the property appraised. If lengthy, it should be 
referenced and included in Part IV. If furnished by the Government and 
would require lengthy reproduction, incorporate by reference only.
    9. AREA, CITY AND NEIGHBORHOOD DATA. This data (mostly social and 
economic) should be kept to a minimum and should include only such 
information as directly affects the appraised property together with the 
appraiser's conclusions as to significant trends.
    10. PROPERTY DATA:
    a. Site. Describe the soil, topography, mineral deposits, easements, 
etc. A statement must be made concerning the existence or nonexistence 
of mineral deposits having a commercial value. In case of a partial 
taking, discuss access both before and after to remaining tract. Also 
discuss the detrimental and hazardous factors inherent in the location 
of the property.
    b. Improvements. This description may be by narrative or schedule 
form and shall include dimensions, cubic and/or square foot 
measurements, and where appropriate, a statement of the method of 
measurement used in determining rentable areas such as full floor, 
multitenancy, etc.
    c. Equipment. This shall be described by narrative or schedule form 
and shall include all items of equipment, including a statement of the 
type and purpose of the equipment and its state of cannibalization. The 
current physical condition and relative use and obsolescence shall be 
stated for each item or group appraised, and, whenever applicable, the 
repair or replacement requirements to bring the property to usable 
condition.
    Any related personalty or equipment, such as tenant trade fixtures, 
which are not attached or considered part of the realty, shall be 
separately inventoried. Where applicable, these detachable or 
individually owned items shall be separately valued.
    d. History. State briefly the purpose for which the improvements 
were designed, dates of original construction and/or additions; include, 
for privately owned property, a ten-year record as to each parcel, of 
all sales and, if possible, offers to buy or sell, and recent lease(s); 
if no sale in the past ten years, include a report of the last sale.
    e. Assessed value and annual tax load. If the property is not taxed, 
the appraiser shall estimate the assessment in case it is placed upon 
the tax roll, state the rate, and give the dollar amount of the tax 
estimate.
    f. Zoning. Describe the zoning for subject and comparable properties 
(where Government owned, state what the zoning probably will be under 
private ownership), and if rezoning is imminent, discuss further under 
item 11.

                   PART III--ANALYSES AND CONCLUSIONS

    11. ANALYSIS OF HIGHEST AND BEST USE. The report shall state the 
highest and best use that can be made of the property (land and 
improvements and where applicable, machinery and equipment) for which 
there is a current market. The valuation shall be based on this use.
    12. LAND VALUE. The appraiser's opinion of the value of the land 
shall be supported by confirmed sales of comparable, or nearly 
comparable lands having like optimum uses. Differences shall be weighed 
and explained to show how they indicate the value of the land being 
appraised.
    13. VALUE ESTIMATE BY COMPARATIVE (MARKET) APPROACH. All comparable 
sales used shall be confirmed by the buyer, seller, broker, or other 
person having knowledge of the price, terms and conditions of sale. Each 
comparable shall be weighed and explained in relation to the subject 
property to indicate the reasoning behind the appraiser's final value 
estimate from this approach.
    14. VALUE ESTIMATE BY COST APPROACH, IF APPLICABLE. This section 
shall be in the form of computative data, arranged in sequence, 
beginning with reproduction or replacement cost, and shall state the 
source (book and page if a national service) of all figures used. The 
dollar amounts of physical deterioration and functional and

[[Page 116]]

economic obsolescence, or the omission of same, shall be explained in 
narrative form. This procedure may be omitted on improvements, both real 
and personal, for which only a salvage or scrap value is estimated.
    15. VALUE ESTIMATE BY INCOME APPROACH, IF APPLICABLE. This shall 
include adequate factual data to support each figure and factor used and 
shall be arranged in detailed form to show at least (a) estimated gross 
economic rent or income; (b) allowance for vacancy and credit losses; 
(c) an itemized estimate of total expenses including reserves for 
replacements.
    Capitalization of net income shall be at the rate prevailing for 
this type of property and location. The capitalization technique, method 
and rate used shall be explained in narrative form supported by a 
statement of sources of rates and factors.
    16. INTERPRETATION AND CORRELATION OF ESTIMATES. The appraiser shall 
interpret the foregoing estimates and shall state his reasons why one or 
more of the conclusions reached in items (13), (14), and (15) are 
indicative of the market value of the property.
    17. CERTIFICATION. This shall include statement that Contractor has 
no undisclosed interest in property, that he has personally inspected 
the premises, date and amount of value estimate, etc.

                      PART IV--EXHIBITS AND ADDENDA

    18. LOCATION MAP. (Within the city or area)
    19. COMPARATIVE MAP DATA. Show geographic location of the appraised 
property and the comparative parcels analyzed.
    20. DETAIL OF THE COMPARATIVE DATA.
    21. PLOT PLAN.
    22. FLOOR PLANS. (When needed to explain the value estimate.)
    23. OTHER PERTINENT EXHIBITS.
    24. QUALIFICATIONS. (Of all Appraisers and/or Technicians 
contributing to the report.)

    (2) The following exceptions are made to the above format:
    (i) Estate, either a copy of the estate appraised should be included 
in the report or by reference in the report to the appropriate estate.
    (ii) Legal description must be included in the appraisal report, 
either in the body or as an exhibit.
    (3) Photographs of important buildings and unusual land conditions 
are considered an integral part of each appraisal report. Judgment 
should be exercised in conserving time and expense, and several small 
buildings can often be covered in one photograph. The use of color film 
and photographs is encouraged, especially wherein development cost 
either ``in-house'' or by outside firms is reasonable.
    (d) Brief appraisals. (1) Brief narrative appraisal reports, of a 
one-to-four page composition, are authorized for use in many instances 
wherein the evaluation or per annum rental value does not exceed $3,600. 
The use of this type of report is encouraged and authorized for:
    (i) Family housing appraisals,
    (ii) Inleasing of privately-owned quarters and outleasing of 
government-owned quarters to civilian tenants,
    (iii) The purchasing or leasing of undeveloped land,
    (iv) Rentals of small office-type space (example: Recruiting 
facilities),
    (v) Rights of way for utility lines and roadways,
    (vi) Leases; easements, and
    (vii) Other minor interests in real property.
    (2) Appraisals exceeding $2,000 per annum rental are subject to the 
Economy Act, and the fee value must be shown if improvements are 
included. A brief or short form-type of appraisal is adequate.
    (3) All appraisals will be supported by at least three comparable 
sales or rentals of similar properties. A narrative discussion of each 
will be included. In bulk acquisition projects the use of prepared sales 
data sheets is authorized and encouraged. Each sale or rental must be 
discussed and compared to the subject property within the narrative of 
the report.
    (4) Brief narrative appraisals will be reviewed under the same 
requirements as normal appraisal reports.



Sec.  644.43  Gross appraisals.

    (a) Preparation. (1) The gross appraisal sections of real estate 
design memoranda and planning reports are subject to minute scrutiny by 
higher authority in the Department of Defense and by Congressional 
Committees. It is essential that they be meticulously prepared to 
reflect actual market conditions and unit prices.
    (2) Each gross appraisal will be supported by detailed analyses of 
an adequate number of typical comparable sales. Each index sale will be 
analyzed to show various land classifications

[[Page 117]]

and values, building contribution estimates and other relevant 
information. The sales prices should be verified by someone having 
knowledge of the transaction.
    (3) Where letter-type or brief real estate design memoranda on civil 
works projects are submitted, comparable sales data will be presented in 
one of the following methods:
    (i) Be submitted within the report in a brief manner, with at least 
three truly comparable sales discussed in narrative form and comparisons 
shown to the subject lands covered by the memorandum.
    (ii) Be referenced to the last real estate design memorandum issued 
on the same project and if values have changed in the interim, 
additional sales data submitted to support the changes. If the last 
design memorandum is over a year old, new supporting data must be 
submitted.



Sec.  644.44  Fee appraisals.

    (a) Definitions and procedures. (1) The complete and unrestricted 
ownership of all the rights to the full use and enjoyment of a parcel of 
real estate is called the ``fee simple estate.'' An appraisal of this 
interest is referred to as ``Fee Value.''
    (2) Most fee appraisals require the use of all three of the standard 
appraisal approaches.
    (b) Applicability. Appraisals of the fair market value of the free 
and clear fee title to the subject property is necessary in the greatest 
majority of the Corps of Engineers' real estate responsibilities be it 
acquisition (full or partial), disposal, inleasing, outleasing, rentals, 
etc. In almost every case the monetary value of the required estate and 
interest is based on the fee value of the property; therefore, the 
Corps' greatest appraisal requirement is for fee appraisals.
    (c) Approaches. (1) It is recommended that whenever possible all 
three of the standard appraisal approaches, Cost-Market-Income, be used 
in a fee appraisal. However, if due to the type of property, is is not 
practical, beneficial, or necessary to use a particular approach, the 
appraiser is required to indicate in his report that consideration was 
given to its use and discuss why it was not used.
    (2) In the Cost Approach it is extremely important that the 
appraiser document all items of costs for development, construction, 
utilities, etc. It also is extremely important that he fully consider 
all forms of depreciation such as physical deterioration, functional 
obsolescence, economic obsolescence, etc., and justify his methods and 
factors used in developing his depreciation factors.
    (3) The Market Approach or Comparative method of appraisal is the 
most direct approach to a market value estimate and is preferred above 
all others. It is basically an application of the principle of 
substitution wherein the sales of similar type properties are analyzed 
to develop a price at which an equally desirable and similar property 
can be obtained. It involves the collection and analyzing of current 
sales of comparable properties and comparing these sales to the subject 
property. Since no two properties are identical, the appraiser must make 
adjustments for differences between the two. Adjustments may be by a 
dollar amount (per unit, per acre, or lump sum) or on a percentage 
basis. Full support and justification must be given for each amount. 
Adjustments may be shown either by a tabular analysis or by a narrative 
discussion.
    (4) The market value of an income-producing property is quite often 
governed by the net income it will produce. The fair market value may be 
estimated by developing the expected net income and processing it into a 
value estimate by use of an appropriate capitalization rate. The keynote 
of this approach lies in the sound development of a proper rate. The 
appraiser must have a basic knowledge of the principle and techniques 
involved and must be certain that he has adequate data to develop this 
rate and properly process the income into a fair market value.
    (5) It is most important that the valuation estimates developed by 
all of the approaches used are correlated into one conclusive value. In 
those cases where there is a substantial spread among values, the 
appraiser is cautioned to recheck all his data and figures for accuracy. 
The cost figures and

[[Page 118]]

depreciation factors should be checked in the Cost Approach; the sales 
data should be further documented and analyzed in the Market Approach; 
and the Income Method may require a recheck of the soundness of the 
capitalization rate.
    (d) Partial takings. (1) A substantial number of acquisitions 
require only portions of an ownership necessitating a ``partial 
taking.'' In these cases the appraiser is required to estimate the value 
of the whole ownership before the taking; the value of the remainder--
the difference being the value of the part taken. Many times the 
remainder is of less value after the taking, indicating a ``severance 
damage.'' The appraiser is usually required to allocate the total taking 
value between the value of the part acquired and the severance damage to 
the remainder by reason of the taking.
    (2) In order to promote uniformity in the reporting format, the 
following example of the ``before'' and ``after'' method is presented 
for guidance:

A 220-acre parcel of land is to be acquired from a 420-acre
 farm:
Value ``before'' the taking ($300 p/ac).....................    $126,000
Value of remainder ``after'' taking ($200 p/ac).............      40,000
                                                             -----------
Total Value of part taken, including severance damage to         $86,000
 remainder..................................................
Value of 220 acres taken ($300 p/ac)........................      66,000
                                                             -----------
Severance Damage to Remainder...............................     $20,000
 

    (3) The appraisal of the property before the taking must be a 
complete narrative-type appraisal containing adequate market data to 
support the total value. The report then must also include a full 
appraisal on the remainder portion of the property consisting of a full 
description of the residue immediately after the taking and a complete 
set of market data and sales other than those used in the ``before'' 
evaluation. If the remainder parcel has diminished in value as a result 
of the taking, the appraiser must have adequate support and 
justification for the reduction in value.
    (4) In the case of partial takings, consideration must also be given 
to offsetting benefits applicable to the remaining property. A 
combination of legal interpretation of the law and judicial decisions 
with regard to such benefits must be used in determining whether 
offsetting benefits are applicable. Reference is made to paragraph A-9 
and A-10 in the ``Uniform Appraisal Standards For Federal Land 
Acquisitions.''
    (5) Paragraph A-13 of the ``Uniform Appraisal Standards'' is also 
referenced in connection with guidance regarding ``navigation 
servitude.''
    (e) Appraisal Certificate. (1) No appraisal report will be 
considered acceptable without appropriate certification by the appraiser 
responsible for the contents of the report and the conclusion of values. 
The certification can be in the front or the back of the report, 
consistent with Division or District policy.
    (2) An appropriate certification shall be substantially in 
accordance with the following: I certify that I have carefully examined 
the property described herein and that the estimates as developed in the 
report represent my unbiased opinion and judgment. I further certify 
that I have no interest, past, present or prospective, in the subject 
property which would affect my opinion and that the present fair market 
value of the (insert estate appraisal) is subject only to all the 
assumptions and limitations as specifically set forth. (Date and 
signature of appraiser.)



Sec.  644.45  Rental value.

    (a) Definition. (1) The fair rental value of the property is the 
amount which, in a competitive market, a well-informed and willing 
lessee would pay and which a well-informed and willing lessor would 
accept for the temporary use and enjoyment of the property.
    (2) Appraisals to establish fair rental values will be made in 
accordance with acceptable standards of appraisal applicable to the 
particular type of property and in accordance with general appraisal 
practices and procedures heretofore described in relating to all 
appraisal work. The preparation of time-consuming and lengthy appraisal 
reports should be kept to a minimum, particularly with regard to rental 
properties of low value. A brief summary of the essential facts will be 
sufficient to support leases by the Government of building space or 
unimproved land where the net rental value is not in excess of $3,600 
per annum.
    (b) Applicability. All provisions of this subpart are applicable to 
``inleasing'' of

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real property for use of the Government, and equally applicable to 
``outleasing'' of Government-owned real property. Section 644.45(l) 
Government Quarters, is normally applicable only to ``outleasing'' of 
quarters to civilian employees. The provisions are, however, also 
considered valid considerations in appraising ``inleases,'' wherein 
privately-owned housing is being rented for occupancy by military 
personnel in lieu of quarters allowances.
    (c) Services. In the absence of an agreement or contract, a lessor 
is not bound to furnish any utilities or building services of any kind, 
and such services may not be acquired under the power of eminent domain. 
It is, therefore, necessary for the appraiser to include in his report 
as separate items the estimated cost of all customary services that may 
be required to permit the normal use and occupancy of the property.
    (d) Market value of fee. (1) Where temporary use of an entire 
building or other independent unit of an ownership is proposed, the 
appraisal will ordinarily report both the market value of the fee title 
and the fair annual rental value. However, no appraisal of fair market 
value of fee title is required in any case where assessed value, 
supported by statement of the assessor and ENG Form 869-R (15% Valuation 
Certificate), can be used for compliance with existing law, Section 322 
of the Act of June 30, 1932 (40 U.S.C. 278a), known as the ``Economy 
Act.'' Fee value is not required for land only leases, as the Economy 
Act is not applicable.
    (2) An exception to the above procedure is in regard to the 
appraisal of family housing units. As an alternative, the appraiser can 
support his rental valuation by use of comparable rentals and a 
statement that the lease value does not exceed 15% of the fair market 
value.
    (e) Lease of minor portions of buildings. Where appraisals are 
required to establish rental value of a minor portion of a building, it 
will not be necessary to estimate the fee value of the entire property, 
provided that the net annual rental does not exceed $2,000. A sound 
rental value can ordinarily be estimated by comparison with established 
rentals in subject property and in adjacent similar properties in the 
community. However, care should be exercised to insure the 
reasonableness of the reported comparable rental values. The appraiser's 
report must include sufficient data on these current rentals to support 
adequately the rental estimate for the subject space.
    (f) Unexpired lease. Where the premises to be acquired are occupied 
by tenants under leases which cannot be terminated at will by the 
landlord, the appraiser's report will set forth in detail the terms of 
the existing leases and will show the value of the tenant's interest. 
The value of the tenant's interest is based on the fair rental value 
(economic rent) of the part of the property occupied by the tenant for 
the unexpired term of the lease, or for the term condemned, whichever is 
shorter, less the rent which the tenant is obligated to pay (contract 
rent) under the existing lease. The difference between the economic and 
contract rent is known as ``bonus rent.''
    (g) Bonus value. Wherein a ``bonus rent'' is reflected as being the 
difference between economic and contract rent, a full narrative 
discussion will be included in the report. It is of paramount importance 
that the present economic rental be supported by the rental market data. 
The ``bonus value'' is the present worth of the discounted bonus rent.
    (h) Rental appraisal report. The appraisal report will contain 
adequate facts and discussions relative to the following:
    (1) Land description, showing street frontages and lot depths.
    (2) Adequate description of improvements and furnishings, including 
type of construction, total floor space, floor load for storage space, 
number of rentable rooms, or income-producing space, nonproductive or 
public space, total cubic content, and reproduction cost of improvements 
less depreciation.
    (3) Assessed valuation and lawful ratio to market value, if the 
annual rental value exceeds $2,000.
    (4) Analysis and discussions of current rentals of similar 
properties and rental history of the property appraised.

[[Page 120]]

    (5) Discussion of the appraisal process and rental rates applicable 
to the terms of the proposed lease, particularly as to any differential 
in the rate of return applicable to customary long term rentals.
    (6) Statement showing distribution of appraised annual rental as 
allocated to fixed charges and fair rate of return on land, buildings, 
and any furnishings or equipment that are included in the proposed 
taking.
    (i) Special purpose properties. Appraisals to estimate the rental 
value of hotels, clubs, hospitals, and other highly specialized 
properties will include full information on the income capacity of the 
property under average competent management and under accepted standards 
of operation for the particular type of property involved. The appraisal 
reports will, among other things, contain an analysis and discussion of 
the following items:
    (1) Financial history of property, including indebtedness, the 
actual past income or earnings of the property based upon audit reports 
for the past five years or longer, and any unaudited current months of 
the fiscal year. In the absence of audits, corporate statements may be 
furnished if properly certified.
    (2) Discussion of the past operation and management methods with 
comments relative to any excessive or insufficient charges appearing in 
the financial statements obtained.
    (3) Appraiser's estimate of the stabilized income of the property.
    (4) Appraiser's estimate of profits available for typical lessee-
operator.
    (5) Recommendations of the appraiser as to the relative merits of 
acquiring fee title to the property as against acquiring a leasehold 
interest.
    (j) Farms and rural properties. Appraisals to estimate the rental 
value of farms and other types of rural properties will report the 
present market value of the fee title, the fair annual rental value, and 
any direct damage to growing crops, standing timber, or improvements to 
be removed or destroyed. The damage will be reported separately from the 
rental value in order to permit the reflection of the damage in the 
primary rental term.
    (k) Industrial installations. (1) Appraisal reports will be obtained 
to support all leases of industrial installations or portions thereof. 
It is important that appraisals of operating industrial installations be 
prepared by specially qualified appraisers or consultants intimately 
familiar with the particular processes and production capabilities and 
related factors having any bearing on the value of a particular plant.
    (2) The appraisers selected to estimate the rental value should be 
fully informed as to all known prospective lessees and the amount of any 
bids, or offers made for the use of the property, and as to all terms, 
conditions, and limitations under which the property will be made 
available for use or operation.
    (3) The appraisal reports will include a detailed inventory setting 
forth all physical factors pertaining to the land, buildings, machinery, 
and equipment and an adequate discussion of all local factors 
influencing the profitable use of the facility. Data pertinent to the 
prevailing rentals for other Government and privately-owned industrial 
plants and warehouses considered reasonably similar to the facilities to 
be leased will also be included. The conclusions of the appraiser as to 
other matters of importance to the Department of the Army in its leasing 
operations will likewise be presented. The appraiser should bear in mind 
that idle manufacturing plants, and all industrial properties, as a 
general rule, are valuable only to the extent and degree that they are 
usable in actual production. It is also a generally accepted economic 
fact that the plant and fixed equipment (real estate) is the production 
factor for which a return can ordinarily be realized after the cost of 
all other factors in production has been provided. Military necessity 
has required the construction of many plants which are designed for 
special purposes and which may tend to defeat the ordinary approaches to 
the market rental value problem. In the absence of comparable rentals of 
similar properties or other reliable comparative guides to value for 
temporary use, market rental

[[Page 121]]

value should be estimated with particular consideration to the following 
methods:
    (i) Reasonable return on estimated fair value. For this purpose 
``fair value'' is defined as the prudent cost of reproduction less 
depreciation of only that portion of the property that is readily 
adaptable or capable of competition with alternative properties which 
may be available to or constructed by the proposed lessees. Items of 
equipment and any portions of a plant that do not directly contribute to 
the specific use may be eliminated from consideration and the rental 
return estimated only on items and space actually adaptable for use in 
the proposed enterprise. The appraiser is particularly concerned with 
any competitive disadvantages or penalties accruing to subject property 
by comparison with the alternatives available to prospective users. The 
rental estimate should therefore be appropriately modified with respect 
to adequate allowances for amortization of necessary alterations to be 
made by the lessee. Other operating disadvantages that might tend, from 
the competitive viewpoint, to result in increased operating cost or 
other penalties that might in any way be brought forward in negotiations 
to establish an acceptable rental price must also be considered.
    (ii) Ratio of plant costs to productive capacity. In many lines of 
industrial enterprise, it may be possible to obtain comparable operating 
experience ratios with reference to relation of average annual real 
estate costs or plant investment charges to the gross annual production. 
The difficulties of estimating production levels and obtaining 
sufficiently accurate data as to actual operating experience are fully 
appreciated. Suggested sources of such information are annual statements 
of prospective lessees and their competitors. It is believed that this 
approach to the appraisal problem is fundamentally sound, particularly 
so when there is an indicated demand for the full capacity of an 
industrial plant as originally designed, and that this method will serve 
as a reasonable check and balance against return on ``fair value.'' It 
should also be very helpful as a guide to the rate of capitalization in 
the ``fair value'' approach to the rental problem.
    (iii) Taxes. The appraisal will not be influenced by the fact that 
the Government is not presently required to pay taxes on the property.
    (iv) Savings. When appropriate, the estimated savings in 
maintenance, protection, repair and restoration, if any, will be 
obtained by the Management and Disposal Branch from the using service or 
other competent authority and furnished to the appraiser preparing the 
appraisal report.
    (l) Government quarters. (1) Rental schedules for Government 
quarters furnished to civilian employees will be supported by written 
appraisal reports reflecting adequate coverage of the following items:
    (i) Construction details. Physical description of quarters will 
include the general grade of construction work, materials and 
decorations, number of rooms, floor space, porches, garages, general 
appearance and condition.
    (ii) Equipment and accessories:

Refrigeration
Cooking facilities
Kitchen cabinets
Closet space
Built-in conveniences
Screening
Elevators
Telephone service
Utilities
Plumbing

    (iii) Furniture and furnishings.
    (iv) Site conditions:

Lot size
Lot size per living unit
Access (street and road frontage)
Restrictions
Land improvements (walks, driveways, shrubbery, lawns, topography, etc.)
Hazards and/or amenities

    (v) Neighborhood development and data:

Local zoning regulation
Public transportation
Schools
Shopping facilities
Recreational facilities
Supply and demand for housing
Population statistics
General trends

    (vi) Comparable rental data. Data will include results of a 
comprehensive survey of current rental rates applicable

[[Page 122]]

to the most similar privately-owned housing in the nearest competitive 
or comparable neighborhood or community. Typical rental rates will be 
compiled, analyzed and tabulated, and subject properties identified and 
described in the same manner as prescribed above for Government 
quarters. The appraisal report should include a vicinity map showing 
location of rental units listed for comparison in relation to the 
location of the quarters being appraised.
    (vii) Comparative relationships. The appraisal report will include a 
discussion of relative merits of Government quarters by comparison with 
private housing units. Rental rates of housing controlled by 
governmental agencies or subsidized by private industry will not be used 
as a basis for comparison.
    (viii) Correlation of rental units. A discussion of basic reasoning 
supporting the final rental value unit for each distinctive rental 
bracket is imperative.
    (ix) Photographs. Photographs of typical views of the quarters 
appraised and typical private housing units cited as comparable rentals 
will be included in each report.
    (x) Appraisal certificate. Rental appraisal reports will not be 
considered acceptable without appropriate certification substantially in 
accordance with: ``I certify that the above rental values represent my 
unbiased opinion of the present fair market rental value of the quarters 
described. I am not now a tenant residing in such quarters nor do I have 
any intention of becoming a tenant therein.''
    (2) Reappraisals of rental quarters are required every fifth year 
subsequent to previous appraisal. Rental rates will be adjusted annually 
between appraisals by application of the Consumer Price Index (CPI) 
maintained by the Bureau of Labor Statistics, Department of Labor, and 
as further required in accordance with Transmittal Memorandum No. 2, OMB 
Circular A-45, revised October 30, 1974.



Sec.  644.46  Easements.

    (a) Definition. An easement is a property right of specified use and 
enjoyment falling short of fee ownership. It follows that the value of 
an easement is less than the market value of fee title to the same 
portion of property (exclusive of severance damages to residual 
portions).
    (b) Measure of value. The measure of compensation for an easement is 
the amount by which market value of the ownership is diminished by the 
imposition of the easement. This should be developed by use of the 
``before'' and ``after'' method of appraisal, the difference being the 
value of the taking.
    (c) Flowage easements. (1) The appraisal of flowage easements will 
not be undertaken until flood frequency surveys have been completed and 
approved by proper authority. The flood frequency data will be made 
available to the appraisers with the definite understanding that it is 
to be accepted as one of the controlling factors in estimating the 
market value of the easements. The appraiser's certificate should be 
qualified to include the assumption that the frequency data is correct 
and that he has no responsibility therefore.
    (2) The market value of fee simple title to each property over which 
a flowage easement is required will first be appraised in the usual 
manner. This estimate will be followed by appraisal of the market value 
of the property after imposition of the easement. The market value of 
the easement is then computed on the basis of the amount the market 
value of fee title is reduced by imposition of the easement. The 
appraiser will give full consideration to all factors having a bearing 
on the reduction in value of the parcel on which the easement is to be 
imposed. Each appraisal report will include complete information as to 
estimated flood frequency pertaining to each parcel appraised.
    (3) The appraiser's major problem in appraising tracts having 
considerable value is the development of his value estimate after the 
imposition of the easement. The market data approach to value is limited 
in this phase of the appraisal to index sales of land reflecting the 
``use adaptability'' of lands to a less profitable purpose. Typical of 
such change in highest and best use are the conversion of row crop land 
and orchard land to pasture and forestry. Likewise, the cost approach to 
value is applicable only to land improvements

[[Page 123]]

and structures to be removed or destroyed. It is, therefore, considered 
essential that flowage easement appraisals reflect, in adequate detail, 
changes in utility by the development and use of the earnings approach 
to value before and after imposition in all cases involving lands 
capable of producing income. The ratios thus developed in ``before'' and 
``after'' values for income producing lands should prove to be helpful 
in developing appropriate ratios for nonproductive lands.
    (4) In those instances where the type of land, topography, flood 
frequency and duration data clearly indicate that a minimal change in 
value (not to exceed $100) will result from exercise of the required 
rights, a brief appraisal is authorized. The appraisal report will 
contain as a minimum a complete statement of pertinent facts, including 
information regarding flood frequency and duration data pertaining to 
the property appraised. In the event condemnation is required to acquire 
the necessary rights, an acceptable ``before'' and ``after'' appraisal 
will be prepared prior to the institution of condemnation proceedings.
    (5) A tract map showing each contour level of varying flood 
frequency will be made a part of each appraisal report. This map should 
facilitate review of the appraisals and serve as an aid to the 
negotiator in his contacts.
    (d) Other easements. It is recognized that many other types of 
easements, i.e., road, pipeline, restrictive, borrow, transmission line, 
flight, spoil, etc. are to be appraised. In all instances, the measure 
of value is still the same, the amount by which the market value of the 
ownership is diminished by the imposition.



Sec.  644.47  Appraisal of other interests.

    (a) Minerals. (1) In all cases, the value of the subsurface will be 
included or accounted for in the appraisal report in such manner that 
negotiations may be readily conducted to acquire or extinguish 
subsurface rights if they are outstanding in third parties or if it 
develops that the vendors desire to reserve them. In those instances 
where minerals are held separately in large blocks underlying several 
individual surface tracts, a statement to this effect should be included 
and the plan for appraising the mineral estate identified. Unless the 
person who is appraising the surface has had training and experience in 
appraising minerals, the subsurface appraisal should be made separately 
by an appraiser qualified to perform this service. Since the removal of 
certain minerals may destroy the usefulness of the surface, care should 
be exercised to avoid duplication of value.
    (2) In the event that subsurface valuation is unfamiliar to the 
Division or District requiring same, HQDA (DAEN-REE) WASH DC 20314 
should be contacted for advice and recommendations. Mineral valuation 
engineers within the Corps may be utilized on a cost reimburseable basis 
for furnishing gross or tract appraisals.
    (b) Timber. (1) Where the land being appraised has only young trees 
or timber not of merchantable size, the value thereof will be included 
with the value of the land. If the timber is of merchantable size, a 
timber cruise will be made by a professional forester and the timber 
classified in the appraisal according to species, type, range of size, 
quantity, unit value, and total value. A discussion of logging, haulage, 
and market conditions will be given. The total value of timber shall be 
the amount by which the timber enhances the market value of the bare 
land.
    (2) Extreme care must be exercised in the use of separate timber 
estimates for appraising timber land, so as to avoid ``doubling up.'' 
Where a timber cruise or estimate is used, comparable sales of recently 
timbered land should be used to support the remaining land value. Where 
such sales are not available, care must be utilized to extract the 
timber value from sales of timber land. The optimum situation would be 
to have sales that were also cruised; however, this does not often 
happen.
    (c) Growing crops. (1) Crop appraisals will not ordinarily be 
necessary except in those cases where the Division or District has 
determined that possession of the cropland is necessary prior to the 
normal harvest period. Where the Division or District Engineer has 
determined that the landowner or his tenant cannot be permitted to 
harvest

[[Page 124]]

the crops, they will be appraised as separate property items.
    (2) The crop appraisal will identify the crops by type, number of 
acres, estimated yield per acre taking into account all hazards, the 
unit value, gross market value at maturity based upon current local 
prices for the commodities less cost of bringing to maturity, harvest, 
and delivering to available markets. The expected harvest period will be 
reported, together with other pertinent information, in order to 
indicate an approximate date when the cropland may be available for 
construction purposes.
    (d) Use of Government-owned property. (1) An appraisal will be made, 
when required, to justify the consideration reserved in all leases, 
licenses and easements, except those specifically mentioned in paragraph 
(d)(3) of this section. The appraisal will be made in accordance with 
acceptable standards applicable to the particular type of property and 
the use to be made thereof in the proposed grant, and in accordance with 
the general appraisal practices and standards heretofore outlined in 
this chapter. Ordinarily the appraisals of property involving 
substantial improvements will include, in addition to complete coverage 
of all factors influencing the use of the property appraised, complete 
information as to the following:
    (i) Data of acquisition and completion of Government construction.
    (ii) Complete cost data as to original purchase price and Government 
construction.
    (iii) Detailed discussion of the predominant uses to which the 
property is adaptable.
    (iv) Competitive position of the property with respect to 
availability of privately-owned properties for similar use.
    (v) Estimate of market value of fee title.
    (vi) Estimate of annual rental value assuming unrestricted use over 
a reasonable period of time.
    (vii) Estimate of annual rental value under proposed Government 
restrictions.
    (2) Time consuming and lengthy appraisal reports should be avoided 
in the case of low value grants involving Government-owned property. The 
consideration in such cases may be substantiated by a simplified 
appraisal report by a qualified appraiser setting forth only such facts 
as are required to validate his conclusions as to value. In such 
instances, a physical inspection of the property may be waived where the 
appraiser is sufficiently familiar with the property under appraisals 
and local market conditions to prepare a reasonable value estimate of 
the estate to be appraised. When a property is not physically inspected, 
it will be so noted in the appraisal report. The decision concerning the 
necessity for a physical inspection of the property and analyzing local 
market conditions will rest with the appraiser signing the appraisal 
certificate since he is personally responsible for the value conclusion 
developed in the appraisal report. A low value grant for the purpose of 
this paragraph is defined as any grant for which the fair market rental 
value (before applying any offset in rental for estimated savings in 
maintenance, protection, repair and restoration) does not exceed the 
following:

Easement--$500 for the term.
Lease or License--$500 per annum if granted for not more than a five-
year period and is granted after advertising.

    (3) The following are exempt from the above requirements:
    (i) Leases for land on which to construct new credit union 
facilities, under long-term leases. See DOD Directive No. 1000.10 for 
formula.
    (ii) Concession leases under Graduated Rental System.



Sec.  644.48  Review and approval.

    (a) Procedure. (1) Upon completion of an appraisal, the signed 
report is to be reviewed by a reviewing appraiser to assure that the 
information and data developed by the appraiser substantiates the 
estimated valuation. The review function also serves as a means of 
resolving differences that might be found in two or more individual 
appraisals of a single property. The reviewing appraiser is also 
responsible for maintaining consistency in appraisals for the various 
properties in a project.
    (2) A review of all real estate appraisals is considered of vital 
importance to

[[Page 125]]

the successful operation of the real estate mission of the Corps of 
Engineers. It is essential that each and every appraisal be given an 
independent review and check by a thoroughly qualified reviewing 
appraiser. This will insure that the appraisal represents relative 
concurrence as to value of not less than two real estate appraisers 
professionally qualified by previous experience in appraising the 
particular type of property involved. The reviewing appraiser should 
familiarize himself with the property to the extent that he can 
adequately present and support his opinion when called upon to do so.
    (3) The review action will be documented by a separate narrative 
memorandum signed and dated by the authorized reviewing appraiser. Such 
review memorandum will indicate, but not be limited to, the following:
    (i) Date and nature of physical inspection of the subject property.
    (ii) Statement relative to reviewer's knowledge of comparable sales 
used.
    (iii) Reviewer's opinion as to the appraiser's valuation.
    (iv) Other pertinent data, if any, relative to the property or 
comparable sales that the reviewer feels would lend additional credence 
to value estimate.
    (v) Reviewer's certification of approval, disapproval, or 
recommendation.
    (4) If more than one appraisal is obtained for an ownership, all 
should be reviewed by the same reviewing appraiser. The reviewer can 
cover all appraisals in one review memorandum, or write individual 
reviews.
    (5) No alterations or additions will be made to a signed appraisal 
report by anyone other than the appraiser who signed the report. A 
reviewer cannot change the value reflected or approve an amount other 
than the appraiser's final conclusion of value. His alternative is 
disapproval.
    (6) A reviewing appraiser may not review other appraisal reports 
covering a property that he has himself previously appraised. In this 
instance the reports must be assigned to another reviewer or be 
forwarded to the next level of review for appropriate action.
    (7) Appraisal reports obtained by the Department of Justice and 
submitted for Corps review are to be treated in the same manner as those 
obtained by the Corps.
    (b) Delegation. (1) Division Engineers have been authorized to 
approve or take action as appropriate on all real estate appraisal 
reports made for the purpose of purchase, disposal, or any use of real 
property in which the estimated fair market value (of the part to be 
acquired, if a partial taking) does not exceed $250,000, or the 
estimated fair market rental value does not exceed $150,000 per annum.
    (2) Division Engineers have been authorized further, at their 
discretion, to redelegate any part of this authority, up to $150,000, to 
District Engineers.
    (3) All appraisals exceeding $250,000 will be forwarded to HQDA 
(DAEN-REE) WASH DC 20314 for final review, approval, and/or appropriate 
action. Each report will be thoroughly reviewed at all levels, including 
the Project, District and Division.
    (4) A copy of all those reports between $100,000 and $250,000 will 
be forwarded to DAEN-REE for post review and retention.
    (5) In addition to those reports which exceed the delegated 
authority, DAEN-REE will review and take appropriate action on complex, 
difficult and controversial appraisals. Where more than one appraisal 
has been made within either of these categories, a copy of each 
appraisal report should be submitted for review regardless of variances 
in opinions of value. At times, the Division Engineers may receive 
specific instructions as to appraisals which may require final approval 
of DAEN-REE. Also, from time to time, DAEN-REE may call for and review 
typical appraisals prepared by individual appraisers.
    (c) Reconciliation of appraisal reports. In the event that a 
reviewing appraiser does not agree with the value conclusion of the 
appraiser, the following steps should be taken:
    (1) Attempt to reconcile differences with the appriser in a face-to-
face meeting. The reviewing appraiser should present his additional 
evidence of value to the appraiser and discuss the report weaknesses, if 
any.
    (2) In the event reconciliation and approval are not possible, the 
reviewer

[[Page 126]]

must then forward the report and review certificate to higher authority 
for resolution and request that another appraisal be obtained.
    (d) Qualifications of reviewing appraisers. (1) A reviewing 
appraiser should have a minimum of five years experience in the field of 
real estate appraising. He should also have taken and successfully 
completed two or more appraisal courses offered by professional 
appraisal organizations. His experience record should indicate that he 
has thorough knowledge of all the standard appraisal techniques and 
approaches and has the ability to analyze the market and all pertinent 
data which affects value.
    (2) Upon selection and appointment by the District Engineer of 
qualified staff personnel to act as reviewing appraisers, a copy of 
their qualifications and experience records, along with a copy of the 
appointing orders, will be forwarded to HQDA (DAEN-REE) WASH DC 20314.
    (e) Code of ethics. Under no circumstances will an appraiser be 
directed to make an appraisal at any predetermined amount or to change 
his opinion of value on any property appraised. It is recognized that 
the review function will develop some differences of opinion. However, 
where those differences cannot be resolved on a higher ethical basis, 
predicated upon sound reasoning and adequate data properly analyzed and 
applied, an additional appraisal will be obtained.



Sec.  644.49  Contracts.

    (a) Appraisal reports. (1) Within their contract authority, Division 
and District Engineers may contract with recognized appraisal firms, 
corporations and individuals for necessary appraisal reports on a lump 
sum basis. Following the award of any appraisal contract in excess of 
$5,000 a copy of such contract will be forwarded by the issuing office 
direct to HQDA (DAEN-REE) WASH DC 20314, immediately upon execution.
    (2) Requests from Division and District Engineers to the Chief of 
Engineers for names of appraisers qualified to make particularly complex 
appraisals are invited.
    (3) Division and District Engineers will develop and maintain 
current lists of qualified appraisal firms, corporations and 
individuals, from which contractor selection will be made. These lists 
should be appropriately grouped or rated in accordance with special 
qualifications and experience in connection with various and specific 
types of appraisal problems.
    (4) Prior to receipt of proposals and negotiations with appraisers, 
a target fee (Government estimate) will be developed with due 
consideration to the relative skill and ability required in solving the 
appraisal problem and the appraiser's time and expense required for 
preparing the desired reports.
    (5) In the negotiation of appraisal contracts the following items 
are to be considered:
    (i) The appraisal of real estate is a recognized profession governed 
by a code of ethics prohibiting competition in obtaining appraisal 
assignments. All negotiations for proposals will be conducted on an 
individual basis, with adequately qualified appraisal firms, 
corporations or individuals competent to deliver the required appraisal 
reports on schedule.
    (ii) In view of the technical nature of appraisals, Division and 
District Engineers shall give consideration to designating qualified 
member(s) of their real estate staffs as contracting officer's 
representative(s) with full responsibility for all cost estimates 
involved in contracting for appraisal services and reports. Such 
contracting officer's representative(s) may also, in the designation of 
the contracting officer, be utilized to conduct negotiations with the 
prospective contractors, serve as ordering officer pursuant to the 
contracts, certify invoices and act in any other capacity within their 
authority as contracting officer's representative(s).
    (6) A copy of the narrative, detailed record of contract 
negotiations will be forwarded to DAEN-REE, along with the contract as 
specified above.
    (7) In contracting for appraisal reports, contract forms as set 
forth in Armed Services Procurement Regulations (ASPR) (chapter I of 
this title) and ER 1180-1-1 (Engineer Contract Instructions) will be 
used. An outline of the qualifications of the appraiser employed to 
perform the contemplated

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services shall be included in the contract assembly.
    (b) Expert appraisal services. Employment of qualified real estate 
appraisers and consultants may be effected utilizing the pertinent 
provisions of ASPR and ER 1180-1-1.
    (c) Obtaining appraisal reports by purchase order. (1) Division and 
District Engineers are urged to utilize an authorized type of purchase 
order, such as DD Form 1155, in lieu of long-form contract, provided 
that:
    (i) It is in the best interest of the Government, cost wise, not to 
issue the long-form contract.
    (ii) The contractor has performed satisfactorily on at least one 
contract within the prior three fiscal years.
    (iii) The total order, by such purchase orders, from the contractor 
does not exceed $10,000 for the project during the current fiscal year.
    (iv) The order is accompanied by a brief history of negotiation 
signed by both the contractor and the contracting officer's 
representative(s).
    (2) Care should be exercised to insure that the above provisions are 
used only to order supplementary reports, single appraisals, and other 
``one-time'' reports needed.
    (d) Department of Justice consultation. Authorized local 
representatives of the Department of Justice will be consulted 
concerning the acceptability of the appraiser(s) prior to negotiating 
any appraisal contract covering tracts proposed for acquisition. The 
local representative must also approve the per diem fee to be utilized 
in the appraisal contract. Where agreement cannot be reached between the 
Division or District Engineer and the local representative of the 
Department of Justice as to the selection of the appraiser(s), a 
complete report will be submitted to DAEN-REE, for resolution with the 
Attorney General.
    (e) Interdepartmental services. Division Engineers are authorized to 
arrange for interdepartmental services of qualified specialists in the 
regular employ of other Government agencies in connection with special 
problems concerning mineral deposits, water rights, timber cruises, etc. 
Division Engineers are further authorized, in their discretion, to 
redelegate this authority or any part thereof to District Engineers.



                          Subpart C_Acquisition

      Procurement of Title Evidence, Title Clearance, and Closings



Sec.  644.61  General.

    (a) Purpose. Sections 644.61 through 644.72 describe the procedures 
relating to the procurement of title evidence, title clearance, and 
closings for the acquisition of real estate and interests therein for 
all land acquisition programs administered by the Chief of Engineers. 
Exceptions in connection with the acquisition of properties under the 
Homeowners Assistance Program are set forth in subpart E.
    (b) Applicability. These sections are applicable to all Division and 
District Engineers having real estate responsibility.
    (c) Guidelines. (1) The satisfactory progress of land acquisition 
programs necessitates the prompt procurement of title evidence and 
prompt title clearance. One of the following types of title evidence 
should be obtained, after considering the cost of the several types and 
other factors mentioned below. To effect these objectives, careful 
planning is essential, including a determination of the most acceptable 
and available type of title evidence and the source from which such 
title evidence may be procured. The Chief of Engineers is responsible 
for procuring all title evidence, including title evidence needed for 
lands which are acquired by condemnation proceedings. The early 
procurement and examination of the title evidence and title clearance 
will expedite payment to landowners from whom offers are obtained or 
against whom condemnation proceedings are filed.
    (2) Insured certificates of title or policies of title insurance 
shall be obtained wherever possible. This is on the theory that the 
Government is buying title searching service as well as the title 
evidence itself and is avoiding the time and cost of examining abstracts 
of title, generally voluminous in nature.
    (3) Where it is not possible to obtain certificates of title or 
title insurance,

[[Page 128]]

abstracts of title may be obtained, as a last resort.
    (4) As used in these sections, an abstract of title is a synopsis or 
digest of all instruments of record affecting the title to a specific 
parcel of land. It neither guarantees nor insures the title. A 
certificate of title is a contract whereby a title company certifies 
that title to a specific parcel of land is good and unencumbered of 
record in a named person excepting only such defects and encumbrances as 
are shown therein. The liability of the company is limited to an amount 
specified in the certificate. A title insurance policy is a contract 
which insures that the owner or mortgagee will not suffer any loss or 
damage by reason of defects in the title to the property, or liens or 
encumbrances thereon existing at the date of the policy, except those 
defects, liens, or encumbrances which the policy specifically excepts. 
Liability thereunder is not limited to matters of record but extends to 
matters beyond the record.
    (5) The Directory of the American Land Title Association may be 
obtained upon request to the Association at 1828 L Street, NW., 
Washington, DC 20036, or to any major title insurance company. This 
Directory lists, by States, the abstract and title companies which 
provide title insurance. These companies are acceptable to the Attorney 
General. Requests for furnishing title certificates or title insurance 
should be made to the major title insurance companies in addition to 
local abstractors and title companies.
    (6) From past experience, it is considered that the procurement of 
certificates of title or title insurance is more economical than 
abstracts of title and the use of these types of title evidence 
expedites payment to landowners. In the majority of the States either 
certificates of title or title insurance are obtainable and the premium 
for issuance of such certificates or policies is based on a schedule of 
fees approved by the State Insurance Commission or some similar State 
agency. The premium fixed by such schedules, in most cases, includes the 
charge for title examination (preliminary certificate of title or 
preliminary binders) and the charge for insurance (final certificates of 
title or title guarantee policy) and any variance from the prescribed 
fees is considered a violation of the Sate law or regulation. Most State 
Insurance Commissions have recognized and approved the forms of 
certificates of title and title insurance policies prescribed by the 
Attorney General and have authorized their use in lieu of owners' 
policies. Division and District Engineers should familiarize themselves 
with the State title insurance laws and regulations. If prices quoted by 
all possible sources seem exorbitant, the matter should be referred to 
HQDA (DAEN-REA-P) WASH DC 20314 for action.



Sec.  644.62  Title evidence.

    (a) Acceptable Types of Title Evidence. (1) Certificates of title 
are acceptable title evidence. Certificates of title must be in a form 
acceptable to the Attorney General. An acceptable form of certificate of 
title which has been approved by the Attorney General has been issued by 
the Chief of Engineers as ENG Form 903, Certificate of Title.
    (i) In contracting for certificates of title, ENG Form 1016, 
Specifications for Furnishing and Delivering Certificates of Title 
Owner's Title Guarantee (Insurance) Policies and Continuations Thereof, 
will be used.
    (ii) Any title or abstract company approved by the Department of 
Justice and authorized and qualified to issue certificates of title in 
the State where the land is located will be acceptable to furnish 
certificates of title (Department of Justice ``Standards for the 
Preparation of Title Evidence in Land Acquisitions by the United States, 
1970.'') In those few jurisdictions where bar associations or other 
public or professional bodies hold that the issuance of certificates of 
title is the issuance of title opinions and therefore the practice of 
law and where title companies as corporations cannot engage in the 
practice of law, insured certificates of title may be procured from 
attorneys, acceptable to the Lands Division of the Department of 
Justice, acting as agents for title companies. The procedure for the 
selection of attorneys is set forth in Sec.  644.63(b).
    (iii) Certificates of title will be based on a search of all records 
affecting the title to the land and be unqualified as

[[Page 129]]

to the period of search. In the event that it is not practicable to 
obtain certificates of title, unqualified as to the period of search, 
all pertinent facts will be referred to the Department of Justice for 
consideration and approval.
    (iv) Certificates of title or title insurance policies shall not 
limit the liability of the title company to a sum less than 50 percent 
of the reasonable value of the property. If property is acquired by 
donation or exchange, the value will be determined by the Corps of 
Engineers. However, as to acquisitions valued at more than $50,000, the 
liability of the title company may be limited to 50 percent of the first 
$50,000 and 25 percent of that portion of the value in excess of that 
amount. This limitation on the general rule has been approved by the 
Department of Justice. The appropriate ENG Forms for specifications for 
supplying title evidence may be amended, if that limited liability can 
be obtained. A certificate of title or title insurance policy by one 
title company for a single acquisition valued at more than 25 percent of 
the admitted assets (after deducting existing liabilities secured or 
unsecured and excluding any trust or escrow funds) of the issuing 
company is not acceptable.
    (v) Generally, it is not necessary to obtain a final certificate of 
title when land is acquired by condemnation proceedings. However, it may 
be necessary that an intermediate certificate of title be obtained 
setting forth the limitation of liability of the title company. Division 
and District Engineers will be governed by the requirements of the local 
United States Attorney as to the necessity of obtaining an intermediate 
or final certificate of title.
    (vi) Certificates of title, whether preliminary, intermediate, or 
final, will be procured in sufficient numbers to satisfy the needs of 
the District involved. Normally an original and two signed copies of 
each certificate of title will suffice.
    (vii) The specifications may be supplemented to require the title 
company to have a local representative stationed convenient to the 
project office, when, because of the nature of the project (anticipated 
complexities of title; high purchase prices, or other reasons), it is 
considered advisable that a local representative be available to perform 
preclosing interim title searches on request of the Contracting Officer.
    (viii) The title company's local representative must be authorized 
to pass on the sufficiency of the proposed deed to the United States; to 
give final approval of curative material furnished to satisfy title 
objections set forth in certificates of title; and to testify in court 
relative to the status of title, if called upon to do so.
    (2) Title guarantee or title insurance policies are acceptable title 
evidence.
    (i) Interim binders on owner's title guarantee or title insurance 
policies supplemented by an owner's title guarantee policy or title 
insurance policy in the forms approved by the Attorney General (ENG Form 
1014), Interim Binder on Owner's Title Guarantee (Insurance) Policy, and 
ENG Form 1015, Owner's Title Guarantee (Insurance) Policy will be 
acceptable as evidence of title only in acquisition in those States 
where certificates of title may not be issued. ENG Form 3893-R is the 
form of endorsement for use with the title insurance policies when 
changes or corrections become necessary. No other substantial variation 
in the form of interim binder or the form of title guarantee or title 
insurance policy will be acceptable without prior approval of the 
Attorney General.
    (ii) Companies contracting to issue such interim binders or 
preliminary reports and title guarantee or title insurance policies must 
have authority under the laws of the State of their incorporation and 
their charter to issue the same. They must also be financially sound and 
be willing and able to issue such binders and policies for all tracts 
for the amount of liability as set forth above.
    (iii) In contracting for title guarantee or title insurance 
policies, ENG Form 1016, Specifications for Furnishing and Delivering 
Certificate of Title Owner's Title Guarantee (Insurance) Policies and 
Continuations Thereof, will be used.
    (iv) The interim binder or preliminary report must disclose the 
title holders of record and contain full information on all matters set 
forth in the binder as affecting the title. This data

[[Page 130]]

must be in sufficient detail to enable an attorney examining the report 
to determine the nature and extent of such matters and their effect on 
the validity of the title of the land described therein. The contents of 
the report must meet the requirements of ENG Form 1016.
    (v) The provisions of paragraphs (a)(1) (iv), (v), (vi), (vii) and 
(viii) of this section also apply to title guarantee or title insurance 
policies.
    (3) Abstracts of title may be acceptable title evidence.
    (i) Abstracts if title complying with the rules for abstracts in 
``Standards for the Preparation of Title Evidence in Land Acquisitions 
by the United States'' issued by the Department of Justice, 1970, are 
acceptable title evidence if prepared by abstractors acceptable to the 
Attorney General. These may include abstractors employed by a department 
or agency of the Government. Corps of Engineers personnel generally will 
not prepare abstracts of title. However, where there is a comparatively 
small amount of abstract work to be performed, it may be desirable to 
have the abstracts prepared by qualified Government personnel. In such 
cases, the prior approval of the Chief of Engineers will be obtained. 
The request should justify the preparation of abstracts by Government 
personnel.
    (ii) The form and contents of abstracts of title will meet the 
requirements in the ``Standards for the Preparation of Title Evidence in 
Land Acquisitions by the United States'' (Department of Justice, 1970) 
and ENG Form 1012, Specifications for Furnishing and Delivering 
Abstracts of Title.
    (iii) The period of search of an abstract of title to be acceptable 
to the Attorney General will, wherever possible, begin with some 
undisputed source of title such as an original grant or patent from the 
sovereign. Where it is impossible or impracticable to begin with such 
grant or patent, refer to ``Standards for the Preparation of Title 
Evidence in Land Acquisitions by the United States'' (Department of 
Justice, 1970) and ENG Form 1012 for guidance.
    (iv) In contracting for abstracts of title, ENG Form 1012 will be 
used. ENG Form 1012 provides for an unlimited period of search. For the 
purpose of conserving Government funds and in applicable easement 
acquisitions, Division and District Engineers are authorized to modify 
ENG Form 1012 to provide for the minimum period of search allowable 
under the regulations of the Department of Justice, when deemed to be to 
the best interest of the Government.
    (4) Where the consideration to be paid by the Government is $1,000 
or less, acquisition in fee may be based upon a title search by a staff 
attorney when it is deemed to be in the best interest of the Government. 
The Preliminary Certificate of Title, ENG Form 909, shall be based upon 
a search of the local land records beginning with a deed or other 
instrument transferring title recorded at least 40 years prior to the 
date of the preliminary certificate. The Final Certificate of Title on 
ENG Form 1013, shall be executed by a qualified Corps of Engineers' 
attorney, preferably the same attorney who executed the preliminary 
certificate, and shall be based on a further search of the local land 
records from the date of the preliminary certificate to and including 
the date and time of recordation of the deed to the United States or to 
the date title passes in a condemnation proceeding. The attorney 
preparing such preliminary or final certificate of title shall also 
prepare an Abstract of Title evidencing the results of his search of the 
records. The Certificate of Title will set forth in detail all liens, 
encumbrances, outstanding interests and other estates adversely 
affecting the title.
    (b) Easements. The standards and requirements as to title evidence 
for fee acquisition, set forth above, will be observed in the 
acquisition of all easements, except as follows:
    (1) Preliminary certificates of title of approved title companies 
for easement acquisitions will be in the same form approved by the 
Attorney General for fee acquisitions and issued by the Chief of 
Engineers as ENG Form 903. Final certificates of title in easement 
acquisitions, however, must show title to the easement vested in the 
United States in the same land described in the certificate and the deed 
to the

[[Page 131]]

United States. A form of final certificate of title for easements 
approved by the Attorney General and issued by the Chief of Engineers as 
ENG Form 1017, Final Certificate of Title for Easements, will be used in 
easement acquisitions.
    (2) In contracting for certificates of title to easements, ENG Form 
1016, Specifications for Furnishing and Delivering Certificates of 
Title, Owner's Title Guarantee (Insurance) Policies and Continuations 
Thereof, may be used provided the following paragraph is substituted in 
the detailed specifications: ``Each certificate of title shall be 
executed in triplicate on legal size paper. Preliminary certificates of 
title shall be in the form attached hereto, ENG Form 903, and final 
certificates of title for easements, showing title vested in the United 
States, shall be in the form attached hereto, ENG Form 1017.''
    (3) In jurisdictions where it is not possible to obtain certificates 
of title commercially, title guarantee (insurance) policies may be 
obtained. In such cases, appropriate adjustment in forms and 
specifications will be made, comparable to those prescribed for 
certificates of title to easements above.
    (4) For easements costing more than $100 but not in excess of 
$5,000, the requirements of the Attorney General have been waived. In 
such cases, it is acceptable to use certificates of title prepared and 
executed by a qualified Corps of Engineers' attorney. The Preliminary 
Certificate of Title, ENG Form 909, shall be based upon a search of the 
local land records beginning with a deed or other instrument 
transferring title recorded at least 25 years prior to the date of the 
preliminary certificate. The Final Certificate of Title on ENG Form 
1013, shall be executed by a qualified Corps of Engineers' attorney, 
preferably the same attorney who executed the preliminary certificate, 
and shall be based on a further search of the local land records from 
the date of the preliminary certificate to and including the date and 
time of recordation of the deed to the United States or to the date 
title passes in a condemnation proceeding. The attorney preparing such 
preliminary or final certificate of title shall also prepare an Abstract 
of Title evidencing the results of his search of the records. The 
Certificate of Title will set forth in detail all liens, encumbrances, 
outstanding interests and other estates adversely affecting the title.
    (5) As to easements which cost $100 or less, acquisition shall be in 
accordance with the provisions of paragraph (5) on page 5 of ``Standards 
for the Preparation of Title Evidence in Land Acquisitions by the United 
States'' (Department of Justice, 1970) which permit such acquisition to 
be based on a last owner search. Any search authorized by these 
provisions may be conducted by a qualified attorney employed by the 
Corps of Engineers.



Sec.  644.63  Contracting for title evidence.

    (a) Survey of area and source of title evidence. Contemporaneously 
with the preparation of the real estate design memorandum, or real 
estate planning report, the Division or District Engineer is requested 
to:
    (1) Give careful consideration to the problems involved to determine 
the most acceptable type of title evidence, its source, availability of 
title plants, costs, and time of procurement, so that the most 
advantageous bid(s) may be received and accepted and the acquisition 
schedule maintained. In considering costs of abstracts of title versus 
certificates of title or title insurance, the workhours involved in the 
examination of abstracts of title by both Corps and Department of 
Justice personnel should be considered.
    (2) Determine the total number of tracks in the project area. In 
major projects, it may be desirable to invite bids for title evidence 
for each county or other specified areas, in addition to the entire 
project, in order to maintain the acquisition schedule.
    (3) Determine the names and addresses of title companies and 
abstractors available to furnish title evidence and whether such 
companies or abstractors have been approved by the Attorney General as 
acceptable companies or abstractors. Current information on approved 
title companies and abstractors may be obtained direct from the Land and 
Natural Resources Division, Department of Justice, WASH DC 20530.
    (b) Selection procedure. (1) Normally selection of persons or firms 
to perform

[[Page 132]]

title evidence services will be based upon formal advertising in 
accordance with the Armed Services Procurement Regulation (ASPR) 
(chapter I of this title).
    (2) In those States where the furnishing of title evidence is held 
to constitute the practice of law and the State canons of legal ethics 
prohibit attorneys from engaging in competitive bidding for such 
services, contracts for title evidence services must necessarily be 
negotiated. In such cases, negotiations shall be conducted with 
attorneys or law firms duly authorized to practice law in the 
jurisdiction within which the real property is located. Division and 
District Engineers shall notify HQDA (DAEN-REA-P) WASH DC 20314 before 
negotiating for title evidence, and submit the list of attorneys with 
whom negotiations may be conducted. Selections shall be in accordance 
with the procedures set forth below:
    (i) A contract for title services shall be based upon, but not 
limited to, consideration of the following professional qualifications 
necessary for the satisfactory performance of the services required:
    (A) Professionally trained for type of work;
    (B) Specialized experience in the type of work required;
    (C) Capacity to accomplish the work in the required time;
    (D) Past experience, if any, with respect to performance on Corps of 
Engineers contracts;
    (E) Location in the general geographical area of the project to 
which the services relate: Provided, That there is an appropriate number 
of qualified attorneys or law firms therein for consideration; and
    (F) Volume of work previously awarded, with the objective of 
effecting an equitable distribution of title evidence contracts among 
qualified attorneys and law firms.
    (ii) A preselection list of qualified attorneys and law firms shall 
be prepared by a preselection board from data submitted by interested 
attorneys and law firms and from other pertinent information which may 
be available. The list shall be approved by the District Engineer or his 
designee.
    (iii) A selection board shall review the qualifications of each of 
the attorneys or law firms on the preselection list, in accordance with 
the procedure established in paragraph (b)(2)(i) of this section and 
shall recommend to the District Engineer, in order of preference, a 
minimum of three for approval for contract negotiations.
    (iv) Upon approval of the selections by the District Engineer and 
such approval as may be required by paragraph (b)(2)(vi) of this 
section, negotiations shall be initiated with the first selected 
attorney or law firm. If the negotiations result in a price which 
exceeds the Government estimate, revised to correct errors of fact or 
judgment, if any, by more than ten percent, the Contracting Officer 
shall terminate the negotiations and request a proposal from the 
attorney or law firm next in order of preference.
    (v) Preparation of preselection lists and selections for contracts 
estimated to cost more than $10,000, shall be accomplished by formally 
constituted boards consisting of at least three members, one of whom 
shall be the District Counsel or an attorney on his staff, and one of 
whom shall be the Chief, Real Estate Division, or a member of his staff.
    (vi) Special approval shall be required for certain selections as 
indicated below:
    (A) When the estimated cost of a contract to be negotiated exceeds 
$100,000, the selection shall require the approval of the Division 
Engineer.
    (B) When an attorney or law firm, to which the District has awarded 
contracts totalling over $100,000 during the current fiscal year, has 
been selected by the District for additional negotiations, the selection 
shall require the approval of the Division Engineer.
    (C) When the estimated cost of a contract to be negotiated exceeds 
$200,000, the selection shall require the approval of the Director of 
Real Estate, OCE, or his designee, with the concurrence of the Chief 
Counsel or his designee.
    (c) Forms to be used. When purchasing title evidence, Standard Form 
33, Solicitation, Offer, and Award, which form embraces an invitation, 
bid, and acceptance, should be used with copies of ENG Form 1012 or ENG 
Form 1016,

[[Page 133]]

depending upon the type of title evidence to be obtained. Standard Form 
33 will state that time is of the essence; that ability to comply with 
delivery requirements is mandatory; that the specifications attached 
thereto constitute a part of the proposed contract; the quantity and 
description of the supplies by item to be furnished; the time, place, 
and method of delivery; and the primary period of contract and 
extensions. Bids must be submitted in the form required by the 
invitations for the bids, so that the successful bid can be accepted on 
Standard Form 33 and a formal contract consummated thereby. The contract 
must incorporate all the covenants, terms, and conditions which are 
contemplated.
    (d) Base price vs. per-item basis. The invitation will call for the 
furnishing of an approximate number of certificates of title, abstracts 
of title, or preliminary binders and title guarantee (insurance) 
policies, as the case may be, at a stated price per certificate of 
title, abstract, or preliminary binder and title guarantee (insurance) 
policy. If this basis of payment is not possible, payment for abstracts 
may be made on a per-item or per-page basis and certificates of title 
and interim binders and title guarantee (insurance) policies may be paid 
for in accordance with an established rate schedule based on the cost of 
the property. Where necessary, alterations in the payment paragraphs of 
the specifications may be made in order to comply with local practices, 
State statutes, or other special requirements.
    (e) Specifications. The specifications for title service will follow 
ENG Form 1012 for abstracts, ENG Form 1016 for certificates of title and 
ENG Form 1014 for interim binders on owner's title guarantee (insurance) 
policies. Additional provisions may be added as circumstances require, 
but basic requirements will not be changed.
    (f) Several contracts for title evidence. To meet the acquisition 
schedule, it may be necessary to enter into several contracts for title 
evidence to lands within a designated project area. In such cases, the 
portions of the projects to be covered by each contract will be defined 
according to established political subdivisions, such as districts, 
townships, counties, or any specified part thereof.



Sec.  644.64  Award of contracts.

    (a) Contract awards. Contract awards will be made only by duly 
qualified contracting officers in accordance with applicable procurement 
regulations.
    (b) Review of title evidence contracts. The Contracting Officer, if 
an employee of the Real Estate Division, or otherwise the Real Estate 
representative designated by the Division or District Engineer, will 
review contracts for title evidence. If this review is made by a Real 
Estate employee other than a Contracting Officer, he will advise the 
Contracting Officer relative thereto. The Contracting Officer or the 
Real Estate representative will ascertain that the Department of Justice 
has approved the bidder, and the contract will not be awarded to any 
bidder not so approved. The Contracting Officer or the Real Estate 
representative who is to advise him, will familiarize himself with 
``Standards for the Preparation of Title Evidence in Land Acquisitions 
by the United States,'' issued by the Department of Justice, 1970.
    (c) Distribution. Upon acceptance, copies of title evidence 
contracts will be distributed in the same manner as other contracts.



Sec.  644.65  Ordering title evidence.

    (a) Placing orders. Where the contract does not specify the order in 
which title evidence for particular tracts will be furnished, orders 
will be submitted to the abstractor or title company on ENG Form 1011, 
Order for Title Evidence. An accurate legal description of the tract of 
land involved will be attached to the order or will be typed thereon.
    (b) Orders based on contiguous areas. If the contract does not 
contain a list of tracts for which title evidence is to be furnished, 
orders will be based on contiguous areas of land in identical ownership 
and will be deemed to be contiguous even though crossed by roads, 
railroads, rights-of-way, or streams. In such event the variation in 
quantity shall not exceed plus or minus ten percent as prescribed by 
ASPR. If there has been a severance of surface and subsurface estates, 
determination of

[[Page 134]]

what constitutes a tract will be based on ownership of the surface. 
However, in unusual cases where such a contiguous area is composed of 
several parcels derived through separate chains of title and requiring 
separate searches of each chain of title down to a comparatively recent 
date or where such contiguous area lies in more than one section, the 
Contracting Officer may contract to pay a specified reasonable 
additional charge for each such additional chain or section if such 
additional charge is customary in the locality where the land lies.
    (c) Type of title evidence. The order will set forth the type of 
evidence to be furnished. When abstracts are contracted for, the 
following rules will be observed:
    (1) If an abstract of title in satisfactory form cannot be procured 
from the landowner, a new abstract will be ordered.
    (2) If an abstract in satisfactory form is procured from a 
landowner, the abstract will be transmitted to the abstractor with an 
order for a continuation of the old abstract.



Sec.  644.66  Payment for title services.

    (a) Approval. The Contracting Officer will approve payment for all 
title evidence obtained in connection with the acquisition of land from 
funds available to the Division or District Engineer for that purpose, 
whether the land is acquired by purchase or condemnation.
    (b) Review. When abstracts are furnished on a per-item or per-page 
basis, the contents must be carefully reviewed by a qualified 
representative of the Division or District Engineer, to insure that 
bills are not excessive and that abstracts do not include superfluous 
material. Where erroneous or superfluous material is included in 
abstract, the bills involved will be corrected so that payment for such 
material is not made. All title evidence will be examined to determine 
that there has been full compliance with the specifications.
    (c) Payment for title evidence. Payments for title evidence will be 
made by the Contracting Officer from available funds for the project to 
which the title evidence pertains, upon receipt of certified and 
approved vouchers.
    (d) Preparation of Invoices for Title Services. The abstractor or 
title company will submit a certified invoice for services rendered, to 
the office to which the title evidence was delivered for review. The 
invoice must specify the particular type of title evidence furnished, 
the tract number, name of owner, name of project, and contract number. 
Invoices found to be correct will be certified as to receipt of the 
services by the receiving office and will be transmitted to the Division 
or District Engineer for further action and payment.



Sec.  644.67  Approval of Title by the Attorney General.

    (a) General. Section 355 of the Revised Statutes of the United 
States, as amended (40 U.S.C. 255), formerly required the written 
opinion of the Attorney General in favor of the validity of the title to 
lands as a prerequisite to the expenditure of public funds thereon.
    (b) Delegation. Pursuant to the provisions of Pub. L. 91-393, 
approved September 1, 1970, authority to approve title to lands being 
acquired for the use of the Department of the Army, or of any other 
department or agency for which the Department of the Army is authorized 
to acquire land, has been delegated to the Department of the Army, 
subject to the supervision and review of the Attorney General. 
Generally, military authorization and/or appropriation legislation 
expressly authorizes construction on the land prior to approval of 
title.
    (c) Redelegation. The authority delegated to the Department of the 
Army pursuant to Pub. L. 91-393 has been redelegated to Division and 
District Engineers with real estate responsibility.
    (d) Issuance of title opinions. Division and District Engineers are 
authorized to designate staff attorneys to give written approval of the 
sufficiency of title to land for the purposes for which the property is 
being acquired. Such attorneys shall issue preliminary and/or final 
opinions of title.
    (1) Attorneys designated for such purposes will have as a minimum 
five years legal experience, from the date of

[[Page 135]]

admission to a State bar, including three years experience in the law of 
real property. Real estate attorneys on the staffs of Division and 
District Engineers, who possess these qualifications, will be designated 
by the Division and District Engineers, in writing, to pass on the 
sufficiency of title to lands pursuant to the said delegation. The names 
of such attorneys shall be furnished to HQDA (DAEN-REA-P) WASH DC 20314 
as soon as possible.
    (2) A final opinion of title shall be issued in all acquisitions, 
except for easement acquisitions not in excess of $1,000 which are 
governed by Sec.  644.69(b).
    (3) Division and District Engineers are authorized to waive the 
issuance of written preliminary opinions of title where the closing of 
the case is based upon a certificate of title or title insurance issued 
by an acceptable and approved title company, in either fee or easement 
acquisitions.
    (4) A preliminary and a final opinion of title shall be issued in 
all fee and easement acquisitions involving abstracts of title, except 
for easement acquisitions not in excess of $1,000 which are governed by 
Sec.  644.69(b).
    (5) Any final title opinion issued pursuant to the delegated 
authority shall substantially follow the format of the Attorney's Final 
Title Opinion (Figure 5-3 of ER 405-1-12).
    (e) Opinion of Attorney General. Whenever the District or Division 
Engineer determines that a title defect is of such character that a 
possibility exists that it may be waived, the case shall be submitted to 
HQDA (DAEN-REA-P) WASH DC 20314 for review and transmittal to the 
Attorney General for a title opinion. The letter of submittal shall 
contain or be accompanied by the information and data required by Sec.  
644.72(b).
    (f) Rejection opinion. If it is obvious that no possibility of 
waiver of a title defect exists, a title opinion shall be issued 
according to the procedure set forth in Sec.  644.67(d). Copies of such 
opinion shall be submitted with the condemnation assembly.



Sec.  644.68  Title Clearance--Certificate of Title and Title Insurance.

    (a) Curative action. Upon receipt of an acceptable certificate of 
title, ENG Form 903 or an interim binder on an owner's title guarantee 
or insurance policy, ENG Form 1014, the title evidence will be reviewed 
by a qualified real estate attorney of the Corps of Engineers. Where the 
title evidence indicates that the acquisition of the land or interest 
therein by purchase is feasible, and a satisfactory ENG Form 42, Offer 
to Sell Real Property, or ENG Form 2970, Offer to Sell Easement, is 
received from the landowner and accepted by the Government, curative 
action will be conducted and curative material will be processed as 
follows:
    (1) With regard to the title objections set forth in Schedule ``B'' 
of certificates of title or interim binders, it will be necessary to 
take such curative action as will insure the issuance of a final 
certificate of title or title guarantee or insurance policy showing 
title vested in the United States of America, subject only to those 
objections, if any, which have been administratively waived.
    (2) As set forth in the title contract, the title company will 
authorize its local representative to give final approval of curative 
material furnished to satisfy such objections and insure their 
elimination from the final certificate of title or title guarantee or 
insurance policy. As such curative material is approved, the local 
representative of the title company will:
    (i) Initial, or otherwise indicate, on the margin of the preliminary 
certificate or interim binder, the fact that the objection has been 
eliminated through the procurement of satisfactory curative material.
    (ii) Determine whether or not he wishes the curative instrument 
recorded and if the instrument is to be recorded, so indicate on the 
margin of the certificate or interim binder. By the express terms of the 
offer to sell, the vendor is responsible for payment of recording fees 
on such curative material.
    (iii) Where curative material is not recorded, the title company 
will be permitted to retain such material if they wish it for their 
files; otherwise, it will be placed with the title assembly. If the 
original curative instruments are retained by the title company, true 
copies will be transmitted with the

[[Page 136]]

Final Title Assembly to HQDA (DAEN-REA-P) WASH DC 20314.
    (b) Intermediate certificates or interim binders. In the following 
types of cases, it may be necessary, after examination of the 
preliminary certificates of title or interim binder, to obtain 
intermediate certificates of title or interim binders in order to 
perfect title prior to closing the transaction:
    (1) When the signer of the offer is not the record title holder but 
is the holder of a contract for purchase, recorded or unrecorded, the 
preliminary certificate of title or interim binder will show title in 
the record title holder. In such cases, the certificate or binder will 
make appropriate reference to the contract. It will recite the action 
necessary to complete the contract and effect transfer of title from the 
record holder to the contract purchaser. When the deed to the contract 
purchaser is recorded, an intermediate certificate of title or interim 
binder, in proper form, will be obtained.
    (2) In those cases in which record title is vested in a deceased 
person, the preliminary certificate of title or interim binder may be 
issued in the name of the deceased record owner, followed by the word 
``deceased,'' and will be accompanied by a letter from the title company 
stating whether a judicial proceeding will be required, or whether 
affidavits of heirship, or other forms of proof, will suffice to permit 
the issuance of intermediate certificate or binder showing title vested 
in the heirs of the deceased.
    (i) Where a judicial proceeding is required, action will immediately 
be taken by the owners to perfect title by such proceeding, and, upon 
completion, an intermediate certificate of title or interim binder 
should be obtained. If such action cannot be completed within 60 days, 
action will be taken to acquire the tract by condemnation, Sec.  
644.72(a).
    (ii) Where a judicial proceeding is not required, it will be 
necessary to effect the necessary curative action and obtain an 
intermediate certificate or interim binder showing title in the heirs of 
the deceased record owners.
    (3) In those cases in which conveyance to the United States is to be 
made by a fiduciary, a corporation, a political subdivision, or an 
unincorporated association, the certificate of title or interim binder 
will state whether the proposed grantor has legal authority to convey 
valid title to the United States, and, if so, will cite the source of 
the authority. If the preliminary certificate of title or interim binder 
does not so indicate, it will be returned to the title company for 
correction or for issuance of an intermediate certificate of title or 
interim binder.
    (4) Where the certificate of title or interim binder contains any 
objection, or reference to liens of taxes, assessments, bonds, or other 
indebtedness of a road improvement, school, drainage, or other type of 
special improvement district, the specifications provide that the 
certificate or interim binder will also contain reference to the statute 
or statutes, under which the district was created, its bonds issued, and 
its taxes levied; the amount of taxes and assessments levied and bonds 
issued; and other additional pertinent information. If the preliminary 
certificate or interim binder does not contain sufficient information to 
enable an examining attorney to determine the nature and extent of the 
lien, if any, on the land, of such taxes, assessments and bonds, it will 
be returned to the title company for correction or for issuance of an 
intermediate certificate of title or interim binder. If the preliminary 
certificate or interim binder does not clearly indicate that the bonds 
or taxes of such district become a lien annually at the same time as the 
lien of ad valorem taxes attaches to land in the State and that the lien 
is of the same nature as the lien of ad valorem taxes, the information 
specified above must be obtained and a determination must be made as to 
the nature and extent of the liens of such bonds and taxes.
    (5) Where the certificate of title or interim binder discloses a 
covenant or condition restricting the use of the land, the certificate 
or interim binder will set forth the restriction, will quote the 
provision imposing the restriction or creating the right of reverter for 
a breach thereof, and will state whether a release will eliminate the 
objection. If such information is not contained in the preliminary 
certificate of title or interim binder, it will be returned to

[[Page 137]]

the title company for correction or for issuance of an intermediate 
certificate of title or interim binder. If a release will eliminate the 
objection, action will be taken to obtain an appropriate release from 
the person or persons holding the right of reverter. Should the title 
company hold that the title cannot be perfected by a release or if an 
acceptable release cannot be obtained, action will be taken to acquire 
the tract by condemnation.
    (6) When the specifications require the title company to include any 
of the above information in the preliminary certificate of title or 
interim binder and it is necessary to obtain an intermediate certificate 
of title or interim binder due to the omission of such information from 
the preliminary report by the title company, the intermediate 
certificate of title or interim binder will be furnished without cost to 
the United States.
    (c) Question of law. Any difficult or complicated question of law 
raised by an objection or exception in a preliminary or intermediate 
certificate of title or interim binder should be submitted to HQDA 
(DAEN-REA-P) WASH DC 20314 for review and transmittal to the Attorney 
General for an opinion. The letter of submittal shall contain a full 
statement of the facts and references to the provisions of applicable 
statutes and pertinent decisions of state courts on the question 
involved. This action should be taken before closing. This action should 
also be taken on questions involving the nature and extent of the liens 
of bonded indebtedness, assessments, or taxes to meet the bonded 
indebtedness of special improvement districts, or relating to 
restrictive covenants.



Sec.  644.69  Title Clearance--Easements.

    (a) Easements Costing in Excess of $1,000. Curative action and 
clearance of title to easements costing in excess of $1,000 will be the 
same as in fee acquisitions, as outlined above, except as follows:
    (1) Under an agreement with the Department of Justice, title to 
easements will be approved subject to outstanding encumbrances, such as 
mortgages, deeds of trust, judgments, and vendors' liens, where the 
tract is not encumbered in excess of 50 percent of the reasonable value 
of the remaining property, and the consideration being paid for the 
easement does not represent a sum in excess of ten percent of the value 
of the remaining property. (As to taxes, see Sec.  644.70(k)(6).)
    (2) For the purpose of making the determinations necessary to apply 
the formula set forth in paragraph (a)(1) of this section, resort may be 
had to the tract appraisal, provided it is based on a ``before and 
after'' approach, in which case the amount of the ``after'' appraisal 
will be used as the reasonable value of the remaining property. In the 
event no such appraisal has been made, a memorandum estimate by a 
qualified appraiser (staff or contract) will be obtained. Determination 
of the total encumbrances may be made on the basis of the face of the 
encumbering instruments. However, if it is necessary to determine that 
the total amount of the outstanding liens as of the date of closing has 
been reduced to an amount less than 50 percent of the reasonable value 
of the remaining property, such reduction must be evidenced by signed 
statements from the lienees or their authorized representatives. The 
appraisal or memorandum estimate and the lienee statements will be 
placed in the tract file.
    (3) On the basis of the determinations described in paragraph (a)(2) 
of this section, the appropriate information will be inserted on ENG 
Form 3536, Statement Concerning Outstanding Encumbrances, which will be 
signed by the closing agent. The original will appear as a separate 
document in the Final Title Assembly submitted to HQDA (DAEN-REA-P) WASH 
DC 20314.
    (b) Easements Costing Not in Excess of $1,000. (1) Requirements for 
the release or subordination to such easements of mortgages, deeds of 
trust, judgments, vendors' liens, taxes which are a lien, whether or not 
presently due and payable, and similar encumbrances will ordinarily be 
the same as for easements costing in excess of $1,000.
    (2) In unusual circumstances, these requirements need not be applied 
if the purchase price of the easement is insufficient to satisfy the 
liens and interest, or the amount of such liens or interest is small in 
comparision with the value

[[Page 138]]

of the land in which the easement is being acquired, and in comparison 
with the cost of condemnation proceedings to clear the title. In such 
cases, the Division or District Engineer (or the Chief, Real Estate 
Division, if delegated such authority) may waive such title infirmities 
as he determines will not interfere with the use of the easement by the 
Government or jeopardize the interests of the United States: Provided:
    (i) The easement deed contains a general warranty covenant by the 
grantor to satisfy all such unpaid taxes and other liens and to warrant 
the title against any encumbrances or interests left outstanding.
    (ii) The Division or District Engineer (or the Chief, Real Estate 
Division, if delegated the authority) has determined that such 
outstanding liens, encumbrances, or interest, if left outstanding, will 
not interfere with the Government's use of the easement, or will not 
jeopardize the interests of the United States, and in his opinion the 
title is sufficient. A certificate to this effect should be attached to 
the Final Title Assembly.
    (c) Curative action. (1) Curative action will be initiated promptly 
in all cases to eliminate all title defects or encumbrances, except 
those which may be administratively waived, those which may be 
eliminated by the payment of money and cleared at the time of closing, 
and those which may be waived as hereinafter provided. Curative material 
need not be recorded, however, until the closing of the transaction.
    (2) All encumbrances, defects, outstanding interests, and other 
matters shown in the preliminary certificates of title or interim 
binders, must be cured and eliminated before delivery of the purchase 
check, except those of a nature which have been waived as not 
interfering with the Government's use of the easement or as not 
jeopardizing the interest of the United States.



Sec.  644.70  Closing of cases.

    (a) Closing and Settlement Officers. Payment and closing of cases 
will be initiated immediately upon completion of curative action, by 
qualified Closing Officers employed by the Corps of Engineers. To be 
qualified, a Closing Officer must be employed in the Real Estate 
Division of a Division or District Office, or in a Real Estate Project 
or Suboffice, in an Attorney-Advisor position, or in a Realty Officer 
position if he is a member in good standing of the Bar of a State, 
Possession, or the District of Columbia, and has been instructed in 
Federal procedure and in the requirements for closing land acquisition 
transactions by a Division or District Closing Officer and has been 
approved by the Division or District Engineer to close land acquisition 
transactions independently. It is no longer necessary for Closing 
Officers to be individually bonded. Contracting for closing services 
will require prior approval of HQDA (DAEN-REA-P).
    (b) Payment. Payment for land, or interests therein, will be made 
from funds available to the Division or District Engineer.
    (c) General. The details of the closing necessarily differ according 
to the number of vendors and the outstanding interests, the number and 
variety of the encumbrances and title objections to be met, and 
miscellaneous other details resulting from complications in the 
particular title. Upon receipt of the check and title papers, the 
Closing Officer will review the entire file relating to the acquisition, 
fully acquaint himself with the terms and conditions of the sale, and 
with the condition of the title, and will ascertain whether there are 
any special conditions to be performed, or requirements to be met, on 
the part of the landowner or the Government and what objections to the 
title are to be eliminated before valid title may vest in the United 
States.
    (d) Curative data. The Closing Officer will determine the character 
and amount of all outstanding interests in, liens on, or claims against 
the land, which are to be satisfied out of the purchase price, and see 
that necessary curative action has been taken and curative data obtained 
to cure all defects in and meet all objections to the title. If the 
title evidence consists of a certificate of title of a title company, or 
a title guarantee policy, approval of the curative material, obtained to 
eliminate the title objections, must be obtained from the title company.

[[Page 139]]

    (e) Continuation of title search. The Closing Officer will satisfy 
himself that no change has occurred in the land records from the date of 
the prior certification which will adversely affect the title to the 
real estate interest being acquired by the United States. Where deemed 
appropriate because of the complexities of the title, the amount of the 
purchase price, or other reason, the local representative of the title 
company or the abstracter will be requested to examine the title records 
for the purpose of making this determination, and a continuation of the 
title evidence should be obtained, if considered necessary. Otherwise, 
the interim title search may be made by the Closing Officer.
    (1) If no adverse change in the status of title has occurred since 
the date of the preliminary or the latest certification of the title by 
the abstracter or the title company, as the case may be, the Closing 
Officer will proceed to close the case.
    (2) In case of change in ownership during the period, the Closing 
Officer will order a continuation of the abstract or an intermediate 
certificate of title or interim binder, as the case may be, and take 
such action as necessary to cure the title.
    (f) Payment and Closing Sheet. ENG Form 1566, Payment and Closing 
Sheet and Receipt for United States Treasurer's Check, covering all 
charges to be eliminated by payment of money to be deducted from the 
purchase money check, will be prepared in advance of closing. This sheet 
will show, in detail, all disbursements of the purchase money, including 
all amounts to be expended for satisfaction of:
    (1) Taxes and assessments.
    (2) Outstanding judgments--State and Federal.
    (3) Mortgages, deeds of trust, and other liens.
    (4) Amounts received under any contract or bond.
    (5) Landowner's balance after all charges are deducted from the 
purchase price.
    (g) Division or District inspection of premises. The Closing Officer 
or other authorized Division or District employee will personally make 
an inspection of the premises to ascertain whether any person is 
occupying the property in whole or in part.
    (1) The Closing Officer or an authorized Division or District 
employee will prepare ENG Form 798, Certificate of Inspection and 
Possession.
    (2) If any person other than the vendor is found in possession, the 
Closing Officer will secure a disclaimer on ENG Form 1290, Disclaimer. 
The disclaimer will be modified to make allowance of any provision in 
the offer to sell permitting possession after closing.
    (3) The Closing Officer or an authorized Division or District 
employee will check to determine that the buildings, improvements, and 
crops listed on the appraisal report are still on the land being 
conveyed. Where buildings, improvements, and crops have been reserved by 
the landowner, it will be determined that only the items reserved have 
been removed. Whenever possession of land is surrendered to the 
Government before the time of payment and closing, and immediate 
inspection and report ENG Form 1567, Report on Vacation of Property, 
will have been made. The Closing Officer may rely upon this report for 
the inspection required in the first part of this paragraph unless he is 
aware of circumstances which would make a supplemental inspection and 
report proper. If no such inspection and report have been made and 
possession has been surrendered to the Government, the inspection and 
report must be made at this time.
    (4) The Closing Officer or an authorized Division or District 
employee will determine whether there have been repairs or improvements 
to or construction on the premises which might give rise to mechanics 
liens.
    (5) The ENG Form 798 will be executed and placed with the title 
papers. If executed by an employee other than the Project Manager or 
Closing Officer, it must be approved by the Project Manager or Closing 
Officer, to indicate that the Project Manager or Closing Officer has 
authorized the employee signing the certificate to make the inspection 
and is satisfied it has been properly done.
    (h) Deed to the United States. (1) The deed to the United States 
will be drafted in accordance with the ``Standards

[[Page 140]]

for the Preparation of Title Evidence in Land Acquisition by the United 
States,'' issued by the Department of Justice in 1970.
    (2) Where the landowner's name appears in various forms among the 
title papers, full use will be made of the ``also known as'' clause in 
identifying the grantor in the deed to the United States.
    (3) The deed shall contain a quitclaim clause by which the grantor 
quitclaims to the United States all right, title, and interest which the 
grantor may have in the banks, beds, and waters of any streams bordering 
the said land to be conveyed, and also all interest in alleys, roads, 
streets, ways, strips, gores, or railroad rights-of-way abutting or 
adjoining said land and in any means of ingress or egress appurtenant 
thereto.
    (4) Recording fees, transfer taxes, and similar expenses incidental 
to conveying real property to the United States; penalty costs for 
prepayment of any preexisting recorded mortgage entered into in good 
faith encumbering such real property; and the pro rata portion of real 
property taxes paid which are allocable to a period subsequent to the 
date of vesting title in the United States, or the effective date of 
possession of such real property by the United States, whichever is the 
earlier, shall be paid by the Government pursuant to authority of 
section 303, Pub. L. 91-646, approved January 2, 1971.
    (i) Satisfaction of liens and encumbrances. All mortgages, deeds of 
trust, judgments, mechanics liens, and similar encumbrances will be 
satisfied and released or discharged of record. In the acquisition of 
easements, liens and encumbrances should be satisfied, released or 
subordinated to the Government's easement, except as provided in Sec.  
644.69(a) or unless administratively waived under Sec.  644.69(c).
    (j) Payments to tenants and lessees. Amounts due lessees, or other 
tenants, under ENG Form 1564, Consent to Offer to Sell, will be paid 
from the purchase price or by the landowner direct. In either case, 
proper receipts and releases will be obtained.
    (k) Satisfaction and release of liens of taxes and assessments. (1) 
Except as provided in Sec.  644.69(b) and paragraph (k)(6) of this 
section, all taxes and assessments which, under the law of the State 
where the land is located, are a lien on the property as of the date of 
the delivery and recordation of the deed to the United States must be 
paid at or before closing, unless provision for their payment is made as 
follows:
    (i) Where closing takes place before the completion of the 
assessment and levy of the taxes necessary to the determination of the 
amount of the taxes, or before the taxes are due and payable, a 
sufficient sum will be withheld from the purchase price to satisfy such 
taxes when the amount is later determined or they later become due and 
payable. In cases where the amount of taxes has not been determined, an 
estimate will be made, after consultation with the assessor and 
consideration of the amount of taxes paid on the land for the preceding 
year. The amount withheld should be at least 20 percent in excess of the 
amount of taxes assessed against the property for the preceding year.
    (ii) If the taxes are not due and payable under State law, though 
the amount has been determined at the time of closing, payment will not 
be made to the collector or other official charged with the collection 
of taxes, unless he has authority to accept payment and receipt for them 
in advance of the due date.
    (2) Funds withheld for the payment of taxes will be transmitted 
promptly to the Division or District Engineer in the form of cashier's 
check or money order payable to the Treasurer of the United States, 
unless the taxes are paid or held in escrow by the title company. The 
Closing Officer, in transmitting such payments, must clearly identify, 
by name, the vendor from whom the tax money was withheld, and must 
identify the land for which the taxes were withheld by its tract number 
in the project. He must also identify the taxes for payment of which the 
money has been withheld by specifying the type of taxes, such as county, 
city, or school. He will set forth the year each became or becomes due 
and fully explain the manner in which payment or withholding has been 
handled in order that proper payment will be effected by the Division or 
District Engineer when

[[Page 141]]

the taxes are due and payable. Any balance of the amount withheld and 
not needed to satisfy the taxes will be refunded to the grantor.
    (3) Where payment of the taxes is not possible at the time of 
closing and funds are withheld for this purpose, the Closing Officer 
will immediately notify the local tax official that title to the 
particular tract has been conveyed to the United States and that funds 
have been withheld for the payment of taxes, specifying the taxes for 
which an amount has been withheld and stating that such funds are in the 
custody of the Division or District Engineer. In giving such notice, he 
will use ENG Form 894, Notice to Tax Official.
    (4) When the taxes become due and payable, the Division or District 
Engineer will pay such taxes from the funds withheld from the purchase 
price. Any excess between the amount of taxes actually paid and the 
amount withheld will be refunded to the grantor by the Division or 
District Engineer. Refund checks will be transmitted to the grantor only 
after it has been definitely determined that all taxes which were liens 
on the tract are shown as satisfied on the books of the tax collector. 
This is necessary to avoid the possibility of a refund being made before 
satisfaction of all tax liens. The tax receipt should be forwarded to 
HQDA (DAEN-REP-S) WASH DC 20314 for filing with the original title 
papers.
    (5) Where the evidence of title consists of certificates of title or 
title insurance, and funds are withheld for payment of taxes, the amount 
so withheld may be turned over to the title company, provided:
    (i) The title company is financially responsible and will agree to 
issue a final certificate of title or title policy in which no tax liens 
or unpaid taxes will be noted or, if noted, will be followed by the 
statement:

    For the payment of which provision has been made by deposit of a 
sufficient sum with this company.

    (ii) The title company will enter into an escrow agreement with the 
grantor to hold such sum for the satisfaction of the taxes when they 
become due, and to return to the grantor any excess remaining after 
their payment.
    (6) Agreements have been reached with the Department of Justice 
that, in the acquisition of easements, the following will apply:
    (i) No provision need be made for the payment of taxes which are a 
lien but are not due and payable, provided that the purchase price of 
the easement, including severance damage, is not in excess of 50 percent 
of the reasonable value of the entire contiguous property of the vendor. 
In the event the value of the easement has been determined by a ``before 
and after'' appraisal, the amount of the ``after'' appraisal will be 
utilized in making the necessary determination. In the event no such 
appraisal has been made, it will not be necessary to prepare a complete 
appraisal of the value of the contiguous property. In lieu thereof, a 
memorandum estimate by a qualified appraiser (staff or contract) will be 
obtained and placed in the tract file. In either case, the appropriate 
information will be inserted on ENG Form 3536, Statement Concerning 
Outstanding Encumbrances.
    (ii) It will not be necessary to withhold funds for payment of 
current taxes which are due and payable, if the purchase price of the 
easement is insufficient to pay such taxes. In such case, Item 4 of ENG 
Form 3536 and the third block of that form will be completed.
    (iii) ENG Form 3536 will be signed by the Closing Officer and the 
original will appear as a separate document in the Final Title Assembly.
    (l) Payment and Recordation of Deed. (1) No disbursement of the 
purchase price shall be made until:
    (i) A duly executed deed has been accepted;
    (ii) All outstanding charges, liens, or encumbrances on the land 
have been satisfied and discharged, or a sufficient sum has been 
withheld from the purchase price to satisfy and discharge such charges, 
liens and encumbrances; and
    (iii) The title is sufficient for the purposes for which it is being 
acquired, and all objections thereto have been eliminated or 
administratively waived in writing.
    (2) When the requirements of paragraph (l)(i) of this section have 
been satisfied, the balance of the purchase

[[Page 142]]

price shall be delivered to the landowners.
    (3) The deed and all instruments which release liens or encumbrances 
on the property shall be promptly recorded.
    (m) Closing of easements acquisitions--(1) Easement costing in 
excess of $1,000. Closing requirements and procedures with respect to 
easements costing in excess of $1,000 are the same as in fee 
acquisitions, except as to mortgages, deeds of trust, judgments, 
vendors' liens, and similar title infirmities (Sec.  644.69(a)), and as 
to taxes which are liens but which are not due and payable (paragraph 
(k)(6) of this section).
    (2) Easements costing not in excess of $1,000. Closing requirements 
and procedures with respect to easements costing not in excess of $1,000 
are the same as a fee acquisition except that title infirmities may be 
waived as provided in Sec.  644.69(b).
    (n) Payment and closing under power of attorney. Where the landowner 
is unable or unwilling to be present personally or to pay from his own 
funds the amount necessary to satisfy all encumbrances and expenses, the 
following steps may be taken:
    (1) Obtain a power of attorney from the landowner. Standard Form 
232, Power of Attorney by Individual for the Collection of a Specified 
Check Drawn on the United States Treasury, will be used. If the 
landowner is a corporation, Standard Form 236, Power of Attorney by a 
Corporation for the Collection of a Specified Check Drawn on the 
Treasurer of the United States, and Standard Form 237, Resolution by 
Corporation Conferring Authority Upon an Officer to Execute a Power of 
Attorney for the Collection of Checks Drawn on the Treasurer of the 
United States, will be used. The power of attorney will be drawn in 
favor of the Closing Officer making the payment and closing. Immediately 
after the post office address of the Closing Officer, the following will 
be inserted, ``Agent for the Disbursing Officer.'' This insertion must 
be initialed by the person(s) executing the power of attorney. (Above 
forms are available through the local GSA Regional Office.)
    (2) Obtain from the landowner ENG Form 1569, Order to Disburse Under 
Power of Attorney. It will be noted that this form specifically recites 
types of indebtedness or expense, the names of the persons to be paid 
under the power of attorney, and the estimated, but not necessarily the 
exact, amounts thereof. It is important that all items (including cost 
of revenue stamps, recordation fees for curative material, and bank 
service charges) be itemized on the form.
    (3) The Closing Officer then will take the necessary action for and 
on behalf of the landowner to discharge the indebtedness and pay 
expenses under the ENG Form 1569.
    (4) If it is possible to have all interested parties, other than the 
landowner, present at one time and to make all payments simultaneously, 
a round table closing will be conducted. The Closing Officer, under the 
power of attorney and order to disburse, will endorse and cash the 
Treasurer's check and will make the individual disbursements in actual 
cash.
    (5) If it is possible to determine definitely all items of payment 
simultaneously, but it is not possible to have all interested parties 
present at one time, the Closing Officer will, under the power of 
attorney and order to disburse, endorse and cash the Treasurer's check, 
obtain separate cashier's checks for all items of payment (including the 
bank services charge for the issuance of such checks), and deliver the 
checks.
    (6) Where it is not possible to determine definitely all items of 
payment simultaneously, the Closing Officer, under power of attorney and 
order to disburse, will endorse and cash the Treasurer's check and will 
obtain separate cashier's checks for all items of payment for which 
disbursements may be properly made and for any balance representing the 
total of any items, the amounts of which cannot be definitely 
determined; in other words, for the residue of the amount of the United 
States Treasurer's check. In every instance, the cashier's checks will 
be drawn to provide for endorsement by the Closing Officer or landowner 
as later determined to be appropriate.
    (7) Curative material which requires recordation will be recorded 
for and on behalf of the landowner and will then be placed with the 
title papers.

[[Page 143]]

    (8) The usual tax receipts, mortgage releases, judgment 
satisfactions, etc., will be obtained for each monetary encumbrance 
which has been discharged. These instruments will be placed with the 
title papers, unless the landowner wishes to retain them.
    (9) Separate receipts on ENG Form 1571, Receipt for Payment Under 
Power of Attorney, must be obtained for each disbursement made under the 
power of attorney and order to disburse, including a receipt for the 
balance of the purchase price paid to the landowner. One copy of such 
receipt will be placed in the project files.
    (10) The Closing Officer will prepare an original and two copies of 
ENG Form 1570, Report of Disbursement Under Power of Attorney, showing 
the exact amount of each disbursement made under the power of attorney 
and order to disburse. The Closing Officer will prepare an original and 
two copies of appropriate certification thereon. The original and two 
copies will be signed by the landowner, who will retain one copy. The 
Closing Officer will place one copy in the files of the project office 
and will place the original with the title papers. The separate receipts 
on ENG Form 1571 for each disbursement made will be attached to the 
original ENG Form 1570.
    (o) Procurement of check. (1) After acceptance and distribution of 
the offer assembly and the acquisition is ready for closing, the 
following instruments and supporting data will be transmitted to the 
Finance and Accounting Officer for scheduling of SF 1166, Voucher and 
Schedule of Payments, and issuance of check:
    (i) Two true copies of the preliminary opinion of the Attorney 
General, where required; or
    (ii) Two true copies of a preliminary certificate of title or title 
guarantee policy where the preliminary opinion of the Attorney General 
is not required; or
    (iii) Two copies of ENG Form 909, Attorney's Preliminary Certificate 
of Title, in easements acquisition which cost less than $1,000; and
    (iv) Two true copies of other supporting data evidencing amount due 
and payable, such as statement of closing attorney; and
    (v) Two true copies of the offer assembly or deed executed by the 
vendor, if offer form has not been utilized.
    (2) The following statement, appropriately modified, signed by the 
Chief, Real Estate Division, may be transmitted in lieu of the above 
listed certificates:

    I certify that the check requested hereby is to pay an obligation of 
the United States as reflected on the attached (Offer to Sell) (easement 
or deed). I further certify that the parties signatory to this document 
and shown on the voucher as payees are the same parties reflected in a 
preliminary certificate of title issued by the ---------- Title Company 
in the possession of the Real Estate Division of this office. The 
completion of the transaction will be in accordance with existing 
regulations pertaining to the closing of real estate acquisitions.


The landowner's signature on a voucher is not necessary. On payments 
involving civil funds, paragraph 3-7g, ER 37-2-10, will be followed.
    (p) Procedure after payment. When the above closing requirements 
have been met, the Closing Officer will:
    (1) Immediately order a final continuation of the type of title 
evidence which has been contracted for. The final title evidence must be 
dated as of the date of recordation of the deed to the United States, or 
a subsequent date, to show a valid title vested in the United States of 
America subject only to those title defects which have been 
administratively waived or to those liens and encumbrances for which 
sufficient funds were withheld from the purchase price to satisfy and 
discharge them.
    (2) Check carefully ENG Form 1566, Payment and Closing Sheet and 
Receipt for United States Treasurer's Check, to see that funds have been 
properly disbursed.
    (3) Review the continued abstract, final certificate of title, or 
title insurance policy, as soon as they are prepared and determine that 
the proper preliminary and final title evidence and related papers on 
the case have been completed in proper order. Thereupon a Final Title 
Opinion will be prepared.
    (4) Transmit as the Final Title Assembly to HQDA (DAEN-REA-P) WASH 
DC 20314, the Final Title Opinion, title

[[Page 144]]

evidence and related papers. This Final Title Assembly must be 
chronologically arranged and securely fastened for permanent filing, and 
should include the following:
    (i) Abstract of title, properly continued through time of closing; 
or preliminary, intermediate, and original of final certificate of 
title; or interim binder and original of the Title Guarantee (Insurance) 
Policy.
    (ii) Curative instruments and material pertaining to title defects 
appearing in the abstract, the final certificate of title, or the title 
guarantee or insurance policy.
    (iii) Deed to the United States, executed, stamped, acknowledged, 
and recorded.
    (iv) Copy of the accepted offer to sell (ENG Form 42 or ENG Form 
2970).
    (v) Completed ENG Form 798.
    (vi) Completed ENG Form 1566.
    (vii) Statement regarding payment of taxes or amount withheld to pay 
the taxes.
    (viii) Where required, completed ENG Form 1290.
    (ix) If the power of attorney procedure is followed, power of 
attorney on proper Department of the Treasury Form and completed ENG 
Forms 1569 and 1571.
    (x) Certified copy of any waiver letter or certificate.
    (xi) Any other papers relating to the title or closing of the case.
    (xii) An additional copy of the deed and the Attorney's Final Title 
Opinion for review by the Attorney General.
    (5) A copy of the executed and recorded deed will be retained by the 
Division or District Engineer for the project files.
    (6) Similar action will be taken by the Closing Officer in 
acquisition of easements costing not in excess of $1,000.



Sec.  644.71  Final title assembly.

    (a) Disposition of final title assemblies. The final title opinion 
and related papers will be forwarded to HQDA (DAEN-REA-P) WASH DC 20314 
for review and disposition. In addition, copies of deeds and related 
papers in acquisitions for the Strategic Petroleum Reserve Program of 
the Department of Energy will be forwarded to: Department of Energy, 
Strategic Petroleum Reserve Project Management Office, 900 Commerce Road 
East, New Orleans, Louisiana 70123.
    (b) Division/District files. True copies will be retained for 
Division or District files.



Sec.  644.72  Transfer to condemnation.

    (a) Transfer of tracts from purchase to condemnation. If at any 
time, in the course of acquisition by purchase, it becomes apparent that 
title clearance and closing cannot be completed within 60 days of the 
offer to sell, action will immediately be taken to acquire the land by 
condemnation in order to make funds available to the landowner.
    (b) Contents of letter of submittal. In such cases the letter of 
submittal will contain or be accompanied by:
    (1) All title evidence.
    (2) An analysis of the title defects and a statement of the attempts 
which have been made to cure the defects.
    (3) A statement of the attempts to have the title infirmities waived 
by the title company and the reasons for refusal; or
    (4) The curative material which has been obtained to remedy the 
infirmities; and
    (5) Two copies of the offer to sell from the apparent owners.

             Acquisition by Purchase, Donation, and Transfer



Sec.  644.81  General.

    Sections 644.81 through 644.88 describe the procedures of the Corps 
of Engineers relating to the acquisition of land and interests therein 
for both military and civil works projects by purchase, donation and 
transfer.
    (a) Applicability. These sections are applicable to all Division and 
District Engineers having real estate responsibilities.
    (b) Acquisition authority--(1) Limitation. Acquisition of land for 
use by the United States requires express authorization (10 U.S.C. 2676, 
41 U.S.C. 14).
    (2) Military. Title 10 U.S.C. 2571 authorizes transfer of real 
property between Defense elements without compensation if the 
Secretaries approve. Title 10 U.S.C. 2662 provides that acquisition of 
fee title or transfer of real

[[Page 145]]

property owned by the United States to another Federal agency, military 
department or a state must be reported to the Committees on Armed 
Services of the Senate and House of Representatives if the estimated 
value is more than $50,000 and the transaction may not be consummated 
until after 30 days have expired from the date the report is submitted 
to the Committees. Title 10 U.S.C. 2663 provides for acquisition by the 
Secretary of a military department during time of war or when war is 
imminent of any interest in land, including temporary use, required for 
a Defense installation, munitions plant or power plant for production of 
munitions, through negotiation and purchase, by condemnation or by gift. 
Title 10 U.S.C. 2672 provides that the Secretary of a military 
department may acquire any interest in land, including temporary use, by 
gift, purchase, exchange of United States owned land or otherwise, that 
he or his designee determines is needed in the interest of national 
defense and does not cost more than $50,000 exclusive of administrative 
costs or the amounts of deficiency judgments.
    (3) Civil works. Acquisition of real property for civil works 
projects for which provision has been made by law is authorized in 33 
U.S.C. 591-595a and 701. As in the case of military projects, the 
Secretary of the Army is also authorized to accept donations of lands 
and materials required for civil works projects.
    (c) Rights-of-entry. Rights-of-entry for construction may be 
obtained by the Division or District Engineer, after he has been 
authorized by the Chief of Engineers to acquire the land, pending 
completion of acquisition by purchase or the filing of condemnation 
proceedings with declaration of taking. In the event the landowner will 
not voluntarily grant a right-of-entry, an appraisal of the required 
interest should be made and negotiations conducted on the basis thereof. 
If the negotiations are not successful, a declaration of taking should 
be submitted to acquire the necessary rights. The same procedure will be 
used for acquiring rights-of-entry for other purposes, such as survey 
and exploration.



Sec.  644.82  Prerequisites to acquisition.

    (a) Authority to begin acquisition. Action to acquire a tract of 
land will not be initiated until the Real Estate Design Memorandum (for 
all projects except military) or Real Estate Planning Report (for Army, 
other than Civil Works, and Air Force projects) is approved and specific 
authorization of the Chief of Engineers, or the appropriate Air Force 
Regional Civil Engineer (AFRCE), to proceed with the acquisition of the 
project is received by the Division and District Engineer and funds have 
been made available. Upon such approval, the Division or District 
Engineer is authorized to initiate action for the acquisition of the 
estate approved for the particular project in accordance with the 
procedures hereinafter set forth.
    (b) Tract description. Authority to initiate engineering planning of 
a project will state the mapping procedures provided for in Chapter 3, 
ER 405-1-12. It is necessary that land requirements be determined, that 
the various tracts be identified by ownership, and that accurate tract 
descriptions be developed. Tract ownership data may be developed by 
Division or District personnel from the local land records or procured 
by contract from a qualified local Government official, abstractor or 
title company representative.
    (c) Title evidence. With approval to proceed with acquisition, title 
evidence contracts can be initiated. The procedures for obtaining title 
evidence are covered in Sec. Sec.  644.61 through 644.72. Preliminary 
title evidence to confirm ownership and status of the title is 
prerequisite to negotiating for acquisition of the land or interests 
therein.
    (d) Appraisals. Concurrently with the procurement of title evidence, 
the appraisal of the land should begin. The appraisal, when approved, 
forms the basis for the determination of fair market value which will 
not be less than the approved appraised value. The appraisal procedures 
are covered in subpart B. Normally, one appraisal per tract (ownership) 
will be obtained; however, in unusual cases such as those which involve 
novel, unique or controversial appraisal concepts, there is no objection 
to obtaining more than one appraisal covering the same tract

[[Page 146]]

if considered advisable by the Division or District Engineer. When fee 
tracts are acquired by eminent domain procedures, where the value of the 
property is between $50,000 and $100,000, only one appraisal need be 
provided to the Department of Justice so long as it is a contract 
appraisal; two appraisals will be provided for values exceeding 
$100,000. Easement tracts acquired by eminent domain procedures, in 
excess of $50,000, will require two appraisals. At least one of the two 
appraisals must be made by a contract appraiser. Generally, in these 
cases, the second appraisal is procured only after negotiations indicate 
that agreement on price cannot be reached and that acquisition by 
condemnation will be required. The second appraisal will be procured in 
order that the Corps can take advantage of any negotiating flexibility 
that the second appraisal may afford in order to preclude court action. 
It is also necessary that the appraisals be relatively current in point 
of time (not to exceed six months) since dependent upon the real estate 
activity and degree of stability of the local economy, significant 
changes may take place in relatively short periods of time.
    (e) Environmental considerations. Paragraph D3, Attachment 1 to 
Enclosure 1, DOD Directive 6050.1, dated March 19, 1974, subject: 
``Environmental Considerations in DOD Actions,'' requires close 
environmental scrutiny of real estate acquisitions, disposals and 
outgrants to determine if said actions constitute a ``Major Action 
Significantly Affecting the Quality of the Human Environment 
(MASAQHE).'' If the action is determined to be a MASAQHE, then an 
environmental impact statement is required. Paragraph D3 is quoted here 
for ready reference:

    D. Certain types of actions require close environmental scrutiny 
because of the possibility that they may either affect the quality of 
the environment or create environmental controversy. It may be desirable 
in such cases to have a complete presentation of the environmental 
aspects of the proposed action available for any interested party. For 
these reasons, consideration shall be given to documenting the 
environmental effect of the following types of actions in writing: (The 
written environmental assessment need not be elaborate for actions in 
which it is readily determinable that the impact would not be 
significant; however, negative declarations must be supported by written 
environmental assessments which generally meet the EIS format 
requirements.)

                                * * * * *

    3. Real estate acquisition, disposal and outgrants.

                                * * * * *



Sec.  644.83  Negotiations.

    (a) Acquisition objectives. The objective of a land acquisition 
program is to acquire land at a price that will afford each landowner 
his constitutional guarantee of ``just compensation'' as that term has 
been defined by Federal judicial decisions. The Government must never 
pay less than just compensation unless a gift is intended. In eminent 
domain proceedings, the just compensation due a landowner is determined 
judicially by court award or by settlement prior to trial; in a purchase 
case, it is determined by negotiations leading to a satisfactory price 
and agreement with the landowner. While it is recognized that an 
appraisal is only an informed opinion and does not establish or 
determine just compensation, it is also recognized that, in negotiating 
for the purchase of land, an appraisal is the best and sometimes the 
only reliable opinion of the market value of the land which is supported 
by a thorough, acceptable analysis of market conditions at the time of 
purchase. Therefore, in the negotiation for the purchase of land, an 
approved current appraisal shall establish the minimum price to be paid 
for the land being acquired by the Corps of Engineers. Negotiations or 
offers below this price are prohibited except where the property is 
being acquired on a competitive basis and condemnation is not 
authorized.
    (b) Negotiating objectives. In all cases, it is important that the 
negotiator receives adequate guidelines and explicit instructions. 
Promptly, after the amount of the estimated just compensation is 
established, the negotiator shall make an initial offer in the full 
amount of the fair market value, shall advise the landowner that the 
land was appraised for such amount, and shall furnish the landowner a 
written statement of, and summary of the basis for,

[[Page 147]]

said amount. A concentrated effort will be made to acquire the land for 
that amount. This written statement will be in the form of a letter 
which may be delivered personally or by first class mail. Such summary 
will include, as a minimum, the following items:
    (1) Definition of the term ``fair market value.''
    (2) An accurate legal description and location identification of the 
real property and the interest(s) therein to be acquired (legal 
description and estate may be attached).
    (3) The amount of the offer and a statement that such amount:
    (i) Is the amount believed by the agency to be just compensation for 
the property;
    (ii) Is not less than the approved appraisal of the fair market 
value of the property;
    (iii) Disregards any increase or decrease in the fair market value 
caused by the project for which the property is to be acquired, or by 
the likelihood that the property would be acquired for such project, 
other than that due to physical deterioration within the reasonable 
control of the owner;
    (iv) Does not reflect any consideration of or allowance for any 
relocation assistance and payments which the owner is entitled to 
receive.
    (4) An inventory identifying the buildings, structures, fixtures, 
and other improvements, including appurtenant removable building 
equipment, which are considered to be part of the real property for 
which the offer of just compensation is made. The inventory shall 
include a statement of the utility and condition of said buildings, 
structures, fixtures, and other improvements.
    (5) A description of the appraisal technique used, i.e., market 
approach, income approach, or cost approach, in sufficient detail to 
explain clearly to the landowner the process by which his property was 
valued. Thus, as an illustration, where the market approach was used, 
the explanation should include the number of comparable sales used, 
their general location and type, the factors considered in adjusting 
sales of subject property, and any other information which would help 
the landowner understand what was done to value his property. A 
statement that comparable sales of similar properties were examined 
without more explanation is not sufficient. Similar information should 
be given when any other appraisal technique is used. Unusual cases will 
require a more detailed explanation.
    (6) An identification of land classification categories (do not show 
acreage breakdown).
    (7) If only a portion of a property is to be acquired, an 
apportionment of the total estimated just compansation for the partial 
acquisition between:
    (i) The amount representing the just compensation for the real 
property to be acquired;
    (ii) The amount, if any, representing severance damages to the 
remainder, together with a brief narrative description of the cause 
thereof; and
    (iii) In the event ``off-setting benefits'' are involved, these must 
be shown, along with a narrative explanation and the landowner shall be 
given a ``person-to-person'' explanation by the negotiator.
    (8) If the property contain a dwelling, the value of said dwelling 
and homesite shall be set forth separately, with the statement that this 
figure will be used in calculating housing relocation benefits under 
title II of Pub. L. 91-646.
    (9) If any building, structure, fixture, or other improvement, 
comprising part of the real property, has been identified as being owned 
by a tenant who has the right or obligation to remove it at the 
expiration of his term, the amount of the value of such building, 
structure, fixture, or other improvement, being the greater of:
    (i) The amount which the tenant's improvement contributes to the 
fair market value of the real property to be acquired; or
    (ii) The fair market value of the tenant's improvement for removal 
from the real property. The basis of such amount shall be included.
    (c) Appraisal reports or the appraiser's analysis (complete 
breakdown of principal value elements) will not be revealed by the 
negotiator unless specifically authorized. Cases involving property for 
which the highest and best use cannot be definitely established, and to 
which the exceptions mentioned

[[Page 148]]

in paragraph (a) of this section do not apply, will be reported to HQDA 
(DAEN-REA) WASH DC 20314 for specific instructions. If the land is being 
donated, initial offers are not necessary, and the appraisal will be 
significant in negotiations only when considering the conditions under 
which the donation is made as, for example, an agreed valuation for tax 
purposes. Negotiations will be based on current market values, which 
normally means that last offers will be based on appraisals not over six 
months old. Exceptions will be required in instances of rapid escalation 
of values when the appraisal is quickly outdated or in instances of a 
relatively static market or other condition resulting in a minimal 
change in property values. In such cases an explanation will be 
necessary.
    (d) Exceptions--(1) Corps Employees. If an employee of the Corps of 
Engineers has a direct interest in a tract of land being acquired by the 
Corps for public use, the tract will be acquired by condemnation. In 
cases of this nature, appraisal reports should be prepared, reviewed and 
forwarded together with a declaration of taking, with the condemnation 
assembly. The negotiator's report, of course, will not be included. The 
Department of Justice will be requested to handle all further matters 
pertaining to settlement or trial of the case. The Department of Justice 
has agreed to accept full responsibility for negotiations and approval 
of settlements or awards in such cases, without contacting any Corps 
personnel other than the owner of the interests being acquired.
    (2) Members of Congress. Since, under 18 U.S.C. 431 and 432, members 
of Congress who hold interests in land that is required for project 
purposes cannot contract for sale of such interests to the Government, 
these interests will also be acquired by condemnation. Negotiations for 
acquisition by purchase or for settlement without trial cannot be 
conducted by officers or agents of the United States. The determination 
of just compensation must be made by judicial proceedings. Appraisal 
reports and the condemnation assembly should be prepared and forwarded 
as set forth in paragraph (d)(1) of this section.
    (e) Negotiating guidelines. (1) The negotiator should be thoroughly 
familiar with the Division and District negotiating guidelines and 
should study the background data of the project, consisting of the 
authorizing act, survey report, project document, design memoranda, 
etc.; the applicable appraisal reports; tract ownership data; 
preliminary title certificates; and other related material. He should be 
entirely familiar with the project and the owner's individual property 
before initiating negotiations.
    (2) The owner shall be provided with available brochures which 
explain the project and the Pub. L. 91-646 benefits, together with the 
written statement and summary required by Sec.  644.83(b). The 
negotiator should explain to the landowner the Government's requirement 
for the land, the amount of land required, the estate(s) to be acquired, 
the terms and conditions of the Government's contract form, and the fact 
that relocation assistance benefits may be available. He should furnish 
the landowner a copy of a map indicating the boundaries of that portion 
of his land to be acquired, where the entire ownership is not being 
acquired or where different estates are being acquired in the same 
ownership, specifying the estate in each area.
    (3) Negotiations will be continued in an effort to obtain acceptance 
of the Government's offer or a reasonable counteroffer from the 
landowner, or until it is definitely determined that such a counteroffer 
will not be forthcoming. It is not intended that negotiations be 
continued until an unacceptable counteroffer is finally obtained. 
However, in an effort to obtain a reasonable counteroffer above the 
Government's estimate, the negotiator will, if necessary, take the 
initiative in suggesting a series of prices within a range which, in 
accord with the guidelines discussed in Sec.  644.84, has been 
predetermined to be reasonable.
    (4) The interest of both owners and tenants must be considered and 
protected. The tenant is a proper party to the transaction, and every 
effort must be made to obtain the consent of the landowner and tenant as 
to the price to be paid to the tenant for his leasehold interest. This 
can be accomplished by

[[Page 149]]

the tenant's execution of ENG Form 1564, Consent to Offer to Sell Real 
Property, which shall then accompany the owner's offer to sell. In cases 
where the tenant executes this form, payment for the tenant's interest 
can be made to him in the closing of the purchase transaction. This 
procedure will be followed whenever possible. An exception is permitted 
in those cases where the landowner and tenant prefer to handle the 
matter as a private transaction between themselves. In such cases, it 
should be determined that a satisfactory agreement has been made by the 
landowner and tenant. Consideration should be given to any interest 
which the tenant may have in growing crops. This procedure is also 
applicable to any third party having an interest in the property, except 
through severance of a subsurface estate.
    (5) Negotiations with landowners will be conducted in a fair and 
courteous manner. The negotiator must not, under any circumstances, 
resort to coercion or threats of condemnation.
    (6) The negotiator has no authority to obligate the Government in 
any manner beyond the contract form. He must refrain from oral promises 
or understandings and include all terms and conditions in the contract 
form.
    (7) Although appraisal reports cannot be made available for 
inspection by a landowner, the various elements of value considered by 
the appraisers may, and should, be discussed with the landowner to 
satisfy him that all elements of compensable values and damages have 
been considered in arriving at an overall value for the property being 
acquired. Care will be exercised during any discussion not to reveal 
specific amounts related to any elements considered in the appraisal, 
except the acquisition cost assigned to the dwelling for purpose of 
calculating replacement housing payment under section 203, Pub. L. 91-
646.
    (8) Any interest in a tract of land sought to be acquired, or any 
type of relationship with the owner, disqualifies the negotiator from 
participating in negotiations for the acquisition of that particular 
tract.
    (9) An appraiser is not, under any circumstances, permitted to 
negotiate for the acquisition of a tract of land for which he has 
prepared the appraisal or reviewed it as reviewing appraiser.
    (f) Discussions With Landowners. In order to avoid the creation of 
negotiating patterns, and keeping in mind that counteroffers must be 
justified as being just and reasonable, discussions with landowners 
should be conducted without disclosing the extent of the delegations and 
redelegations of authority to accept counteroffers. However, during 
negotiations on individual tracts, the landowners must be advised that, 
in the event of condemnation, the deposit will be in an amount no less 
than the approved appraised value, since the question of value cannot be 
resolved by negotiations. It must further be made clear that this advice 
is not in the nature of a threat, but is an explanation of the statement 
of policy directed by the Congress and the law. The negotiator will also 
inform each owner that offers and counteroffers made during negotiations 
are made without prejudice in the event of condemnation. The negotiator 
will make a notation on the Negotiator's Report to the effect that he 
has so informed the owner.
    (g) Obtaining the written counteroffer; preparation of negotiator's 
report. If the negotiator considers that a counteroffer in excess of the 
approved appraised value is in the amount which should be considered for 
acceptance, the counteroffer will be reduced to writing on ENG Form 42, 
Offer to Sell Real Property, or on ENG Form 2970, Offer to Sell 
Easement, and be properly executed by the landowner. In such cases, a 
complete written record of negotiations with respect to each tract or 
ownership, as appropriate, will be maintained by means of ENG Form 3423, 
Negotiator's Report, Part I. This record will state the chronological 
history of negotiations, all elements considered in evaluating the 
landowner's final counteroffer, and the justification for such 
recommendation in accordance with Sec.  644.84. The justification will 
be fully recorded in ENG Form 3423A, Negotiator's Report, Part II, which 
is a separate page of this report, and which will be removed in the 
Office of the Chief of Engineers prior to submitting the counteroffer 
assembly to higher authority for approval. Final action on

[[Page 150]]

the counteroffer, either by the Secretary of the Army, the Chief of 
Engineers or under the delegated authority to Division and District 
Engineers, will be entered on this record as soon as that information is 
available.



Sec.  644.84  Counteroffers.

    (a) Consideration of counteroffers. In negotiations with landowners, 
if agreement cannot be reached with a landowner as to the purchase price 
established by the appraisal, the lowest price demanded by the landowner 
may be considered by the Division and District Engineer, and the Chief 
of the Real Estate Division, on the basis of the following factors:
    (1) Variations in appraisals. In the usual case, the Corps will have 
the opinion of only one appraiser with respect to the market value of 
the particular tract of land. It must be recognized that the opinion of 
a second equally competent appraiser might be higher or lower than that 
of the appraiser who appraised the property. Hence in considering 
counteroffers of landowners, Division and District Engineers should keep 
in mind that two equally competent appraisals may reflect reasonably 
divergent opinions of value as to the same property. Instances requiring 
two appraisals are covered in Sec.  644.82(d).
    (2) Built-in costs, prior counteroffers, settlements and liability 
risks of proceeding to trial. It is recognized that there are certain 
Government administrative costs and liability risks involved when 
property is condemned by the United States and the land value is 
judicially determined. These items are definite in character but the 
attendant costs will vary. ``Built-in'' costs of proceeding to trial 
include, but are not limited to, the following items: Salaries of all 
Government personnel participating in trial preparation, pre-trial 
hearings, and the actual trial; cost of an additional appraisal(s); 
witness fees of contract appraisers employed by the Corps of Engineers 
or the Department of Justice; travel costs of all Government personnel 
and consultants participating in trial preparation, pre-trial hearings, 
and the actual trial; and cost of preparing trial documents and 
exhibits. Consideration should also be given to prior counteroffers 
which have been accepted and settlements approved prior to trial. 
``Liability risks'' of proceeding to trial are the amount of the 
anticipated award over and above the appraised value, taking into 
consideration probable testimony on behalf of the Government and the 
landowners, as well as the history of condemnation awards in the Federal 
court jurisdiction in which the lands are located, and the amount of 
interest on a deficiency judgment which would result from the 
anticipated award. Serious consideration of the above factors may 
justify a recommendation for authority to accept a counteroffer which 
otherwise would appear to liberal.
    (3) Non-compensable elements of value. Elements of value based on 
consequential damages or speculative values, as defined by the Federal 
courts, may not be recognized in considering a landowner's counteroffer. 
However, even though a landowner's counteroffer might include non-
compensable items of value, favorable consideration of the counteroffer 
may be given if it can be justified on the basis of variances in 
appraisals, built-in costs, and liability risks of proceeding to trial.
    (4) Value of reserved items. The salvage value of improvements and 
the value of crops and/or timber reserved by the landowners, as provided 
in Sec.  644.86 (g), (h), and (i), will not be included in the amount of 
the counteroffer in determining the excess of counteroffers over 
appraised values when applying the dollar and percentage limitations in 
the delegations of authority to Division and District Engineers for 
acceptance of counteroffers. The determination of the excess will be 
made on the basis of the appraised value of the interests being acquired 
(including the value of the reserved items) compared to the cash payment 
which will be made to the landowner if the Government accepts his 
counteroffer. However, this method of analyzing the counteroffer is 
intended for use only in determining the limitations of authority. The 
overall transaction must be in the interest of the United States and not 
afford an unwarranted windfall to the vendor.
    (b) Application and Limits of Delegated Authority. The negotiating 
procedures

[[Page 151]]

outlined herein will apply to all acquisitions by the Corps of Engineers 
for the Army (military and civil), Air Force, Department of Energy 
(DOE), National Aeronautics and Space Administration (NASA), and other 
Federal agencies which utilize the services of the Corps for acquisition 
of real estate. Delegations of authority to Division and District 
Engineers and to the Chiefs of their Real Estate Divisions to accept 
offers in excess of the appriased valuation have been made. Offers which 
do not exceed the approved appraised value may be accepted by authorized 
Division and District personnel regardless of the amount. Other offers 
will be handled as outlined in the paragraphs which follow.
    (c) Exercise of Delegated Authority. The approval of a counteroffer 
over the appraised value, but within the authority redelegated to 
Divisions and Districts, will be evidenced by the Division Engineer, the 
District Engineer, the Chief of the Real Estate Division, or the 
incumbent of the position to which redelegations have been made, in one 
of the following manners:
    (1) Manually accepting, on behalf of the United States, the offer to 
sell, as provided in Sec.  644.87; or
    (2) Manually executing a dated notation of approval of the purchase 
price, to be placed in the tract file, preferably on the original of the 
Negotiator's Report (Sec.  644.83(g)).
    (d) Submission of Counteroffers to the Chief of Engineers. 
Recommendations for the grant of authority to accept counteroffers which 
are considered reasonable, but which cannot be accepted by the Division 
Engineer, the District Engineer, or the Chief of the Real Estate 
Division, within the limitations of delegated authority, will be 
submitted to HQDA (DAEN-REA) WASH DC 20314 for consideration. 
Negotiator's Reports, prepared in accordance with Sec.  644.83(g) will 
accompany this submission; the contents thereof need not be repeated in 
the transmittal letter or in forwarding indorsements. The assembly will 
consist of the forwarding correspondence and the Negotiator's Report, 
with any additional material needed to support the recommendation of the 
Division and District Engineer. An analysis should be made of this offer 
as compared with other counteroffers accepted for the project, as well 
as with results in condemnation cases settled before trial. Signed 
offers will not be forwarded unless they contain deviations requiring 
approval by the Chief of Engineers. Appraisal reports are helpful and 
may be necessary reference for proper consideration of the 
recommendation. In the event the appraisal report was approved by HQDA 
(DAEN-REA), the forwarding letter should refer to the approval 
correspondence and data. It will not be necessary to enclose copies of 
the appraisal report. Where only a portion of an ownership is required, 
information should be furnished in the Negotiator's Report or in the 
transmittal correspondence (1) as to whether or not the remainder 
portion is considered to be an uneconomic remnant and (2) if so, as to 
whether or not an offer was made to acquire the entire property. 
Further, a statement is required as to whether or not it is considered 
that the acquisition will have any adverse effect on the acquisition of 
the remaining land required for the project.



Sec.  644.85  General negotiation procedures.

    (a) Provisions of Military Construction Appropriation Act. (1) 
Section 108 of the Military Construction Appropriation (MCA) Act of 1978 
(Pub. L. 95-101) provides that no part of the funds provided in the Act 
shall be used for purchase of land or easements in excess of the value 
as determined by the Corps of Engineers, except:
    (i) Where there is a determination of value by a Federal Court; or
    (ii) Purchases negotiated by the Attorney General or his designee; 
or
    (iii) Where the estimated value is less than $25,000; or
    (iv) As otherwise determined by the Secretary of Defense to be in 
the public interest.
    (2) The above wording, except for paragraph (a)(1)(iv) of this 
section, constitutes a limitation on accepting or submitting a 
recommendation for approval of a counteroffer in excess of the appraised 
value. Paragraph (a)(1)(iv) brings military acquisition within the 
general acquisition policy required under Pub. L. 91-646. Future MCA 
Acts

[[Page 152]]

should be carefully examined to determine if any limitations on 
acquisition have been restored.
    (b) Local cooperation projects. The participation of a non-Federal 
agency in a federally-assisted project will be in accord with section 
221 of Pub. L. 91-611 and subpart J (to be published). Acquisition of 
real property by a non-Federal agency will be in accord with sections 
210 and 305 of Pub. L. 91-646 and this chapter.
    (c) Negotiations on the basis of ownership; ``Package-Deal'' 
negotiations. (1) Normally, negotiations for all interests in all tracts 
which are being acquired from one parent ownership will be negotiated at 
one time. These tracts will usually consist of all those to which the 
same basic tract number has been assigned. Exceptions may be made only 
where negotiations for some of the tracts in a series must be 
accomplished to obtain possession, or for other critical reasons. 
Piecemeal acquisition must be avoided if at all possible.
    (2) When more than one tract is operated by the owner as a unit, 
negotiations should take place on the two or more tracts or groups of 
tracts, whether or not they bear the same basic tract number.
    (3) In cases where an owner insists on a ``package-deal'' 
negotiation on all tracts in the same ownership, or having at least one 
common owner, the negotiations will be considered as one transaction.
    (4) Tracts which are in the same ownership, but which are not 
operated as a unit, should, unless the owner desires otherwise, be 
negotiated separately, on the basis of the separate appraisals which 
would be prepared in this type of case.
    (5) Under paragraphs (c)(1), (2), and (3) of this section, the 
limitations of authority to accept counteroffers will be applied to the 
entire transaction.
    (d) Acquisition by condemnation if negotiations fail. As soon as it 
is determined that a satisfactory agreement cannot be reached after full 
consideration of all reasonable counteroffers received, action will be 
promptly taken to acquire the property by condemnation proceedings, 
including the filing of a declaration of taking, in order to make funds 
available to the landowner and to maintain the project acquisition 
schedule. The landowner should be advised in writing, sufficiently in 
advance of the submission of the condemnation assembly to the Chief of 
Engineers, that condemnation proceedings will be recommended and the 
reason therefor. Condemnation assemblies will include copies of the 
Negotiator's Reports or other written records of negotiations. The 
estimated compensation to be deposited in the registry of the Federal 
District Court with the filing of a declaration of taking will be in the 
amount of the approved appraisal.



Sec.  644.86  Exceptions and reservations.

    (a) General. Prior to the enactment of Pub. L. 91-646, the Corps 
encompassed a very generous policy of priority leasing with respect to 
former owners and tenants, in order to ease the burden of people who had 
to relocate because of the Corps' projects. Recognizing the inadequacies 
of the well-intentioned attempts by acquiring agencies to make whole the 
former landowner or tenant, the Congress enacted Pub. L. 91-646 which 
was approved on January 2, 1971. It would appear that the Congress 
intended that such law provide for the fair and equitable treatment of 
persons who are displaced, without having to rely on interim measures, 
such as priority leasing, to ease the inevitable relocation. In House 
Report 91-1656, the Committee on Public Works of the House of 
Representatives noted the likelihood that adequate housing may not be 
available readily and indicated this as its reason for including the 
provision in the law that satisfactory replacement housing must be 
available before displacement. In view of this, it is incumbent on the 
District Engineer to be opportune in seeking out replacement housing and 
to be judicious in the early relocation of owners and tenants before 
market changes eliminate any available supply of replacement homes. It 
is also essential that the District Engineer be diligent in providing 
the required relocation assistance advisory services and benefits 
authorized by the law.
    (b) Possession by Government. It will be the objective of the 
District Engineer to have the premises vacated and

[[Page 153]]

to cause unneeded improvements to be removed at the earliest practicable 
date and conform to the Congressional intention expressed above. In 
addition to the above, reasons for this objective are:
    (1) To provide for the expeditious payment of benefits to former 
owners and tenants;
    (2) To complete administration of the actual relocation of owners 
and tenants in a timely manner;
    (3) To avoid maintenance and security problems with respect to 
acquired improvements;
    (4) To prevent vandalism, trespassing and poaching with respect to 
acquired improvements;
    (5) To avoid any implication that former owners or tenants may be 
permitted to remain indefinitely on the federally acquired property;
    (6) To cause land to be leased on the basis of the most practicable 
size and configuration rather than on the basis of the size of the units 
acquired;
    (7) To permit the general public to bid for the lease of federally 
owned land rather than restricting the privilege of leasing to the 
former owner or tenant; and
    (8) To avoid a backlog of incomplete actions when construction or 
flooding is imminent or the land is otherwise required.
    (c) Possession reserved to former owners and tenants. It is 
considered that the policy of granting priority leases to former owners 
and tenants has been overridden by the enactment of Pub. L. 91-646. 
Accordingly, this policy is being phased out, and where applicable, the 
acquisition agreement will set forth the dates agreed upon for the 
vacation of the premises by the owner and tenant without commitments, 
express or implied, as to the leasing of the premises after such dates. 
Procedure for providing for vendor's continued possession after the 
Government's acquisition is covered in paragraph (l) of this section.
    (d) Outstanding rights. (1) When the United States is acquiring 
title subject to outstanding rights, the offer will differentiate 
between:
    (i) Property which the vendor is excepting or rights which he is 
reserving and which are created for the first time; and
    (ii) Rights which third parties have acquired in the past, generally 
referred to as outstanding rights in third parties.
    (2) Exceptions or reservations of rights which the vendor may 
retain, without interfering with the construction or operation of the 
project, will be set forth in the offer and deed by a clause following 
the description, beginning with the words: ``Excepting * * *'' or 
``Reserving * * *.'' Any other outstanding rights, subject to which the 
United States is acquiring title, held by third parties will be set 
forth in the offer and deed by a clause, following the description, 
beginning with words, ``Said premises are conveyed subject to * * *.'' 
Negotiations with the surface owner will include the owner's interest in 
the subsurface, unless acquisition of a lesser interest has been 
authorized by directive or specific approvals. These negotiations will 
not include interest severed and outstanding in third parties by 
purchase or lease, unless the surface owner agrees to remove the 
outstanding interest or agrees to obtain a subordination from the holder 
of the outstanding interest if that is consistent with the acquisition 
plan. If negotiations with the surface owner are successful, an Offer to 
Sell will be obtained, reciting the outstanding interest in the 
``Subject to'' paragraph of the form, unless the surface owner has 
agreed to remove the outstanding interest (or obtain a subordination, if 
appropriate), in which case the Offer to Sell must recite specifically 
that the surface owner is assuming this obligation. In order to carry 
out the requirements of this paragraph, the title evidence must be 
examined prior to negotiations or, in any event, prior to acceptance of 
the Offer to Sell.
    (e) Right to repurchase prohibited. In no case will an offer be 
obtained in which the vendor reserves the right to repurchase the 
property. Such a reservation would be contrary to the Federal Property 
and Administrative Services Act of June 30, 1949, 63 Stat. 377, 40 
U.S.C. 471, et seq.
    (f) General reservation guidelines. (1) Reservations of the right to 
remove

[[Page 154]]

crops, timber, buildings, and improvements during a specified period 
will not be permitted without express approval of the Division or 
District Engineer on civil works projects, the Army or Air Force using 
service on military projects, or the Federal agency, if other than the 
Army or Air Force, for which the land is being acquired.
    (2) At the time of the approval of the acquisition by the Chief of 
Engineers, a determination will generally have been made as to whether 
subsurface rights and/or water rights will be acquired or left 
outstanding. Acquisition will be on the basis of such determination and 
as outlined below. Lands will be acquired subject to minerals, oil and 
gas rights or other similar interests severed and outstanding in third 
parties by purchase or lease and as approved by the Chief of Engineers.
    (3) Where it is not possible to acquire or subordinate an 
outstanding interest by negotiation and the interest will not interfere 
with the operation of the project, consideration may be given to 
obtaining a waiver from the Office of the Chief of Engineers on the 
basis of taking a calculated risk rather than resorting to condemnation 
(paragraph (k) of this section). Waivers will be considered on a tract-
by-tract basis or on a project segment basis. Since such waivers involve 
several elements of the Office of the Chief of Engineers (Civil Works or 
Military Construction as well as Real Estate), the basis for the 
calculated risk must be fully explained.
    (4) Concurrently with the negotiations to acquire from the surface 
owner, negotiations should be opened with the owner of the subsurface 
rights or other interests severed and outstanding in third parties by 
purchase or lease and required for the project, unless these interests 
are held in ``block ownership.'' Block ownership exists where a person, 
corporation, or other entity owns subsurface or other interests in 
connection with more than one surface tract and in sufficient amount for 
the entire interest holding to have added value, for operational or 
other reasons, because it is in a block ownership. In other words, block 
ownership exists when the acquisition of a part of the block would 
require the assessment of severance damage, even if the value of the 
interest or the amount of the severance damage would be in a nominal 
amount. On this basis, subsurface or other interests need not be 
contiguous to constitute a block ownership. Block ownership interests 
will not be acquired (or subordinated) piecemeal.
    (5) Acquisition of the required interests, including subordination, 
held in block ownership should be started as soon as the extent of an 
operational unit is determined. As stated in paragraph (f)(4) of this 
section, all interests in a tract of land should be acquired at one time 
or as close in time as possible. Dual acquisitions of entire areas, one 
for surface rights and then for subsurface interests, should be avoided 
and acquisition of separate interests should be scheduled to coincide.
    (g) Reservation of buildings and improvements. The reservation by 
vendors of the right to remove buildings and improvements will be 
permitted under the following conditions:
    (1) Where the Division or District Engineer, in civil works 
projects, the using service in Army and Air Force projects, or the 
Federal agency, if other than the Army or Air Force, for which the land 
is being acquired, has determined that they will not be needed for the 
purpose of the project;
    (2) The consideration to the Government for the reservation will be 
an amount negotiated at not less than the appraised salvage value of the 
building and improvements which are reserved, and such amount will be 
deducted from the negotiated price at the time of negotiation prior to 
execution of the offer;
    (3) Where a reservation is permitted, the following clause will be 
inserted in the offer, following the description of the land:

    Excepting and reserving to the Vendor the right to remove (enter 
description of buildings) on or before ------ 19 --, which the Vendor 
agrees not to relocate on other land to be acquired for the project; 
provided, however, that, in the event that the said buildings and 
improvements are not completely removed on or before said date, the 
right of removal shall terminate automatically, and the United States 
shall have a good and indefeasible title to said buildings and 
improvements which remain without notice to the Vendor; and provided 
further that, in the

[[Page 155]]

event said buildings and improvements are relocated on other land to be 
acquired for the project, the United States shall have good and 
indefeasible title to said buildings and improvements without notice or 
further compensation to the Vendor.


The date on which the buildings or improvements must be removed must be 
fixed so that there is no interference with contruction or carrying out 
the mission of the project. The date for the removal should allow a 
reasonable time for removal of the improvements, usually not more than 
90 days, except that for valid reasons the Division or District Engineer 
may grant an extension of time for removal. The right to remove such 
buildings cannot be prolonged indefinitely and certainly such right 
cannot survive the limited right of possession reserved to former owners 
and tenants as provided in paragraph (c) of this section.
    (h) Reservation of growing crops. (1) The reservation by the owners 
of the right to harvest and remove growing crops should be encouraged in 
order to conserve land acquisition funds and to avoid the costs incident 
to disposal of crops by the Government, whenever there is a probability 
that possession of the land will not be required prior to the harvest 
season.
    (2) Where a reservation is permitted, the following clause will be 
inserted in the offer, following the description of the land:

    Reserving to the vendor the right to harvest all of the growing 
crops located on the above described land on or before ----------------
---- 19----. In the event the crops are not harvested on or before said 
date, the right of removal shall terminate automatically, and the United 
States shall have a good and indefeasible title to said crops, without 
notice to the vendor.


The date on which the crops must be removed must be fixed so that there 
is no interference with construction or carrying out the mission of the 
project.
    (3) The consideration to the Government for the reservation will be 
an amount not less than the appraised value of the crops as of the date 
of surrender of possession as disclosed by an approved appraisal report, 
and such amount will be deducted from the purchase price at the time of 
preparation and execution of the offer.
    (4) Where a tenant has an interest in growing crops, the value of 
his interest must be fixed by use of ENG Form 1564, Consent to Offer to 
Sell Real Property, which provides that the value of the tenant's 
interest, as agreed upon by the landowner and tenant, will be paid from 
the purchase price for the land. The use of this form not only protects 
the tenant but, in addition, provides a simple method for extinguishing 
rights which the United States is legally bound to recognize. Where a 
tenant wishes to reserve the right to remove crops, it must be done in 
the name of the landowner, and in like manner. To accomplish the 
foregoing, any other form is satisfactory, in lieu of ENG Form 1564, as 
long as closing requirements are satisfied.
    (i) Reservation of timber. (1) The reservation of the right to 
remove timber by vendors will be permitted only with the express 
approval of the Division or District Engineer, with the concurrence of 
the using service in cases other than civil works projects of the Corps 
of Engineers.
    (2) Reservation of the right to remove timber will be handled in 
substantially the same manner as that described for the reservation of 
buildings and improvements. If owned by a third party, ENG Form 1564 
will be used in the same manner as for crops unless the timber interests 
are held in block ownerships. The consideration to the Government for 
the reservation will be an amount not less than the appraised value of 
the timber, giving full weight to any unusual difficulty in harvesting 
and transporting which are caused by the size, shape and location of the 
stand reserved, time limitations for removal, clearing requirements over 
the above those normally involved in prudent harvesting, and similar 
factors. If necessary, the stand reserved will be re-appraised on this 
basis. An amount not less than this appraised value will be deducted 
from the purchase price at the time of preparation and execution of the 
offer.
    (3) Where a reservation is permitted, the following clause will be 
inserted in the offer following the description of the land:

    Reserving to the vendor the right to cut and remove on or before --
---- 19 --, all trees

[[Page 156]]

in excess of ------ inches in diameter at breast height (DBH) located on 
the above-described land. In the event the timber is not removed on or 
before said date, the right of removal shall terminate automatically, 
and the United States shall have a good and indefeasible title to said 
timber, without notice to the vendor.

    (j) Coal, oil, gas or other minerals. Acquisition of land or 
interests therein for project purposes will usually include the 
subsurface as well as the surface, except in areas where minerals have 
more than a nominal value. When the mineral, oil and gas rights have an 
identifiable value or are the subject of separate estates in the land, 
such mineral, oil and gas rights will not be acquired except where the 
development thereof would interfere with project purposes, but mineral 
rights not acquired will be subordinated to the Government's right to 
regulate their development in a manner that will not interfere with the 
primary purposes of the project, including public access, and not be 
inimicable to the environment. This is covered in more detail in subpart 
A. It is essential, however, in many acquisitions that the subsurface 
rights be acquired. In others, where these rights need not be 
extinguished, provision must be made in the offer the deed to 
subordinate such rights to project requirements, by excluding the owners 
of such rights from the area, or limiting exercise of such rights so 
that they will not interfere with the primary purposes of the project, 
including public access. The following guidelines are applicable in 
these cases:
    (1) Where it has been determined that subsurface rights in the 
vendor, or outstanding in third parties, must be acquired, extinguished 
or subordinated, such arrangements will be made in the course of 
obtaining an offer for the surface or subsurface interests. Where the 
negotiations for acquisition, extinguishment or subordination of 
subsurface rights will be delayed, and it is considered advisable to 
proceed with surface acquisition to keep pace with project requirements, 
appropriate recommendations and justification will be submitted to HQDA 
(DAEN-REA) WASH DC 20314 for approval.
    (2) If the owners of the surface and subsurface rights are 
agreeable, the separate interests can be acquired in a single 
transaction by use of ENG Form 1564, Consent to Offer to Sell Real 
Property. This method is the most desirable one, and, if used, the 
purchase price in the offer will cover both the surface and subsurface 
interests and the offer will not be taken ``subject to'' the subsurface 
rights.
    (3) Subordination of the subsurface interest based upon the value of 
the minerals in place and which will allow continued production by the 
mineral owner or lessee must be pursuant to such terms as will safeguard 
the Government's interest and preclude a windfall to the mineral owner 
or lessee. Value of the minerals in place will not exceed the 
recoverable portion of said minerals using agreed upon production 
methods. See subpart A for detailed treatment in the section pertaining 
primarily to Real Estate Design Memoranda.
    (4) When the third-party owner of subsurface rights refuses to enter 
into an agreement as contemplated in paragraph (j)(2) of this section, 
the title to the surface estate may be acquired separately, and the 
subsurface rights outstanding in third parties acquired as a separate 
transaction. The offer for the acquisition of the surface estate will 
provide for the conveyance of all interests of the surface owner in and 
to the subsurface estate, as well as all surface rights, and provide for 
taking ``subject to'' the subsurface rights outstanding in third 
parties. In such cases, the negotiations described in Sec.  644.83 will 
be conducted on the basis of the approved appraisal, less the appraised 
value of the outstanding subsurface rights.
    (5) Where it has been determined that the subsurface rights and 
interests therein need not be acquired, but the owners of such rights 
must be excluded from the area, and the owner of the surface is the 
owner of the subsurface estate, the offer will contain a clause 
providing that he relinquish, for the period that title to the tract is 
vested in the Government, all rights to enter upon the lands covered by 
the offer or that he will limit entry and exploration in a named manner 
so as not to interfere with the operation of the project. If third 
parties own subsurface rights or interests, a similar waiver of

[[Page 157]]

the exercise of such rights must be procured from all third parties 
having any interest in the subsurface estate, whether as lessees or 
assignees. The waiver by third parties must be obtained at the time the 
offer is procured for the surface estate, unless these subsurface 
interests are held in block ownership.
    (k) Title exceptions--Administrative waivers. (1) A distinction 
should be made between those title defects, objections, liens or 
encumbrances which, if not eliminated, might possibly defeat or 
adversely affect the Government's title, and those interests in the 
property owned by parties other than the grantor. All encumbrances, 
defects, and outstanding interests which cannot be waived under 
paragraphs (k) (2), (3), and (4) of this section must be eliminated or a 
waiver of the defect secured from the Attorney General.
    (2) Title may be taken subject to an outstanding third party 
interest which has been administratively waived. Requests for 
administrative waivers shall be submitted to HQDA (DAEN-REA) WASH DC 
20314 for consideration, together with recommendations from Division and 
District Engineers. The recommendation for waiver should be coordinated 
with the using agency, if other than Department of the Army land 
(military or civil works), and should be accompanied by a certificate 
signed by the Chief, Real Estate Division or the Chief Appraiser, 
certifying that the outstanding interest has no contributory value to 
the estate being acquired and will not interfere with the purpose for 
which the property is being acquired.
    (3) It has previously been administratively determined that all 
lands for Department of the Army (military or civil works) or Air Force 
projects may be acquired ``subject to existing easements for public 
roads, public highways, public utilities, railroads and pipelines,'' and 
``to the reservations, exceptions and any other outstanding rights 
contained in or referred to in patents issued by the United States,'' 
and also ``to water rights, claims or title to water, if any, or other 
similar title exceptions.'' A decision as to whether any of these 
exceptions should be eliminated is the responsibility of the Division or 
District Engineer, after coordination with the using service if other 
than the Department of the Army. If such interests are to be left 
outstanding, they should be included in the ``subject to'' clause of the 
Offer to Sell.
    (4) Offers to Sell may be accepted subject to subsurface mineral 
interests owned by third parties in accordance with Sec.  644.86(d). In 
such case, the ``subject to'' clause of the Offer to Sell should recite 
the specific interest which is being left outstanding. Where it is not 
possible to acquire or subordinate an outstanding subsurface interest by 
negotiations and the outstanding interest will not interfere with 
construction, operation or maintenance of the project, consideration may 
be given to obtaining a waiver from HQDA (DAEN-REA) WASH DC 20314 on the 
basis of taking a calculated risk rather than resorting to condemnation. 
Such waivers may be considered on a tract-by-tract, segment-by-segment, 
or project basis. Where a number of small mineral interests in a project 
are to be recommended for waiver, it is preferable that the 
recommendation be submitted on an entire project or group of segments at 
one time. Such a recommendation should specifically identify the 
subsurface mineral interests which are to be left outstanding, together 
with the estimated value of each interest, and should be accompanied by 
a map(s) on which the areas affected by the outstanding interests have 
been outlined. The basis for the calculated risk should be explained 
fully.
    (l) Possession reserved to vendor. (1) The objective in acquisition 
is to obtain possession for project purposes at the earliest practicable 
time. It is recognized, however, that there are occasions when 
possession by the Government may be delayed and provision must be made 
for continued possession by the former owner in order to meet the 
requirements of the Government's acquisition policy and to further 
soften the impact of the Government's acquisition. The retention of 
possession will enable the owner-occupant of farm land, or residential 
property, to receive

[[Page 158]]

his purchase money and remove improvements reserved by him, and permit 
occupants who may be former owners or tenants the privilege of 
harvesting growing crops and sufficient time to relocate to other 
locations. Accordingly, the Division or District Engineer may make 
provision for the former owner, occupant, and/or his tenant(s) to remain 
in possession of the land under the terms and conditions as follows:
    (i) If the tract is to be acquired by direct purchase, the provision 
for retention will be written into the offer (ENG Form 42, ENG Form 
2970, or ENG Form 1564) and will read substantially as follows:

    Notwithstanding the provisions of paragraph ---- of this offer, 
(and/or consent to option) the occupant (vendor and/or his tenant) now 
in possession of the property, in consideration of the protection and 
maintenance of the land, buildings, and structures, and protection of 
the property against loss by fire, waste, or other causes, to which the 
occupant hereby agrees, reserves the right to occupy the property until 
----------. Such occupancy is subject to revocation by the (Division) 
(District) Engineer at any time by giving ---- days notice in writing to 
the occupant if possession of the property is required by the United 
States; and provided further that the vendor-occupant or his tenant will 
remove no improvements or timber unless otherwise provided herein.

    (ii) When the tract is to be acquired by condemnation, the 
circumstances of the right to remain in possession, which has been 
established as hereinafter set forth, will be fully described in the 
correspondence forwarding the condemnation assembly to HQDA (DAEN-REA-C) 
WASH DC 20314. The retention of possession without payment of rent is 
directed to the benefit of the occupant of the property with some 
property maintenance consideration to the Government. This procedure 
will not be used to permit non-occupant owners a means of retaining 
possession without payment of rent and at the same time collect cash 
rents or unreserved crop rents from tenants.
    (iii) When the land being acquired is utilized by the owner and/or 
tenant for agricultural or related purposes, a period of possession may 
be allowed, if consistent with project requirements, to permit the crop 
owner to harvest growing crops, and to avoid abrupt dislocations. The 
period of possession reserved in the offer, or for which request for the 
order of the court is deferred in declaration of taking cases, should 
generally be co-extensive with the crop season or the date that, by 
custom in the community, leases of such properties ordinarily expire: 
Provided, however, That such period does not exceed 12 months from the 
date title vests in the Government. Reservation of possession or delay 
in entry of order of possession that will interfere with the 
Government's requirements for use of the land will not be allowed.
    (iv) In the case of owner-occupied residential property other than 
farm residences, possession may be permitted for a sufficient time to 
allow orderly relocation, but no longer than 12 months after title vests 
in the Government.
    (v) In connection with the acquisition of commercial, industrial, 
tenant-occupied residential property other than residences occupied by 
farm tenants, and special use properties, ordinarily the procedures of 
reserving possession to the vendor by a clause in the offer, or 
deferring the right to possession under a declaration of taking 
proceeding, should not be utilized. In such cases, after title vests in 
the United States, the continued possession of the property by vendor or 
tenant should be formalized by an outlease from the Government. However, 
if in the opinion of the Division and District Engineer a reservation 
for possession in the offer or deferral of order of possession is 
desirable in certain instances from a public relations standpoint or for 
other compelling reasons, such cases will be forwarded to HQDA (DAEN-
REA) WASH DC 20314 for consideration.
    (vi) The reservation of use and occupancy in the vendor and/or 
tenant under the terms of the offer or deferment of possession must be 
based on adequate consideration to the Government. It is anticipated, 
however, that items such as the vendor's maintenance of the land, 
buildings, and structures, his protection of the property against loss 
by fire, waste, or other causes, and the fact that his possession can be 
revoked within a short period of time, will, in most instances,

[[Page 159]]

offset any rental for the period of the reserved occupancy or deferred 
possession which might otherwise be due. However, if possession is 
reserved by the vendor in the acquisition of commercial, industrial, and 
special use properties, or other type of property having a potentially 
high income factor, the fair rental value for the period of reserved use 
or deferred possession must be deducted from the agreed purchase price.
    (vii) Special provisions for protection of the Government, such as 
those appearing in ENG Form 1366, Department of the Army Lease--River 
and Harbor or Flood Control Property, will be added to the reservation 
clause in the offer in cases where, in the opinion of the Division or 
District Engineer, they are necessary or desirable. If the case is not 
to be closed by direct purchase, the letter to the vendor notifying him 
of the Government's intention to file a declaration of taking will set 
forth the fact that possession is to be deferred and for what period, 
and will contain a statement as to the Government's expectation that the 
vendor will properly maintain and protect the premises, and perform such 
other acts (or refrain from such acts) as deemed advisable by the 
Division or District Engineer. Both the letter of notice and the 
reservation clause in the offer will provide that the right to 
possession may be revoked on 30 days notice to the vendor.
    (2) It is recognized that farmers may experience difficulty in 
finding substitute farms needed for their livelihood within one year, 
and other owners and tenants may encounter difficulty in relocating 
within one year. Therefore, the District Engineer, as an exception to 
the procedure in paragraph (l)(1) of this section may lease properties 
to former owners or tenants at the fair market rental value for up to 
one additional year where the circumstances justify such action, and, in 
such event, the record will contain the reasons justifying the action. 
Any occupancy by the former owner or tenant beyond 12 months from the 
date the property was acquired by the Government will be covered by a 
lease and will provide payment of the fair market rental value of the 
property leased.
    (3) The District Engineer, through channels, may request the Chief 
of Engineers to grant exceptions to this policy where unusual 
circumstances warrant such consideration. In keeping with the intent of 
this action, it is hoped that such cases will be minimal in number.
    (4) The following will apply with respect to advance land 
acquisition projects. Former owners and tenants whose properties were 
acquired prior to August 1, 1972 will be allowed to remain on the 
property by lease on a year-to-year basis until the establishment of a 
land management use plan and thereafter, if the property is available 
for leasing, for a single five-year term. Former owners and tenants 
whose properties are acquired after August 1, 1972 will be allowed to 
remain on the property by lease on a year-to-year basis until 
construction commences: Provided, The property is available for leasing. 
After construction commences, if the property is not immediately 
required for project purposes, such former owners or tenants will be 
allowed to remain on the property by lease for an additional two years. 
Continued possession of properties acquired after the date construction 
commences will be governed by the procedure outlined in paragraph (l)(1) 
of this section.
    (m) Schools, cemeteries, and facilities of State and local 
governments. ER 1180-1-1, Section 73, provides for the discretionary 
relocation by the Chief of Engineers of schools and other local 
governmental facilities, and acquisition of the sites under section 111 
of Pub. L. 85-500. Section 73 will be followed in the acquisition and 
relocation of cemeteries. Where the school was formerly a part of an 
abutting tract, offers for the abutting tracts will contain a clause 
whereby the vendor or vendors agree to quitclaim all right, title, and 
interest whether vested or reversionary, in and to the school site in 
executing the deed to the United States.
    (n) Reservations prior to completion of offer. Where immediate 
possession of areas is necessary and is obtained by right-of-entry or 
the filing of condemnation proceedings, owners often

[[Page 160]]

wish to move, taking with them buildings and improvements, or wish to 
harvest timber or crops, prior to any offer by the Government for the 
sale of their land. This action is authorized only under the following 
conditions:
    (1) Appraisals of all the land, buildings, improvements, timber, and 
crops of the particular tract are completed and approved.
    (2) A determination is made by the Division or District Engineer 
that the buildings, improvements, and timber will not be needed, and the 
harvesting of timber or crops will not interfere with construction or 
operation of the project.
    (3) ENG Form 1565, Agreement for Removal of Property, will be 
obtained from all persons having an interest in the property to be 
removed. This agreement will recite the amount which the owner is 
willing to have deducted from the value of the tract as a whole for the 
right of removal, which may not be less than the appraised salvage value 
of the buildings, improvements and timber, and the appraised value of 
the crops, as set out in paragraphs (g), (h), and (i) of this section.
    (4) ENG Form 1565 will be obtained and accepted by the Division or 
District Engineer, or the Chief of the Real Estate Division.
    (5) If an offer is obtained later, an appropriate reservation must 
be inserted in the Offer to Sell to reflect the prior agreement relative 
to reservations and removals of property and the agreed value of same.
    (6) If it is necessary later to file a declaration of taking on the 
particular tract, a copy of the agreement (ENG Form 1565) will be 
forwarded with the correspondence transmitting the declaration of taking 
assembly for use of the Department of Justice in the court action. The 
agreement by its own terms will serve as a stipulation as to the amount 
to be deducted from the ultimate award for the right of removing 
buildings, improvements, timber or crops.
    (o) Loss or damages to improvements, timber, or crops--(1) Insurance 
protection against risks. The Government does not carry property 
insurance of any nature. Vendors, however, may be advised as to their 
liability for certain losses, and that insurance protection against such 
risks is optional. When buildings, improvements, timber, or crops on 
land being acquired by the United States are protected by insurance in 
effect when acquisition activities are initiated, the time and method of 
cancellation and negotiation for refund on premiums paid will be the 
responsibilities of the vendor. In order to avoid double payments to 
vendors, any amounts actually collected by vendors under the terms of 
the insurance policies for damage or loss occurring after acceptance of 
the offer by the Government will be deducted from the purchase price, 
regardless of when title is vested in the United States or the right to 
possession is exercised.
    (2) Fixing liability--(i) Prior to vesting title in Government. 
Buildings, improvements, timber, or crops on land acquired by the United 
States by purchase or condemnation remain the property of the vendor 
until title has been vested in the United States by delivery of a deed 
of conveyance or filing of a declaration of taking, and loss or damage 
thereto caused by fire, acts of God, theft or vandalism, before such 
vesting of title, will be borne by the vendor, except as provided below.
    (ii) Possession by Government. When the right to possession has been 
exercised by the United States under an accepted Offer to Sell, 
condemnation proceeding, or possession has otherwise been surrendered to 
and accepted by the United States, losses arising from damage to 
buildings, improvements, timber, or crops by fire, acts of God, theft, 
or vandalism will be borne by the United States. If, however, prior to 
vesting of title, the right to possession has been exercised, or 
surrender has been made and accepted only to part of the property, and 
the vendor continues to use buildings and/or to cultivate or harvest 
crops or timber, such loss will be borne by the vendor as to buildings, 
timber or crops retained.
    (iii) Title in Government. After title has vested, losses to 
buildings, timber or crops not caused by the willful act or gross 
negligence of vendor will be borne by the United States; provided, 
however, that if the vendor continues in possession of buildings, timber 
or crops, after title has vested, and the

[[Page 161]]

deed, stipulation or order of court has reserved to the vendor the right 
to remove such buildings, timber or crops, loss or damage thereto, both 
before and after removal, caused by fire, act of God, theft, or 
vandalism will be borne by the vendor, only to the extent of the amount 
deducted from the purchase price, as provided in the deed, stipulation 
or order of court, for the right to remove.
    (p) Other reservations. The following rights may be reserved to the 
owner wherever such reservation will be to the financial advantage of 
the Government and it has been determined by the Division or District 
Engineer that the reservation of the rights will not interfere with the 
operation of the project. These rights may be reserved in the Offer to 
Sell and in the condemnation estate but only whenever mutual agreement 
between the owner and the Government concerning all phases of the 
acquisition except just compensation has been reached, or by stipulation 
for settlement of condemnation cases, subject to approval of revestment, 
if any, by DAEN-REA.
    (1) Rights-of-way for stock to water. Reservations of rights-of-way 
will be permitted for watering stock, in the case of bona fide livestock 
operations, such as dairymen and ranchers. Such rights-of-way will be 
limited to a reasonable width and will not be permitted in public access 
and use areas. The reservations will be so worded as not to require the 
owners to fence the rights-of-way, but to provide that if they elect to 
do so, they must provide gates at satisfactory intervals to permit 
crossing of the rights-of-way.
    (2) Rights-of-way for water pipeline for domestic use. Reservations 
of rights-of-way for water pipelines for domestic use (household, stock 
watering, garden, farm yard, but excluding irrigation) may be permitted 
by providing for the reservation of a temporary or permanent easement.
    (3) Rights-of-way for water pipline for irrigation use. (i) In areas 
where irrigation is commonly practiced, or is of paramount importance, 
owners of remainder or contiguous lands will be permitted to reserve a 
sufficient real estate interest to place water pipelines across 
Government-owned lands, in order to obtain financing for irrigation 
development and/or in order to be assured of being able to carry on 
irrigation operations. In ``water rights'' States (prior appropriation 
of water rights), the reservation of such interests will be permitted 
only to those owners who have established water rights from the State, 
or who may in the future obtain such rights. When irrigation is a 
project purpose, such reservation must be coordinated with the Bureau of 
Reclamation.
    (ii) Under these circumstances, a landowner may be permitted to 
reserve an easement and right-of-way for a water pipeline and pumping 
unit across the land he conveys, by appropriate provisions in the offer 
to sell and in the deed to the United States. In ``water rights'' 
States, this reservation will be ``for the exercise of established water 
rights, although no right to use water is created hereby.'' (This 
phraseology is to be incorporated in the reservation.) The reservation 
will also include any pertinent provisions considered essential by the 
Division or District Engineer, such as requirement to install the 
pipeline underground and at a specified depth.
    (iii) Reservations of this nature will also be permitted in those 
cases where acquisition is by condemnation. In these acquisitions, the 
reservation may be recited in the complaint and declaration of taking, 
whenever full agreement except as to just compensation has been reached, 
or it may permitted later by stipulation.
    (iv) When the project is located in an area in which the Bureau of 
Reclamation is developing, or planning to develop, irrigation districts 
or systems, prior coordination with the Bureau will provide that copies 
of all deeds and final condemnation judgments which recite reservations 
under this paragraph will be furnished to the local office of the 
Bureau. Thereafter, the Bureau of Reclamation will be responsible for 
supervising the exercise of the easements to insure compliance with 
Reclamation laws.
    (v) Plans to provide for irrigation will be fully covered in the 
Real Estate Design Memorandum.
    (4) Acquisitions in which these rights are to be reserved must, of 
course, be

[[Page 162]]

based on an appraisal of the fair market value of the estate to be 
acquired. Since the appraisal would probably be made originally on the 
basis that there would be no reservation, revision must be prepared 
whenever the reservation appears to be appropriate, to reflect the 
reduction in severance damages or other financial advantage accruing to 
the Government. Consideration of counteroffers which include proposals 
for these reservations by the landowner will be based on and compared 
with the appraised fair market value of the estate proposed to be 
acquired. Deposits with a declaration of taking will be based on the 
appraised fair market value of the estate to be acquired by the 
condemnation action.



Sec.  644.87  Preparation and execution of offers.

    (a) Fee acquisition offer form. The use of the latest revision of 
ENG Form 42, Offer to Sell Real Property, is required in all authorized 
projects, except in those cases where agreements with the landowners can 
be fully reflected in an executed deed, and where the provisions of 
Sec. Sec.  644.81(c), 644.82(a), and 664.86 are not applicable or can be 
fully complied with without the use of an Offer to Sell. When an 
agreement as to terms has been reached with the owner, or a counteroffer 
has been received which will be considered for acceptance or submitted 
for consideration by higher authority, a draft of the offer will be 
prepared, with particular attention to the following instructions:
    (1) No changes or interlineations in the printed portions of the 
offer form will be permitted, unless authorized by the Chief of 
Engineers, except where the words ``general warranty deed'' are changed 
to another form of deed.
    (2) Insert legal land description of property to be acquired, or 
attach description by Exhibits to be identified on page 1.
    (3) The word ``none'' should be inserted in the blank spaces 
following the first and third lines, respectively, on page 2 of the 
offer form when title is being acquired free and clear of all rights 
outstanding in third parties and the vendor is not permitted to except 
or reserve any right or interest in the property to be conveyed to the 
Government.
    (4) Particular attention is directed to Sec.  644.86, regarding 
exceptions and reservations and outstanding rights in third parties. No 
exceptions or reservations of crops, timber, buildings and improvements, 
subsurface rights, or any other interest will be incorporated in any 
offer to sell unless the required approvals have first been obtained.
    (5) In any case where the offer form deviates from the standard 
approved forms or contains any conditions, exception, or reservation 
contrary to these instructions, the assembly will be forwarded to HQDA 
(DAEN-REA) WASH DC 20314 for consideration with the recommendations of 
the Division and District Engineer. This may be done at the same time a 
counteroffer is submitted to DAEN-REA in accordance with Sec.  
644.84(d).
    (6) The landowner's name will be set forth in the offer in the exact 
way in which it appears on record.
    (7) When it is necessary for a corporate agent, fiduciary, or any 
person other than an individual owner to execute the offer, satisfactory 
evidence of the authority to act for the owner must be attached to each 
of the copies of the Offer to Sell.
    (8) Where it is necessary to attach sheets to the offer in order to 
fully set forth the terms of reservations, exceptions, or outstanding 
rights in third parties, such additional sheets must be securely 
attached and initialed by all parties signing the Offer to Sell.
    (9) The name and address of the person or persons to whom notice of 
acceptance is to be sent must be accurately set forth. The address where 
the landowner can be reached after he vacates the property, if different 
from the address to which the notice is to be sent, should be obtained.
    (b) Submission, acceptance, and distribution of offers to sell. (1) 
For each purchase transaction, the original offer and four copies will 
be signed by the landowner and spouse, if any. A copy (5th) will be left 
with the landowner when the offer is obtained.
    (2) Division and District Engineers, the Chiefs of the Real Estate 
Divisions, and the incumbents of the position to

[[Page 163]]

which authority is delegated as provided in Sec.  644.84(d) are 
authorized to accept offers to sell for the acquisition of land or 
interests in land and easements, licenses, permits, or similar 
acquisition instruments: Provided, The price set forth in the instrument 
is within their authority to approve or has been approved in writing by 
higher authority. The Division or District Engineer may also delegate to 
Project Managers (including the heads of any field offices with 
responsibility for real estate acquisition) authority to execute real 
estate instruments by which land or interests in land are acquired by 
agreement with landowners, provided the consideration set forth in the 
instrument is within the approved appraised value or has been approved 
as provided in Sec.  644.84(c). Upon approval of the offer or other 
instrument requiring payment to the landowner, a determination that 
necessary funds are available, and acceptance of the instrument under 
the authority contained in this subparagraph, the instrument will be 
numbered in conformity with existing regulations and will immediately be 
distributed as follows:
    (i) Original offers to sell will be retained at the Division or 
District for site audit.
    (ii) Send signed copy to vendor as provided in paragraph (b)(3) of 
this section below.
    (iii) Attached conformed copy to title assembly.
    (iv) File signed copy with project records.
    (3) Upon acceptance of the Offer to Sell, the Division or District 
Engineer will notify the vendor by transmitting a signed copy of the 
contract (accepted offer) to vendor by ENG Form 53, Notice of Acceptance 
of Offer to Sell Real Property.
    (4) Upon acceptance of the Offer to Sell, the Division or District 
Engineer will notify the using service, in the case of military 
acquisition, that the Offer to Sell has been accepted and that the 
Government has ``the right of immediate occupancy and use of the land,'' 
subject to the terms of the accepted offer. The land should be clearly 
identified to the using service.
    (5) Instruments which do not provide for payments to landowners will 
be distributed in accordance with regulations governing such cases.
    (c) Easement acquisition offer form. (1) The use of ENG Form 2970, 
Offer to Sell Easement, is required for the acquisition of all types of 
easement estates, such as flowage, spoil, drainage, road, railroad, 
utility, restrictive or safety (Army and Air Force), clearance (Air 
Force), and other required easement acquisitions, except in those cases 
where agreements with landowners can be fully reflected in an executed 
deed, and where the provisions of Sec. Sec.  644.84(b) and 644.86(d) are 
not applicable or can be fully complied with without the use of an Offer 
to Sell. Pages 1 and 2 of ENG Form 2970, containing the terms and 
conditions of the acquisition, are standard and need no modification. 
The tract of land in which the particular easement will be acquired will 
be described in Exhibit ``A,'' and the easement estate will be set forth 
in Exhibit ``B'' to ENG Form 2970. Division Engineers are authorized to 
approve deviations in ENG Form 2970 in all cases where the easement does 
not cost more than $500: Provided, That any deviation from the estates 
listed in Figure 5-6 of ER 405-1-12, must have the prior approval of 
DAEN-REA. When easements are being acquired from a vendor from whom fee 
is also being acquired, ENG Forms 42 and 2970 may be combined into one 
instrument in order to complete the entire acquisition as one 
transaction.
    (2) In the acquisition of easements for rights-of-way for access 
roads, utility lines, etc., which cross or encroach upon rights-of-way 
or property of railroad companies, public utility companies, cities, 
counties and States, ENG Form 893, License for Installations Upon Right-
of-Way, may be accepted, at the discretion of the Division or District 
Engineer, provided it is determined that such companies, municipalities, 
counties, or States are not vested with authority to convey a perpetual 
easement and the granting of a license under the conditions recited in 
ENG Form 893 will protect the interests of the United States and grant 
sufficient use of the right-of-way or land for project purposes. 
Normally a license of this nature should be obtained

[[Page 164]]

for a nominal consideration. Occasionally it will be necessary to 
provide for the payment of a small fee to cover the licensor's 
engineering and administrative expenses. In such cases, the 
consideration for the granting of a license will not exceed $100. In 
cases where the licensor demands a consideration equal to the appraised 
value of the right to be acquired, consideration will be given to the 
acquisition of a perpetual easement by condemnation, if the licensor is 
not vested with authority to grant such an easement.
    (3) The description of the tract over which an easement is being 
acquired should be prefaced by terminology similar to that of ENG Form 
42 which makes the tract inclusive of the abutting owner's interest in 
contiguous roads and other easements, if any.
    (4) Offer assemblies will be prepared, accepted, and distributed in 
the same manner as provided for fee acquisition, except that ENG Form 
3422, Notice of Acceptance of Offer to Sell Easement, will be used.
    (d) Payment. After acceptance and distribution of the offer assembly 
and the acquisition is ready for closing, payment will be made.
    (e) Cancellation of contracts. If, for any reason, it is necessary 
to cancel a contract for acceptance by the Government of the Offer to 
Sell, the cancellation will be effected by using ENG Form 1572, 
Agreement for Mutual Cancellation of Contract. Upon execution of this 
agreement by the landowner and the Division or District Engineer, or the 
Chief of the Real Estate Division, distribution of the original and 
copies of the agreement will be the same as for the accepted Offer to 
Sell.
    (f) Transfer of tracts from purchase to condemnation. If, at any 
time in the course of acquisition by purchase, it becomes apparent that 
acquisition by purchase will involve substantial delay or cannot be 
accomplished, action will be taken to acquire the land by condemnation.
    (g) Acquisition of land by donation. (1) In cases where the 
acquisition of real property has been authorized and approved by 
donation, ENG Form 42, Offer to Sell Real Property, or ENG Form 2970, 
Offer to Sell Easement, will be entered into setting forth the terms and 
conditions of the donation and conveyance to the United States.
    (2) The offer, when approved and accepted, will be distributed in 
accordance with paragraph (b)(2) of this section.
    (3) Title clearance and closing of donation cases are processed in 
the same manner as any other fee or easement acquisition.
    (h) Vacation of property by landowners and tenants--(1) Notice to 
landowners. From the inception of the project, landowners and tenants 
will be instructed to notify the Division or District Engineer or Real 
Estate Project Manager, in writing, as soon as they vacate their 
property; to turn in their keys whenever possible in order that the 
buildings may be kept under lock; and to keep the Division or District 
Engineer or Real Estate Project Office advised of any changes in address 
in order to expedite title clearance, payment, closing action, and the 
distribution of funds in condemnation proceedings. Landowners and 
tenants will be informed that, in order to protect their interests, they 
should not move from their property and that the Government will not 
require them to surrender possession until:
    (i) They have received notice of acceptance of an offer granting the 
Government the right of immediate possession; or
    (ii) They have been served notice of the filing of a condemnation 
proceeding by which the Government has obtained the right of possession.
    (2) Complete appraisals prior to vacation. Where an offer is 
accepted or a declaration of taking is filed, the individual tracts will 
have been surveyed and appraised. In condemnation proceedings for 
possession, there may be cases in which individual tract surveys and 
appraisals will not have been completed at the time the condemnation 
proceeding is filed. In such cases, landowners and tenants will not be 
required to surrender possession, and buildings and improvements will 
not be removed or destroyed in the conduct of construction work, until 
individual appraisals have been completed and photographs have been 
procured.

[[Page 165]]

    (3) Inspection of property. (i) As soon as a landowner or tenant 
gives notification that he is vacating his property, or as soon as this 
information is obtained from any other source, the District Engineer 
will immediately have a member of his staff make a personal inspection 
of the property and execute ENG Form 1567, Report on Vacation of 
Property. The inspection will be made with a view of determining whether 
all buildings, improvements, and crops on the land to be acquired, as 
listed in the appraisal report, are still on the land and in 
substantially the same condition as they were on the date of the 
appraisal.
    (ii) Where buildings, improvements, and crops have been removed 
under a reservation in the offer, an appropriate entry will be made in 
paragraph (3) of ENG Form 1567.
    (iii) Where buildings, improvements, and crops have been removed or 
destroyed in the conduct of construction work on the project, an 
appropriate entry will be made in paragraph (3) of ENG Form 1567.
    (iv) It will be determined whether or not the land is wholly 
unoccupied and vacant and whether there is evidence of present use 
thereof for farming and other operations.
    (v) The original report will be retained in the real estate project 
files. The second copy will be held for the use of the closing attorneys 
on purchase cases, or for the use of the local representative of the 
Department of Justice in condemnation cases.
    (i) Public relations. One of the most difficult problems encountered 
in the real estate activities of the Department of the Army, 
particularly from a public relations standpoint, is that of the sudden 
dislocation of families, tenants as well as owners, and the relocation 
of these families. Special attention, therefore, will be given to their 
problems.
    (j) Payment of relocation assistance and acquisition. Public Law 91-
646 provides for reimbursement of certain expenses incurred by owners 
and tenants who are displaced as the result of Federal and federally-
assisted programs. Payment of relocation assistance benefits and certain 
costs incurred by the vendor in transfer of title to the Government and 
certain litigation expenses incurred by the owner is provided for under 
that Act.



Sec.  644.88  Other acquisition.

    (a) Acquisition from other Federal departments and agencies--(1) 
Transfers. Transfers will be obtained from other Government agencies 
after issuance of real estate directives. Muniments of title will be 
obtained from the transferring agency, if possible, and be forwarded to 
HQDA (DAEN-REP) WASH DC 20314, with the original transfer letter or 
document. Title 10 U.S.C. 2571 authorizes transfer of real property 
within the Department of Defense (10 U.S.C. 2662).
    (2) Permits. Upon receipt of a proper request from an authorized 
command, service or agency, Division or District Engineers and the 
Chiefs of the Real Estate Divisions are authorized to obtain, accept, 
and renew permits from other Government departments or agencies for the 
temporary (five years) use of land (except public domain for Air Force) 
and buildings. The use of over 500 acres of public domain land must have 
prior approval by the Assistant Secretary of Defense (MRA&L) pursuant to 
Department of Defense Directive 4165.12.
    (b) Withdrawal of public domain lands and right-of-entry permits for 
temporary use. (1) Withdrawal of public domain lands will be necessary 
if a site is selected for construction and/or there is a continuing 
military use. Except in time of war, withdrawals in excess of 5,000 
acres for military use must be by authority of an Act of Congress (Pub. 
L. 85-337, 43 U.S.C. 156).
    (2) Requests for withdrawal of public domain land will be made to 
the appropriate State or Regional Supervisor of the Bureau of Land 
Management (BLM), Department of the Interior, by the Division or 
District Engineer, pursuant to 43 CFR part 295, as soon as a real estate 
directive is issued.
    (i) If use the of land is needed promptly to meet a construction 
deadline or for other use, the request for withdrawal will contain this 
information, and the BLM supervisor will be requested to expedite 
submission of his report to BLM in Washington, and to

[[Page 166]]

publish the proposed withdrawal in the Federal Register as soon as 
possible.
    (ii) A copy of the request will be forwarded to HQDA (DAEN-REA) WASH 
DC 20314 (with a copy to HQ, USAF (PRER), WASH DC 20330, on Air Force 
projects), with request for assistance in obtaining issuance of the 
Public Land Order in time to meet construction or military use deadline.
    (3) Pursuant to authority of 43 U.S.C. 416, requests for withdrawal 
of public domain lands may also be made to the appropriate State or 
Regional BLM Supervisor by the Division or District Engineer for the 
reservation of those public domain lands which will eventually be 
required for authorized Civil Works projects, in order to proceed with 
planning phase work and to prevent adverse private entry thereon. Such 
action will permit administrative jurisdiction to remain with the 
present Government agency for continued utilization not in conflict with 
the eventual purpose of the project. A copy of the request will be 
furnished to DAEN-REA.
    (4) If a withdrawal is requested, the BLM supervisor cannot grant a 
permit to use the area; however, permits can be obtained for survey and 
exploration purposes, since these do not involve construction or 
military use of the land.
    (5) Necessary rights-of-way will be obtained under the authority of 
section 507, Pub. L. 94-579, approved October 21, 1976.
    (c) Acquisition of outstanding rights on public domain--(1) 
Acquisition of possessory rights to mining claims. (i) Upon issuance of 
a real estate directive to extinguish outstanding mining interests in 
the public domain, and notification that the Bureau of Reclamation (BLM) 
has withdrawn the public domain from appropriation under the public land 
laws and the public mining and leasing laws, the Division or District 
Engineer will, if necessary to obtain possession for construction or 
other project purposes, recommend to the Chief of Engineers the filing 
of a complaint in an eminent domain proceeding, based on a perimeter 
description of the project, and the obtaining of an order of immediate 
possession. Thereafter, the Division or District Engineer will promptly 
determine the possessory mining claims within the area withdrawn, and he 
is authorized to acquire such claims for either a nominal sum or an 
amount not to exceed the combined estimated costs of obtaining a 
detailed appraisal report and having the validity of the claim 
investigated by the BLM. This authority is limited to $1,000 per claim.
    (ii) If an offer to settle is made on the basis provided in 
paragraph (c)(1)(i) of this section, and is not satisfactory to the 
possessory mineral owner, the Division or District Engineer will request 
the BLM to investigate the validity of the claim. In such case, under 
Comptroller General Decision B-143921, the District Engineer is 
authorized to make an agreement with the BLM for reimbursement of the 
following:
    (A) Examination of the claim itself and assembling of the evidence 
to support the claim of invalidity.
    (B) The presentation of the evidence, the cross-examination of 
witnesses for the mining claimant and other related expenses (subpart 
A).
    (iii) The Corps of Engineers is not authorized to reimburse the BLM 
for hearing of the evidence and the rendering of the decision as to the 
validity of the mining claim.
    (iv) If determined to be valid, claims will be appraised and an 
offer will be made to the owner at the approved appraised value. BLM is 
authorized to determine value of the claims and the Division or District 
Engineer may wish to arrange with BLM to perform this service on a 
reimbursable basis. In the event the offer based on the approved 
appraisal is not acceptable to the owner, and a reasonable settlement 
cannot be effected by negotiation, the Division or District Engineer 
will forward a report to HQDA (DAEN-REA) WASH DC 20314 with 
recommendation as to whether the claim should be acquired by declaration 
of taking or be left outstanding. Those cases in which occupants were 
dispossessed under the order of immediate possession, referred to in 
paragraph (c)(1)(i) of this section, will be given priority attention in 
all phases of the procedure set out herein, including preparation and 
submission of declaration of taking assemblies in appropriate instances.

[[Page 167]]

    (2) Acquisition of grazing rights. (i) Grazing rights in the public 
domain are granted pursuant to the provisions of a series of 
Congressional acts commonly referred to as the Taylor Grazing Act, 43 
U.S.C. 315 et seq. Section 315q of this Act provides as follows:

    Whenever use for war or national defense purposes of the public 
domain or other property owned by or under the control of the United 
States prevents its use for grazing, persons holding grazing permits or 
licenses and persons whose grazing permits or licenses have been or will 
be cancelled because of such use shall be paid out of the funds 
appropriated or allocated for such project such amounts as the head of 
the department or agency so using the lands shall determine to be fair 
and reasonable for the losses suffered by such persons as a result of 
the use of such lands for war or national defense purposes. Such 
payments shall be deemed payment in full for such losses. Nothing 
contained in this section shall be construed to create any liability not 
now existing against the United States.


It is emphasized that payments under this section are administrative; 
further that this section applies only to military projects.
    (ii) Upon issuance of a real estate directive to acquire or 
terminate grazing rights in the public domain or other property owned or 
controlled by the United States and notification that the Government 
department controlling such lands has granted a right-of-entry or 
transferred the lands to the Departments of Army or Air Force, the 
Division or District Engineer will initiate action to acquire or 
terminate such grazing rights as authorized by the real estate 
directive.
    (iii) Appraisals will be prepared in accordance with subpart B and 
the guidelines set forth in Comptroller General Decision No. B-132774, 
dated October 9, 1957.
    (iv) Discussions with landowners concerning acquisition of a ranch 
unit will be conducted in accordance with the procedures for fee 
acquisition.
    (v) Offers will be prepared, accepted, and distributed as provided 
in Sec.  644.87.
    (vi) Title procurement and title clearance relating to the 
acquisition of title to any fee lands within the ranch unit will be the 
same as in any other fee acquisition. In preparing title evidence 
covering leasehold interests, a search of the records will be made by 
the Division or District Engineer Office and ENG Form 909, Attorney's 
Preliminary Certificate of Title, will be prepared. In connection with 
the search of the records, it should be noted that Federal grazing 
privileges may be pledged or encumbered with mortgages.
    (d) Acquisitions under provisions of relocation contracts. (1) When 
land or interests therein, including subordination of minerals, required 
for project purposes are acquired under the provisions of relocation 
agreements negotiated in accord with Section 73, ER 1180-1-1, it will be 
necessary to procure title evidence covering such land and interests. If 
the value of interests so acquired is not otherwise determinable for 
compliance with Sec.  664.84, said value will be determined by the 
Division or District Engineer by means of a memorandum appraisal to be 
retained in the tract file. While this type of acquisition does not 
involve the closing procedure set forth in Sec.  644.70, so much of the 
title assembly described as is applicable, plus an executed or certified 
true copy of the relocation contract, will be used in the examination 
and approval of the title. The disposition of final title assemblies 
will be governed by Sec.  644.71.
    (2) The procedures described in Sec. Sec.  644.81 through 644.88 do 
not apply to the extinguishment of outstanding rights, including 
subordination of easements and similar interests, under the provisions 
of relocation contracts, as differentiated from the acquisition of land 
or easements, or the subordination of oil, gas, and other mineral 
rights, to be utilized for project purposes.
    (e) Acquisition by exchange--(1) Military. The authority to acquire 
land by exchange for military projects is provided in 10 U.S.C. 2672, 
and in the Military Construction Authorization Act passed each year. As 
an example sections 601 and 702, Pub. L. 95-82, August 1, 1977, the 
Military Construction Authorization Act, 1978, provides in part, that 
``the authority to acquire real estate or land includes authority to 
make surveys and to acquire land, and interests in land (including 
temporary use), by gift, purchase, exchange of

[[Page 168]]

Government-owned land, or otherwise.'' Title 10 U.S.C. 2662a-4 provides 
that a transfer of real property owned by the United States to another 
Federal agency or another military department or to a state must be 
reported to the Committees on Armed Services if the estimated value of 
the property is more than $50,000. A prerequisite to any acquisition by 
exchange is authority for the acquisition.
    (2) Civil works. The authority to exchange land or other Government 
property for private lands or property in execution of an authorized 
river and harbor or flood control work or improvement is found in 33 
U.S.C. 558b and 558b-1.
    (3) Coordination with the Office of Management and Budget (OMB). OMB 
requests that each proposal to use Government-owned property in a land 
acquisition exchange be cleared with the appropriate Associate Director 
of OMB. Disposal actions where exchange through the authority of the 
General Services Administration or specific legislation is envisioned 
will be cleared with OMB prior to filing a disposal report pursuant to 
10 U.S.C. 2662. A draft letter to the Associate Director, Office of 
Management and Budget will be submitted to HQDA (DAEN-REA) WASH DC 20314 
stating the requirement for the new acquisition, the description of the 
property to be excessed, its estimated fair market value, and a 
justification for the exchange of that property as constituting its 
highest and best use. OMB clearance will be required before disposal 
reports outlining exchange proposals are filed with the Congress.

              Involuntary Acquisition by the United States



Sec.  644.101  General.

    This Section describes procedures of the Corps of Engineers relating 
to the involuntary acquisition of land and interests in land on the 
basis of a physical appropriation or use by the United States. It is 
applicable to all Division and District Engineers having real estate 
responsibilities.



Sec.  644.102  Examples of involuntary acquisitions.

    While the Secretary of the Army and Secretary of the Air Force have 
no authority to acquire interests in real property except under express 
authorization and appropriation made by Congress, the Government may, 
nevertheless, in the performance of an authorized act involuntarily 
acquire an interest in real property, for which the owner is entitled to 
just compensation. Whenever a plaintiff successfully prosecutes 
litigation which establishes that an interest in real property has been 
taken, the interest so taken should be confirmed in the form of a grant, 
wherever possible. The instrument should be recorded in the public land 
records and permanently retained in the real estate files, as evidence 
of the interest taken and as a protection against possible future claims 
of purchasers for value without notice. No employee or representative of 
the Corps of Engineers shall intentionally make it necessary for an 
owner to institute legal proceedings to prove the fact of the taking of 
his property, as prescribed by Pub. L. 91-646. Examples of involuntary 
acquisition are:
    (a) Damage to real property caused by flooding, saturation, seepage, 
erosion, or other causes arising out of the construction, operation, or 
maintenance of an authorized project.
    (b) Damage as a result of overflights of aircraft.
    (c) Other instances where Government actions result in a restriction 
of the use of property.



Sec.  644.103  Litigation Reports.

    In those cases where a landowner files suit alleging that the 
Government took his property or an interest therein, a litigation report 
should be furnished in accordance with ER 1180-1-1. Litigation reports 
will be submitted in quadruplicate in cases involving military 
installations, and in triplicate in cases involving civil works. 
District and Division Engineers will furnish an additional copy direct 
to the local United States Attorney in actions in a United States 
District Court. In addition to the information required by ER

[[Page 169]]

1180-1-1, there will be furnished preliminary certificates of title to 
properties subject to the taking, covering a period of search of at 
least 25 years prior to initiation of the action, and indicating the 
date of acquisition of the plaintiff's interest. Certificates may be 
procured commercially, or may be prepared by a staff attorney.
    (a) Avigation easements. Reports on actions alleging the taking of 
an avigation easement should include the following information together 
with supporting exhibits:
    (1) Permanency of the installation and its designated use;
    (2) Dates of commencement of use of the runway involved and of each 
extension thereof;
    (3) Date of commencement of take-offs and landings by regularly 
assigned aircraft of the type (identify) causing the taking;
    (4) Frequency and actual height of flight of the particular aircraft 
over some portion of plaintiff's property;
    (5) Any applicable zoning regulations affecting use of the property;
    (6) A drawing at an approximate scale of 1 to 400[foot] 
showing the location and length of the present runway, its original 
length, and each extension, and also showing the location of plaintiff's 
property with relation to the approach-departure zone of the runway and 
the longitudinal distance in feet, measured along the extended center 
line from the end of the runway and the lateral distance measured 
perpendicular to the extended center line, of the plaintiff's property 
and of any dwellings thereon.
    (7) A vertical projection of the drawing at an approximate scale 
1 to 100[foot] showing the approach-departure clearance 
surface at the specified slope ratio and the mean sea level heights of 
the end of the runway and of the plaintiff's property and any dwellings 
thereon; and
    (8) Name of the person qualified to testify concerning preparation 
of the drawing.
    (b) Clearance easements. Litigation reports on actions alleging the 
taking of a clearance easement will contain the following:
    (1) Details of any prior acquisition of clearance easements over the 
same property;
    (2) Statement as to any outstanding clearance easement directives, 
including criteria for approach and transition zones, status of 
negotiations, and copies of appraisal reports;
    (3) Statement that all acquisition of clearance easements has been 
stopped, unless their prompt acquisition is necessary to provide for 
current flight operation; and
    (4) Recommendation that there be included in the estate, in the 
event of settlement, provisions for the clearance of existing 
obstructions and prohibition against future obstructions, provided that 
circumstances will permit a delay in the acquistion of a clearance 
easement until completion of the litigation.
    (c) Appraisal reports. Appraisal reports will be submitted to HQDA 
(DAEN-REE) WASH DC 20314 after the Department of Justice has determined 
the date (or dates) of taking. These reports will reflect the ``before'' 
and ``after'' values of the property, based on the assumption that the 
United States acquired an easement on that date (or dates).



Sec.  644.104  Procurement of deed and title assembly.

    In any case in which the Court determines that the United States has 
taken an interest in real property, the Department of Justice will 
attempt to have included in the findings and in the judgment a precise 
description of the interests taken. An attempt will also be made to 
provide in the judgment that payment by the United States will not be 
required until the plaintiff has delivered a deed or other acceptable 
conveyance of the interest taken.
    (a) Preparation of instrument. Upon receipt from the Department of 
Justice of information as to the nature of the settlement which has been 
reached, a deed will be prepared, drafted in accordance with Sec.  
644.70, covering the estate provided in the judgment.
    (b) Execution and recording of deed. The Division or District 
Engineer will obtain proper execution of the deed,

[[Page 170]]

record the same, procure a final certificate of title of a commercial 
title company or a staff attorney, and obtain a final title opinion 
pursuant to the provisions of the Delegation to the Department of the 
Army for the Approval of the Title to Lands Being Acquired for Federal 
Public Purposes, dated December 4, 1970, and issued by the Assistant 
Attorney General, Land and Natural Resources Division, Department of 
Justice. The title assembly and final title opinion should be forwarded 
to HQDA (DAEN-REA-P) WASH DC 20314, with information copy of transmittal 
letter to Division Engineer.
    (c) Notification to the Department of Justice. If the recorded deed 
and the final certificate of title are not readily available, the 
Division or District Engineer will notify the Land and Natural Resources 
Division of the Department of Justice by letter, with a copy to the 
appropriate United States Attorney, that the deed has been properly 
executed and delivered by the plaintiff and has been entered for record 
in order that settlement will not be delayed.
    (d) Disposition of final title assembly, mapping, and audit. When a 
final title opinion has been obtained, the Division or District Engineer 
will assign a tract number to the areas in which the interest has been 
acquired, will add the tract to the project map, and will transmit the 
final title opinion and related papers to HQDA (DAEN-REA-P) WASH DC 
20314. The tract will be included in the audit of the installation to 
which it pertains. Audits will be revised for this purpose, if 
necessary. The amount of the judgment received by the plaintiff will be 
shown in the audit assembly, with a proper notation that it represents 
the amount of the judgment entered in the litigation, which will be 
identified in the audit by its civil number, and by designation of the 
Court in which it was rendered. A copy or abstract of the judgment will 
be inserted in the District Office audit assembly, identified as 
follows:

    Directive by judicial decree for the acquisition of Tract No. ; 
being an easement (or other interest), containing ---- acres.

    (e) Action in lieu of confirmatory deed. Where a confirmatory deed 
cannot be obtained, the Division or District Engineer will obtain from 
the Clerk of the Court a copy of the final judgment (or an appropriately 
excerpted copy of the final judgment), acknowledged or properly 
certified to permit recordation in the local land records. The Division 
or District Engineer will record same and later transmit the appropriate 
title assembly to HQDA (DAEN-REA-P) WASH DC 20314. If the final judgment 
does not contain language which clearly vests title in the United States 
of the interest in land for which compensation was paid, request should 
be made of the United States Attorney to move the Court to amend the 
judgment to show that such title has vested.

                 Acquisition by Condemnation Proceedings

    Source: Sections 644.111 through 644.121 appear at 44 FR 8184, Feb. 
8, 1979, unless otherwise noted.



Sec.  644.111  General.

    Sections 644.111 through 644.121 describe the procedures of the 
Corps of Engineers relating to the acquisition of real estate and 
interests therein by condemnation proceedings. It is applicable to the 
Office of the Chief of Engineers (OCE) and to all Division and District 
Engineers having real estate responsibilities.



Sec.  644.112  Applicable statutes in condemnation proceedings.

    A complaint in condemnation, and any declaration of taking filed in 
conjunction therewith, will contain a citation of the congressional 
authorization and appropriation acts for the particular project, and any 
other applicable acts of Congress. Existing acts of Congress authorizing 
the acquisition of land and interests therein are outlined in AR 405-10 
and subpart A. Acts of Congress applicable, generally, to condemnation 
proceedings are outlined below.
    (a) Military projects. (1) Act of Congress approved August 1, 1888 
(25 Stat. 357, 40 U.S.C. 257) authorizes the head of any Government 
department or agency to acquire real estate, otherwise authorized for 
acquisition, by condemnation proceedings.
    (2) Section 2663 of title 10, United States Code, authorizes the 
Secretary

[[Page 171]]

of a military department to acquire by condemnation any interest in 
land, including temporary use of the site, construction, or operation of 
fortifications, coast defenses, or military training camps.
    (3) Section 9773 of title 10, United States Code, authorizes the 
Secretary of the Air Force to acquire by condemnation additional 
permanent air bases and depots, enlarge existing air bases and depots, 
bombing and machine gun ranges, and areas for the training of tactical 
units.
    (4) Section 2233 of title 10, United States Code, authorizes the 
Secretary of Defense (with authority to delegate) to acquire by 
purchase, lease, or transfer, facilities necessary for the Reserve 
Components. The authority to acquire by purchase has been held to 
include the authority to condemn. Therefore, this section authorizes 
condemnation for both Army and Air Force Reserve Training Sites.
    (b) Civil works projects--(1) Rivers and harbors. (i) Act of 
Congress approved April 24, 1888 (25 Stat. 94, 33 U.S.C. 591) authorizes 
the Secretary of the Army to cause proceedings to be instituted for the 
acquisition by condemnation of any land, right of way, or material 
needed to maintain, operate, or prosecute works for the improvement of 
rivers and harbors for which provision has been made by law.
    (ii) Section 5 of the Act of Congress approved July 18, 1918 (40 
Stat. 911, 33 U.S.C. 594) provides that possession of lands being 
acquired by condemnation proceedings for river and harbor works may be 
taken, provided adequate provision shall have been made for payment of 
just compensation.
    (2) Flood control. (i) Act of Congress approved March 1, 1917 (39 
Stat. 950, 33 U.S.C. 701) makes the provisions of the Act of Congress 
approved April 24, 1888 (paragraph (b)(1)(i) of this section) applicable 
to flood control works.
    (ii) Section 6 of the Act of Congress approved August 18, 1941 (55 
Stat. 650, 33 U.S.C. 701c-2) makes the provisions of section 5 of the 
Act of Congress approved July 18, 1918 (paragraph (b)(1)(ii) of this 
section) applicable to flood control works.
    (3) Local cooperation. Acts of Congress approved June 29, 1906 (34 
Stat. 632, 33 U.S.C. 592) and August 8, 1917 (40 Stat. 267, 33 U.S.C. 
593) provide that the Secretary of the Army may institute condemnation 
proceedings for the acquisition of land or easement therein for river 
and harbor works which local interests undertake to furnish free of cost 
to the United States. The provisions of these Acts were made applicable 
to flood control works by the Acts of Congress approved March 1, 1917, 
and August 18, 1941 (paragraphs (b)(2)(i) and (ii) of this section).
    (c) Other pertinent statutes. (1) Act of Congress approved July 18, 
1918 (40 Stat. 911, 33 U.S.C. 594) provides that the United States shall 
have the right to take immediate possession of land to the extent of the 
interest condemned. The exercise of this right is subject, however, to 
the policy considerations set forth in the Act of Congress appoved 
January 2, 1971, Pub. L. 91-646 (84 Stat. 1894).
    (2) Act of Congress approved February 26, 1931 (46 Stat. 1421, 40 
U.S.C. 258a) makes provision for the filing of a declaration of taking 
in conjunction with condemnation proceedings and provides that title to 
the land or interests in land included in the declaration of taking 
vests in the United States upon filing with the court and deposit of the 
estimated compensation in the registry of the court.
    (3) Title III of the Act of Congress approved January 2, 1971 (Pub. 
L. 91-646, 84 Stat. 1894) contains policies and guidelines for 
acquisition of land.



Sec.  644.113  Filing of complaint without declaration of taking.

    (a) Only in exceptional cases will the Chief of Engineers give 
favorable consideration to the filing of a complaint in condemnation, 
and the request for an order of possession, without the concurrent 
filing of a declaration of taking and deposit of estimated compensation 
in the registry of the court. Examples of situations in which complaints 
may be used are as follows:
    (1) Immediate possession is required for some essential military 
need and time does not permit preparation of an appraisal, title work, 
or negotiations.
    (2) Condemnation proceedings are necessary in connection with a 
cemetery, in order to secure court approval

[[Page 172]]

of the relocation and reinterment plan in accordance with the procedure 
outlined in ER 1180-1-1.
    (3) Where right of entry for survey and exploration, appraisal 
purposes, or other similar need is required, and there is no material 
interference with the owner's possession. However, where there is 
material interference with the owner's possession, or it is considered 
there will be significant damage to the land, a deposit of estimated 
compensation may be necessary.
    (b) Approval required. Prior to submission of a complaint assembly, 
except in cemetery cases, all pertinent facts justifying the need for 
such action will be submitted to the Division Engineer for approval. If 
the proposed action is approved, the Division or District Engineer will 
inform all affected landowners and tenants of the action being taken, 
the necessity therefor, and the subsequent procedure to be followed by 
the Government in conducting negotiations to acquire the land after the 
filing of the complaint.
    (c) Complaint assembly. The following assembly will be submitted to 
HQDA (DAEN-REA-C) WASH DC 20314 where only a complaint is to be filed:
    (1) Five copies of individual tract descriptions identified as 
Exhibit ``A''. (Reproduced copies will be accepted if clear and 
legible.)
    (2) Five copies of segment or project maps, showing each tract or 
area to be acquired shaded or outlined in red and identified as Exhibit 
``B''.
    (3) Five copies of a list of the names and addresses of the persons 
purporting to own the tracts or having an interest therein, identified 
as Exhibit ``C''.
    (4) Five copies of the exact estate or interest to be acquired, 
identified as Exhibit ``D''.
    (5) In Air Force projects and acquisitions for other agencies, one 
additional copy of each exhibit will be required.
    (6) In Air Force project acquisitions, the additional information 
set out in Sec.  644.114(f) will be submitted, in duplicate.
    (7) In those jurisdictions that adopt the alternate form declaration 
of taking, complaint assemblies should be similiar to the schedules 
submitted for the declaration of taking assembly.
    (d) Letter of transmittal. Where a complaint assembly is submitted, 
the letter of transmittal should include the following information:
    (1) A statement indicating the date of approval of the Real Estate 
Design Memorandum in civil works projects or the date of the Real Estate 
Directive for other projects, and whether the land included in the 
complaint assembly is within the approved project boundary line, 
together with the citations of the authorization and appropriation acts 
which cover the acquisition.
    (2) The approved appraised valuation and date of appraisal of the 
interest to be acquired or, if appraisals have not been prepared, the 
estimated value with a statement indicating the basis of the estimate.
    (3) Information as to whether the land included in the complaint 
assembly is vacant or occupied, together with the date any occupants 
will be required to vacate the premises.
    (4) If possession is required, an explanation of the need therefor 
and the reasons why the normal land acquisition schedule was not met.
    (5) Results of contacts with the landowners and tenants and their 
views with respect to the filing of condemnation proceedings.
    (6) A statement as to the plan and schedule to acquire such land 
after filing of the complaint in order to make funds available to the 
landowners and tenants.
    (7) In assemblies concerning land for other than civil works 
projects, a statement indicating whether all of the land authorized in 
the Real Estate Directive is included in the assembly. Any variance 
between the area or estate authorized in the directive and those in the 
assembly should be fully explained.
    (8) In military assemblies, a statement of expected local resistance 
to the proposed acquisition and efforts made to adjust military 
requirements to the local situation.
    (9) Whether there have been any Congressional inquiries regarding 
the acquisition.
    (e) Action after filing complaint. After filing of a complaint 
proceeding, action to acquire the land involved, either by

[[Page 173]]

direct purchase or by the filing of a declaration of taking, will be 
completed as soon as possible.
    (1) Where a satisfactory Offer to Sell is obtained and accepted, the 
transaction will proceed through the stages of title clearance, payment 
and closing. Upon final approval of title, the Division or District 
Engineer will recommend to the Chief of Engineers that the Department of 
Justice be requested to dismiss the tract from the proceeding.
    (2) Where a satisfactory lease of the premises included in a 
leasehold condemnation proceeding is obtained and accepted, the Division 
or District Engineer will recommend to the Chief of Engineers that the 
Department of Justice be requested to dismiss the tract from the 
proceeding.
    (3) The recommendation of the Division or District Engineer for 
dismissal of a tract from condemnation will include the following 
information:
    (i) Name of project.
    (ii) Caption of the complaint and civil action number assigned 
thereto.
    (iii) The date the final title approval was rendered; on lease 
cases, the date the lease was accepted.
    (iv) A statement as to whether the particular deed or lease includes 
the same land described in the complaint under the same tract number.
    (v) A statement as to whether the particular deed or lease includes 
all outstanding interests involved in the complaint insofar as the 
specific parcel of land is concerned. If all outstanding interests are 
not covered by the deed or lease instrument, a statement of the proposed 
method of acquiring those interests which remain outstanding, either by 
filing a declaration of taking or by direct purchase, or a 
recommendation that they be left outstanding permanently.



Sec.  644.114  Acquisition by declaration of taking.

    If it has been determined that acquisition of a tract cannot be 
accomplished by purchase due to failure to reach an agreement with the 
owners as to value, inability to contact the owners, title defects, or 
for other reasons, acquisition will be completed by the filing of a 
declaration of taking in a condemnation proceeding and the concurrent 
deposit of the estimated compensation in the registry of the court. The 
requirements for a declaration of taking are set forth in 40 U.S.C. 
258a.
    (a) Declaration of taking assembly. The assembly to be submitted by 
the Division or District Engineer to the Chief of Engineers, with a 
recommendation for the filing of a declaration of taking, will contain 
the following:
    (1) Seven copies of the declaration of taking. (Reproduced copies 
will be accepted if clear and legible). The copy to be executed and 
filed in court must be free of errors and erasures.
    (2) Seven copies of tract descriptions and names and addresses of 
purported owners, identified as Schedule ``A'' to the declaration of 
taking.
    (3) Seven copies of a segment or project map, showing the individual 
tracts outlined in red, or shaded in such a way as to identify them, 
constituting Schedule ``B'' to the declaration of taking.
    (4) In acquisitions for Air Force and other agencies, one additional 
copy of each of the above is required.
    (5) As to tracts which are appraised at $50,000 or more, it is 
necessary to have a least two appraisals for each such tract in 
condemnation. One copy of each appraisal will be forwarded with the 
assembly for those tracts valued less than $100,000, and two copies 
where the value is $100,000 or more. Also, a copy of the appraisal 
should be forwarded when there is a counteroffer of $50,000 or more, no 
matter what the appraisal is. In all cases where two appraisals are 
necessary, at least one will be by a contract appraiser approved in 
advance by the United States Attorney in whose jurisdiction the case 
will be filed.
    (6) Appraisals must be on a current basis so that at the time of 
submission of the assembly, the review certificates should indicate that 
the review has been made within thirty days prior to submission of the 
assembly.
    (7) Guides in preparing declarations of taking for acquisitions for 
the Departments of the Army (Military and Civil) and Air Force are 
contained in Figure 5-5 in ER 405-1-12.
    (8) Each case where there is an accepted Offer to Sell on which we 
will

[[Page 174]]

ask the Department of Justice to obtain judgment should be submitted as 
a separate Declaration of Taking.
    (b) Negotiator's report. Each declaration of taking assembly should 
be accompanied by a separate Negotiator's Report, ENG Form 3423 (Parts I 
and II), in duplicate, for each tract of land included in the assembly. 
The Negotiator's Report should be current, i.e., it should indicate a 
contact with the landowner, or his representative, at a time reasonably 
close to the date of submittal of the assembly, and should reflect that 
actual, practical and realistic negotiations were conducted in 
accordance with the procedure set forth in Sec.  644.83. The 
Negotiator's Report should be complete, but should be concise and not 
made unduly lengthy by extraneous material. It should contain so much of 
the following information as may be pertinent:
    (1) A brief physical description of the property, including its 
present use and highest and best use claimed by both the Government and 
the landowner.
    (2) Number of discussions and date and place of each discussion, and 
a statement that the landowner was furnished a summary of the basis for 
the Government's valuation prior to negotiations.
    (3) Statement of each offer made by the negotiator, any counteroffer 
received from the landowner, and any figures suggested by the negotiator 
in an effort to obtain a reasonable counteroffer above the Government's 
estimate of value.
    (4) Where the discussions reveal that further negotiations would not 
be productive, a statement that the real estate representative explained 
that it was necessary that the interests be obtained through 
condemnation, not in the sense of a threat, but as an effort on behalf 
of the Government to secure an impartial determination by the court of 
the differences of opinion as to value, and in order to make funds 
available to the landowner.
    (5) If the owner cannot be contacted for the purpose of conducting 
negotiations, a full explanation of the circumstances and the efforts 
made to contact the owner should be set forth in the Negotiator's 
Report.
    (6) A statement that any remaining property of the owner enjoys 
access and is an economic unit, or if it is an uneconomic remainder, 
that the Government has offered to acquire the remainder.
    (7) Where there is an Offer to Sell, the Negotiator's Report should 
include a statement that no separate representations were made in order 
to obtain the offer, if this was the case. If any such representations 
were made, they should be fully explained. The report should also 
include the negotiator's telephone number.
    (c) Letter of transmittal. The letter of transmittal to be submitted 
with a declaration of taking assembly will contain the following:
    (1) The date of the real estate directive or the date of approval of 
the real estate design memorandum which includes the land to be 
condemned, a statement that the land is within the approved project 
boundary line, and the date of approval of the boundary line.
    (2) A statement concerning the availability of funds.
    (3) A list of the dates of the appraisals of the tracts in the 
assembly and the dates of the last review thereof. If more than one 
approved appraisal exists for any tract, the deposit will be in the 
amount of the highest approved appraisal. If the value of growing crops 
has been included in the appraisal, a statement concerning same is 
required in the transmittal letter pursuant to paragraph (h)(3) of this 
section.
    (4) A statement that all owners of land included in the assembly, 
whose addresses are known, have been notified in writing that 
condemnation will be recommended and the reason therefor. The 
information furnished to the owners should include the name and address 
of the United States Attorney who will advise and assist them in 
applying for withdrawal of the funds deposited in the registry of the 
court. The notice to the owners should also state the date on which 
possession of their property will be required.
    (5) A statement concerning the date when possession of each tract 
included in the assembly should be obtained. This should include 
information as to when the 90-day notice was given, as

[[Page 175]]

required by section 301(5) of Pub. L. 91-646 (84 Stat. 1894), or if not 
required, an explanation as to why not.
    (6) In assemblies involving other than civil works projects, a 
statement as to whether or not all of the land authorized in the real 
estate directive is included in the proposed declaration of taking. Any 
variance that may exist between the acreage in the directive and the 
acreage in the declaration of taking should be fully explained.
    (7) For military projects, a statement of the expected local 
resistance to the proposed acquisition by condemnation, and the efforts 
which have been made to adjust requirements to the local situation.
    (8) For those assemblies involving the first case in a particular 
project, information as to:
    (i) When the initial land acquisition for the project took place.
    (ii) The total acreage for the project and the estimate of the cost 
thereof; if available, two copies of the project brochure furnished to 
landowners should be forwarded.
    (iii) Whether or not an environmental impact statement has been 
filed, and, if not, when it is expected to be filed.
    (9) Two copies of each accepted Offer to Sell covering any of the 
tracts included in the declaration of taking will be submitted with the 
assembly.
    (10) A statement as to whether there have been any Congressional 
inquiries regarding the acquisition.
    (d) Title defects. If a tract is recommended for condemnation due to 
title defects, three copies of the title opinion will be submitted with 
the assembly.
    (e) Deposit of funds. Two copies of the declaration of taking, as 
finally approved and signed, will be transmitted by the Chief of 
Engineers to the Division and District Engineer. Procurement and 
delivery of a check to the United States Attorney for deposit in the 
registry of the court will be authorized, subject to the availability of 
funds.
    (f) Additional information to accompany Air Force acquisitions. Each 
condemnation assembly (complaint or declaration of taking) covering the 
acquisition of land for an Air Force project will include the following 
information and material, in duplicate:
    (1) A map showing the base boundaries, outlining in red all land 
included in the applicable real estate directive, and showing the land 
included in the condemnation assembly hachured in red. In the case of an 
off-base facility, the map will show the nearest boundary of the main 
base with relation to the off-base facility, outlining in red all land 
in the applicable real estate directive, with the land covered by the 
condemnation assembly hachured in red.
    (2) On the same map or a larger scale map, the following information 
on each tract in the applicable real estate directive:
    (i) Tract number.
    (ii) Acreage.
    (iii) Ownership.
    (iv) Contours.
    (v) Existing improvements.
    (vi) Proposed construction, including utilities, drainage ditches, 
and other supporting facilities.
    (3) Summary of status of acquisition of all land included in the 
applicable real estate directive. ENG Form 3905-R will be used for this 
purpose. All discrepancies in figures for acreages and costs should be 
fully explained.
    (4) If any of the land included in the applicable real estate 
directive is held under voluntary lease or leasehold condemnation, 
report for each such tract the annual rental, the period of time the 
leasehold interest has been held, and whether it is a voluntary lease or 
a condemnation leasehold. If the land is not under lease, this fact 
should be reported.
    (5) If the United States has previously acquired an easement 
interest (clearance easement, safety area easement, etc.) in any of the 
land included in the condemnation assembly, identify the real estate 
directive which authorized the previous acquisition by number, date, 
interest acquired, acres, cost and method of acquisition (including 
lease number, tract number, caption with civil action number as 
applicable). A negative report is required.
    (6) If severance damage is involved in any of the land included in 
the condemnation assembly, include a detailed statement of the facts and 
justification

[[Page 176]]

for the severance allowed, unless the severance damage has been 
adequately explained in a Real Estate Planning Report or a Real Estate 
Requirements Estimate, in which case such Report or Estimate should be 
identified for reference.
    (7) A copy of the appraisal report on which the deposit in a 
declaration of taking is based, irrespective of value.
    (g) Interests included in declaration of taking. (1) The estate 
recommended for use in a declaration of taking should conform to the 
estate approved by the Chief of Engineers in Civil Works projects and to 
the applicable directive in military and other agency projects. Any 
deviation should be fully explained and justified in the transmittal 
letter. Examples of estates which have been approved for use in 
declarations of taking are contained in Figure 5-6 in ER 405-1-12. A 
condemnation proceeding is an in rem action. The definition of 
``property'' and what constitutes property is generally determined by 
reference to State law. Therefore, full consideration should be given to 
the applicable State law in connection with requests for deviations from 
the standard approved estates.
    (2) Normally, under the ``unit'' rule a condemnation proceeding 
should include all interests in a given tract authorized for acquisition 
even though an Offer to Sell may have been obtained and accepted from 
the surface owner with an outstanding interest in the subsurface estate 
recited in the ``Subject to'' paragraph. In such a case, if it is 
necessary to condemn due to title difficulties or failure of the owner 
to carry out the terms of the Offer to Sell, the deposit will be 
increased by the appraised value of the outstanding subsurface interest. 
The only exception to including subsurface interests outstanding in 
third parties is in the case of block ownership of subsurface interests; 
i.e., where a person, corporation, or other entity owns subsurface 
interests under more than one surface tract and in sufficient amount for 
the entire interest holding to have added value, for operational or 
other reasons, because it is in a block ownership. In other words, block 
ownership exists when the acquisition of a part of the block would 
require the assessment of severance damage, even if the value of the 
interest or the amount of the severance damage would be in a nominal 
amount. On this basis, subsurface interests need not be contiguous to 
constitute a block ownership.
    (3) If future negotiations to acquire or subordinate the subsurface 
interests left outstanding under paragraph (g)(2) of this section (or 
any non-block subsurface interests ``excepted'' from direct purchase 
cases) are unsuccessful, and the outstanding interest cannot be waived 
under the provisions of Sec.  644.86, then acquisition or subordination 
of the outstanding interest should be accomplished by condemnation 
proceedings. In so doing, block ownerships should be condemned as a unit 
rather than on a piecemeal basis. Full information should be submitted 
with such assemblies as to the method of acquisition of each surface 
ownership affected by the subsurface acquisition.
    (h) Payment for crops. At the time the declaration of taking 
assembly is prepared, it will be necessary that a determination be made 
as to whether the value of growing crops should be added to the value of 
the land improvements in determining the amount to be deposited as 
estimated compensation. The determination will be made as follows:
    (1) If the crops have been harvested, or it is known or highly 
probable that the crops will be harvested by the landowner or tenant, no 
deposit will be made for the crops.
    (2) The approved appraised value of crops will be included in the 
amounts to be deposited in all other cases.
    (3) The letter forwarding the declaration of taking to the Chief of 
Engineers will state whether the value of growing crops has been 
included in the amount recommended for deposit, and will set forth a 
statement of the facts upon which the action is based.
    (i) Filing and possession. Upon the filing of a complaint, 
accompanied by a declaration of taking, the court has the power to fix 
the time within which and the terms upon which the parties in possession 
shall be required to surrender possession to the United States (40 
U.S.C. 258a). Requests for orders of possession should be made only 
after all requirements of Pub. L. 91-646 (84

[[Page 177]]

Stat. 1894) regarding possession have been satisfied.
    (1) The Division or District Engineer will ascertain from the United 
States Attorney the date on which the condemnation proceeding with 
declaration of taking is filed and the date on which possession is 
available. The using service of the Army and Air Force or the local 
representative of other agencies will be informed of the date on which 
possession of the land is available.
    (2) The above information, together with the civil number assigned 
to the case, and a copy of the complaint and order of possession will be 
furnished to HQDA (DAEN-REA-C) WASH DC 20314 within six weeks after the 
date the case was forwarded by the Chief of Engineers to the Department 
of Justice. If this cannot be accomplished, an explanation will be 
furnished by such date.
    (3) Where an Order of Possession is obtained but the landowner 
refuses to comply, it may be necessary to obtain a Writ of Assistance 
from the court. Prior to requesting the United States Attorney to obtain 
such a Writ, all pertinent facts should be reported to DAEN-REA-C.
    (4) The United States Attorney should be requested to have judgment 
entered in accordance with the terms of any accepted Offers to Sell 
immediately after the filing of the case, since delay in taking such 
action works to the disadvantage of the Government. Any difficulty in 
securing prompt action by the United States Attorney in this matter 
should be reported to DAEN-REA-C.
    (j) Amendments. (1) If at any time it becomes necessary to amend a 
complaint or declaration of taking previously filed, an amendment 
assembly will be submitted to DAEN-REA-C together with a full statement 
of the facts requiring the amendment. The letter of transmittal should 
certify that the tracts affected by the amendment have not been 
adjudicated.
    (2) No amendment should be submitted which will result in a 
revestment of an interest in property, unless a stipulation for 
revestment has been obtained from the former owner in accordance with 
Sec.  644.115.
    (3) If, after the filing of a declaration of taking, a substantially 
higher appraisal is approved for any reason, and a settlement does not 
appear imminent, an amendment will be submitted promptly to increase the 
amount of the deposit.
    (k) Alternate form declaration of taking. An alternate form of 
Declaration of Taking has been approved by the Judicial Conference on an 
optional basis, and must be used where the local District Court 
requires. Under this form a Declaration of Taking may have up to 15 
ownerships, but each ownership will be set up separately so that it may 
be included in a separate civil action. In other words, there may be up 
to 15 separate civil actions which are keyed in to one Declaration of 
Taking. An example of this type of Declaration is included in Figure 5-5 
in ER 405-1-12. In this form, Schedule ``A'' will include the authority 
and public uses. Schedule ``B'' will include the description, the 
estimated compensation, and the estate to be acquired. Schedule ``C'' 
will be the plan showing the land to be acquired. It will be noted that 
there will be a separate Schedule ``A'', ``B'', and ``C'' for each 
ownership. The schedules may include more than one tract where the 
ownership is unified and is an economic unit. All of the civil actions 
will be keyed in to the Declaration of Taking by a Master File number. 
The Master File number must be used on all correspondence pertaining to 
tracts in this type of an assembly.



Sec.  644.115  Revestment of title by stipulation.

    When fee title or an interest in property has been acquired by the 
United States by declaration of taking in a condemnation proceeding and 
it is determined to be in the best interest of the Government to wholly 
or partially exclude said property or interests therein, or to acquire a 
lesser estate, such exclusion or diminution in the estate can be 
accomplished by stipulation with the former owner under the provisions 
of the Act of Congress approved October 21, 1942 (40 U.S.C. 258f).
    (a) Required approval. All stipulations involving a revestment of 
title must be forwarded to DAEN-REA-C for approval with a full statement 
of the

[[Page 178]]

facts, related data and recommendations. Approval of the revestment 
action must be obtained from the appropriate using agency. Such 
stipulations will not be filed in the condemnation proceedings by the 
United States Attorney until the specific approval of the Chief of 
Engineers is obtained and the matter coordinated by the Chief of 
Engineers with the Department of Justice. It should be stressed in 
negotiations that final approval of the stipulation is under the 
judrisdiction of the Attorney General, based on the recommendation of 
the Chief of Engineers.
    (b) Reduction of price. A stipulation for revestment should provide 
for a deduction from the agreed price or from the ultimate award of an 
amount equal to the difference between the value of the property 
originally taken and the value of said property after the proposed 
exclusion of a part thereof or acquisition of a lesser interest therein, 
i.e., the stipulation should be an over-all settlement of the case 
whenever possible. If it is impossible to reach an amicable agreement 
for complete settlement for the Government's acquisition of the tract, 
an agreement as to the area and estate, leaving final determination as 
to compensation with the court, may be submitted with facts showing that 
the proposed action is in the best interest of the Government. The 
stipulation should also include a release concerning any benefits under 
section 304, Pub. L. 91-646 (84 Stat. 1894), because of the revestment, 
particularly when no agreement is reached concerning compensation.
    (c) Required information. A sample stipulation for revestment is 
contained in Figure 5-8 in ER 405-1-12 which may be adapted to fit the 
particular project and tract involved. In this connection, the following 
requirements should be observed:
    (1) The stipulation will not provide for any change in the amount of 
the deposit unless the stipulation provides for an overall settlement of 
the case or the entire tract is to be excluded from the acquisition.
    (2) The areas in which the Government has acquired an interest and 
those in which an interest will be retained after the revestment will be 
fully described.
    (3) The estates to be retained by the Government after the 
revestment will be accurately described; where the owner reserves 
mineral or other interests or use, appropriate restriction of 
exploration and subordination to the paramount right of the Government 
to use the property for the required purpose will be included.
    (4) The stipulation should include, as part of the consideration:
    (i) Consent by the former owner to the Government's acquisition of 
the revised area and the estates therein in the event the stipulation is 
approved.
    (ii) Withdrawal of any answer contesting the Government's right to 
acquire the property and any interrogatories theretofore filed.
    (iii) A waiver of any and all claims by the former owner, his heirs 
and assigns, against the United States, the State, County and political 
subdivisions thereof for loss of access to the land (where applicable).
    (5) The stipulation will include, as an exhibit, maps delineating 
the fee area in red, the easement area in blue, and the area to be 
revested in yellow.
    (6) The letter of transmittal in connection with any revestment in 
Civil Works projects should include information as to whether the area 
in which title is to be revested has a potential for recreational use 
without regard to the currently established public access areas.
    (d) Application. The foregoing procedure applies only to instances 
where a declaration of taking has been filed. Where only a complaint has 
been filed, the necessary revisions may be made by securing a 
satisfactory Offer to Sell and deeds to the United States, or by 
amending the complaint and filing a declaration of taking containing the 
revised descriptions or estates.



Sec.  644.116  Distribution, reservations, and title evidence.

    Distribution of the estimated compensation deposited in the registry 
of the court is the responsibility of the United States District Court. 
However, the Division or District Engineer will assist the United States 
Attorney in arranging for the distribution of funds

[[Page 179]]

deposited with a declaration of taking in order that landowners may 
receive either partial or total payment as soon as possible.
    (a) Distribution. Partial or total distribution may be made upon a 
showing to the court that the claimant is the proper person to receive 
the money on deposit (40 U.S.C. 258a). An examination of the title 
evidence by the United States Attorney, together with a physical 
inspection of the premises, is usually sufficient to enable the United 
States Attorney to ascertain the proper claimants so that he may consent 
to the entry of an order of distribution. Distribution may be made 
without prejudice to the owner's right to contest for a higher award 
than the sum deposited by the United States.
    (b) Inspection and title evidence. As soon as a condemnation 
proceeding is filed, a physical inspection of the premises will be made 
and the United States Attorney will be furnished the following:
    (1) ENG Form 798, Certificate of Inspection and Possession, or such 
other similar form as may be requested.
    (2) ENG Form 1567, Report on Vacation of Property.
    (3) Title evidence and all available curative material covering the 
tracts of land included in the declaration of taking.
    (4) Copies of all offers to Sell, leases, relocation agreements, 
etc., which are pertinent to the case and would be useful in making 
distribution.
    (c) Reservations. If the landowners are to be permitted to remove 
crops, timber, buildings or other improvements from land acquired in the 
declaration of taking (by approval of the Division or District 
Engineer), a stipulation for reservation of these items may be obtained 
at this time. The stipulation should be in a form acceptable to the 
United States Attorney, should specify the date on or before which the 
reserved items are to be removed, and should provide that if the 
reserved items are not removed on or before said date, the right of 
removal shall terminate automatically and the United States shall have a 
good and indefeasible title to these items without further notice. The 
consideration to the Government for the reservation will be in an amount 
not less than the appraised value of the crops, or not less than the 
appraised salvage value of the timber, buildings or other improvements 
which are reserved, and the stipulation should provide that such amount 
shall be deducted from the amount of the final award.
    (d) Continuation of title evidence. A continuation of the existing 
title evidence will be obtained to include a search of the records to a 
date subsequent to the date of filing of the Notice of Lis Pendens, the 
Judgment on Declaration of Taking, or the filing of the complaint in 
those states where such filing constitutes notice. The additional title 
evidence will be furnished to the United States Attorney as soon as 
possible after filing of the case.



Sec.  644.117  Procedure prior to trial.

    (a) General. After filing of condemnation proceedings, the Division 
or District Engineer will maintain close liaison with the United States 
Attorneys and will render all possible assistance to the United States 
Attorneys in negotiating settlements, preparing cases for trial, and in 
conducting such trials. When the Division or District Engineer is 
informed that a case has been set for trial involving an unusual or 
novel issue of fact or law, or where the Government testimony will be 
$100,000 or more, he will promptly furnish this information to DAEN-REA-
C. In addition, the Division or District Engineer should:
    (1) In coordination with the United States Attorney, conduct 
discussions for settlement with landowners and other interested parties 
defendant. When a satisfactory agreement has been reached, an executed 
stipulation in a form satisfactory to the United States Attorney will be 
obtained. A suggested form of stipulation as to just compensation is 
contained in Figure 5-8 in ER 405-1-12. In this connection, the closest 
cooperation and collaboration must exist between representatives of the 
Department of the Army and the Department of Justice; no settlement 
negotiations should be conducted by Corps personnel without the 
knowledge

[[Page 180]]

and consent of the United States Attorney. If the property owner is 
unwilling to execute a stipulation until assured that the amount of the 
settlement will be accepted by the Government, formal execution of the 
stipulation may, in such instances, be delayed. However, the offer will 
be processed in accordance with the applicable provisions of paragraph 
(b) of this section.
    (2) Furnish maps, photographs and other necessary exhibits for 
trial.
    (3) Assist in preparing expert witnesses for trial.
    (4) Take necessary action to assure the presence of witnesses at the 
trial. District personnel who qualify as expert witnesses will be made 
available.
    (5) Be represented at the trial by an attorney thoroughly familiar 
with Federal court procedures, condemnation law, and the details of the 
project affected by the condemnation proceedings.
    (b) Stipulated settlements. (1) Where the amount of the stipulation 
obtained in accordance with paragraph (a)(1) of this section does not 
exceed the high, approved appraisal prepared by an appraiser employed 
by, or under contract with, the Corps of Engineers, and the proposed 
settlement will completely dispose of the issue of compensation for all 
interests acquired in the tract in the proceeding, approval of the 
settlement will be recommended by the Division or District Engineer or 
the Chief of the Real Estate Division directly to the United States 
Attorney. The Division or District Engineer will inform DAEN-REA-C of 
the action taken, either by sending a copy of the letter addressed to 
the United States Attorney of by separate correspondence.
    (2) Where the total settlement for all interests acquired in a given 
tract does not exceed $40,000 and the proposed settlement will 
completely dispose of the issue of compensation for all interests 
acquired in the tract in the proceeding, Division and District Engineers 
and the Chiefs of the Real Estate Divisions are also authorized to 
recommend approval of settlements directly to the United States 
Attorney. In leasehold condemnation cases the monetary limitation 
includes the full lease term and not merely the per annum rental. DAEN-
REA-C will be informed of the action taken in the same manner as in 
paragraph (b)(1) of this section. Even though the total settlement for 
all interests acquired in a given tract does not exceed $40,000, the 
proposed settlement will be submitted to DAEN-REA-C for consideration in 
the following instances:
    (i) If the United States Attorney and the Division or District 
Engineer cannot agree as to whether a particular settlement should be 
consummated.
    (ii) If the stipulation involves a novel issue of law or question of 
policy which would adversely affect the disposition of other tracts in a 
project.
    (iii) If revestment of any land or interests therein or change in 
estate is involved.
    (3) All proposed settlements not covered by paragraphs (b) (1) and 
(2) of this section will be forwarded to DAEN-REA-C, together with 
specific recommendations of the Division and District Engineers and a 
full statement of the facts. Three copies of the signed stipulation will 
be forwarded to DAEN-REA-C with the report in those situations where the 
stipulation contains any unusual conditions or terms. The report should 
contain the following:
    (i) The amount of the deposit and the amount of the proposed 
settlement.
    (ii) The amounts and dates of all Government appraisals. Where the 
Department of Justice appraisal is substantially above or below the 
Corps of Engineers' appraisals, the Division and District reviewing 
appraisers should carefully examine the appraisals and ascertain whether 
the facts in the case and the appraisal techniques have been 
consistently applied, and should prepare a comparative analysis.
    (iii) The appraisal valuations by the property owners, their 
appraisers, or other witnesses who may testify for the owners, if such 
can be ascertained.
    (iv) A statement of the recommendation of the United States Attorney 
as to the proposed settlement.
    (v) Such other matters as should be considered by the Chief of 
Engineers in determining whether the proposed settlement is 
satisfactory; e.g., any pattern of awards which has been established as 
the result of other trials concerning land at the same project, or in

[[Page 181]]

the same Federal judicial district, disposition of any accepted Offer to 
Sell, any unusual legal or factual issues involved, any unusual factors 
which would increase the hazard of proceeding to trial, or the 
anticipated effect of the settlement on remaining acquisition in the 
project.
    (vi) Whether or not funds are available to satisfy any deficiency.
    (vii) The report should contain the required information in 
tabulated form. For each item the statement should be short and concise; 
lengthy reports are not required.
    (4) A copy of the report and recommendation sent to the Chief of 
Engineers will be immediately transmitted to the United States Attorney. 
If the settlement is satisfactory, the Chief of Engineers will forward a 
letter of approval to the Department of Justice, recommending that the 
stipulation be approved, filed and judgment entered thereon. A copy of 
the letter of approval will be sent to the Division or District 
Engineer. Receipt of such copy is authority to satisfy the judgment when 
entered, provided funds are available.
    (5) If a stipulation is obtained by a United States Attorney in 
excess of their authority, they will forward the proposed settlement to 
the Department of Justice. Simultaneously, in accordance with procedures 
agreed upon by the Chief of Engineers and the Department of Justice, the 
United States Attorney will transmit copies of the transmittal letter 
and of the proposed stipulation to the Division or District. The 
Division or District Engineer will immediately forward the letter 
outlined in paragraph (b)(3) of this section to the Chief of Engineers.
    (6) All settlements negotiated for interests acquired in 
condemnation proceedings will be inclusive of interest and will include 
all claims of any nature arising as a result of the taking of the estate 
recited in the complaint or declaration of taking, with the exception of 
benefits to which the landowner may be entitled under Pub. L. 91-646 (84 
Stat. 1894). In lease-hold condemnation cases, all proposed settlements 
should include not only an agreement as to compensation for the period 
of the leasehold but also an agreement as to any and all claims arising 
from restoration of the premises, if known (Sec.  644.121(b)).
    (7) Where surface and subsurface interests are acquired in a single 
condemnation proceeding, it is desirable to settle by stipulation, or to 
go to trial, on the ``unit'' basis. Many United States Attorneys insists 
on this course of action. However, Division or District Engineer should 
cooperate with United States Attorneys who wish to negotiate for 
stipulated settlements which may not include all of the interests 
acquired in a given proceeding as to a specific tract or tracts, 
provided appraisal reports have been prepared in such a manner as to 
make the appraised value of the several interests ascertainable.
    (8) If an offer of settlement is not intended to include the full 
interest which was condemned in a particular tract, the letter 
transmitting the settlement offer will specifically identify the 
interests included in the settlement, the interests which remain 
unsettled, and the amount of estimated compensation remaining on deposit 
for the unsettled interests. The amounts remaining on deposit for the 
unsettled interests should be the appraised valuation of such interests.
    (9) Landowners will be advised during negotiations for settlement 
that offers to settle are not binding on the United States until 
accepted by a duly authorized representative of the Department of 
Justice.
    (10) In cases where tracts which are covered by accepted Offers to 
Sell are acquired by declaration of taking because of title defects or 
the failure of the landowner to carry out the terms of the Offer to 
Sell, the United States Attorney will be informed by letter and 
furnished copies of the Offer to Sell. The consideration contained in 
the Offer to Sell is considered binding upon the landowner despite the 
fact that condemnation is used to acquire title to the land. No 
settlement will be approved by the Division or District Engineer in an 
amount exceeding the amount contained in the Offer to Sell unless the 
Offer has been set aside by court order. Reports submitted in accordance 
with paragraph (b)(3) of this section will contain a statement as to

[[Page 182]]

the status of any Offer to Sell which may have been accepted.
    (c) Appraisal review. Land and Natural Resources Division Directive 
No. 11-68, dated 22 November 1968, provides that where two or more 
appraisals for a particular property have a valuation spread in excess 
of 10 percent of the high appraisal figure, the United States Attorney 
should submit such appraisals to the local representative of the Corps 
for approval. Every effort should be taken to see that this policy is 
followed so that the Corps has full knowledge of the appraisal reports 
on which settlement negotiations or trial preparation is based. In those 
instances where the United States Attorney and the Division or District 
Engineer cannot agree as to whether an appraisal or appraiser should be 
used at trial or in connection with settlement negotiations, copies of 
all appraisals, together with the analysis of the reviewing appraiser, 
should be submitted to HQDA (DAEN-REE) WASH DC 20314 for further 
consideration and possible discussion with the Department of Justice.



Sec.  644.118  Awards.

    (a) Approval by Division or District. Division or District Engineers 
and the Chiefs of the Real Estate Divisions have been authorized to 
approve court awards (including jury or commission awards) where such 
awards do not exceed the highest testimony presented at the trial by a 
qualified appraiser employed by the Government. In such cases, the 
United States Attorney will be notified that the award is approved and 
the Chief of Engineers will be notified of such action.
    (b) Approval by Chief of Engineers. (1) If the award is in excess of 
the highest testimony presented at the trial by a qualified appraiser 
employed by the Government, or involves a matter of a doubtful or 
controversial nature, a report concerning the trial will be forwarded by 
the Division or District Engineer to DAEN-REA-C. The report should 
contain, but not be limited to, the following information:
    (i) The amount of the verdict or award.
    (ii) The appraisal valuations given in testimony by all witnesses, 
including any pertinent comments on the effectiveness of the witnesses, 
as appropriate.
    (iii) A statement of the recommendations of the United States 
Attorney as to the acceptance of the verdict or award, if available 
without causing a delay in submittal of the report.
    (iv) Where the trial concerned less than all interests acquired in a 
given tract, the report should state the precise interests adjudicated 
at the trial, the other interests which remain unadjudicated, the 
proposed disposition of the unadjudicated interests and the amount of 
the deposit allocated to the unadjudicated interests.
    (v) Whether or not funds are available to satisfy any deficiency 
plus interest.
    (2) Long narrative reports of the events at the trial or hearing are 
not necessary except in unusual cases. A brief, but complete, statement 
of the pertinent facts will be adequate in most cases. A form for use in 
connection with submission of trial reports is included in Figure 5-9 in 
ER 405-1-12; however, it is not intended that this form constitute the 
entire report. Where the case was tried by a Commission, copies of the 
Commissioners' Report will be submitted with each copy of the trial 
report. Close liaison must be maintained with the United States 
Attorney's Office in order that these reports will be received promptly 
after they are filed in the case.
    (3) The report outlined above should be accompanied by the 
recommendation of the Division or District Engineer as to what action 
should be taken with respect to the Commissioner's Report, court award 
or jury verdict. This recommendation should include a discussion of any 
matters which should be considered by the Chief of Engineers in 
determining whether the award is satisfactory, e.g., the history of past 
awards at this project or in the same judicial district, the basis used 
by the commission in arriving at its determination of value, whether 
enhancement from the project or a second taking was an issue, the 
disposition of any accepted Offer to Sell on any tract involved in the 
trial, etc. (The basis of findings of value to be included in the report 
of a commission appointed under Rule 71A(h) was considered by

[[Page 183]]

the Supreme Court in United States v. Merz, 376 U.S. 192). Where the 
recommendation is to reject the award, specific reasons with supporting 
legal analysis should be given. The fact, standing alone, that an award 
is considered excessive is not sufficient reason upon which to base an 
appeal.
    (4) The report and recommendation should be received by the Chief of 
Engineers within five working days after the Commissioners' Report has 
been filed or the trial concluded. In order to accomplish reporting 
within the prescribed time limits, District Engineers will forward 
reports and recommendations direct to DAEN-REA-C, with a copy to the 
appropriate Division Engineer. The Division Engineer will submit 
comments and recommendations to DAEN-REA-C within three working days 
after receipt of the copy of the District Engineer's report. The 
District must insure that our right to object is extended if the 
situation warrants.
    (c) Payment of awards and settlements. (1) If an award or stipulated 
settlement requires the deposit of a deficiency, judgment will be 
entered by the court and thereafter transmitted to the Division or 
District Engineer by the Department of Justice for procurement of a 
check for deposit in the registry of the court in satisfaction of the 
final judgment.
    (2) The copy of the letter from the Chief of Engineers to the 
Department of Justice recommending approval of an award or settlement, 
if required under Sec. Sec.  644.117(b)(3) and 644.118(b), will 
constitute authority for payment of the deficiency, provided funds are 
available. If approval is not recommended by the Chief of Engineers to 
the Department of Justice and the judgment is submitted to the Division 
or District Engineer for payment, it should be forwarded to DAEN-REA-C 
without action. Upon receipt of a judgment where payment is authorized 
and funds are available, the Division or District Engineer will 
immediately procure and deliver the check to the United States Attorney 
and inform DAEN-REA-C of the action taken.



Sec.  644.119  Procedure after final judgment.

    Generally, it is not necessary to obtain a final certificate of 
title or title insurance policy in condemnation cases where the 
intermediate or continuation certificate of title is continued to a date 
subsequent to the date of filing of the Notice of Lis Pendens, and the 
liability of the title company is not limited to an amount less than 50 
percent of the total consideration paid for the land by the United 
States.
    (a) Final title opinion. After entry of final judgment, the title 
assembly will be examined and a final title opinion issued. The title 
opinion and related papers on Army and Air Force projects will be 
forwarded to HQDA (DAEN-REP) WASH DC 20314 for permanent filing.
    (b) Report required to close case. When all interests in a 
proceeding have been disposed of by final judgment, the Division or 
District Engineer will so advise the Chief of Engineers in order that 
the case may be closed. This report should not be made until the time 
for appeal has expired or any pending appeals have been resolved. The 
report should include a copy of the final judgment or other order of the 
court disposing of the case, and a statement that all monies deposited 
in the registry of the court have been disbursed.



Sec.  644.120  Condemnation for local cooperation projects.

    Under the provisions of the River and Harbor Acts approved June 29, 
1906 (33 U.S.C. 592) and August 8, 1917 (33 U.S.C. 593), and the Flood 
Control Acts approved March 1, 1917 (39 Stat. 950) and August 18, 1941 
(33 U.S.C. 701c-2), respectively, the Secretary of the Army may cause 
proceedings to be instituted in the name of the United States for 
acquisition by condemnation of lands, easements or rights-of-way which 
local interests undertake to furnish free of cost to the United States. 
Requests for the institution of proceedings in the name of the United 
States will be addressed by the local parties to the Secretary of the 
Army and submitted to the Division or District Engineer. No land will be 
acquired on behalf of local interests by the filing of condemnation 
proceedings until local interests have

[[Page 184]]

furnished the Division or District Engineer with satisfactory assurances 
in accordance with the authorization act, and sufficient funds have been 
deposited with the Division or District Engineer to pay the expenses of 
the proceedings and any awards that may be made in the proceedings.
    (a) General. The Corps of Engineers will institute condemnation 
proceedings on behalf of a local interest only when the local interest:
    (1) Lacks authority to acquire the necessary real estate interests 
by eminent domain; or
    (2) Cannot obtain possession by local eminent domain proceedings in 
time to meet the construction schedule; or
    (3) Unusual circumstances exist so that acquisition by local 
inerests would not be in the best interest of the United States.
    (b) Information to accompany assembly. Upon request of the local 
interests that the real estate interest be acquired by condemnation 
proceeding in the name of the United States, the Division or District 
Engineer will transmit to HQDA (DAEN-REA-C) WASH DC 20314 an appropriate 
condemnation assembly, prepared in accordance with Sec.  644.114, with 
recommendations and the following information:
    (1) Citation of authorizing act.
    (2) Whether valid assurances have been accepted, giving date of 
acceptance.
    (3) That the estate or estates to be acquired conform to the 
requirements set forth in subpart J (to be published).
    (4) Appraisal values of the interest proposed for acquisition.
    (5) That sufficient funds to cover court awards and expenses of the 
proceedings have been deposited by local interests with the Division or 
District Engineer.
    (6) Efforts made by local interests to acquire the real estate 
interests and reasons for requesting the United States to file 
condemnation proceedings.



Sec.  644.121  Leasehold condemnation requirements.

    (a) Requirements for extension. The interest acquired in land by a 
leasehold condemnation proceeding terminates after a one-year term, 
unless notice to extend the term is filed in the appropriate United 
States District Court. In all leasehold cases, the Division or District 
Engineer will ascertain from the using service whether the premises 
included in such condemnation proceedings will be required for an 
additional term. This should be done sufficiently in advance of the end 
of the term to allow adequate time for the action necessary to extend 
the term. These instructions apply to civil works projects as well as 
military projects.
    (1) The Department of the Air Force will ascertain and advise the 
Chief of Engineers concerning the future requirements for the land in 
Air Force leasehold cases. Where the Department of the Air Force has a 
continuing requirement for land included in condemnation leasehold cases 
which are not extendible, the appropriate Division and District 
Engineers will be informed at the earliest practicable date.
    (2) Extension of the term in a leasehold condemnation case must be 
accomplished through the Department of Justice which, upon request of 
the Chief of Engineers, will issue instructions to its field 
representatives to prepare a notice of election to extend the term and 
file it in the appropriate United States District Court. The Chief of 
Engineers should be advised of requirements of using services for 
extension of leasehold condemnation cases five months prior to the time 
that filing notice of extension with the court is due. The majority of 
pending leasehold condemnation cases require that notice to extend the 
term be filed with the court 30 days prior to the end of the term, 
although a few cases require the notice of extension to be filed at 
least 60 days prior to the end of the term. Negative reports are 
required.
    (3) Since the General Services Administration is the disposal agency 
for excess and surplus airport property, all condemnation leaseholds 
forming an integral part of an airport should be extended and kept in 
force with the concurrence of the Department of the Air Force unless and 
until contrary instructions are received from the General Services 
Administration. In the event a bombing range or other installation in 
which leasehold interests have been acquired by condemnation is

[[Page 185]]

excess or surplus, but will not be decontaminated or dedudded prior to 
the end of the term, the leasehold condemnation proceeding will be 
extended beyond that date. In reporting leasehold condemnation cases to 
be extended within the categories mentioned in this paragraph, full 
information as to the necessity for extensions in each case should be 
furnished DAEN-REA-C.
    (4) Specific authorization for deposit of funds in condemnation 
leasehold cases will be issued to Division and District Engineers by the 
Chief of Engineers.
    (b) Termination of leasehold condemnation proceedings. If the need 
for all or part of the land included in a leasehold condemnation 
proceeding should terminate prior to the expiration of the term 
condemned, in the case of fixed term estates, or prior to the expiration 
of the right to renew by filing notice of extension, the Division or 
District Engineer, upon notification by the using service that the land 
is no longer needed, shall advise DAEN-REA-C accordingly. Prompt action 
will be taken by the Division or District Engineer to comply with the 
applicable requirements of subpart I (to be published) relative to 
screening real property excess to one component of the Department of 
Defense with all other components and Federal agencies outside of the 
Department of Defense. Where restoration is involved, a report will be 
furnished DAEN-REA-C setting forth the status thereof.
    (c) Report to close leasehold condemnation cases. When the term 
condemned has expired or all interests have been terminated and all 
interests have been disposed of by final judgment, the Division or 
District Engineer will so advise DAEN-REA-C in order that the case may 
be closed. Report in accordance with Sec.  644.119(b) shall be furnished 
and shall also include a statement that the issue of restoration has 
been settled.

                         Acquisition by Leasing

    Source: Sections 644.131 through 644.142 appear at 44 FR 31116, May 
30, 1979, unless otherwise noted.



Sec.  644.131  General.

    Sections 644.131 through 644.142 outline the procedures of the Corps 
of Engineers for the leasing of real estate and interests therein for 
military and civil works purposes. They are applicable to all division 
and District Engineers having real estate responsibilities. To the 
extent practicable, these procedures will be followed by overseas 
commanders, in conjuction with the provisions of AR 405-10, Chapter 3. 
In general, these procedures also apply to the leasing of land and 
improvements for other Government agencies which authorize the Corps to 
acquire leasehold interests.



Sec.  644.132  Authority.

    (a) Authority to lease real property interests for the Department of 
the Army in the United States, the Commonwealth of Puerto Rico, and the 
Virgin Islands is derived from annual appropriation acts.
    (b) Title 10 U.S.C. 2675 authorizes the acquisition by lease, in any 
foreign country, of structures and real property relating thereto that 
are needed for military purposes. Leases under section 2675 may not be 
for a period of more than five years, except that a lease under this 
section for military family housing facilities and real property 
relating thereto may be for a period of more than five years but may not 
be for a period of more than ten years.



Sec.  644.133  Responsibilities.

    (a) The Corps is responsible for acquiring space in buildings, or 
land, or both land and buildings, under its own authority or through the 
General Services Administration (GSA) in designated urban centers, for 
the Departments of the Army and Air Force; Department of the Navy, 
including the Marine Corps, for recruiting and main stations; Department 
of Energy and the Nuclear Regulatory Commission, excluding space in GSA 
urban centers; National Aeronautics and Space Administration, as 
requested; and other agencies, such as the Department of Defense, upon 
request. In carrying out these responsibilities, Division and District 
Engineers will:

[[Page 186]]

    (1) Furnish staff supervision to using services on all leasing 
matters, as well as technical assistance and guidance.
    (2) Develop plans and studies, usually in the form of Lease Planning 
Reports, for commanders of using services when appropriate.
    (3) Make recommendations to the using services and/or the Chief of 
Engineers on important lease and lease planning matters.
    (4) Report controversial or unusual leasing matters to HQDA (DAEN-
REA-L) WASH DC 20314 by the submission of a summary of the facts, copies 
or proposed lease documents, and other data, together with 
recommendations thereon.
    (b) In accordance with Reoganization Plan No. 18 of 1950 (40 U.S.C. 
304c) and under the provisions of the Federal Property and 
Administrative Services Act of 1949 (40 U.S.C. 471), the Public 
Buildings Service of GSA assumed all functions with respect to the 
acquisition by lease of general-purpose space; the assignment and 
reassignment of such leased space and of Government-owned space; and the 
operation, maintenance, and custody thereof in selected urban centers. 
The Administrator, GSA, is authorized to assign and reassign office 
space in the United States upon his determination that such assignments 
or reassignments are advantageous to the Government in terms of economy, 
efficiency, or national security after consulting with the heads of the 
executive agencies concerned.
    (c) Reorganization Plan No. 18 also provided that the Administrator 
may delegate any function transferred to him to the head of any agency 
of the executive branch of the Government.
    (d) Reorganization Plan No. 18 did not transfer to the Administrator 
any function with respect to:
    (1) Buildings or space in buildings located on a military 
installation, or similar facility of the Department of Defense unless a 
permit for its use shall have been issued by the Secretary of Defense, 
or his duly authorized representative; or
    (2) Space in Government-owned or leased buildings utilized for 
special purposes and not generally suitable for use by other agencies.



Sec.  644.134  Definitions.

    (a) General-purpose space is space in buildings, including land 
incidental thereto, suitable for the general use of Government agencies, 
including but not limited to office space, general storage space, inside 
parking space, and warehouse space.
    (b) Special-purpose space is space in buildings, including land 
incidental thereto, wholly or predominantly utilized for the special 
purposes of an agency, and not generally suitable for general-purpose 
use, including but not limited to hospitals, housing, and laboratories.
    (c) Initial alterations are any improvements, additions, repairs or 
structural changes which are necessary to adapt leased premises or 
facilities to needs of the using service and which are approved prior to 
occupancy.
    (d) Subsequent alterations or upgrades are any improvements, 
additions, repairs or structural changes which are found to be necessary 
to further adapt leased property to the needs of the using service after 
occupancy.
    (e) Temporary improvements are those which can be removed without 
damage either to the property installed or the leased property, and to 
which the Government retains title.



Sec.  644.135  Lease authorization and approvals.

    (a) Title 10 Reports. Under the provisions of 10 U.S.C. 2662, a 
lease proposal or renewal with an estimated annual rental in excess of 
$50,000 (gross rent as recited in the lease or for each project covered 
by one or more leases) must be reported to the Armed Services Committees 
of Congress. The General Services Administration (GSA) charges a 
Standard Level User Charge (SLUC) for furnishing space. For title 10 
reporting purposes, where GSA leases space at Corps request, the SLUC 
figure, if greater than the gross contract rental figure, shall control. 
For all leases which require title 10 clearance, the Division/District 
Engineers will prepare and submit an Acquisition Report to HODA (DAEN-
REA-L), WASH DC 20314 in the format shown in Figure 5-10 in ER 405-1-12. 
The report will support an

[[Page 187]]

action to obtain approvals from the Assistant Secretary of the Army 
(Installations, Logistics and Financial Management) and the Deputy 
Assistant Secretary of Defense (Installations and Housing) for the 
proposed lease prior to its submission to the Committees, and will serve 
as a basis for a hearing before the Real Estate Subcommittee of the 
House Armed Services Committee. Draft acquisition report pursuant to 
title 10 for a lease renewal should be submitted at least 12 months in 
advance of the termination date of the lease. An explanation for any 
delay in forwarding the draft acquisition report is required in the 
transmittal letter if lease terminates prior to one year. Supporting 
data for this report will include the following:
    (1) The geographical area in which the availability of Government-
owned space was surveyed, together with reasons for limiting the area. 
The mission is to be set forth in detail, along with the reason(s) why 
space in this particular geographical area is essential to the 
performance of the mission.
    (2) Current and required space (including parking) for each using 
service. For GSA leases the square feet should be the same as reported 
on the SLUC. Corrected square feet may be reported if a letter of 
concurrence from the appropriate GSA Region is provided.
    (3) Statement covering all Government-owned buildings and facilities 
under the control of the military departments in that area, together 
with the reasons why each was rejected. Even though no space is 
available, a list of the installations in the area will be furnished.
    (4) Statement from (GSA) indicating that no space is available to 
that agency and other Federal agencies in the area or, in the 
alternative, a list of space that is available, together with reasons 
why the space is not acceptable to the using service.
    (5) Identification of the headquarters and personnel making the 
determination that any available Government-owned space is not suitable.
    (6) Original request, signed by the responsible head of the using 
agency that action be taken to obtain required clearances under 10 
U.S.C. 2662. The using service shall advise whether or not a long-range 
use is contemplated.
    (7) A statement of the current and anticipated contract rentals and 
current and anticipated SLUC for GSA leases. The SLUC should be as 
reported by GSA, unless an explanation is provided.
    (b) The Economy Act. Section 322 of the Act of Congress approved 30 
June 1932, as amended (40 U.S.C. 278a) provides that no appropriation 
shall be obligated or expended for the rent of any building or part of a 
building to be occupied for Government purposes at a rental in excess of 
the per annum rate of 15 percent of the fair market value of the rented 
premises at date of the lease under which the premises are to be 
occupied by the Government, nor for alterations, improvements, and/or 
repairs of the rented premises in excess of 25 percent of the amount of 
the rent for the first year of the rental term, or for the entire rental 
if the full term is less than one year. The provisions of section 322, 
as applicable to rentals, shall apply only where the rental to be paid 
shall exceed $2,000 per annum.
    (c) Exception to Economy Act. The Act of Congress approved 28 April 
1942 (40 U.S.C. 278b) provides that 40 U.S.C. 278a shall not apply 
during war or a national emergency declared by Congress or by the 
President to such leases or renewals of existing leases of privately-
owned or publicly-owned property as are certified by the Secretary of 
the Army or the Secretary of the Navy or by such person or persons as he 
may designate, as covering premises for military or civilian purposes 
necessary for the prosecution of the war or vital in the national 
emergency. The provisions of the National Emergencies Act, Pub. L. 94-
412 (90 Stat. 1255), 14 September 1976, shall not apply to the powers 
and authorities conferred by 40 U.S.C. 278b and actions taken 
thereunder.
    (d) Federal Property and Administrative Services Act. The 
Administrator, GSA is authorized by 40 U.S.C. 490a(8) to alter and 
improve rented premises without regard to the 25 percent limitation of 
40 U.S.C. 278a upon a determination by the Administrator that the 
alterations and improvements are advantageous to the Government in terms 
of economy,

[[Page 188]]

efficiency, or national security, and that the total cost of the 
proposed work to the Government for the expected life of the lease shall 
be less than the cost of alternative space which needs no such 
improvements.
    (e) Certificates of Necessity. Department of the Army requests for 
Certificates of Necessity pursuant to 40 U.S.C. 278b will be forwarded 
to the Assistant Secretary of the Army through DAEN-REA-L. In any case 
requiring the issuance of a Certificate of Necessity, the amount 
requested will be sufficient to provide for all improvements which can 
be foreseen and that will be required during the term of the lease. 
Should unforeseen, essential requirements arise at a later date, an 
additional Certificate of Necessity to cover such work will be 
necessary. It is required that the using service furnish Division or 
District Engineers with a request for a Certificate of Necessity, 
explaining the circumstances, followed by a statement that the continued 
use of the leased premises, or the work to be performed, as the case may 
be, is vital in the national emergency. All requests by Division and 
District Engineers will include a completed ENG Form 869-R, 15 percent 
Valuation Certificate.
    (f) Approval--Chief of Engineers. (1) The Chief of Engineers is 
authorized to approve leases where proposed temporary construction to be 
placed on land by the Government has an estimated cost equal to or in 
excess of the current market value of the property, or where the 
estimated rentals to be paid in the future, plus the cost of 
restoration, would exceed 50 percent of the current market value of the 
property.
    (2) Leases, renewals, or lease extensions, which are controversial, 
unusual, or inconsistent with existing policies, require the approval of 
the Chief of Engineers.
    (3) Any lease involving clearances by higher authority will be 
submitted to HQDA (DAEN-REA-L) WASH DC 20314.
    (4) Leases, renewals, or lease extensions of industrial properties, 
other than for bakeries, laundries, and drycleaning facilities, are to 
be submitted to DEAN-REA-L for prior approval.
    (5) Division and District Engineers, and Chiefs of the Real Estate 
Divisions, are authorized to perform emergency maintenance and repairs 
to leased premises not in excess of $500 where lessors refuse to 
perform, or under such circumstances that the lessor cannot perform. 
Where the cost exceeds $500, approval by DAEN-REA-L is required. The 
Comptroller General has ruled that where the lessor is obligated to 
perform maintenance and repairs under the terms of the lease and after 
demand of and refusal by the lessor, the Government makes such repairs 
in order to utilize the property to the fullest extent, the cost should 
be withheld from rental payments under the lease as soon as possible 
after work is completed (15 Comp. Gen. 1064). However, no rental 
payments will be withheld and no repairs made after demand and a refusal 
by the lessor, without prior approval of DAEN-REA-L.
    (g) Division and District Engineer Authorization. (1) Division 
Engineers and their Chiefs of the Real Estate Division have been 
delegated, without authority to redelegate, leasing authority to approve 
leases where the annual rent, excluding services and utilities, unless 
said services and utilities are included in the recited rental 
consideration, is in excess of $25,000, but not in excess of $50,000. 
The $50,000 limitation will be strictly observed because of the 
reporting requirements under the provisions of 10 U.S.C. 2662.
    (2) District Engineers and their Chiefs of the Real Estate Divisions 
are authorized to approve leases wherein the rental excluding utilities 
and services, unless included in the recited rental consideration, does 
not exceed $25,000 per annum.
    (3) Except for space in the National Capital Region, Division and 
District Engineers are authorized to process all requests for the 
assignment of space in Government-owned buildings or leased space in the 
GSA urban centers to the regional GSA office having jurisdiction.



Sec.  644.136  Leasing guidelines.

    Division and District Engineers, and the Chiefs of the Real Estate 
Divisions,

[[Page 189]]

are authorized to execute leases, or renewals of leases, negotiated in 
accordance with the procedures expressed herein, upon receipt of a 
proper request from an authorized command, service, or agency, subject 
to any required approvals or clearances. When there is no Real Estate 
Division, as such, but the Division or District Engineer has 
responsibility for leasing activities, he may delegate this authority to 
the officer or civilian in charge or real estate activities.
    (a) Leasing requests. Requests for space or land will be received by 
the Chief of Engineers, or the appropriate Division or District 
Engineer. Requests will include the data outlined in AR 405-10 (para 2-
2c). Division and District Engineers will coordinate space or land 
requirements with appropriate commanders to assure responsive lease 
processing. If required, a Lease Planning Report, or narrative report 
covering essential information, will be furnished the using service for 
review and recommendations. Funding requirements, usually in the form of 
fund citations, will have been met by the using service prior to lease 
execution. If approvals by higher authority are required, the Division 
or District Engineer will initiate appropriate action to obtain the 
necessary clearances.
    (1) Army Commands. Upon receipt of a request from an Army Command, 
negotiations for obtaining acceptable leases will be carried to 
completion in accordance with present procedures for military leases.
    (2) Air Force. Upon receipt of a lease request approved by 
Headquarters, U.S. Air Force, or an Air Force major command, the 
appropriate Division or District Engineer will negotiate and lease the 
required property. The provisions of AFR 87-1 prescribe the Department 
of the Air Force policies and procedures that are to be followed.
    (3) National Guard. All requests for the leasing of facilities for 
National Guard purposes will emanate from the Chief, National Guard 
Bureau. Army National Guard leasing requirements will be transmitted 
through DAEN-REZ-R to DAEN-REA-L. Air National Guard requirements will 
be transmitted to DAEN-REA-L through Headquarters, U.S. Air Force.
    (i) Upon receipt of authority from the Chief of Engineers, 
negotiations will be conducted for obtaining an acceptable lease, in 
accordance with the approved lease request. The appropriate United 
States Property and Fiscal Officer generally makes separate service 
contracts for utilities, except sewage disposal, and services, and is 
responsible for the maintenance of all buildings used exclusively by the 
Air National Guard. Representatives of the Corps of Engineers do not 
participate in obtaining contracts for utilities and services. In cases 
where such a contract is impracticable, the lease may include any and 
all utilities and services as part of the rental consideration, with the 
cost of the various services and utilities to be itemized. The ``use 
clause'' in the lease will provide for occupancy of the premises for 
``Government purposes''. The wording, ``For use by the Air National 
Guard and/or United States Air Force, and, in time of war or national 
emergency, by other units of the Armed Forces of the United States or 
for any other use by the Federal Government,'' will be acceptable if it 
is not possible to insert the for ``Government purposes'' provision.
    (ii) Leases made by representatives of a State with private parties 
for use of premises by the National Guard of the State involved, under 
which State funds are used for rental payments, are not the 
responsibility of the Division or District Engineer.
    (4) Department of Energy/Nuclear Regulatory Commission. Space is 
acquired by these agencies direct from GSA in the designated urban 
centers pursuant to Reorganization Plan No. 18. In instances where 
general purpose space is not obtained through GSA and instances 
involving the leasing of special-purpose space, managers of field 
offices of subject agencies are authorized to initiate requests to 
Division or District Engineers for the leasing of properties where the 
net per annum rental does not exceed $50,000. Leasing of properties 
where the net rental per annum exceeds $50,000 requires the prior 
approval of the appropriate agency head, i.e., the Secretary of Energy, 
the Chairman of the Nuclear Regulatory Commission, or their designees.

[[Page 190]]

    (5) Metropolitan Washington, DC. All requests for leased space in 
the National Capital Region will be processed in accordance with DOD 
Instruction 5305.5.
    (b) Requirements survey. The availability, use, and adaptability of 
property owned by the Government, whether under control of the GSA or 
other agencies, shall be thoroughly explored before additional space is 
leased, or existing leases are renewed, or construction commenced. 
Particular attention is to be given to the availability of space, or 
land, at military reservations, camps, posts, or stations.
    (1) A statement covering the non-availability of Government-owned 
space, or if such is available and not suitable, reasons why it is not 
suitable, for occupancy by the requesting using service, should be made 
for each lease executed by the Corps of Engineers, excluding family 
housing leases.
    (2) Suitable privately-owned space shall be acquired only when 
satisfactory Government-owned space is not available. Rental charges 
will be consistent with prevailing rates in the community for comparable 
facilities.
    (3) The quality of office space for Government occupancy shall be 
appropriate for the efficient and economical performance of required 
operations, affording employees safe, healthful and convenient 
facilities.
    (4) Full consideration shall be given to the efficient performance 
of the mission and programs of the using service.
    (c) Government-owned and General Services Administration furnished 
space. If Government-owned space is available, the Division or District 
Engineer will inform the using agency, and details of occupancy will be 
developed. If it is necessary for GSA to lease space, the Division or 
District Engineer will make a careful review to determine if there are 
any statutory or regulatory limitations involved. If so, appropriate 
action will be taken to satisfy the limitations. During the processing 
of all GSA space assignments and leases, the Division or District 
Engineer is the only official contact representative with GSA. This 
procedure is to be emphasized at all time with the using service.
    (1) The Division of District Engineer will submit a Standard Form 
81, Request for Space, to the appropriate GSA Regional Office for space 
assignment in urban centers under the jurisdiction of GSA. The 
requirement to this form applies to lease renewals or lease supplements, 
and for space assignments in Federal office buildings. Excluded from 
this procedure is a proposed space assignment in the National Capitol 
Region.
    (2) Except for the acquisition of general-purpose space of 2,500 
square feet or less, outside the designated urban centers, and special-
purpose space of 2,500 square feet or less, irrespective of the 
location, the need for any type of building space will be made kown to 
the appropriate GSA Regional Office by filing Standard Form 81, Request 
for Space.
    (3) The designated urban centers are listed in Figure 5-11 in ER 
405-1-12.
    (d) Advertising. As a general rule, procurement of space will be by 
formal advertising. However, in leasing certain types of premises where 
only one location will serve the Government's purpose, such as municipal 
airports, recruiting stations, and similar facilities, negotiations 
without advertising are permissible. In instances where building space 
is needed and the requirement cannot be met through the use of existing 
buildings, there must be advertising to solicit bids for the furnishing 
of the space. In every instance, it is essential that efforts be made to 
seek competition. For each lease, a statement will be prepared 
concerning competition in the solicitation for space or land and 
Standard Form 1036, Statement and Certificate of Award, will be used. 
Where specific space or land is needed, and competition is therefore not 
involved, the facts and circumstances will be fully explained and such 
explanation will be made a part of the lease file for future reference.
    (e) Appraisals. Appraisals are required as a basis for making rental 
determinations in all leases except those for a nominal consideration. 
At the discretion of the Division and District Engineers, and the Chiefs 
of the Real Estate Divisions, formal or detailed appraisals

[[Page 191]]

can be dispensed with for leases wherein the annual rent does not exceed 
$5,000. Where the rental of a building or part of a building, or family 
housing unit, exceeds $3,600 per annum, excluding services and 
utilities, it may be necessary to estimate the fee value of the property 
contemplated for leasing to determine whether or not the rental rate is 
in excess of 15 percent of the fee value of the property. For family 
housing leases, the opinion of fee value will be in short summary form 
and will be supported by general evidence of comparable values of the 
unit to be leased. If the proposed annual rental, excluding services and 
utilities, of a family housing unit exceeds 15 percent of the estimated 
fee value, the unit will not be leased.
    (f) Determination of valid interest. Persons executing leases for 
and on behalf of the United States of America will satisfy themselves, 
before executing leases, that the prospective lessors have an interest 
in the real estate which will assure the validity of the lease. Where 
leased lands are used as a site for contruction, the land records of the 
county will be examined by a staff attorney familiar with land title 
records, who will execute a certificate that he has examined the said 
records and that title is vested in the lessor, subject to the 
infirmities, liens and encumbrances noted in the certificate. In lieu of 
such examination, a certificate from the Register of Deeds, County 
Recorder or other qualified officer is acceptable. If considered 
advisable in unusual cases, title evidence may be obtained from 
commercial sources.
    (g) Outstanding rights and damages. (1) Where the land is subject to 
outstanding oil, gas, mineral, or similar interests, the Division or 
District Engineer will determine, from the appropriate command, in 
advance of the consummation of the lease, whether the continued exercise 
of the mineral or outstanding rights will interfere with the 
contemplated use of the premises.
    (2) Where buildings, structures, or growing crops are located on 
land to be leased, a determination will be made by the Division or 
District Engineer, in coordination with the appropriate command, as to 
whether they will interfere with the use of the premises.
    (3) Where the lessor will not be permitted to harvest crops or 
remove improvements and timber which will be destroyed by the 
Government, the appraised value thereof will be determined, and such 
amount will be included in the rental for the initial term of the lease, 
together with an express provision relieving the Government of 
restoration.
    (4) Leases of land for bombing, artillery, rifle ranges, and other 
extraordinary usage will specify that the leased premises are to be used 
for such purpose, and an effort will be made to include in the lease a 
provision waiving restoration and claims for damages, particularly where 
the premises are wastelands or unproductive.
    (5) Where the lessor will not consent to a waiver of restoration, 
the estimated value of such damage, if it can be determined in advance, 
will be included in the rental for the initial term of the lease, and 
the lease will contain an express provision relieving the Government 
from responsibility for restoration.
    (6) If restoration is not waived, and the damages cannot be 
determined in advance, a provision may be included in the lease to the 
effect that the rental payments do not include compensation for damages 
arising from the use of the premises for the purpose leased and that, 
upon termination of the lease, the damages, mutually determined, will be 
paid by supplemental agreement to the lease. In event the amount of the 
loss or damage cannot be mutually determined, the lessor may file a 
claim for the alleged loss or damage in accordance with subpart H.
    (h) Services and utilities. Services, such as janitorial, heat, air 
conditioning, light and water, should be included in leases for building 
space wherever possible. Whether services are paid for as part of the 
rent or by a service contract, the time period for furnishing heat, air 
conditioning and light, i.e., usual business hours, 24-hour basis, 
Saturdays and Sundays, should be clearly stated.
    (i) Other contracts. The negotiation and execution of contracts not 
involving an interest in real estate are the responsibility of the 
services concerned.

[[Page 192]]

    (j) Condition surveys. (1) Whenever possession of any premises is 
acquired by lease or other agreement, or by condemnation for a term of 
years, the Division or District Engineer will cause a survey and 
inspection of the condition of the real and personal property to be made 
as of the time the Government takes possession.
    (2) The survey and inspection required above will be made jointly 
with the lessor or his duly authorized representative. The report will 
be signed by both parties.
    (3) The initial survey report must be made with great care since it 
is the basis for future restoration claims by a lessor. The use of 
photographs is encouraged. Full explanatory data covering condition of 
the premises will be added to the report if, in the opinion of the 
Chief, Real Estate Division, a useful purpose will be served thereby. 
The survey report of real property, and the inventory and condition 
report of personal property, will be made with care, as the condition 
reflected as of the date of initial occupancy will be compared with the 
condition shown by the terminal reports made upon vacation of premises.
    (4) A survey is not required of unimproved land where an appraisal 
has been made and the condition of the land is set forth by the 
appraiser and made a part of the record.
    (5) A survey will be made wherever property of another Federal 
agency is used, with the exception of post offices and Federal 
buildings. In the event privately-owned buildings, crops, or other 
property, are on the Federal property, a report will be made outlining 
the terms and conditions under which they were placed thereon, and the 
value thereof will be appraised as of the date of possession.
    (6) Normally, ENG Forms 3143 and 3143A, Joint Survey and Inspection 
of Condition of Government Leased Property, are adequate for the joint 
survey and inspection. In certain cases, narrative reports may, at the 
discretion of the Division or District Engineer, be considered 
preferable; however, local forms will not be developed for this purpose.
    (k) Possession. Possession of real property will not be taken until 
required approvals and clearances are obtained and a lease is executed. 
When requested by an appropriate command, rights-of-entry for 
exploration and survey, or construction, will be obtained in accordance 
with instructions in Sec. Sec.  644.155 through 644.157.
    (l) Condemnation of leaseholds. Where the required leasehold 
interest cannot be acquired by a negotiated lease, the recommendation of 
the Division or District Engineer for the institution of condemnation 
proceedings will be submitted to HQDA (DAEN-REA-C) WASH DC 20314, in 
accordance with Sec.  644.121, setting forth the negotiations that have 
been conducted with the property owner(s) and all other factors 
supporting the recommendation.
    (m) Decease of lessor. (1) Any claim on account of death of a lessor 
(except uncurrent depository check claims) may be settled without 
submission to the Chief of Engineers where no doubt exists as to the 
amount and validity of the claim or as to whom payment may be made under 
the laws of the domicile of the decedent.
    (2) Any claim for rent or services due a deceased lessor which is 
considered doubtful will be forwarded to HQDA (DAEN-REM) WASH DC 20314 
in accordance with subpart H.
    (n) Recording leases. If the property is located in a State 
requiring the recording of leases, all statutory requirements will be 
met. Leases, and supplemental agreements prior to termination, involving 
property upon which substantial Government improvements are to be 
constructed, will be recorded in all cases.
    (o) Change in ownership. (1) When the title to premises leased to 
the Government is transferred, the contracting officer shall satisfy 
himself that the new owner has a valid interest in the premises covered 
by the lease, and thereafter enter into a supplemental agreement between 
the old and new owners and the Government, for distribution in the same 
manner as the original lease.
    (2) Upon being notified or otherwise determining that a foreclosure 
proceeding has been filed against the leased premises, or that the 
enforcement of a deed of trust or mortgage is

[[Page 193]]

imminent, the Division or District Engineer will take such action as is 
appropriate under State laws for protection of the United States. This 
would consist of filing by the United States Attorney with the court, or 
with the trustee, receiver, or commissioner, as the case might be under 
local law, of a notice of the Government's lease on the property, with 
request that the foreclosure proceedings be made subject thereto. If the 
proceeding is made subject to the lease, an abstract of such proceeding 
will be made, certified by a staff attorney, and distributed in the same 
manner as the original lease. If considered advisable, a supplemental 
agreement to the old lease will be made with the new owner; or a 
superseding lease may be executed and distributed. If the proceeding 
results in vesting title in a new owner, free and clear of the 
Government's lease, attempt will be made to negotiate a new lease; if 
this fails, condemnation action will be taken sufficiently early to 
protect the interests of the United States. Negotiation and condemnation 
in this latter type of situation must be based on a current appraisal.
    (p) Supplemental agreements. Modification of existing leases will be 
in the form of supplemental agreements and will be prepared, executed, 
and distributed in the manner prescribed for the original lease. Where a 
supplemental agreement provides for an increase in space at an increased 
rental, the supplemental agreement should contain appropriate recitals 
of this fact, and provide that the Government, thereafter, may, upon 30 
days notice, partially reduce, or discontinue, the use of the space 
covered by either the supplemental agreement, the basic lease, or both. 
Supplemental agreements enlarging or reducing space will show the total 
area and rental comprising the basic lease and preceding supplemental 
agreements.
    (q) Annual review of leases. Annual review of leasing requirements 
and space assignments from GSA are to be initiated by the Division or 
District Engineer not later than one year before the end of the lease 
term for each lease.
    (1) Special attention will be given by Division and District 
Engineers to leases which expire by their own terms and continued 
occupancy is required at annual rentals of $50,000 or more. These leases 
require approval by the Department of Defense and reporting to the Armed 
Services Committees of the Congress by the Chief of Engineers. An 
Acquisition Report together with full justification, as set forth in 
Sec.  644.135(a), in support of each lease (or project covered by more 
than one lease) must be furnished. For leases in which it is not clear 
whether Title 10 reporting is required, DAEN-REA-L will be informed of 
the facts for decision. Attention will be given also to existing leases 
having annual rentals between $30,000 and $50,000. It is probable that 
current appraisals will indicate annual rental rates in excess of 
$50,000 and, therefore, require a title 10 report.
    (2) If the using command anticipates that there will be further need 
for the leased property, and the total estimated rentals to be paid by 
the Government, excluding utilities and services, for the additional 
period, plus the cost of restoration, will exceed, 50 percent of the 
estimated current market value of the property, DAEN-REA-L will be 
informed of all details in order that the review required by paragraph 
1-8, AR 405-10, may be made. Only estimated future rent payment is to be 
considered and not the rental paid in the past for the property. In 
applying this formula, if the period of future use cannot be ascertained 
but it is likely that a property will be used for a long period of time, 
use a period of five years for calculations.
    (r) Lease renewals and extensions. (1) Lease entered into under 
authority of the annual appropriation acts may include a provision for 
automatic renewal after expiration of the initial term subject to the 
availability of appropriated funds. However, if the property is still 
needed after lease expiration, a new lease is required and the old lease 
will not be extended by supplemental agreement for the new term. Where 
the lease requires notice in writing to be given to the lessor to 
exercise the option of renewal, notice will be served by the use of ENG 
Form 221, Notice of Renewal of Contract or Lease, in accordance with the 
terms of the lease. The notice, properly addressed,

[[Page 194]]

will be sent by certified mail, with return receipt requested. Adequate 
time, in addition to the number of days specified in the lease, will be 
allowed for delivery to, and receipt by, the lessor. The Division or 
District Engineer will maintain adequate records to assure prompt 
service of notice to avoid the lapse of leases.
    (2) No lease will be renewed or kept in existence unless it has been 
administratively determined, through advertising or otherwise, that 
other suitable property at a lower rental is not obtainable. At all 
times, and in particular during the lease renewal review period, the 
Division or District Engineer will take cognizance of the availability 
of property in the area of the using service that is Government-owned, 
or property under GSA control.
    (s) Payment of rents. (1) One of the most important factors 
involving good relationships between the Government and the lessor is 
the prompt payment of the rent. Under existing regulations, the rent is 
paid by the using commands. The Division or District Engineer makes 
rental payments for leases when the Corps is the using service and for 
recruiting facilities, since the Chief of Engineers is the Department of 
Defense Executive Agent for recruiting facilities acquisition. It is 
therefore appropriate for the Division or District Engineer to inquire 
periodically of the using commands whether delays in processing payments 
are encountered. If payments are not being made within seven working 
days after payment is due, appropriate action will be taken to correct 
the delay; if no action is taken after a reasonable time allowed for 
correction of procedures, DAEN-REA-L will be informed fully of the facts 
and an investigation will be conducted.
    (2) Prior to payment, the Division or District Engineer, or his 
designee, will certify for submission to the Disbursing Officer that the 
leased property was occupied or available for use. The following 
certification, contained on Standard Form 1166, Voucher and Schedule for 
Payments, is used:

    I hereby certify that the leases identified hereon were in effect 
for the month (or other period) indicated, and that the space was 
occupied, or available for use, by the Department of the Army.



Sec.  644.137  Maneuver agreements.

    Joint training exercises or maneuvers are conducted by elements of 
the Department of Defense. Land use requirements vary with the exercise 
objectives and the force elements which participate. The Corps 
participates in the planning and acquires rights to use land and other 
facilities for Department of the Army exercises. The current Memorandum 
of Understanding by Department of the Army, United States Readiness 
Command (USCINCRED), and United States Army Forces, Readiness Command 
(USCINCARRED) on acquisition of maneuver rights for United States 
Readiness Command (USREDCOM) Joint Training exercises is included as 
Figure 5-13 in ER 405-1-12. This Memorandum covers timing of requests 
for preliminary surveys, real estate studies, funding and acquisition of 
maneuver rights. The Corps also responds to requests from other 
Department of Defense commands for maneuver rights, and the same 
procedure is envisioned although no Memoranda of Understanding have been 
entered into. Upon receipt of a request for real estate services, an 
estimate of the funds required for the report should be forwarded to the 
using command.
    (a) Procedures. The appropriate Division or District Engineer will 
be responsible for negotiating maneuver agreements and short-term leases 
and, after the maneuver is completed, will be responsible for 
negotiating restoration settlements and/or releases, as appropriate. 
Real estate acquisition will be in the form of agreements with 
landowners, granting the right to conduct maneuvers at a given time, or 
periodically. Short-term leases for exclusive use may also be acquired 
for special areas (such as headquarters areas, radio relay sites, base 
camp sites, field hospital sites and supply dumps), and buildings needed 
for warehouses, ordnance shops and similar purposes directly related to 
the maneuver. Permits will be obtained to cover the use of lands under 
the jurisdiction of another Government department or agency.

[[Page 195]]

    (b) Claims and restoration. Notwithstanding the assignment of 
restoration responsibility, understanding may be reached with the 
maneuver director at field level whereby the command will assume 
responsibility for settlement of real estate damages using claim funds. 
However, in instances where the damage exceeds the monetary claims 
jurisdiction of the Army Commander pursuant to AR 27-20 and is 
cognizable as a contractual obligation under the maneuver permit, 
settlement will be accomplished by the Division or District Engineer 
either by supplement to the permit or by processing a claim under AR 
405-15 (see Sec.  552.16 of this chapter) since the Division or District 
Engineer can usually accomplish settlements more quickly for claims in 
excess of that amount. Therefore, it should be suggested to the maneuver 
director that all claims, cognizable as a contractual obligation, in 
excess of his monetary claims jurisdiction be handled by the Division or 
District Engineer. Funds appropriated for field exercises and maneuvers 
are allotted to Army Commanders and include administrative costs. The 
reporting requirements included in Figure 5-13 in ER 405-1-12 will be 
established by the Chief of Engineers upon receipt of a specific request 
from the using command to acquire maneuver rights.



Sec.  644.138  Family housing leasing program.

    Section 515 of Pub. L. 84-161 (69 Stat. 324), as amended by Pub. L. 
95-82, approved 1 Aug 1977, authorizes the expenditure of an average of 
$280 per month for each military department for housing facilities in 
the United States (other than Alaska and Hawaii) and in the Commonwealth 
of Puerto Rico, and an average of $350 per month for each military 
department for housing facilities in Alaska, Hawaii and Guam. In both 
cases the maximum rental rate per unit per month including utilities, 
operations and maintenance is $450. These rental figures are subject to 
change each year in the annual Military Construction Authorization Acts. 
Updated rental figures should be obtained from the current MCA Act. The 
Department of Defense allocates to each department of the military the 
number of units it can acquire pursuant to the authorization, and each 
year Division and District Engineers are informed of the unit 
allocations by the Chief of Engineers.
    (a) Leasing requests. The Departments of the Army and Air Force 
direct their requests for the leasing of family housing units to the 
Division or District Engineer. Each military element involved has the 
responsibility of maintaining the national rental average. Each command 
prescribes the procedures to be followed in acquiring family housing 
units. Such procedures which include size of accommodations and maximum 
rental rate will be followed by the Division or District Engineer.
    (b) Use of available housing. Priority shall be given to the leasing 
of adequate Federal Housing Administration (FHA) and Veterans 
Administration (VA) held units to the extent that such units may be 
available at locations which are granted lease allocations. FHA Form 
2372A, as modified, will be used in leasing FHA housing for use as 
public quarters by military personnel. A similar form, modified as 
needed, will be used for VA held housing units.
    (c) Nondiscrimination provision. All leases for family housing units 
which are executed on behalf of the United States shall contain the 
following nondiscrimination clause:

    It is understood and agreed that the Government will assign the 
demised premises to military personnel in accordance with Executive 
Order 11063, dated 20 November 1962, which provides that housing and 
related facilities shall be available without discrimination among 
tenants because of race, color, creed, sex or national origin.

    (d) Pest control. In agreement with the lessor, whenever possible, 
the lessor will affirmatively assume responsibility for pest control in 
family housing units. The following clause will be included in family 
housing leases:

    It is understood and agreed that the lessor will be responsible to 
provide pest control measures and pesticides, which conform to local 
health department regulations, to keep the premises free from pests and 
in a tenantable condition.


It is intended that the occupant will maintain the leased premises in a 
clean and sanitary condition in conformance

[[Page 196]]

with normal standards of good housekeeping, and that the lessor will 
furnish leased housing in pest-free condition and maintain the premises 
free of pest infestation.
    (e) Leasing actions. (1) Division and District Engineers will 
proceed with acquiring the family housing units within the framework of 
the leasing requests. Care is to be taken to assure that there are no 
violations of the Economy Act, i.e., the net rental will not exceed 15 
percent of the estimated fee value of the space or building contemplated 
for leasing.
    (2) At the discretion of the Division or District Engineer and the 
Chief of the Real Estate Division, Standard Form 2B may be used for 
family housing leases, regardless of the rental rate.
    (3) Emergency repairs may be accomplished in accordance with Sec.  
644.135(f)(5).
    (f) Supplemental payments. All leases for family housing units which 
are executed on behalf of the United States shall contain the following 
clause prohibiting supplemental payments: ``The Lessor hereby agrees 
that the rental consideration specified herein is the only consideration 
to be received for the demised premises and includes payment for all 
utilities, maintenance and services specified herein. No other 
remuneration will be paid by the Government's occupant, members of his 
family, or any other person on their behalf.''



Sec.  644.139  Leases for civil works purposes.

    Division and District Engineers and the Chiefs of the Real Estate 
Division are authorized to execute leases, and renewals of leases, for 
river and harbor or flood control purposes, subject to necessary 
approvals and clearances. The provisions of 10 U.S.C. 2662, which 
require reporting of certain leases proposals to the Armed Services 
Committees of the Congress, do not apply to leases for civil works.
    (a) Approvals required. The following lease actions for civil works 
projects will be referred to DAEN-REA-L for consideration:
    (1) Where the annual rental is in excess of $50,000.
    (2) Where the leasing involved is for space for both military and 
civil functions, and the rental for the portion used for military 
purposes is in excess of $50,000. The report required is covered in 
Sec.  644.135(a).
    (b) Records. The originals of leases for civil works purposes, 
together with supporting data, will be retained at the Division or 
District Engineer offices for site audit in accordance with Section 
7530, ``General Accounting Office Policy and Procedures Manual for 
Guidance of Federal Agencies.''



Sec.  644.140  Physical protection.

    It is essential that the Division or District Engineer make 
provision for the physical protection for all facilities under Corps 
control. Coordination with state, county, and city law enforcement 
officials as well as the U.S. Attorney's Office is required. These 
officials should be alerted at the first indication of possible 
disturbances. The U.S. Attorney's Office should be provided with an up-
to-date list of the locations of such facilities.
    (a) Self-protection plan. Space or property controlled by GSA is the 
responsibility of GSA for physical protection. In accordance with 41 CFR 
101-20.504, a Facility Self-Protection Plan is to be established by 
agencies in GSA-controlled space. This requirement should be coordinated 
with appropriate GSA Regional personnel. A similar plan should be made 
operational, where feasible, in other space over which the Corps has 
responsibility.
    (b) Funding. Space under GSA control may require protection and the 
GSA Regional Offices may not have funds. In these situations, the facts 
will be made known to DAEN-REA-L, accompanied by a request for funds. 
Likewise, for Corps leases, funds for physical protection shall be 
requested from DAEN-REP if they are not already available to the 
Division or District Engineer.



Sec.  644.141  Alterations and construction on leased real property.

    (a) General. Division and District Engineers will be available to 
the military elements for consultation and review of requirements 
involving construction on leased land or in leased

[[Page 197]]

space. Detailed instructions are furnished in DOD Directives 4165.12, 
4165.16, 4165.20, 4270.24, 5160.58, 7040.2; DOD Instruction 5305.5; Army 
Regulations 140-485, 405-10, 415-25, 415-35, 420-10. Section 644.135(b) 
covers the requirements of the Economy Act which are applicable to 
alterations and construction on leased real property. The work to be 
performed must be essential. Guidelines are furnished as follows:
    (1) The proposed alterations and improvements must be advantageous 
to the Government in terms of economy, efficiency, and, where 
applicable, to national security.
    (2) For office space, the cost should be less than the cost of other 
space that is available and which does not require alterations or 
improvements to any appreciable extent.
    (3) Due regard is to be given to the convenience of the public that 
is served and the maintenance and improvement of safe and healthful 
working conditions of employees.
    (4) Where the proposed temporary construction at a leased facility 
has an estimated cost equal to or in excess of the current market value 
of the property, the facts will be reported promptly to DAEN-REA-L.
    (b) Initial and subsequent alterations. (1) Initial alterations to 
facilities leased by the Corps are the responsibility of the appropriate 
Division or District Engineer.
    (2) Effort will be made to include all required alterations in the 
rental package with the lessor performing all of the work. Careful 
attention will be given to possible violations of the Economy Act. 
Payment for initial alterations may be in a lump sum or by the month 
with the rent, provided the provisions of the Economy Act are complied 
with and the alterations costs are stated separately in the file or in 
the voucher.
    (3) Alterations or improvements of any nature in GSA furnished space 
are the responsibility of GSA. Under certain circumstances, GSA may 
require a Certificate of Necessity in order to perform the required 
construction.
    (4) Although alterations and improvements subsequent to occupancy 
are not the responsibility of the Corps, the Division or District 
Engineer should always review subsequent alteration projects to 
determine whether or not the limitations of the Economy Act are 
applicable. See AR 415-34, AR 415-35, and AR 420-10 for procedures and 
instructions.
    (c) Army National Guard. No initial alterations regardless of cost 
will be made to properties leased for the Army National Guard without 
prior approval of the Chief, National Guard Bureau. (Funds will be made 
available by the National Guard Bureau.)
    (d) Air Force. All alterations to premises leased for the Department 
of the Air Force, including Air Force Reserve and Air National Guard 
Units, are the responsibility of that Department including the issuance 
of any Certificate of Necessity for Department of Air Force elements. 
The only exception is the leasing and modification of leased premises 
for recruiting facilities.
    (e) Recruiting facilities. The Chief of Engineers, as the Department 
of Defense Executive Agent for recruiting facilities, is responsible for 
initial alterations for all recruiting facilities located on military 
reservations or leased by the Corps. This responsibility includes 
recruiting offices and recruiting main stations and detachments, whether 
single-service or collocated. However, as to recruiting facilities 
acquired by GSA, all alterations are the responsibility of GSA and 
processing is accomplished through the Division or District Engineer.
    (f) Permanent construction requirements. If permanent construction 
is to be placed on land, the Government must have fee title or acquire 
title to the land or a permanent easement must be secured, with the 
following exceptions:
    (1) Real property, including land or buildings, which the Government 
currently holds the right to reuse by exercise of the National Security 
Clause.
    (2) Real property, including land or buildings, which the Government 
holds the right to reuse by exercise of a National Emergency Use 
Provision.

Since such rights apply only during the period or periods of national 
emergency and are extinguished by the termination thereof, every effort 
will be made to negotiate a lease covering

[[Page 198]]

such property under terms that would provide the Government the right of 
continuous possession for a minimum of 25 years.
    (3) Real property required for installation of utility lines and 
necessary appurtenances thereto, provided a long-term easement or lease 
can be secured at a consideration of $1.00 per term or per annum.
    (4) Real property required for air bases, provided such property can 
be acquired by lease containing provisions for:
    (i) Right of continuous use by the Government under firm term or 
right of renewal for a minimum of 50 years.
    (ii) A rental consideration of $1.00 per term or per annum.
    (iii) Reserving to the Government, title to all improvements to be 
placed on the land and the right to dispose of such improvements by sale 
or abandonment.
    (iv) Waiver by the lessor of any and all claims for restoration of 
the leased premises.
    (v) Use of the property for ``Government purposes'' rather than for 
a specific military purpose.
    (5) Property required for facilities for the Reserve Components of 
the Armed Forces, provided such property can be acquired by lease 
containing provisions detailed in paragraph (f)(4) of this section. 
Whenever possible, the insertion in a lease of a provision restricting 
the use of land to a specific purpose will be avoided; use a term such 
as ``Government purposes''.
    (6) Property required for air defense sites, provided such property 
can be acquired by lease containing provisions in paragraphs (f)(4)(ii), 
(iii), and (iv) of this section and the right of continuous use by the 
Government under a firm term or right of renewal for as long as required 
for defense purposes.
    (7) Assistant Secretary of Defense (MRA&L) approval is required when 
leases for air bases, Reserve Components facilities, or air defense 
sites can be obtained containing some but not all of the above listed 
provisions. Such approval is also required for leases for all other 
types of installations upon which permanent construction is to be placed 
by the Government when leases can be obtained containing similar 
provisions. In all cases, it must be in the best interest of the 
Government to acquire a lesser interest than fee title.
    (8) Construction projects estimated to cost less than $25,000 will 
not be considered a permanent construction for purposes of the above 
policy.
    (g) GSA reimbursement. Reimbursement to GSA for Standard Level User 
Charges (SLUC) and other costs incident to leasing will be in accordance 
with the applicable provisions of the Federal Property Management 
Regulation.
    (h) Nominal rent leases. (1) Where premises are occupied by the 
Government at a nominal rent or rent-free basis, any alterations, 
improvements, and repairs necessary for occupancy may be considered as a 
cost of occupancy, i.e., in lieu of rent, for each year of the rental 
term. However, the total cost of such alterations, improvements, and 
repairs, plus the nominal rental, during any year of the rental term may 
not exceed 15 percent of the fair market value at the date of the lease, 
unless the total cost plus nominal rental does not exceed $2,000 per 
annum.
    (2) When rental plus amounts to be spent by the Government for 
alterations, improvements, and repairs total more than $2,000 and more 
than 15 percent of the fair market value of the premises at the date of 
the lease, a Certificate of Necessity is required.
    (3) A Certificate of Necessity is not required for the cost of 
installing equipment, apparatus, appliances, machinery, fixtures, 
movable partitions, etc., which are not intended to become an integral 
part of the building and which may be removed without injuring or 
defacing the item or the building. Such property is considered to be the 
property of the Government. The lease or a supplement thereto should 
provide for the installation and removal of such equipment, etc.
    (4) Under the limitations in 40 U.S.C. 278a, not more than 25 
percent of the net rental for the original lease period, if less than 
one year, may be expended before a lease is actually renewed. If the 
whole period, including renewals, is less than a year, not more than 25 
percent of the rent for such whole period may be expended for 
alterations, repairs, and improvements (20 Comp.

[[Page 199]]

Gen. 30; 29 Comp. Gen. 299). Where a lease, entered into by the 
Government for an original term of less than a year, is renewed for the 
following fiscal year, the net rental for the first year of the rental 
term, as distinguished from the original term, is for consideration in 
the computation of the amount that may be paid under the 25 percent 
limitation, after the lease is actually renewed.
    (i) Items not within the purview of the Economy Act. (1) The 
limitations in 40 U.S.C. 278a are not applicable to leases of unimproved 
land (38 Comp. Gen. 143).
    (2) Where fixtures, alterations, and improvements are of such 
characters to be of a temporary nature, and are not permanently attached 
to the realty so as to prevent removal thereof without destroying their 
usefulness or damaging them or the realty, they do not constitute 
alterations or improvements of the leased premises within the meaning of 
40 U.S.C. 278a and therefore do not fall within the 25 percent 
limitation of that Act. Title to such temporary fixtures, alterations, 
and improvements remains in the Government (18 Comp. Gen. 144; 20 Comp. 
Gen. 105).
    (3) Upon termination of leases, restoration of leased premises to 
the original condition is not considered an alteration within the 
purview of 40 U.S.C. 278a.
    (4) When the Government is required by the terms of the lease to 
maintain the leased premises, such maintenance, together with the cost 
of such improvements and alterations as may be made by the Government, 
may not exceed the 25 percent restriction of the Act.
    (5) Leaseholds acquired through condemnation proceedings are 
excluded from the purview of the Act of 30 June 1932, as amended (40 
U.S.C. 278a).
    (j) Architectural Barriers Act. The Architectural Barriers Act of 
1968 (Pub. L. 90-480), 82 Stat. 718, 142 U.S.C. 4151, et seq., as 
amended, requires that when Federal funding is used in the design, 
construction, or alteration of certain buildings or facilities, the 
buildings or facilities must be designed, constructed or altered to 
insure that physically handicapped persons will have ready access to, 
and use of, such buildings. In the Corps' leasing program, when Federal 
funds are used to make improvements to leased premises, it is necessary 
that the plans and specifications for the construction or alteration 
work be approved in accordance with guidelines published by the American 
National Standards Institute (ANSI), as implemented by DOD Construction 
Criteria Manual 4270.1-M, Section 5-1.6.



Sec.  644.142  Lease forms and instructions.

    ENG Form 856 will be used for Corps of Engineers leases in the 
United States and possessions, and overseas, for the leasing of 
unimproved land. ENG Form 527 is recommended for leases of improved 
property in overseas areas. Standard Forms 2, 2A, or 2B (short form) 
will be used for all Corps of Engineers leases of improved property in 
the United States and possessions. Standard Form 2B is limited to 
rentals not exceeding $3,600 per annum. The General Provisions are on 
the reverse side of the short form lease.
    (a) Mandatory clauses. The following clauses must be included in all 
Corps of Engineers leases:
    (1) Officials Not to Benefit clause (para 15 of ENG Form 527) is 
required by 18 U.S.C. 431.
    (2) Gratuities clause (para 16a of ENG Form 527) is required by 5 
U.S.C. 174d.
    (3) Covenant against Contingent Fees (para 14, ENG Form 527) is 
required by 10 U.S.C. 2306(b).
    (4) An Examination of Records clause (para 17, ENG Form 527) is 
required by 10 U.S.C. 2313(b). Exceptions to the use of this clause in 
10 U.S.C. 2313(c) are permitted when the contractor is a foreign 
Government or agency thereof, or when the laws of the country involved 
preclude it. Also, if the Head of the Agency determines, with the 
concurrence of the Comptroller General, that the use of the clause would 
not be in the public interest, it may be omitted in leases covering land 
in foreign countries.
    (5) The Nondiscrimination clause (Executive Order 11063, dated 20 
November 1962) is required in all leases in the United States. It is 
desirable, but is not considered mandatory in overseas leases.
    (b) Hold harmless clauses. ``Hold harmless'' clause will not 
normally be added to the lease forms. Where lessors insist

[[Page 200]]

upon such a clause, however, the following is suggested for use: ``The 
Lessors (licensors) shall not be responsible or liable for injuries to 
persons or damage to property when such injuries or damage are caused by 
or result from the Government's use of the premises under the terms of 
this agreement and are not due to the negligence of the Lessors.''
    (c) Escalator clauses. In those cases where a lessor expresses an 
unwillingness to enter into a lease, extending for a number of years, 
with a rental consideration that includes a fixed amount for utilities, 
the following clause may be inserted in the standard lease:

    After the first term of the lease, the Lessor or the Government may, 
by giving notice at lease 90 days prior to the anniversary date of the 
lease, request an adjustment in rental payments based on an increase or 
decrease in the cost of utilities. The request must be supported with 
full justification to include documentary evidence of actual utility 
costs incurred by the Lessor which are in excess of the amounts 
estimated at the beginning of the lease term. The requested adjustment 
in rent will be subject to negotiation, and if granted, will be provided 
by a Supplemental Agreement to this lease.

                     Acquisition of Rights-of-Entry

    Source: Sections 644.155 through 644.157 appear at 44 FR 31125, May 
30, 1979, unless otherwise noted.



Sec.  644.155  General.

    Sections 644.155 through 644.157 describe the procedures of the 
Corps of Engineers relative to obtaining rights-of-entry on lands for 
both military and civil works projects and in the Corps' acquisition 
programs for other Federal Government agencies. These procedures are 
applicable to all Division and district Engineers having real estate 
responsibilities.



Sec.  644.156  Definition.

    A right-of-entry is a bare authority to do a specified act or series 
of acts upon non-Government-owned property or non-Government-controlled 
property without acquiring any estate or interest therein. The principal 
effect of a right-of-entry is to authorize an act which, in the absence 
of the right-of-entry, would constitute a trespass. The written 
instrument furnishes evidence of the permission granted to the 
government and the obligations, responsibilities, and liabilities 
assumed by the Government. It does not authorize any uses of the 
property by the Government other than those specified in the instrument.



Sec.  644.157  Procedures.

    (a) ENG Form 1258, Right-of-Entry for Survey and Exploration, will 
be used to obtain authority from the owner of lands to be used for the 
purpose of making surveys, test borings, and other exploratory work as 
may be necessary to complete the particular investigation.
    (b) ENG Form 2803, Right-of-Entry for Construction, will be used to 
obtain authority from the owner of lands to be used for construction 
purposes when all of the following conditions apply:
    (1) A Real Estate Directive has been issued on an Army (military) or 
Air Force project, or the Chief of Engineers has approved acquisition in 
connection with a civil works project or for another Government agency.
    (2) The construction schedule does not allow sufficient time to 
secure the right of possession by normal acquisition procedures.
    (c) Upon execution of an ENG Form 2803, a copy thereof shall be 
forwarded to HQDA (DAEN-REA-L) WASH DC 20314 on Army Military and Air 
Force acquisitions, and in all other cases to HQDA (DAEN-REA-P) WASH DC 
20314, together with a proposed schedule of final acquisition of the 
necessary interests in real estate. If final acquisition is not 
contemplated within six months from the date of the right-of-entry, an 
explanation should also be furnished as to the reason for the delay.
    (d) Division and District Engineers may modify ENG Forms 1258 and 
2803, where necessary, to meet requirements of landowners, provided such 
modifications do not increase the scope of the liability or 
responsibility of the Government over that contained in the standard 
forms.
    (e) It is necessary to recognize not only the effects of entry upon 
a particular parcel of land, but also the effects of the passage of any 
vehicle

[[Page 201]]

(land, air, or water) on the area traversed. All possibilities of 
disturbing effects on the countryside shall be considered and routes 
selected to eliminate or minimize such disturbances.
    (f) Any cash settlements in lieu of restoration for damages, 
incurred under ENG Forms 1258 and 2803, will be consummated by 
supplemental agreement in accordance with subpart I.

    Procurement of Options Prior to Real Estate Directives (Military)

    Source: Sections 644.165 through 644.168 appear at 44 FR 31125, May 
30, 1979, unless otherwise noted.



Sec.  644.165  Purpose and scope.

    Sections 644.165 through 644.168 describe the procedures relating to 
the procurement of options to purchase real estate interests for Army or 
Air Force military requirements prior to the issuance of a real estate 
directive. These procedures are applicable to all Division and District 
Engineers having military real estate responsibility.



Sec.  644.166  Authority and applicability.

    (a) Authority. Subsections (a) and (b) of section 2677 of title 10, 
United States Code, as amended by section 707 of the Act of Congress 
approved October 27, 1971 (85 Stat. 412), provide that:
    (1) The Secretary of a military department may acquire an option on 
a parcel of real property before or after its acquisition is authorized 
by law, if he considers it suitable and likely to be needed for a 
military project of his department.
    (2) As consideration for an option so acquired, the Secretary may 
pay from funds available to his department for real property activities, 
an amount that is not more than five percent of the appraised fair 
market value of the property.
    (3) For each six-month period ending on June 30 or December 31, 
during which he acquires options under paragraph (a) of this section, 
the Secretary of each military department shall report those options to 
the Committees on Armed Services of the Senate and House of 
Representatives.
    (b) Applicability. (1) Where land is needed for proposed 
construction and the siting of said construction is firm.
    (2) When there is a definite indication of material enhancement in 
value due to change, or proposed change, in use by the land owner, price 
increase due to publicity given to contemplated Government acquisition, 
or abnormal increases in market value.
    (3) Where there is a definite possibility of private construction 
which would constitute obstructions in existing or proposed glide angle 
planes and transitional planes at air bases.



Sec.  644.167  Implementation.

    When a District or Division Engineer determines that any of the 
conditions described in Sec.  644.166(b) exist in connection with any 
proposed land acquisition project for military purposes not yet 
authorized by law, or if authorized, not yet covered by a real estate 
directive, he will initiate the following actions:
    (a) Planning report. A planning report will be developed and 
submitted in accordance with subpart A. The report will include the 
purpose for which the property is ``likely to be needed''; the estimated 
probable increase in value, if applicable; and the justification for 
negotiating for options under the authority cited in Sec.  644.166. The 
report will identify any real estate planning reports previously 
prepared which included the land in question. Any future planning 
reports relating to the same land will contain appropriate references to 
this report.
    (b) Property identification. Upon receipt of authority to acquire 
options and determination that funds are available, the District or 
Division Engineer will obtain and verify ownership data. If it is deemed 
necessary, title evidence may be obtained in accordance with Sec. Sec.  
644.61 through 644.72.
    (c) Appraisal. Detailed tract appraisals will be prepared in 
accordance with subpart B.
    (d) Procurement of options. (1) Negotiations for the option will be 
in accordance with procedures outlined in Sec. Sec.  644.83 through 
644.85, except that ENG Form 2926, Option to Purchase

[[Page 202]]

Real Property, will be used. An attempt should be made to include a 
provision in the option giving the Government the right to acquire all 
or part of the land covered by the option where the land held in a 
single ownership can be separated into definable parcels and the 
possibility exists that, as planning is developed, the entire tract will 
not be required.
    (2) The following instructions for the use of ENG Form 2926 will be 
followed:
    (i) Insert amount to be paid for the option privilege. This amount 
cannot exceed five percent of the appraised value.
    (ii) If the land has been separated into definable parcels in 
accordance with paragraph (d)(1) of this section, the option should 
describe each parcel and provide for a separate purchase price inclusive 
of any severance damage, as well as an agreed purchase price for the 
entire tract. The amount to be paid for the option privilege will be 
apportioned among the separate parcels.
    (iii) The expiration date of the option on unauthorized projects 
should be far enough in advance to permit the insertion of a land 
acquisition line item in the next available budget; enactment of 
legislation; apportionment of funds by the Office of Management and 
Budget; clearance within the Department of Defense; clearance with the 
Committees on Armed Services of the Senate and House of Representatives, 
if required; issuance of a real estate directive; and allotment of 
funds.
    (iv) Since options obtained under this section will normally be 
recorded, ENG Form 2926 will be acknowledged in the form used in the 
jurisdiction in which the real property is located.
    (e) Report. When all options within the approval area have been 
acquired, and prior to their being exercised by the Government, a report 
will be made to HQDA (DAEN-REA-L) WASH DC 20314 including, but not 
limited to, the following items:
    (1) Project identification.
    (2) Directive authorizing acquisition of options.
    (3) Number of tracts optioned.
    (4) Expiration date of options.
    (5) Total acreage optioned.
    (6) Total amount to be paid if options are excercised.
    (7) Total amount paid for option privilege.
    (8) One copy of each option.
    (9) One copy of each appraisal.



Sec.  644.168  Exercise of options.

    Upon issuance of a real estate directive for acquisition of the 
optioned real property, the District or Division Engineer will exercise 
the option and proceed with the acquisition in accordance with the 
procedures outlined in Sec. Sec.  644.61 through 644.88.



                 Subpart D_Relocation Assistance Program



Sec.  644.175  Cross Reference.

    See part 641 of this chapter for the regulations on the relocation 
assistance program.

[44 FR 3212, Jan. 15, 1979. Redesignated at 44 FR 35219, June 19, 1979]

Subpart E [Reserved]



                           Subpart F_Disposal

    Source: 45 FR 71266, Oct. 27, 1980, unless otherwise noted.



Sec.  644.311  General.

    Subpart F sets forth general authority, responsibilities, 
procedures, methods, and guidance for the performance of real property 
disposal functions.



Sec.  644.312  Applicability.

    Subpart F is applicable to Division and District Engineers having 
real estate responsibilities.



Sec.  644.313  Authority.

    The major portion of real property disposal actions performed by the 
Corps of Engineers is predicated on authority derived from the Federal 
Property and Administrative Services Act of 1949, as amended (40 U.S.C. 
471, et seq.), hereinafter referred to as the Federal Property Act, and 
the rules, regulations and delegations of authority issued by the 
General Services Administration (GSA) thereunder. Other authorities 
relating to the disposal of military real property are found in AR 405-
90. The Army and Air Force Basic

[[Page 203]]

Real Estate Agreements covering disposal of Air Force real estate are 
found in AR 405-5 and AFR 87-15.



Sec.  644.314  Rules and regulations of the General Services 
Administration (GSA).

    Under the rules, regulations and delegations of authority issued by 
GSA under the Federal Property Act, the military departments are 
authorized to dispose of the following:
    (a) Real property under its control (except land withdrawn or 
reserved from the public domain), together with the improvements thereon 
and related personal property, which has a value of less than $1,000.
    (b) Leases, permits, licenses, easements, or similar interests, 
including Government-owned improvements on the premises, unless it is 
determined that the interest should be included with the disposal of 
other property being reported to GSA for disposal.
    (c) Fixtures, structures, and improvements of any kind to be 
disposed of without the underlying land.
    (d) Standing timber and embedded gravel, sand, and stone to be 
disposed of without the underlying land.



Sec.  644.315  Disposal priorities.

    Consistent with the best interest of the United States and with 
applicable laws and regulations, the following priorities should be 
followed in disposing of real property no longer needed by the 
Departments of the Army and Air Force:
    (a) Transfer to other Department of Defense agencies and the U.S. 
Coast Guard.
    (b) Transfer to other Federal agencies.
    (c) Conveyance to eligible non-Federal agencies.
    (d) Sale to the public.



Sec.  644.316  Environmental considerations.

    The National Environmental Policy Act of 1969 (NEPA), as amended, 
(42 U.S.C. 4321 et seq.) directs that a five point Environmental Impact 
Statement (EIS) be prepared, circulated among interested Federal, State 
and local agencies, and filed with the Environmental Protection Agency 
(EPA) before a major Federal action is taken which affects the quality 
of the human environment. This may include some disposals. No major 
disposal action will be undertaken where the Corps of Engineers is the 
disposal agency, or is acting for the disposal agency, until the 
required EIS has be submitted to the EPA unless a ``Finding of No 
Significant Impact'' (FONSI) has been prepared for the action, or if the 
action is classified as a ``categorically excluded'' item because it has 
no significant effect on the environment. The Environmental Assessment 
is subject to review and approval in accordance with instructions found 
in AR 200-1 and AR 200-2 (to be printed) for military real property 
disposal, and the forthcoming Engineer Regulation for civil works real 
property disposal. Where property is reported to GSA for disposal, GSA 
is responsible for compliance with NEPA.



Sec.  644.317  Preserving historic landmarks and properties.

    Purposes of the National Historic Preservation Act of 1966, as 
amended, (16 U.S.C. 470) and Executive Order 11593, Protection and 
Enhancement of the Cultural Environment (13 May 1971) will be set forth 
in subpart H (to be published) and the authorities there cited also 
apply to the disposal of real property. Specific policy guidance in 
connection with disposals having historic significance is published in 
AR 200-1 and AR 405-90 for military real properties and in ER 1105-2-460 
for civil works real properties.
    (a) The Criteria of Adverse Effect on eligible properties may occur 
under conditions which include but are not limited to:
    (1) Destruction or alteration of all or part of a property.
    (2) Isolation from or alteration of the property's surrounding 
environment.
    (3) Transfer or sale of a property without adequate conditions or 
restrictions regarding preservation, maintenance, or use.
    (b) It is normally intended that the agency responsibilities under 
Section 106 of the National Historical Preservation Act of 1966 and 
Executive Order 11593 run concurrently with the NEPA review process. 
However, obligations pursuant thereto are independent from

[[Page 204]]

NEPA requirements and must be complied with even when an environmental 
impact statement is not required.



Sec.  644.318  Compliance with State Coastal Zone Management Programs.

    Subpart H will outline the provisions of the Coastal Zone Management 
Act of 1972, as amended (16 U.S.C. 1451 et seq.). These provisions also 
apply to the disposal of land or water resources when the action is 
subject to the Federal consistency requirements of the Act and when the 
disposal is consistent with an approved state management program.



Sec.  644.319  Protection of wetlands.

    The requirements of Executive Order 11990, Protection of Wetlands, 
42 FR 26961, (24 May 1977) are applicable to the disposal of Federal 
lands and facilities, and the policy and procedures implementing the 
Order will be set forth in subpart H (to be published).



Sec.  644.320  Floodplain management.

    The requirements of Executive Order 11988, Floodplain Management, 42 
FR 26951, (24 May 1977) and its implementation will be outlined in 
subpart H (to be published). In accordance with ER 1165-2-26, paragraph 
13, when civil works property in floodplains is proposed for disposal to 
non-Federal public or private parties, the Corps of Engineers shall 
reference in the conveyance those uses that are restricted under 
Federal, State and local floodplain regulations and attach other 
restrictions to uses of the property as may be deemed appropriate.



Sec.  644.321  Nondiscrimination covenant.

    As required by Section 101-47.307-2 of the Federal Property 
Management Regulations (FPMR), substantially the following covenant will 
be included in all deeds or other disposal instruments to public bodies 
when the sale is negotiated under section 101-47.304.9(4) of the FPMR:

    The grantee convenants for itself, its heirs, successors, and 
assigns and every successor in interest to the property hereby conveyed, 
or any part thereof, that said grantee and such heirs, successors, and 
assigns shall not discriminate upon the basis of race, color, religion, 
age, sex, handicap, or national origin in the use, occupancy, sale, or 
lease of the property, or in their employment practices conducted 
thereon. The convenant shall not apply, however, to the lease or rental 
of a room or rooms within a family dwelling unit; nor shall it apply 
with respect to religion to premises used primarily for religious 
purposes. The United States of America shall be deemed a beneficiary of 
this convenant without regard to whether it remains the owner of any 
land or interest therein in the locality of the property hereby conveyed 
and shall have the sole right to enforce this covenant in any court of 
competent jurisdiction.



Sec.  644.322  Disposition of proceeds from disposal.

    (a) Land and Water Conservation Fund. Except as provided in 
paragraphs (b) and (c) of this section and unless otherwise obligated by 
existing or future acts of Congress, all proceeds received from any 
civil works project disposal of surplus real property or related 
personal property under the Federal Property Act, shall be covered into 
the land and water conservation fund in the Treasury of the United 
States (16 U.S.C. 460L-5(a), FPMR Section 101-47.307-6). This includes 
the net proceeds from the sale of timber and structures.
    (b) Department of Defense Family Housing Management Account. Section 
501(b) of Pub. L. 87-554, as amended, 42 U.S.C. 1594a-1, provides that 
the proceeds from the disposal of family housing of the Department of 
Defense, including related land and improvements, shall be transferred 
to Family Housing Management Account, Defense. This does not include 
civil works housing, or houses on land acquired for military purposes 
unless the housing was specifically acquired to house military 
personnel. This means that excess military family housing and related 
land and improvements should be reported to GSA on Standard Form 118 
separate and apart from Reports of Excess for other portions of an 
excess installation. Particular care should be taken to ensure that the 
following statement be included in each such report of excess to GSA:

    Net proceeds from the sale of family housing, including related land 
and improvements, shall be remitted to the Department of Defense for 
deposit to Family Housing Management Account, Defense (97 X 0700).


[[Page 205]]


    (c) Proceeds from sale or transfer of property acquired. Under 
section 5 of the Act of 13 June 1902, as amended (33 U.S.C. 558), the 
proceeds from a sale or transfer of buildings or other improvements on 
river and harbor improvement projects may be credited to the 
appropriation for the work for which the property was acquired. 
Buildings or other improvements, including timber, which are on 
nonexcess land come within the purview of this law. Where both land and 
buildings or other improvements are excess, proceeds from the sale of 
land and buildings, or either one, will be deposited in the land and 
water conservation fund as provided in paragraph (a) of this section.



Sec.  644.323  Neutral language.

    Wherever the words ``man'', ``men'', or their related pronouns 
appear in this subpart, either as words or as parts of words (other than 
when referring to a specific individual), they have been used for 
literary purposes and are meant to include both female and male sexes.



Sec. Sec.  644.324-644.325  [Reserved]

          Procedure for Placing Real Property in Excess Status



Sec.  644.326  Army military real property.

    Military real property, including industrial real property, under 
the control of the Department of the Army will be placed in excess 
status as outlined in AR 405-90.



Sec.  644.327  Air Force military real property.

    Military real property under the control of the Department of the 
Air Force will be placed in excess status as outlined in AFR 87-4.



Sec.  644.328  Army military leased property.

    (a) Department of the Army command installations or parts thereof 
held by lease, permit, or other similar right of occupancy, excess to 
the needs of the using service will be reported direct to the Division 
of District Engineer for disposition wherever essential continuing 
operations of the installation will not be adversely affected, and the 
annual rental does not exceed $50,000.
    (b) Division Engineers are authorized to make the finding that 
leased real estate of the Corps of Engineers, where essential continuing 
operations of the installation are not adversely affected, and the 
annual rental does not exceed $100,000, is excess and to take necessary 
action to cancel or otherwise dispose of leases.
    (c) Any leased command real estate not coming within the category 
outlined in paragraphs (a) and (b) of this section will not be 
considered by the Division Engineer as excess until notice is received 
from the Chief of Engineers (COE) that the property has been placed in 
excess status in accordance with AR 405-90.



Sec.  644.329  Army civil works real property.

    (a) Fee-owned land and easements. (1) Action by Division/District 
Engineer (DE). When the DE is of the opinion that real property acquired 
in fee or easement for a civil works project is no longer required for 
such purpose, he will submit a report and recommendation to HQDA (DAEN-
REM) WASH DC 20314, accompanied by:
    (i) A brief description of the character or nature of the land with 
an appropriately marked map showing the approximate acreage 
consideration to be excess. Detailed perimeter descriptions need not be 
procured or furnished with the report and recommendation for excessing.
    (ii) Description of buildings and improvements.
    (iii) Information as to circumstances that might hinder or prevent 
disposition, e.g. remoteness of location, unfavorable topography, and 
lack of legal access.
    (iv) Information as to when and how the property was acquired.
    (v) Information as to the estate which the Government has in the 
land, reservations and exceptions in and to the Government's title, and 
outstanding interests granted by the Government or reserved or excepted 
in the acquisition of the land, will be stated with particularity. The 
map or plat will delineate any grant, exception or

[[Page 206]]

reservation, such as telephone, telegraph, electric transmission, oil, 
gas, and water lines.
    (vi) Purchase price of lands (estimate if only a portion of original 
tract), buildings and improvements acquired with the lands, and the cost 
of buildings and improvements, if any, constructed by the United States.
    (2) Action by the Office of the Chief of Engineers. When the value 
of an easement interest reported pursuant to (a)(1) of this section does 
not exceed $1,500, OCE will make the final determination of excess and 
authorize action accordingly. In the case of fee-owned land regardless 
of value, or easement interests having a value in excess of $1,500, when 
OCE finds that no requirement for the property exists, a recommendation 
will be made to the Secretary of the Army that authority be granted for 
disposal of the property.
    (b) Leaseholds. When the DE is of the opinion that real property 
acquired by lease for a civil works project is no longer required for 
such purpose, and after screening the property for other Federal 
requirements in accordance with Sec. Sec.  644.333 through 644.339, he 
will take necessary action to terminate the lease in accordance with the 
procedure outlined in Sec. Sec.  644.444 through 644.471.



Sec. Sec.  644.330-644.332  [Reserved]

          Screening, Reassignment and Transfer of Real Property



Sec.  644.333  Screening for defense needs.

    Real property which becomes excess to the needs of any element of 
the Army or Air Force will be screened against requirements of other 
Department of Defense (DOD) agencies and the U.S. Coast Guard in order 
to promote and obtain the most efficient and complete utilization of 
real property before disposing of it.
    (a) Procedure for screening Army military property. Screening for 
defense requirements with respect to base closures publicly announced by 
the Secretary of Defense or Secretary of the Army which result in 
excessing of real property will not be accomplished unless directed by 
HQDA (DAEN-ZCI) Washington DC 20314. Instructions to screen will be 
included in the disposal directive transmitted to the DE when such 
action is desired. In the absence of such instructions, it is presumed 
that DOD has negatively evaluated all possible requirements of DOD 
agencies before making the public announcement.
    (1) Fee-owned land. Screening is required in all other cases unless 
specifically directed otherwise. Property will be screened 
simultaneously against other Army requirements, and for Navy, Air Force, 
Coast Guard, and Defense agency requirements. The property should also 
be screened against known Department of the Army Civil Works 
requirements.
    (i) The DE will dispatch a screening message promptly upon receipt 
of an excess directive or recommendation pursuant to AR 405-90. The 
sample screening message in ER 405-1-12 at Figure 11-1, or a letter 
similar in form and content will be used without substantial deviation.
    (ii) All action addressees and parties listed for information on 
Figure 11-1 in ER 405-1-12 will be included, except that Air Force real 
property in Hawaii will be screened with the Commander-in-Chief, Pacific 
Air Forces, in lieu of HQ, USAF. The appropriate major Army command, 
when not the using command, will be listed as an action addressee.
    (iii) In no case will screening be deferred unless authorized by 
DAEN-REM. At the expiration of the screening period (normally 30 days) a 
report of results will be forwarded and subsequent action initiated as 
provided in paragraph (e) of this section.
    (iv) For certain cases, most frequently in connection with base 
realignments or Executive Order 11954 surveys, accelerated screening 
procedures are set out in AR 405-90.
    (2) Capehart and Wherry Housing Projects. Due to the complicated 
financial arrangements under which such projects are constructed and 
operated, the disposal thereof, whether separately or as a part of a 
larger installation, requires careful study. In order to assure maximum 
time in which to discover and evaluate problems arising in each of such 
cases, the DE will notify HQDA (DAEN-REM) Washington DC 20314, by 
teletype, immediately upon receipt of information of an installation 
commander's recommendation of

[[Page 207]]

excess involving Capehart and acquired Wherry housing projects. Included 
with this notice will be advice on the source of utilities and any 
problems of which the DE may be aware.
    (b) Leaseholds, buildings and improvements. Leaseholds, buildings, 
and other improvements will not be screened formally within the 
Department of the Army (DA). When such property is made available or 
disposal under AR 405-90 and Sec. Sec.  644.326 through 644.329, it will 
be screened by the responsible DE with the Air Force, Coast Guard, and 
Navy and against known Army military and civil works requirements within 
the Division. Screening with the Air Force of leaseholds having an 
annual rental in excess of $50,000 will be addressed to HQ, USAF. Other 
Air Force screening under this subparagraph will be with local Air Force 
installations. Screening with the Navy will be addressed to the 
appropriate naval district. Screening with the Coast Guard and Defense 
agencies will be with the local representatives of those agencies. 
Property under the jurisdiction of GSA which has been assigned to the DA 
or Department of the Air Force (DAF) for use is not subject to this 
screening procedure, but the DE will determine whether such property 
would serve any current unfulfilled real property acquisition directives 
pending in his office.
    (1) Family housing leases. Family housing leases under authority of 
Section 515, Pub. L. 84-161, 69 Stat. 352, as amended and extended, will 
be terminated promptly upon determination that the property is excess to 
the needs of the using command, without screening for other 
requirements.
    (2) Limit screening. Screening which would serve no useful purpose 
is to be avoided. Screening of buildings and improvements on sites 
needed for approved construction should be limited as construction 
schedules require. The DE will take timely action to minimize additional 
cost and rental payments due to screening and may, at his discretion, 
limit screening of leaseholds and improvements to be removed from the 
site to informal notices to appropriate local Defense agencies. The DEs 
are authorized to waive screening of nonassignable or short term 
interests in real property when such screening would serve no useful 
purpose.
    (3) Notice of restoration requirements. All screening notices of 
leaseholds and improvements available for off-site removal will indicate 
that transferees will be required to perform necessary site restoration 
as a prerequisite to obtaining transfer and will reflect the extent of 
restoration required.
    (c) Procedure for screening civil works property. Buildings and 
improvements, leaseholds, and fee-owned land that have been determined 
excess to civil works requirements in accordance with this part will be 
screened with the appropriate major Army and local service commanders, 
and with the Navy, Air Force, Coast Guard, and Defense agencies. (GSA 
property assigned to the Army for use is not subject to formal screening 
hereunder but will be screened against known acquisition directives or 
requirements in the DE office.) Except to the extent that DEs determine 
they are inappropriate, screening procedures for civil works property 
will be the same as for Army military property.
    (d) Screening of Air Force property. HQ, USAF and the major Air 
Force commands screen Air Force real property before authorizing 
disposal action by the Corps of Engineers in accordance with AFR 87-4. 
DEs will act on requests for disposal action on buildings and 
improvements and leased property received directly from major Air Force 
commands which conform with AFR 87-4. Disposal directives on fee-owned 
land and easements will be issued by HQ, USAF and referred through DAEN-
REM.
    (e) Report on screening and related actions. Immediately following 
the screening of fee-owned land, the DE will forward to DAEN-REM a 
report of the results of the screening (with comments and 
recommendations where a further Army or other Defense requirement is 
indicated). This report will serve as one of the basis of a 
determination whether the property is excess to the rquirements of the 
DOD. Upon dispatch of the screening report, the DE will proceed with 
further action pursuant to Sec. Sec.  644.340 through 644.347 and 
Sec. Sec.  644.385 through 644.389. No report on screening of civil 
works property is

[[Page 208]]

required unless there is a request for transfer or reassignment of the 
property screened.
    (f) Property with an estimated value of $50,000 or less. If the 
property has an estimated value of $50,000 or less, the determination 
that the property is excess to Army requirements will be made by the 
Department of the Army without referral to DOD, and the Chief of 
Engineers will direct the DE accordingly. Upon receipt of this disposal 
directive, prompt action will be taken to report the property to GSA or 
take other disposal action as appropriate.
    (g) Estimated value in excess of $50,000. If military property has 
an estimated value in excess of $50,000, it must be reported to the 
Armed Services Committees of Congress pursuant to title 10, United 
States Code, section 2662. The final Army determination of excess and 
recommendations to the Assistant Secretary of Defense (MRA&L) to approve 
the proposed disposal report to the Armed Services Committees by the 
Chief of Engineers, utilizing Real Estate Disposal Report, ENG Form 
2187R, are combined in a single action. The Chief of Engineers will 
advise of DOD approval of the proposed disposal when made. Upon receipt 
of this information responsible Division and District Engineers will 
furnish GSA a preliminary report of excess. The preliminary report of 
excess will be finalized, upon receipt of instructions from the Chief of 
Engineers. This procedure is also applicable to Air Force disposals. If 
the preliminary report of excess is sufficiently complete and accurate, 
it may be finalized by letter or simple statement on Standard Form 118, 
Report of Excess Real Property.
    (h) Date of excess for reporting purposes. From the above, it will 
be noted that where property has an estimated value in excess of 
$100,000, the determination that the property is excess to the 
requirements of the Department of the Army is, in effect, made 
concurrently with the determination that the property is excess to the 
requirements of the DOD, or is approved for transfer to another military 
department. For all practical purposes, these determinations are best 
evidenced by the Assistant Secretary of Defense's approval of the 
proposed disposal. The date of approval may be used as the date the 
property was determined excess to Army requirements for reporting 
purposes.



Sec.  644.334  Reassignment and transfer procedures.

    Reassignment refers to the changing of the administrative or command 
jurisdiction of real property from one command to another within the 
same military department. Reassignments may be accomplished by the 
Secretary or the staff without prior approval of the DOD or the Armed 
Services Committees of the Congress. Transfer refers to changing the 
jurisdiction for using and administering real property from one military 
department to another.
    (a) Reassignment Procedures--Army--(1) Military. Reassignments of 
military real property are accomplished pursuant to a directive from 
DAEN-REM. These are not real estate disposal actions.
    (2) Civil works. Reassignments from civil works to military 
jurisdiction, and vice versa, are accomplished pursuant to directive or 
approval of the Secretary of the Army based on the recommendations of 
the Chief of Engineers.
    (3) Information required. Information to support recommendation for 
reassignments of military or civil real property to another using 
service of the Army, or to change the military or civil accountability 
within the Corps, will be furnished by the DE to DAEN-REM as follows:
    (i) Reference to excess directive, if any.
    (ii) Description and map of lands.
    (iii) Date, manner, and cost of acquisition of land and 
improvements.
    (iv) Reference to any encumbrances which might affect the 
reassignment and use.
    (v) Proposed effective date of reassignment.
    (vi) Proposed new use.
    (b) Reassignment of Air Force property. The Air Force Staff 
reassigns real property within the Department of the Air Force.
    (c) Transfer of military property. Procedure for transfer among 
military departments is substantially the same as for transfer to other 
Federal agencies,

[[Page 209]]

and is set forth in Sec. Sec.  644.400 through 644.443 and Sec. Sec.  
644.472 through 644.500.



Sec.  644.335  Screening of excess DOD property for nondefense Federal
agency needs.

    (a) Screening by GSA. (1) GSA will screen all excess real property 
reported to it for disposal, to determine whether the property is 
surplus to all Federal agencies.
    (2) GSA will screen certain classes of excess real property which 
must be reported to it for screening, even though the Department of the 
Army will act as the disposal agency (Sec. Sec.  644.348 through 
644.367).
    (3) Under the FPMR, Federal agencies are allowed 30 days to advise 
whether there is a tentative or firm requirement and another 30 days to 
determine and advise whether the tentative requirement is firm. Where 
there is a firm requirement, agencies are allowed an additional 60 days 
to prepare and submit a formal request for transfer pursuant to FPMR 
Section 101-47.203-7. The DE should obtain from GSA information on the 
status of screening if advice is not furnished promptly after expiration 
of the screening period.
    (b) Screening by Corps of Engineers. Properties which are not 
reported to GSA for disposal or screening will be screened by the DE 
with nondefense Federal agencies at the same time they are screened with 
Defense agencies. Screening of such properties will be limited to 
agencies that maintain local offices and may be done on an informal 
basis. The DE may waive screening of nonassignable and short term 
interests in real property when they determine such screening will serve 
no useful purpose. When screening discloses no requirement, the property 
will be determined surplus and disposed of.



Sec.  644.336  Notices to Departments of Interior (DI); Health and 
Human Resources (HHR); Education; and Housing and Urban Development 
(HUD).

    Simultaneously with screening under Sec.  644.335 notices of 
availability will be given to DI of land suitable for public park and 
recreation or an historical monument site; to HHR and/or Department of 
Education property suitable for educational purposes or to protect the 
public health, and to HUD of property for housing and related facilities 
(Section 101-47.203.5 FPMR). Where such notice is given, these 
departments will be notified promptly, if screening discloses another 
Federal requirement for the property. They will also be notified if 
there is no other Federal requirement and the property is determined 
surplus.



Sec. Sec.  644.337-644.339  [Reserved]

                 Clearances--Army Military Real Property



Sec.  644.340  Reports to the Armed Services committees.

    (a) Sections 644.340 through 644.347 describe the responsibilities 
of the Chief of Engineers in, and prescribes procedures for, clearing 
proposals for certain leasing and for disposals of Army real property 
with the Department of Defense and the Armed Services Committees of the 
Senate and House of Representatives. (The Air Force obtains its own 
clearance.) It is applicable to Division and District Engineers having 
military real estate responsibility. Clearance is not required for civil 
works properties.
    (b) Title 10 U.S.C. 2662 as amended by Pub. L. 96-418, dated 10 Oct. 
1980, provides, in part that:

    (a) The Secretary of a military department, or his designee, may not 
enter into any of the following listed transactions by or for the use of 
that department until after the expiration of 30 days from the date upon 
which a report of the facts concerning the proposed transaction is 
submitted to the Committees on Armed Services of the Senate and of the 
House of Representatives:

                                * * * * *

    (3) A lease or license of real property owned by the United States, 
if the estimated annual fair market rental value of the property is more 
than $100,000.
    (4) A transfer of real property owned by the United States to 
another Federal agency or another military department or to a State, if 
the estimated value is more than $100,000.
    (5) A report of excess real property owned by the United States to a 
disposal agency, if the estimated value is more than $100,000.
    (6) Any termination of modification by either the grantor or grantee 
of an existing license or permit of real property owned by

[[Page 210]]

the United States to a military department, under which substantial 
investments have been or are proposed to be made in connection with the 
property by the military department.

                                * * * * *

    (c) This section applies only to real property in the United States, 
Puerto Rico, Guam, the American Virgin Islands, American Samoa, and the 
Trust Territory of the Pacific Islands. It does not apply to real 
property for river and harbor projects or flood control projects, or to 
leases of Government-owned real property for agricultural or grazing 
purposes or to any real property acquisition specifically authorized in 
a Military Construction Authorization Act.
    (d) A statement in an instrument of conveyance, including a lease, 
that the requirements of this section have been met, or that the 
conveyance is not subject to this section, is conclusive.

    (c) While not specifically required by 10 U.S.C. 2662, DOD has 
directed that all proposed relinquishments of public domain land will be 
reported to the Armed Services Committees where (1) the area exceeds 500 
acres or (2) the estimated fair market value of the property exceeds 
$100,000.



Sec.  644.341  Clearance with the Armed Services committees.

    (a) Prior to a final report of excess, or transfer to another 
Federal agency or a State, of any Government-owned military real 
property with an estimated value, including the value of existing 
improvements, in excess of $100,000, the proposed disposal must be 
reported to the Committees. Also, proposals to outlease military real 
property for other than agricultural or grazing purposes must be 
reported if the estimated annual rental consideration is more than 
$100,000. A formal appraisal for estimating value need not be made. 
Reports to the Committees pertaining to Army military real property are 
made by the Chief of Engineers, and copies of reports are furnished the 
two senators of the State, and the congressman of the district where the 
property is located. Reports pertaining to Air Force property are made 
by that department. DEs, upon request, will assist Air Force commands in 
assembling the required data.
    (b) For Army property, data will be furnished in the format shown in 
Figure 11-2 (ENG Form 2187-R, Real Estate Disposal Report) in ER 405-1-
12, and three copies forwarded to HQDA (DAEN-REM) WASH DC 20314. The 
information should be submitted within three weeks after dispatch of the 
screening message, or within three weeks after receipt of the disposal 
directive when screening is not required.
    (c) Clearance for transfer to another military department is 
obtained by the acquiring department. However, HQDA (DAEN-REZ-L) obtains 
clearance for transfer of Army property to a nondefense Federal agency 
where authorized by law.



Sec.  644.342  Prior approval of Department of Defense.

    (a) DOD Instruction 4165.12 requires advance approval by the 
Assistant Secretary of Defense (MRA&L) of disposal actions requiring 
congressional committee clearance. DOD approval is also required for 
withdrawal from excess of real estate, or an interest in real estate, 
which has an estimated fair market value in excess of $100,000.
    (b) The data submitted pursuant to Sec.  644.341 will be used to 
obtain DOD approval of projects to be submitted to the Armed Services 
Committees. Appropriate information will be furnished to obtain required 
DOD approval of withdrawals from excess.



Sec.  644.343  Additional data for clearance with the committees.

    To support Army witnesses appearing before the Armed Services 
Committees, and to satisfy other information requirements, include the 
following data when forwarding the ENG Form 2187-R:
    (a) Four copies of a site plan of the installation, clearly 
depicting the property involved, and four copies of a real estate map, 
color coded with legend, showing the area and acreage to be excessed.
    (1) Segment-size maps and plans should be of excellent quality, 
current, show accurate acreages, and current name of installation. They 
must be clearly visible at a distance of 30 feet or more.
    (2) Basic color codes for maps are:

Red--Excess Area(s)

[[Page 211]]

Green--Retained Area
Yellow--Previously Excessed Area(s)
Black or Dark Blue--Installation Boundary, heavy definition
Other Colors--for other purposes

    (b) Copy of last utilization inspection report, plus information as 
to when and how the excess property was last used by the Army.
    (c) Basis for disposal: Base closure announcement; E. O. Survey; 
Command Report of Excess; Report of Availability; etc.
    (d) A list of and general terms of any outgrants in effect on the 
excess area.
    (e) Whether continuing military activities are housed on the 
property proposed for disposal; arrangements which have been made to 
provide space for these activities; estimated cost of leasing or 
converting space for that purpose, and any other costs of closing or 
severing the installation and relocating the activities.
    (f) Whether civilian employees will lose their employment, number of 
employees involved, and to what extent they can be employed elsewhere.
    (g) Details of significant history of acquisition, development, and 
disposal, if not included in ENG Form 2187-R. Include official name of 
installation and former designations.
    (h) Description of any related or off-post family housing, giving 
number of units, type (MCA-Capehart, etc.) acreage of site, land and 
construction costs, and distance from installations served.
    (i) Probable impact on local economy, if any.
    (j) Estimate of any annual savings in operating and maintenance 
costs.
    (k) Statement as to exchange potential of excess area.
    (l) Estimate of value, including any restrictions or limitations on 
prospective use of the land by subsequent users.
    (m) Character and use of area in vicinity of excess area.
    (n) Care and custody costs for excess area.
    (o) Staff/MACOM coordination.
    (p) Environmental Assessment.
    (q) Any other pertinent information, e.g., any adverse factors 
severance or undesirable impact on utility systems, and local interest 
in acquiring the property.
    (r) Congressional district in which the property is located.



Sec.  644.344  Coordination with GSA.

    At the time of formal submission of the Disposal Report to the Armed 
Services Committees, DAEN-REM will furnish copies to the DEs and to the 
central and regional offices of GSA as advance information to permit 
preliminary disposal planning.



Sec. Sec.  644.345-644.347  [Reserved]

Reports of Excess Real Property and Related Personal Property to General 
                      Services Administration (GSA)



Sec.  644.348  Delegation of authority to division and district engineers.

    Much of the authority and responsibility of the COE as real estate 
agent for the Departments of the Army and Air Force to report excess 
real and related personal property to GSA in accordance with the 
provisions of the Federal Property Act, and the Federal Property 
Management Regulations (FPMR), subpart 101-47.3, has been delegated to 
Division and District Engineers having responsibility for real estate 
operations. Final reports will be made only after the property has been 
determined excess to the needs of the Department of Defense, in 
accordance with Sec. Sec.  644.333 through 644.339, and has been cleared 
with congressional committees, if required, in accordance with 
Sec. Sec.  644.340 through 644.347.



Sec.  644.349  Excess property reported for disposal.

    The following types of excess real property must be reported to GSA 
for disposal, utilizing Standard Form 118 (SF 118), Report of Excess 
Real Property, as set forth in Sec.  644.355:
    (a) Fee-owned. All fee-owned property, with improvements and related 
personal property, which has, in the opinion of the DE, an estimated 
fair market value of $1,000 or more, together with such incidental, 
related, or appurtenant lesser interests, with or without Government-
owned improvements and related personal property,

[[Page 212]]

held under lease, permit, license, easement, or similar instrument, 
useful in connection therewith, except property which is subject to:
    (1) A lease containing an option to purchase;
    (2) A lease containing a right of first refusal to purchase or to 
lease for an additional period;
    (3) A right in the Government's grantor to the reversion of title; 
or
    (4) A right reserved by the Government's grantor to repurchase the 
property.
    (b) Public domain. All withdrawn or reserved public domain lands, 
together with the improvements thereon which, in the opinion of the DE, 
have an estimated fair market value of $1,000 or more, and for which 
notification, pursuant to 43 CFR 2374.1, has been received from the 
Bureau of Land Management (BLM) that the property, in effect, has been 
determined excess within the meaning of the Federal Property Act (see 
Sec. Sec.  644.376 through 644.384 for procedures for disposal of public 
domain land). Minerals in the lands will be specifically excluded from 
the report of excess unless BLM advises otherwise. The Report of Excess, 
SF 118, will include as a part of the report on the Government's legal 
title, a true copy of the notice by BLM to report the property excess, 
and information of record in BLM on claims, if any, by other agencies, 
and any claims or encumbrances under the public land laws.



Sec.  644.350  Excess property reported for screening.

    The types of property described in paragraphs (a), (b), and (c) of 
this section must be reported to GSA for screening purposes 
notwithstanding the fact that the military departments have been 
delegated authority to dispose of such property. SF 118 will be utilized 
for reporting these types of property without attaching the usual 
Schedules A, B, and C and supporting documents. A notice should be 
included on the face sheet that ``This report is made for screening 
purposes only. Disposal will be accomplished by the Corps of 
Engineers.'' Distribution of copies of such reports within the 
departments is not required.
    (a) Land held under lease, permit, license, easement, or similar 
instrument, other than listed in Sec.  644.351.
    (b) Improvements located on nonexcess Government-owned lands 
(including improvements on land held under permit from another 
Government agency; see Sec. Sec.  644.376 through 644.384, for 
preliminary procedure in these cases), which improvements, with related 
personal property, in the opinion of the responsible DE, have an 
estimated net salvage value of $1,000 or more.
    (c) Improvements located on excess land held under lease or other 
temporary right of occupancy (even though a report of excess is not 
required for the leasehold itself or other right of occupancy interest 
under the criteria set forth in Sec.  644.351) when, in the opinion of 
the DE, the improvements have a net salvage or market value of $1,000 or 
more, and it is proposed to dispose of such improvements by sale for 
removal from site. The report of excess will contain an estimate of the 
cost of restoration necessary under the lease that a prospective 
transferee agency will be required to assume.
    (d) Fee-owned property which, with improvements and related personal 
property, in the opinion of the responsible Division or District 
engineer, have a fair market value of $1,000 or more, and is not 
reported to the General Services Administration for disposal as a result 
of the exception contained in Sec.  644.349(a) (because of outstanding 
options to purchase, etc., or because of rights retained by the 
Government grantor).



Sec.  644.351  Excess property exempted from reporting.

    No reports to GSA are required for the following types of excess 
property:
    (a) Fee-owned land, including withdrawn or reserved public domain 
land which BLM made available for disposal under Federal Property Act, 
together with the Government-owned improvements and related personal 
property, having an estimated fair market value of less than $1,000 in 
the opinion of the responsible DE;
    (b) Excess non-Government-owned property held under lease, license, 
easement, or similar instrument, when

[[Page 213]]

Government-owned improvements with related personal property have a net 
salvage value of less than $1,000 or are to be transferred to the owner 
of the land in restoration settlement, and;
    (1) The lease or similar instrument is subject to termination by the 
grantor of the premises within nine months; or
    (2) The remaining term of the lease or similar instrument, including 
renewal rights, will provide for less than nine months of use and 
occupancy; or
    (3) A provision of the lease or similar instrument would preclude 
transfer to another Federal agency or disposal to a third party; or
    (4) The lease or similar instrument provides for use and occupany of 
space for office, storage, and related facilities, which does not exceed 
a total of 2,500 square feet; or
    (5) Where additional rental would be incurred.
    (c) Excess Government-owned improvements on nonexcess land, which 
improvements, in the opinion of the responsible DE, have a net salvage 
value of less that $1,000.
    (d) Leased space assigned by GSA, and land and improvements owned by 
and permitted from other Government agencies.
    (e) Excess timber, sand, gravel and stone-quarried products, and 
growing crops on nonexcess land regardless of value.
    (f) Excess withdrawn or reserved public domain lands, regardless of 
value, which are offered to and accepted by the Department of the 
Interior for return to the public domain pursuant to Sec. Sec.  644.376 
through 644.384.
    (g) Prefabricated movable structures, such as Butler-type storage 
warehouses and quonset huts, and housetrailers (with or without 
undercarriages), which are located on nonexcess land for off-site use. 
These types of structures shall be reported as personal property in 
accordance with FPMR, part 101-43, Utilization of Personal Property. 
However, when such structures are located on leased or permitted land 
subjecting the Department to any restoration obligations, the property 
will be treated as real property for the purpose of satisfying such 
obligations to the maximum extent feasible.



Sec.  644.352  Evaluation and reporting of flood hazards.

    Pursuant to Executive Order 11296, 10 August 1966, the DE having 
civil works responsibility for the area where property proposed for 
disposal is located will evaluate the property (civil or military) for 
the presence of flood hazards. If such hazards are found, a report will 
be forwarded to HQDA (DAEN-REM) recommending appropriate restrictions 
with respect to future uses of the property, or that the property be 
withheld from disposal. If decision is made to proceed with disposal, 
detailed information regarding the flood hazard will be reported to GSA 
on SF 118 as required by FPMR, 101-47.202-2, with the appropriate 
restrictions with respect to use of the property by a purchaser and his 
successors. (See ER 1105-2-40 for information on the Flood Plain 
Management Services Program.)



Sec.  644.353  Determination of values for reporting.

    Where more than one parcel or item of excess property is involved at 
the same project or installation, the total value of all such parcels or 
items will be included in determining whether the property has an 
estimated value of $1,000 or more for the purpose of making reports of 
excess. Estimates of value should be made by qualified real estate 
employees, but not necessarily by a professional appraiser.



Sec.  644.354  Conditional reports of excess.

    As an exception to its general policy, GSA has agreed with the 
Department of Defense to accept reports of excess on some facilities 
with instructions on their disposal, specifically:
    (a) Defense Industrial Reserve (DIR). The Defense Industrial Reserve 
Act 50 U.S.C. 451 et seq., authorizes the Secretary of Defense to 
determine which excess industrial properties should become a part of DIR 
and to formulate a national security clause or recapture provisions to 
preserve the production capacity of the plants for use in the event of a 
national emergency. Excess DIR plants are reported to GSA for disposal 
subject to the national security clause or the recapture provisions. 
(See FPMR Subsection 101-47.306-2 for procedures where GSA is unable to 
dispose

[[Page 214]]

of the property because of the restrictions imposed by the national 
security clause or recapture provisions.)
    (b) Reserving property for civil defense purposes. GSA has agreed to 
accept reports of excess of missile sites and other facilities having 
similar protective features, with restrictions on their disposal. DEs 
will be notified when DOD advises that a specified local government unit 
is interested in acquiring such property. Reports of excess will specify 
the local government unit interested. Disposal of the property will be 
limited to conveyance to the local government unit, with conditions 
restricting its use to civil defense purposes for a period of 20 years, 
with reverter to the United States for breach of condition. In 
appropriate cases, GSA will enter into a temporary lease arrangement if 
necessary to afford a local government unit an opportunity to obtain the 
necessary funds for purchase. This procedure is limited to cases where 
DOD has determined and advised there is a civil defense need. Disposal 
action will not be delayed pending receipt of such advise.



Sec.  644.355  Preparation and submission of reports of excess.

    (a) Preparation--(1) General. Reports of excess will be prepared on 
SF 118, with schedules, in accordance with the instructions contained in 
FPMR section 101-47.4902, and Sec.  644.349 herein. However, since the 
type of information called for a Block 9 of standard form (SF) 118 and 
Columns f, g, h, and i of schedule A is not generally applicable to 
camps, airfields, etc., such information will be furnished only when it 
is available and can be furnished without additional cost. Reports of 
excess will include all related or appurtenant easements, licenses, and 
related personal property. Decontamination data will be included as 
prescribed in Sec. Sec.  644.516 through 644.539. Information on flood 
hazard will be included as required by Sec.  644.352.
    (2) GSA regulations. Pursuant to GSA regulations, all final reports 
of excess will be made only after the property has been determined 
excess to the needs of the Department of Defense and will bear the 
statement: ``This property has been screened against the known defense 
needs of the Department of Defense.'' Report of excess will indicate 
that the provisions of title 10, United States Code, section 2662, 
requiring reports to the Armed Services Committees of Congress, have 
been met, or that the report of excess is not subject to this section.
    (3) Reports of excess--Air Force property. The Air Force will 
prepare SF 118, with Schedules A and C, and transmit them to the DE for 
completion and execution. Land descriptions, title reports, and other 
data required by the FPMR will be the responsibility of the DE.
    (4) Reports of excess--Army property. DEs will prepare the SF 118 
and the schedules for excess Army property.
    (b) Submission. Reports of excess will be transmitted directly by 
the DE to the appropriate regional office of GSA. Each DE making such 
reports of excess will assign a number in Block 1 of SF 118, beginning 
with No. 1 for the first report and continuing in numerical sequence for 
succeeding reports made during the calendar year. The number will be 
preceded by the symbol of the DE making the report and the calendar year 
e.g., SWF-79-6, for the sixth report submitted by Fort Worth District of 
Southwestern Division for calendar year 1979.



Sec.  644.356  Report on Government title.

    In all cases where Government-owned land is reported, there shall be 
attached to and made a part of SF 118 (original and copies thereof), a 
report prepared by a qualified employee of the holding agency on the 
Government's title to the property, based upon his review of the records 
of the agency. The report shall recite:
    (a) The description of the property.
    (b) The date title vested in the United States.
    (c) All exceptions, reservations, conditions and restrictions 
relating to the title acquired.
    (d) Detailed information concerning any action, thing or 
circumstance that occurred from the date of the acquisition of the 
property by the United States to the date of the report which in any way 
affected, or may have affected, the right, title, and interest of the 
United States in and to the real property (together with copies of such

[[Page 215]]

legal comments or opinions as may be contained in the file concerning 
the manner in which and the extent to which such right, title or 
interest may have been affected). In the absence of any such action, 
thing or circumstance, a statement to that effect shall be made a part 
of the report.
    (e) The status of legislative civil and criminal jurisdiction over 
the land peculiar to the property by reason of it being Government-owned 
land. If the United States does not hold such legislative jurisdiction, 
the report on government title should so state.
    (f) All exceptions, reservations, conditions and restrictions 
imposed by higher authority on the property at time of disposal. No 
additions or substantive changes to these will be made without prior 
approval from HQDA (DAEN-REM), WASH, DC 20314.
    (g) If the property, or any portion of it, has been listed in the 
National Register of Historic Places, or has been nominated for listing 
or nomination, this should be included in the SF 118. Specific fixtures 
and related personal property having possible historic or artistic value 
should also be included. (See Sec.  644.317 for information on historic 
preservation.)



Sec.  644.357  Outgrant instruments, appraisals and muniments of title.

    There shall be transmitted with the SF 118 copies of outgrants 
involving the property reported, all conveyances, encumbrances and other 
instruments affecting the use and operation of the property, including 
deeds, mortgages, and agreements covering and licenses to use any 
patents, processes, techniques, or inventions. Where there is more than 
one like instrument as, for example, agricultural leases, it may be 
preferable to list them, locate them on the land use map, and furnish a 
sample copy. FPMR contemplates that muniments of title will be 
transmitted with the report of excess. The title report (Sec.  644.356 
of this part) will state that HQDA (DAEN-REP) WASH DC 20314 is the 
custodian of title papers and has been requested by the DE to transmit 
applicable title papers direct to the GSA Regional Office. Accordingly, 
as soon as practicable after receipt of an information copy of the 
declaration of excess by the using service, and a disposal directive, 
the DE will assign a disposal report number and advise DAEN-REP to 
transmit the pertinent title papers directly to the appropriate GSA 
Regional Office, citing the disposal report number as a reference. 
Simultaneous action by DAEN-REP and the DE to assemble necessary 
reporting data is important to avoid delay of acceptance by GSA of the 
Report of Excess. If experience should demonstrate that such 
simultaneous preparation and transmittal of data is not practical in 
saving time and effort, the DE will arrange in advance for transmittal 
of the necessary title data from DAEN-REP for incorporation in the 
Report of Excess before transmittal by the DE to the GSA Regional 
Office.



Sec.  644.358  Deposit of proceeds from disposal of family housing
in the family housing management account.

    (a) Title 42 U.S.C. 1594a-1(b) provides that the proceeds from the 
disposition of Department of Defense Housing, including related land and 
improvements, shall be transferred to the DOD Family Housing Management 
Account for the purpose of debt service. Arrangements have been made 
between DOD and GSA to implement this law and apply it to excess MCA 
housing as well as to housing encumbered by mortgage debts such as 
Capehart and Wherry Housing projects. (See Sec.  644.322(b).)
    (b) The agreement with GSA calls for separate identification and 
description in the Report of Excess (SF 118) of those improvements which 
are considered family housing within the purview of the law and a 
request in the report that proceeds from disposal be transferred to the 
DOD Family Housing Management Account. (The actual transfer of funds 
will be accomplished at Washington level.)
    (c) Where the Report of Excess includes both housing and property 
not related to housing, separate schedules (SF 118 a and b) will be 
prepared to cover the housing involved, including related land and other 
improvements. The housing schedules should be annotated and arranged 
categorically to show:

[[Page 216]]

    (1) Number of structures by type of authorization, i.e., Wherry Act, 
Capehart Act, Military Construction Authorization Act, Lanham Act, etc.
    (2) The number of family units.
    (3) Those improvements and collateral facilities which are 
considered ``related'' to the housing.
    (4) Where reasonably apparent, a description of the acreage or 
boundaries of the family housing areas as distinguished from other 
excess lands.
    (5) A statement as follows: ``Net proceeds from the sale of this 
family housing, including related lands and improvements, shall be 
remitted to DOD for deposit to Family Housing Management Account, 
Defense 97X0700.''



Sec.  644.359  Supplemental information.

    The DE will cooperate to the greatest extent practicable in 
furnishing further information and assistance requested by GSA Regional 
Offices. However, requests for engineering surveys should be carefully 
monitored in the interest of economy. When such requests appear 
excessive or other requests for services appear to require unnecessary 
expenditures, DAEN-REM will be fully informed, with recommendations, in 
order that the matter may be resolved through appropriate coordination 
with the GSA central office.



Sec.  644.360  Reports submitted for screening.

    Excess leaseholds and buildings and improvements to be disposed of 
separately from the land which, pursuant to Sec.  644.350, must be 
reported to GSA for screening purposes only, will be reported 
immediately when the property is determined to be excess to the 
particular military department having jurisdiction. The report will 
contain the statement: ``This property is reported for screening with 
civilian agencies by GSA prior to its disposal by the Corps of 
Engineers. The property is being screened within DOD and when the 
screening has been completed, appropriate certification will be 
submitted to GSA.'' Screening against defense requirements, pursuant to 
Sec. Sec.  644.333 through 644.339, will then be completed and GSA 
notified of the result. If such screening results in the development of 
a requirement by one of the other military services, the Report of 
Excess will be withdrawn and the transfer of the property to the 
requesting military service effected. This specialized procedure for 
this type of property is adopted to allow screening for defense 
requirements by the Corps of Engineers to be accomplished simultaneously 
with the screening of civilian agencies by GSA. Where circumstances 
require that this type of property be screened within a limited period 
of time, the period should be specified and an explanation set forth on 
the face of the Report of Excess, as, for example: ``Buildings are in 
the way of planned new construction and must be removed or demolished 
not later than (date). Accordingly, advice must be received on or before 
(date) as to whether a requirement exists for the property, or whether 
it is to be transferred or assigned to another Federal agency for 
removal within the time specified.'' If such advice is not received by 
the time specified, the property should be disposed of without further 
delay and GSA notified of the action.



Sec.  644.361  Distribution of report of excess.

    Copies of the final Report of Excess (SF 118) will be distributed 
simultaneously as follows:
    (a) Complete copies to: (1) Regional Office, GSA--original and four 
copies.
    (2) District Engineer--one copy.
    (b) Division Engineer--one copy of the cover sheet (SF 118), and 
transmittal letter.
    (c) A complete copy, except Schedule C (SF 118c), to HQDA (DAEN-REP) 
WASH DC 20314 and one copy of the cover sheet to HQDA (DAEN-REM) WASH DC 
20314.
    (d) Where family housing is involved, one copy of the cover sheet 
and the pertinent schedules A and B to the Deputy Assistant Secretary of 
Defense (Installations and Housing), Washington, DC 20301.



Sec.  644.362  Notice of receipt.

    GSA should promptly notify the holding agency of the date of 
acceptance of each Report of Excess (SF 118). The date GSA will assume 
the expense of cost and custody as provided in

[[Page 217]]

Sec. Sec.  644.368 through 644.375, will be figured from this date.



Sec.  644.363  Withdrawals or corrections of reports of excess.

    (a) Subject to the approval of GSA, and to such conditions as GSA 
considers appropriate, Reports of Excess may be withdrawn or corrected 
at any time prior to disposition of the property, by filing a corrected 
SF 118 with the regional office of GSA. Corrections and withdrawals will 
bear the same number as the report of excess to which they pertain, but 
will bear a letter suffix beginning with ``A'' for the first correction 
or withdrawal and continuing in alphabetical sequence for succeeding 
corrections or withdrawals. ``Correction'' will be conspicuously stamped 
on the face of the SF 118 for both withdrawals and corrections. 
Distribution of requests for withdrawal or correction will be the same 
as that made of the Report of Excess to which the withdrawal or 
correction pertains.
    (b) Property which is reported to GSA for disposal will not be 
withdrawn without the prior approval of HQDA (DAEN-REM) WASH DC 20314, 
nor will return of the SF 118 be accepted without the approval of DAEN-
REM. (See Sec. Sec.  644.340 through 644.347, concerning prior approval 
of DOD for withdrawals from excess of real property having an estimated 
fair market value in excess of $50,000.)



Sec.  644.364  Supply of forms.

    Standard forms 118, 118a, 118b, and 118c, are not available in 
normal Army Adjutant General supply channels. The forms should be 
procured from GSA.



Sec. Sec.  644.365-644.367  [Reserved]

             Care and Custody of Excess and Surplus Property



Sec.  644.368  Procedures and responsibilities for care, custody,
accountability, and maintenance.

    (a) Department of the Army military property. Care, custody, 
accountability, and maintenance of excess Army military real property 
will be as prescribed in AR 405-90.
    (b) Department of the Army Civil Works Property. DEs will retain 
custody and accountability of all excess civil works real property under 
their jurisdiction until final disposition is effected.
    (c) Department of the Air Force property. Pursuant to AFR 87-4, the 
Department of the Air Force is responsible for care and custody of 
excess Air Force real property. However, upon request by the Air Force 
DEs may assume custody if no costs are involved, or where cost is 
involved if funds therefor are furnished upon request by the DE.
    (d) Department of Energy (DOE), National Aeronautics and Space 
Administration (NASA), and other Federal agencies. Where the Corps of 
Engineers is acting as real estate agent for other Federal agencies, 
DEs, at the request of the agency, may assume care and custody of excess 
real property on a reimbursable basis.



Sec.  644.369  Guidelines for protection and maintenance of excess 
and surplus real property.

    Detailed guidelines are provided in FPMR Subsection 101-47.4913.
    (a) Calculated risk. These guidelines, which are binding on holding 
agencies, embody the principle of calculated risk. In applying this 
principle, the anticipated losses and deteriorations, including 
pilferage and vandalism, in terms of realizable values are expected to 
be less than expenditures to minimize the risks. Normally, where 
property is of little value, only periodic surveillance is necessary and 
care and custody forces will not be maintained. However, where property, 
regardless of realizable value, is potentially an attractive nuisance to 
children and curiosity seekers, or is inherently dangerous, the public 
should be protected by guards stationed on the property or by other 
satisfactory means. Every effort should be made to minimize the cost of 
care, protection and maintenance consistent with these principles.
    (b) Improvements or alterations. FPMR Subsection 101-47.401-5, 
provides that improvements and alterations to excess and surplus real 
property may be considered, with the prior approval of GSA, where 
disposal cannot be made. However, it is not considered likely that a 
situation will arise in the Corps' disposal operations where such 
improvements or alterations can be justified. Repairs necessary for 
protection

[[Page 218]]

and maintenance of marketable property will not be undertaken except to 
prevent serious loss to the Government. Excess equipment or facilities 
should not be updated or improved. At predisposal conferences, or 
earlier where practicable, the DE, in coordination with GSA 
representatives, will furnish specific guidance to the using command as 
to the minimum acceptable GSA requirement for care and custody. The 
requirement for minimum maintenance does not extend to historic places. 
Historic places in excess or suplus status will be maintained in 
accordance with the letter and spirit of approved Department of the Army 
criteria for protection, preservation and maintenance of historic 
places.



Sec.  644.370  Transfer of custody to General Services Administration
(GSA).

    (a) Custody of an excess installation reported to the GSA for 
disposal will continue to be held until GSA transfers to its purchaser 
or other designee. All expenses pertaining to care, custody and 
maintenance will be borne by the holding department or agency, except 
that such expense for property reported to GSA for disposal and not 
disposed of within 12 months from the date the formal report of excess 
was received by GSA, shall be assumed by GSA as of the first day of the 
succeeding quarter of the fiscal year. GSA will give notice of the 
receipt of the report of excess and will, within 15 days, furnish advice 
on the acceptability of the report. (See FPMR as amended, Subsection 
101-47.202-10.) Any request made to the disposal agency to defer 
disposal action, or failure to submit an acceptable report, will extend 
the obligation of the department with respect to expenses for care and 
custody caused by such deferment. In the event the department is not 
relieved of custody within the period for which it is obligated to stand 
the expense thereof, the retention of care and custody thereafter will 
be reimbursed by the disposal agency. Because of the magnitude of 
custodial expense for larger installations and the longer periods of 
time often consumed in effecting their disposal, it is imperative that 
reports of excess be made as promptly as possible in order that the 12-
month period may commence and terminate as soon as possible and the 
department's expense minimized.
    (b) The DE will maintain close liaison with GSA with a view to 
obtaining prompt transfer of custody and accountability from the 
department to that agency, and will coordinate transfers between the 
using service and GSA. However, DEs will not take over custody of an 
installation or coordinate the transfer of custody until a statement of 
clearance or a statement that such clearance is not necessary because of 
the use of the installation has been furnished. Under GSA procedures, 
the department generally retains the responsibility for care, custody, 
and accountability of its excess facilities until final disposition is 
made by GSA. Until that time, the property is to be carried on the real 
property inventory of the department.



Sec.  644.371  Contracting for care and custody.

    Care and custody of excess and surplus installations should be 
performed by contract whenever it is legally possible and more 
economical to do so. Due to the temporary nature of such services and 
the extreme variations in kind and fluctuations in quality of such 
services required from time to time, contracting for custodial service 
will often prove to be more economical and efficient. In contracting for 
such services which include watchman, patrol and protective services, 
attention is invited to the prohibition against hiring detective 
agencies pursuant to the following Act of Congress: ``* * * An 
individual employed by the Pinkerton Detective Agency, or similar 
organization, may not be employed by the Government of the United States 
or the Government of the District of Columbia.'' (5 U.S.C. 3108). This 
has been construed to apply to employees of organizations which provide 
services of a detective agency, but not to organizations which are 
organizations to render watchman, patrol or protective services and do 
not include detective services as one of their functions (26 Comp. Gen. 
303). Custodial and protective services referred to herein are the type 
ordinarily procured by contract by GSA and other Government agencies 
charged with the responsibility for

[[Page 219]]

care and handling of excess and surplus real property pending its 
disposal in accordance with the FPMR.



Sec.  644.372  Care and custody through interim use.

    (a) General. Upon receipt of initial information that real property 
is excess, the DE should promptly initiate planning for interim 
productive use. Interim use should be planned to save care and custody 
expense but must not interfere with, delay, or retard transfer of the 
property to another Federal agency or its disposal otherwise. Any permit 
or lease must have the prior approval of GSA, and shall be for a period 
not exceeding one year and shall be revocable on 30 days' notice (FPMR 
Sections 101-47.203-9 and 101-47.312).
    (b) Permits to other Federal agencies. Interested Federal agencies 
will be afforded a priority in the interim use of excess and surplus 
real property. The permit will require the Federal agency to perform 
care and custody and perform routine maintenance. 41 CFR 101-47.203-8, 
provides for temporary assignment, conditional transfers, and rental or 
user charges for use of excess property by Federal agencies.
    (c) Leases for non-Federal use. Leases of excess and surplus 
property are made under authority of the Federal Property and 
Administrative Services Act of 1949, as amended and AR 405-80. Such 
leases are subject to the Economy Act (40 U.S.C. 303b), and must be for 
a money consideration only. The lessee can and should, however, be made 
responsible for ordinary maintenance and restoration as required by 
standard Corps of Engineers lease forms. Where a portion of an excess or 
surplus installation is leased, it may be advantageous to enter into an 
agreement with the lessee for care and custody of the remainder. The 
agreement cannot provide for a reduction of rental for the portion 
leased. The Economy Act may not apply in some cases where industrial 
plants are determined excess subject to the National Security Clause or 
similar recapture conditions. Such cases should be coordinated with 
DAEN-REM on an individual basis.



Sec. Sec.  644.373-644.375  [Reserved]

 Return of Public Domain Lands and Lands Obtained on a Temporary Basis 
                       From Another Federal Agency



Sec.  644.376  Procedure for disposal of public domain land.

    (a) Lands withdrawn or reserved from the public domain, together 
with Government-owned improvements, which have been determined to be 
excess to the department, after screening with other DOD agencies and 
the U.S. Coast Guard in accordance with Sec. Sec.  644.333 through 
644.339, will be processed for disposal in accordance with 43 CFR 2370-
2374 and Sec.  644.381 of this part. The DE will file a Notice of 
Intention to Relinquish as provided by 43 CFR 2372.1. The notice will be 
filed in the Bureau of Land Management (BLM) Land Office having 
jurisdiction.

Excess buildings and improvements on the property should be left in 
place and no disposal action taken thereon pending further instructions 
from BLM, unless it is determined that they should be abandoned in 
accordance with the procedures set forth in Sec. Sec.  644.472 through 
644.500. A copy of the Notice of Intention to Relinquish submitted to 
the appropriate BLM Land Office will be transmitted to HQDA (DAEN-REM) 
Washington, DC 20314 and to the appropriate GSA regional office.
    (b) If any restoration, or other work, is proposed to be performed 
on the land, the matter will be forwarded to DAEN-REM for prior 
approval. Where the DE recommends disposition of the land by GSA as 
excess property rather than return to the public domain, no restoration 
of the property will be proposed (see 43 CFR 2372.1). Generally, lands 
which are unimproved, or contain only minor improvements, will be 
recommended for return to the public domain. Exception to this procedure 
should be made where development surrounding, or in the vicinity of the 
land, has changed its character, although the land itself has not been 
improved. Another exception would be the situation described in Sec.  
644.350(d). Generally lands which are extensively improved will be 
recommended to BLM for disposal as excess property.

[[Page 220]]

    (c) If the authorized officer of BLM determines, pursuant to 43 CFR 
2372.3, that the conditions prescribed by that regulation have been met 
and that the land is suitable for return to the public domain, he will 
notify the DE, as the representative of the holding agency, that the 
Department of the Interior accepts accountability and responsibility for 
the property. A copy of this notification will be furnished to HQDA 
(DAEN-REP) Washington, DC 20314.
    (d) If the authorized officer of BLM determines, pursuant to 43 CFR 
2374.1, that the land is not suitable for return to the public domain 
because it is substantially changed in character, and GSA concurs in 
this determination, he will notify the DE to report the land and 
improvements, with or without minerals, to GSA as excess property. Upon 
receipt of this notice, the DE will advise DAEN-REP and report the 
property to GSA on SF 118, Report of Excess Real Property, including the 
information on claims and encumbrances furnished by BLM under 43 CFR 
2374.1 (c). The holding agency has the same responsibility for care, 
custody, and accountability of excess public domain as for other 
property reported to GSA for disposal.



Sec.  644.377  Formal revocation of public land withdrawals and
reservations.

    When the authorized officer of BLM determines that the land is 
suitable for return to the public domain, the BLM Land Office will 
transmit to the DE a draft of public land order (PLO) designed to 
formally revoke the order or reservation which withdrew or reserved the 
land. The DE will review the draft PLO for accuracy and return it 
unsigned. The draft PLO will be transmitted through BLM channels to 
DAEN-REM for signature of the Secretary of the Army or Air Force and 
return to the Washington office of BLM.



Sec.  644.378  Cancellation of permits.

    (a) Land obtained by permit, or some other form of instrument, from 
another Federal agency on a temporary basis which has not been 
substantially improved while being utilized by the Department, when 
determined to be excess in accordance with the procedure set forth in 
Sec. Sec.  644.326 through 644.332, will be returned to the Federal 
agency from which it was obtained.
    (b) When it is determined by the DE that land obtained by permit, or 
other form of instrument, from another Federal agency on a temporary 
basis has been substantially improved while being utilized by the 
Department, the DE will request DAEN-REM to determine whether the land 
is excess, or is expected to become excess, to the requirements of the 
agency from which it was obtained.
    (1) If the agency from which the land was obtained advises that the 
land is excess, or is expected to become excess, to its requirements, 
the improvements will be reported to GSA on SF 118 in accordance with 
the procedure described in Sec. Sec.  644.348 through 644.347, with a 
statement that the agency from which the land was obtained has advised 
that the land is excess, or is expected to become excess to its 
requirements, and that the agency will be or has been requested to 
reassume administrative control over the land. Coincident with the 
report of excess, action will be initiated to return the land to the 
agency from which it was obtained.
    (2) If the agency from which the land was obtained advises that the 
land is not excess, and is not expected to become excess to its 
requirements, improvements constructed thereon while the property was 
being utilized by the Department will be disposed of in accordance with 
the provisions of Sec.  644.381. Where the improvements are substantial, 
and cannot be utilized effectively by the agency from which the land was 
obtained, and it appears that the best interests of the Government may 
not be served by disposal of the improvements for removal from the site, 
a report, with recommendations, should be forwarded to DAEN-REM for a 
determination whether the permit and improvements should be reported to 
GSA for disposal, or whether other action would be appropriate.
    (c) The Chief of Engineers, or his duly authorized representatives, 
will execute and deliver necessary papers effecting the relinquishment 
of permits and the transfer of real property to other Federal agencies 
when the installations to which such real property or permits pertain 
have been determined

[[Page 221]]

to be excess. However, where permits were obtained at local level, DEs 
will effect relinquishment in the same manner. Unless otherwise 
instructed, no action will be taken by the DE to restore or return the 
lands pertaining to an industrial installation to the agency which 
granted the permit. DEs will, however, submit the report required in 
Sec.  644.379.
    (d) Where an installation embraces lands acquired in fee by a 
military department and lands acquired for temporary use from other 
departments or agencies, and if return of the latter type of lands to 
the department or agency which granted the permit would destroy the 
integrity of the installation or affect its ultimate disposal as a unit, 
a report will be made to DAEN-REM with recommendations that they will 
provide disposition instructions.



Sec.  644.379  Procedure for cancellation of permits.

    (a) When permitted land is excess and the permit is to be executed, 
the DE will submit the following information with his recommendations to 
DAEN-REM:
    (1) Description and location of the property;
    (2) Date use was acquired;
    (3) Department or agency from which acquired;
    (4) Manner of acquisition; that is, by permit or other means, with 
copy of document;
    (5) ENG Form 1440-R, Cost of Restoration (Engineer Estimate and 
Appraisal), which includes a statement of cost and value of improvements 
or structures placed on the lands by the department;
    (6) Statement of restoration work performed by the department if 
any;
    (7) Statement of local representative of owning agency as to whether 
restoration will be required, or, where restoration work has been 
performed, whether such restoration is satisfactory; and
    (8) Statement that no clearance of explosives or other harmful 
elements is necessary because of the manner in which the land was used, 
or, if otherwise, statement of clearance action taken or necessary.
    (b) Upon receipt of the foregoing information, the Chief of 
Engineers will effect relinquishment of the land by letter. Where the DE 
has authority to relinquish the land as outlined in Sec.  644.378(c), he 
will effect relinquishment by letter addressed to the permittor, with a 
copy to DAEN-REM.



Sec.  644.380  Restoration of lands made available by other Government
agencies.

    (a) Requirement. Where the Department retransfers real property, the 
use of which has been obtained from other Federal agencies (including 
withdrawals from the public domain recommended for return to the public 
domain) by means of use permits, public land orders, or other methods, 
the property should be restored to a condition as good as that which 
existed at the time the department took possession, damages by the 
elements or by circumstances over which the Department has no control 
excepted, unless the agency from which the property was obtained 
expressly waives restoration. Restoration of public domain land will not 
be initiated until the determination is made that the land is suitable 
for return to the public domain. Public domain land that is to be 
reported excess to GSA will not be restored. The procedure enunciated in 
Sec. Sec.  644.516 through 644.539 relative to neutralization of 
unexploded bombs or artillery projectiles located on leased premises 
applies with equal force to Government-owned lands returned to other 
Federal agencies and to public domain land that is to be reported as 
excess for disposal by GSA.
    (b) Authority. The report of the Senate Appropriations Committee on 
the DOD Appropriation Bill, 1966 (Senate Report 625, 89th Congress, 
dated 18 August 1965), contained the following language:

    Such funds as may be required may be used to restore lands under 
jurisdiction of other Government agencies, damaged while being used for 
military training purposes under agreement with such agencies.


The Comptroller General considers the foregoing to be a clear expression 
of Congressional intent, and that authority exists for the Department of 
the Army to restore (or make payment in

[[Page 222]]

lieu thereof) lands of other Federal agencies which have been damaged by 
the Army while being used under agreement.
    (c) Determination of restoration costs. ENG Form 1440-R, Cost of 
Restoration, appropriately modified, will be used for the preparation of 
an estimate of cost of restoration, or salvage or market value, for the 
purpose of determining the cost of restoration.
    (d) Payments for, or in lieu of restoration--(1) Work performed by 
the Department of the Army. If the work is performed by the Department, 
payment will be made from funds available to the office performing the 
work.
    (2) Work performed by controlling agency. If the work has been 
performed by the agency having administrative control over the property, 
pursuant to agreement with the Department, reimbursement to that agency 
may be made by properly supported SF 1080, Voucher for Transfer Between 
Appropriations and/or Funds, from funds available to the DE.
    (3) Payment in lieu of restoration. If the work has not been 
performed by either agency and a payment is desired in lieu of 
restoration, the payment is, in effect, an advance of funds. As such, 
the advance of funds will be accomplished in OCE, based on submission by 
the controlling agency of SF 1080 properly supported.



Sec.  644.381  Disposal of buildings and other improvements.

    Where improvements have a net salvage value and are not to be 
reported to GSA for disposal with the land, the permitting agency, or 
Department of the Interior in the case of public domain land, will be 
required to reimburse the Army for their net salvage value, or the 
buildings or improvements will be disposed of in accordance with 
Sec. Sec.  644.472 through 644.500.



Sec. Sec.  644.382-644.384  [Reserved]

                           Predisposal Action



Sec.  644.385  Record of excess classification.

    The DE will establish a record on ENG Form 836A, Real Property 
Disposal Report, of the excess classification of each Army property and 
each Air Force property for which a preliminary or final real estate 
directive has been issued.



Sec.  644.386  Utilization for other needs.

    The DE will determine the feasibility of utilizing each installation 
classified as excess to fulfill current directives for acquisition of 
real estate or known or foreseen potential needs of the Army or Air 
Force, which may have been generated since the screening process. If 
redistribution for this purpose is deemed advantageous, recommendations 
will be submitted to HQDA (DAEN-REM) WASH DC 20314 on the proposed 
action, indicating when excess status was determined and by which 
element of the Departments of the Army or Air Force.



Sec.  644.387  Suspension of acquisition action on installations 
proposed for disposal.

    When a fee-owned installation is recommended for excess by the 
installation commander, or a preliminary or final real estate disposal 
directive is issued by the Air Force, any pending acquisition in 
connection with the installation will be suspended, unless the directive 
provides otherwise. A recommended plan for curtailment of uncompleted 
acquisition will be submitted to HQDA (DAEN-REA-L) WASH DC 20314. The 
plan will include the following information: Identification by tract 
numbers, names of owners, and area of each tract for which an option has 
been accepted or a declaration of taking filed, but as to which it is 
considered practicable and economical to obtain cancellation of the 
option or a stipulation for dismissal of the condemnation proceeding and 
revestment of title. Specific information as to the extent and nature of 
demolition of improvements, new construction, or other damages or 
changes made by the Government to the premises, and the probable cost of 
restoration in case of such cancellation or stipulation, will be 
included. Pertinent public relations aspects should also be covered. 
Generally, tracts on which a declaration of taking has been filed will 
not be returned to the owners by stipulation for amendment or dismissal 
of the condemnation proceedings. Exceptions to

[[Page 223]]

this may be recommended when shown to be in the best of interest of the 
United States.



Sec.  644.388  Army military--screening, clearance, preliminary report
of excess, except where an E.O. 11954 survey has been made.

    Upon receipt of a copy of the installation commander's 
recommendation of excess, the DE will take the following actions:
    (a) Immediately notify DAEN-REM by teletype, furnishing a brief 
statement of the real estate included in the recommendation.
    (b) Promptly screen the property against Army and other defense 
requirements if required by and in accordance with Sec. Sec.  644.333 
through 644.339, and advise DAEN-REM of the results.
    (c) As soon as the screening message is dispatched under Sec.  
644.388(b), or immediately upon receipt of a disposal directive from 
DAEN-REM when screening is not required by Sec. Sec.  644.333 through 
644.339, DEs will prepare and forward:
    (1) SF 118, Report of Excess Real Property and other documentation 
required in reporting the excess property to GSA.
    (2) ENG Form 2187-R, Disposal Report, for clearance with DOD and the 
Armed Services Committees (ASC) of Congress where required in accordance 
with Sec. Sec.  644.340 through 644.347. This should be forwarded to 
DAEN-REZ-L within three weeks of dispatch of the screening message, or 
receipt of the disposal directive. This schedule will allow the Chief of 
Engineers to process the disposal assembly through the DA and DOD 
secretariats and to obtain necessary clearances from the ASC. DAEN-REM 
will furnish the DE copies of the DOD approval and the report to the 
ASC. This office will also furnish copies of the ASC report to the 
Washington and regional offices of GSA, to permit screening with other 
Government agencies.
    (d) DOD approval of the disposal (property having estimated value in 
excess of $100,000) signifies the property is excess to Defense 
requirements. Upon receipt of this approval, the DE will forward a 
preliminary Report of Excess to GSA by transmitting necessary copies of 
the completed SF 118, with attachments, carefully identified as 
preliminary. Where screening is negative for property having an 
estimated value of $100,000 or less, the property is considered excess 
to Defense requirements and a final report of excess should be forwarded 
promptly to GSA.



Sec.  644.389  Army military--modified predisposal procedures where
E.O. 11954 surveys have been made.

    (a) DEs will be advised of military installations to be surveyed 
under E.O. 11954 by a DOD or GSA survey team.
    (b) If property is to be declared excess as a result of a decision 
by the Department of the Army, appropriate commanders and DEs will be 
advised. The major commander will be requested to submit a Report of 
Excess pursuant to AR 405-90 to HQDA (DAEN-REM) Washington, DC 20314 
within 15 days. DEs will be furnished a copy of the report.
    (c) Upon receipt of advice that property will be excessed, the DE, 
in coordination with the installation commander concerned, will commence 
preparation of ENG Form 2187-R, if required, for submission to DAEN-REZ-
L.
    (d) When the Report of Excess is approved, DAEN-REM will advise the 
DE and will request that screening be initiated. The approved report 
will be prompty referred through channels to the DE for further 
appropriate action.
    (e) The ENG Form 2187-R will be forwarded to DAEN-REM not later than 
15 days after receipt of the approved Report of Excess.
    (f) As soon as the areas to be excessed are clearly defined, action 
will be initiated to assemble all necessary data so that the final SF 
118 may be submitted to GSA within 30 days after necessary Congressional 
clearance is obtained under 10 U.S.C. 2662.
    (g) When the estimated value of the property does not exceed 
$100,000 and preparation of an ENG Form 2187-R is not required, the DE, 
upon being notified of the approval of the Report of Excess, will notify 
DAEN-REM of the date the SF 118 will be submitted to GSA.

[[Page 224]]



Sec.  644.390  Executive Order 11954 surveys of civil works properties.

    Procedures to be followed by DEs when civil works properties are 
surveyed by GSA under E.O. 11954 are contained in chapter 8 of ER 405-1-
12.



Sec.  644.391  Predisposal conference.

    (a) Where a substantial Army installation, or portion thereof, is 
involved, the DE will convene a predisposal conference with 
representatives of the using command, GSA, and other interested parties. 
Where an Air Force installation is involved, the Major Air Command will 
take the initiative in convening the conference. In any cases involving 
flying facilities, Federal Aviation Administration representatives will 
be invited. The agenda of the predisposal conference should provide for:
    (1) Determinations on maintenance guidelines based on probable 
future uses of the property with emphasis on agreements concerning 
responsibility for assumption of care and custody, in accordance with AR 
405-90, AFR 87-4, and Sec. Sec.  644.368 through 644.375.
    (2) Review of the SF 118 to assure its acceptability to GSA.
    (3) Review with GSA, when appropriate, of the advisability of 
transferring custody and maintenance responsibilities to GSA at an early 
date.
    (4) Planning for and, to the extent possible, making definite 
determinations on interim utilization pending disposal by GSA.
    (b) It is of utmost importance that excess installations be put to 
productive use as military operations are phased out. This will do much 
to lessen the impact of the installation's closing on the economy of the 
local community. For this purpose, installations, in many cases, will be 
reported to GSA prior to phase out of military operations. In these 
cases, the DE has responsibility to insure, to the extent practicable, 
that other productive use is phased in as military operations are phased 
out. This can be accomplished only by careful planning and continuous 
coordination by the DE with using command and GSA. The using command 
will plan and execute the military phase out. However, the DE will 
assure that the Report of Excess to GSA specifically identifies and 
excludes the real and personal property to be retained by the military 
department. This information is required by GSA for disposal purposes.
    (c) A report on the predisposal conference will be forwarded to 
DAEN-REM. Any difficulties indicated by GSA will be summarized in the 
report, along with any other problems encountered or foreseen.
    (d) When requested, and on an individual project basis, the DE will 
prepare a real estate disposal study concerning the transfer of custody 
and maintenance responsibilities to GSA prior to final disposal. This 
study will be developed in conjunction with appropriate using command 
and GSA representatives. Its purpose will be to determine whether the 
transfer of the excess property to GSA would be more economical and in 
the best interest of the Government. Important benefits to DOD agencies 
would be reduction in expenditures and personnel of the military 
departments for such functions. Copies of the study will be furnished 
the using command concerned for timely review and recommendations.



Sec.  644.392  Air Force--preliminary report of excess.

    The DAF will issue a preliminary real estate disposal directive when 
a disposal project is forwarded to the Assistant Secretary of Defense 
(Manpower, Reserve Affairs and Logistics) for clearance. (Air Force 
screens its own properties for other defense requirements and clears the 
disposal with DOD and the Armed Services Committees of the Congress.) 
When the preliminary real estate disposal directive is received, the DE, 
unless directed otherwise, will proceed to perform all necessary actions 
in coordination with the installation commander concerned, for 
submission of a preliminary Report of Excess to GSA.



Sec.  644.393  Final report of excess to GSA.

    Where a preliminary Report of Excess is made to GSA, the DE will 
promptly finalize the report upon receipt to the final Air Force 
disposal directive. In all cases where a disposal is reported to the 
Armed Services Committee, the DE will furnish HQDA

[[Page 225]]

(DAEN-REM) advice when the final report is made to GSA. Where the report 
is finalized by statement confirming a preliminary report as final, 
copies of the preliminary report and confirming statement should be 
distributed in accordance with Sec. Sec.  644.348 through 644.367. 
Distribution of preliminary Reports of Excess, except to GSA, will not 
be made in other cases.



Sec.  644.394  Protection of disposal information.

    To prevent premature disclosure to the public, information on and 
plans for disposal of all or a portion of an installation should be 
protected (AR 340-16), until such time as the property is determined 
excess to Army or Air Force requirements. (The Air Force preliminary 
real estate disposal directive is not issued until a determination has 
been made that the property is excess to Air Force requirements.) After 
determinations of excess are made, it is desirable that information on 
the availability of the property for disposal be widely disseminated. 
``FOR OFFICIAL USE ONLY'' marking on plans and correspondence pertaining 
to the excess action may be cancelled by any recipient or holder. Where 
the classification ``CONFIDENTIAL'' or higher has been used, documents 
must be declassified in accordance with AR 380-5.



Sec.  644.395  Coordination on disposal problems.

    If any major change or problem requires a significant revision in 
the time schedule for disposal, prompt action will be taken to advise 
offices concerned. HQDA (DAEN-REM) should be promptly informed of any 
problem adversely affecting a specific disposal project or the overall 
program for disposal or property.



Sec.  644.396  Assignment of personnel to administer.

    To extent appropriate according to the circumstances and nature of 
the property, the DE will assign a responsible representative to each 
installation, or group of installations, to act under his staff 
supervision in performance of the following functions:
    (a) Monitoring and expediting the actions described in Sec. Sec.  
644.385 through 644.399 and maintaining close liaison with GSA on 
disposal problems and actions.
    (b) Monitoring and expediting performance of such demolition, 
dismantling or other construction work as may be authorized.
    (c) Administration, operation and maintenance of the excess 
installation until final disposal, making every effort by consolidation 
of activities and otherwise to reduce the costs consistent with economic 
management of the facilities.
    (d) Coordination of ultimate transfer of assumed custodial 
responsibility to other agencies or persons as directed.



Sec. Sec.  644.397-644.399  [Reserved]

       Disposal of Fee-Owned Real Property and Easement Interests



Sec.  644.400  Authorities--general.

    (a) Statutory authorities. Power to dispose of real estate belonging 
to the United States is vested in Congress (paragraph 2, Section 3, 
Article IV, Constitution of the United States), and no real estate of 
the Department will be sold or otherwise disposed of without authority 
of Congress. By the Federal Property and Administrative Services Act of 
1949 (Federal Property Act), (Pub. L. 152, 81st Congress; 63 Stat. 377) 
as amended, (40 U.S.C. 471 et seq.), Congress provided authority for 
utilization of excess property and the disposal of surplus Federal 
property, and established the General Services Administration (GSA) to 
administer the provisions of that Act. All excess and surplus Federal 
real estate and real property components will be disposed of under 
authority of the Federal Property Act, as amended, unless other 
statutory authority for such disposal is specifically withheld under the 
provisions of the Act or enacted subsequent thereto. In connection with 
disposals made under statutory authority other than the Federal Property 
Act, attention should be given to the purposes of the legislation and 
insofar as practicable, disposal of property should be in accordance 
with the provisions of the Act and the regulations issued thereunder, in 
order that the greatest overall efficiency and economy be effected.

[[Page 226]]

    (b) Rules and regulations--(1) Issued by the GSA. Rules and 
regulations issued by the GSA to effectuate its authority in respect to 
disposal of real estate and real property components are contained in 
FPMR, Section 101-47, as amended, including disposition of timber, 
embedded sand, gravel and stone, buildings and other structures, and 
leaseholds and other rights to use or occupy real estate. The DE will be 
governed by these rules and regulations. GSA also issues, from time to 
time, special delegations of authority to the Department of Defense with 
power of redelegation.
    (2) Issued by the Departments. Policies and procedures of the 
departments with respect to the control, management, maintenance, and 
disposition of real estate and real property components located within 
the continental United States and its territories and possessions, 
placed in excess status or to be placed in excess status are contained 
in AR 405-90, AFR 87-4, and AR 405-5/AFR 87-15, except Army civil works 
property which is governed by ER 405-1-12.
    (c) Authorities delegated to the Department of Defense. Under the 
publications and special delegations issued by GSA, the Department of 
Defense has been designated disposal agency categories enumerated in 
Sec.  644.314.
    (d) Authorities delegated to the Army and Air Force. Department of 
Defense Directive 4165.6, among other things, redelegates to the 
Secretaries of the Army, Navy and Air Force, and to such individuals as 
they may designate for the purpose of administering real estate actions 
within their respective departments, the authorities which were then, or 
may hereafter be, assigned and delegated to, or vested in the Secretary 
of Defense by:
    (1) Sections 401 and 402 of the Federal Property and Administrative 
Services Act of 1949, as amended (40 U.S.C. 511 and 512) and regulations 
of the GSA promulgated thereunder.
    (2) The Administrator of General Services, pursuant to Section 203 
(a), (b) and (c) of the Federal Property and Administrative Services Act 
of 1949, as amended (40 U.S.C. 484).
    (3) Other specific delegations from the Administrator of General 
Services.
    (e) Authorities (Special). In addition to the general authority 
cited in paragraph (d)(2) of this section, the Department derives 
authority from a number of special purpose statutes to transfer real 
property to other Federal agencies and to dispose of real property for 
special purposes, or to special classes or in a specific manner to 
achieve a specific objective. Some of these acts are utilized in 
conjunction with regulations of GSA and some are exercised independently 
thereof according to the nature of the particular law. These laws are 
described in subsequent sections of ER 405-1-12.



Sec.  644.401  Transfers--general.

    R[eacute]sum[eacute]s of the principal legislative acts authorizing 
transfer of Army and Air Force real property to other Federal 
departments are contained in Sec. Sec.  644.402 through 644.408. The 
authorities in these acts are exercised independently of GSA 
regulations. Transfers under these authorities are made without 
reimbursement. Real property can also be transferred under the Federal 
Property Act within the scope of disposal authority delegated by GSA. 
Transfers under the Federal Property Act are subject to reimbursement as 
prescribed by FPMR, section 101-47.203-7. Property reported to GSA for 
disposal will be transferred only at the direction of GSA. Excess 
property excepted from reporting may be transferred by the DE under GSA 
regulations. Transfers to the Department of the Interior of surplus 
lands chiefly valuable for migratory bird management are subject to GSA 
regulations but are made without reimbursement (Sec.  644.429).



Sec.  644.402  Transfers among the armed services.

    10 U.S.C. 2571(a) authorizes the interchange without reimbursement 
of military stores, supplies, and equipment of every character, 
including real estate owned by the Government, between the Army, Navy, 
Air Force and Coast Guard upon request by the head of one service and 
with the approval of the head of the other service.

[[Page 227]]



Sec.  644.403  Transfers to Tennessee Valley Authority.

    10 U.S.C. 831f(b) authorizes the President of the United States to 
provide for the transfer to the Tennessee Valley Authority of the use, 
possession and control of such real or personal property of the United 
States as he may from time to time deem necessary and proper for its 
purposes. This authority is applicable to property under the 
jurisdiction or control of the Secretaries of the Army and the Air 
Force. The authority vested in the President by this law has been 
delegated to the Office of Management and Budget by Executive Order No. 
10530 dated 11 May 1954, as amended (see footnote to 3 U.S.C. 301).



Sec.  644.404  Transfers to Federal Prison Industries, Inc.

    18 U.S.C. 4122 authorizes any department or agency of the Department 
of Defense to transfer without exchange of funds, to Federal Prison 
Industries, Inc., any property or equipment suitable for use in 
performing the functions and duties covered by agreement entered into 
under subsection (d) of this Act. The provisions include the industrial 
employment and training of prisoners convicted by general courts-martial 
and confined in any institution under the jurisdiction of any DOD agency 
or department.



Sec.  644.405  Transfers to Veterans Administration.

    38 U.S.C. 5003 authorizes the Secretaries of the military 
departments to transfer, without reimbursement, to the Veterans 
Administration, facilities, supplies, equipment, or material necessary 
and proper for the authorized care of veterans. The word ``facilities,'' 
as used in this Act, has been construed to include buildings and 
grounds.



Sec.  644.406  Transfers to Secretary of Transportation and the National
Weather Service.

    49 U.S.C. 1157 authorizes the Department of Defense to transfer, 
without charge, to the Secretary of Transportation, airport property and 
airway property, exclusive of meteorological facilities in territory 
outside the continental limits of the United States (including Alaska). 
Section (b) of this Act similarly authorizes transfer of meteorological 
facilities, without charge, to the National Weather Service.



Sec.  644.407  Transfers to District of Columbia.

    40 U.S.C. 122 authorizes Federal and District authorities 
administering properties within the District of Columbia, owned by the 
United States or by the District, to transfer jurisdiction over parts or 
all of such property among or between themselves for purposes of 
administration and maintenance under such conditions as may be mutually 
agreed upon, provided that, prior to the consummation of any such 
transfer, the proposed transfer shall be recommended by the National 
Capital Planning Commission. All such transfers and agreements shall be 
reported to Congress by the District authorities concerned.



Sec.  644.408  Interchange of national forest and military and civil
works lands.

    16 U.S.C. 505a, 505b authorizes the Secretary of Agriculture, with 
respect to national forest lands, and the Secretary of a military 
department, with respect to lands under the control of the military 
department which lie within or adjacent to the exterior boundaries of a 
national forest, to interchange such lands, or parts thereof, without 
reimbursement or transfer of funds whenever they shall determine that 
such interchange will facilitate land management and provide maximum use 
thereof, for authorized purposes. This law further provides that no 
transfer thereunder shall become effective until 45 days after the 
submission to the Congress by the respective Secretaries of notice of 
intention to make the interchange. The law also provides, in effect, 
that lands so transferred shall thereafter be subject only to the laws 
applicable to the lands of which the transferred lands become a part. 
Lands under the administrative control of the Congress, both military 
and civil, and that of the Air Force are within the scope of this law.

[[Page 228]]



Sec.  644.409  Procedures for Interchange of National Forest Lands.

    (a) General. The interchange of national forest lands is 
accomplished in three steps: first, agreement must be reached between 
the two departments involved as to which lands will be interchanged; 
second, the two departments will jointly notify the Speaker of the House 
of Representatives and the President of the Senate, by letter, of the 
intention of the two departments to make the interchange agreed upon; 
third, upon the expiration of 45 days from the date of submission of the 
notice of intention (counting only days occurring during any regular or 
special session of the Congress) the two secretaries will execute 
jointly and cause to be published in the Federal Register an order 
transferring the respective lands of each department to the other.
    (b) Initiation of requests for interchange. Requests for interchange 
of lands may be originated by either the military department involved or 
the Department of Agriculture. Those originated by the Department of the 
Army may result from land requirements generated by newly authorized 
civil works or military construction projects or from authorized 
expansion of existing projects or as a result of property utilization 
surveys. Department of the Air Force requirements may develop similarly. 
When a request originates with the Department of the Air Force 
requirements may develop similarly. When a request originates with the 
Department of Agriculture pertaining to a civil works project or a 
military installation, it will be analyzed and coordinated by the DE 
with local representatives of the Department of Agriculture and the 
using service, as appropriate, to determine the feasibility of and need 
for the acquisition of any forest land to improve administration of the 
Army project or installation and the availability of Army lands for 
transfer to the Department of Agriculture. When coordinated analysis 
indicates the propriety of an interchange, an interchange planning 
report will be developed by the DE, in coordination with interested 
local elements of the two departments and submitted to HQDA (DAEN-REM) 
WASH DC 20314, with appropriate recommendations.
    (c) Contents of interchange planning report. The planning report 
should include the following information:
    (1) Location of the areas proposed for interchange, including the 
county or municipality, names of the forest, project or installation, 
and number of acres to be interchanged by each department.
    (2) If the areas involved include public domain lands, the number 
and date of the Executive Order or Public Land Order by which withdrawn 
or established.
    (3) If the areas include acquired lands:
    (i) Approximate dates, methods and cost of acquisition of Department 
of the Army lands proposed for interchange.
    (ii) Interest, restrictions and reservations currently outstanding, 
to which the lands were subject when acquired, together with such rights 
subsequently granted by the Government and presently in force.
    (4) Any additional reservations, conditions or restrictions under 
which the interchange is to be made.
    (5) A map, in triplicate, indicating by appropriate color scheme the 
lands of each department which are to be interchanged. The map should 
show the jurisdictional boundary, and, where appropriate, the contour 
elevations used as a basis for determining the extent of the 
interchange.
    (6) An informal estimate of the current values of the areas to be 
interchanged.
    (7) Information upon which to base a determination by the two 
Secretaries that the interchange will facilitate land management and 
provide maximum use thereof for authorized purposes.
    (8) Any other information or data that might be helpful to 
representatives of the Department of the Army in answering pertinent 
questions that may be raised by the committees of Congress.
    (9) A draft of order of interchange prepared, in sextuplicate, in 
coordination with representatives of the Forest Service for execution 
jointly by the two Secretaries.
    (10) Recommendations of the District and Division Engineers.

[[Page 229]]

    (d) Relinquishment and assumption of possession. Upon notification 
by the Chief of Engineers that an order of interchange has been 
published, the DE will coordinate with local representatives of the 
Forest Service, and the using service if appropriate, the exchange of 
custody and accountability of the respective areas.



Sec.  644.410  Procedure for other transfers.

    (a) Applicability--Exceptions. Sections 644.410 through 644.412 are 
applicable to all transfers of real and related personal property to 
other Federal agencies by the Army and Air Force except as provided 
above.
    (b) Authority to execute--(1) Secretaries of the Army and Air Force. 
Instruments effecting the transfer of fee-owned land (except fee-owned 
land that has been reported to GSA and is transferred at the direction 
of GSA) will be executed at Secretarial level. The Secretary of the 
Army, or his designee, will execute instruments transferring Air Force 
land to other Federal agencies.
    (2) Division and District Engineers will execute instruments 
transferring real property and related personal property to other 
Federal agencies: (i) Which has been reported to GSA and which is 
transferred at the direction of GSA; (ii) leaseholds, easements, and 
other lesser interests in lands; and (iii) buildings, fixtures, and 
other improvements.



Sec.  644.411  Form of inter-agency transfer instrument.

    (a) Inter-agency transfer instruments will be prepared by the Chief 
of Engineers in either memorandum or letter form. The instruments will 
be prepared for signature of the Secretary of the transferring 
department and will be addressed to the Secretary of head of the 
receiving department or agency. The instrument will provide, as a 
minimum, the following: citation of statutory authority for the 
transfer; statement as to whether the transfer is made with or without 
reimbursement; statement of the reimbursement amount, if applicable; 
statement as to whether the requirements of 10 U.S.C. 2662 have been met 
or that the transfer is not subject thereto; statement as to the acreage 
of land involved; and, by means of an inclosure, a description of the 
property being transferred. Based on the circumstances and nature of the 
property, other appropriate data outlined below will be included in the 
instrument.
    (1) Effective date of transfer (where right-of-entry has been 
granted or custody transferred, this date will be used.)
    (2) Restrictions, conditions, reservations and exceptions, as 
necessary.
    (3) When, where, how and by whom transfer of physical possession and 
accountability for the property will be accomplished.
    (4) Location and proposed disposition of title papers pertaining to 
the property.
    (5) Description of the land and copy of map depicting the property 
and reflecting its relation to retained property, if any, and to 
encumbrances such as rights-of-way, easements, and leaseholds.
    (6) Instructions concerning payment of rent where a lease is 
involved. The transfer will be conditioned upon assumption of all 
obligations incurred in connection with the leasehold, including 
obligations to restore the premises.
    (7) Instructions concerning removal and site restoration where 
buildings or timber, or sand and gravel, or other separable property is 
involved.
    (8) Statement of source of title and cost of acquisition where land 
is involved. Reservations and exceptions in and to the Government's 
title and easements and other rights in the property granted by the 
Government will be stated with particularity.
    (9) List and description of buildings and improvements and cost of 
buildings and improvements not acquired with the land.
    (10) A reference to excess or other directive making the property 
available for transfer when instrument is executed by District Engineer.
    (11) Statement of responsibility and reimbursement for utility 
services.
    (12) Reference to Report of Excess, Standard Form 118, where 
property has been reported to GSA.
    (13) Other appropriate information.
    (b) The DE will provide the data outlined in paragraph (a) of this 
section to HQDA (DAEN-REM) WASH DC 20314 for

[[Page 230]]

use in preparing transfers to be executed at the Secretariat level. The 
forwarding correspondence will contain sufficient information for a full 
and complete understanding of the proposed transfer action, including an 
appraisal when reimbursement is required, together with other 
appropriate comments and recommendations.



Sec.  644.412  Transfer of custody and accountability.

    The DE will transfer custody and accountability or will coordinate 
the transfer, as appropriate. The DE will collect any reimbursement and 
obtain any releases required. Where a leasehold is involved, the DE will 
furnish the transferee a copy of the lease and advice of the last rental 
paid and when the next rent is due. Upon completion of the transfer, 
proper notice will be given to the General Accounting Office, the 
lessor, and the Finance Officer as to the responsibility of the 
transferee for future rental payments. This action will be initiated or 
completed promptly upon receipt of a copy of the executed instrument, 
and a conformed copy thereof will be furnished to HQDA (DAEN-REP) WASH 
DC 20314.



Sec.  644.413  Exchanges of fee-owned land and easement interests.

    The statutes identified in Sec. Sec.  644.414 through 644.417 
authorize the exchange of Government-owned lands and interests therein 
for private lands and lands owned by States, other non-Federal agencies, 
and their instrumentalities. As a general rule, any exchange of lands 
should be restricted to lands of approximately equal value. Where the 
Government property proposed for exchange has a value substantially in 
excess of the private land to be acquired, the question of whether the 
transaction is truly an exchange arises. In drafting relocation 
contracts, care must be exercised to insure that there is legal 
authority for execution of the conveyance or easement proposed.



Sec.  644.414  MCA acts.

    The annual military construction authorization acts usually contain 
general authority for the acquisition, ``by donation, purchase, exchange 
of Government-owned lands, or otherwise,'' of lands and interests 
therein at specified installations or for specified military purposes. 
The annual acts must be examined to determine that specific authority 
exists to acquire land by exchange, unless a contemplated exchange falls 
within the scope of one of the special laws mentioned in Sec. Sec.  
644.415 through 644.419.



Sec.  644.415  Army military and Air Force lands--$50,000 limitation.

    (a) 10 U.S.C. 2672 authorizes the Secretary of a military department 
to acquire land and interests in land, by gift, purchase, exchange of 
Government-owned land, or otherwise, that:
    (1) The Secretary or his designee determines is needed in the 
interest of national defense, and
    (2) Does not cost more than $50,000.
    (b) 10 U.S.C. 2672a authorizes the Secretary of a military 
department to acquire any interest in land, including by exchange of 
Government-owned land, that:
    (1) The Secretary or his designee determines is needed in the 
interest of national defense;
    (2) Is required to maintain the operations integrity of a military 
installation; and
    (3) Considerations of urgency do not permit the delay necessary to 
include the required acquisition in an annual Military Construction 
Authorization Act.



Sec.  644.416  Army civil works lands.

    The Secretary of the Army is authorized to exchange lands acquired 
for river and harbor and flood control projects for privately-owned 
lands required for such purposes (33 U.S.C. 558b and 558b-1).



Sec.  644.417  For MCA family housing.

    The Act of 1 September 1954, Pub. L. 765, 83rd Congress (68 Stat. 
1119), as amended by section 415 of Pub. L. 968, 84th Congress, Act of 3 
August 1956 (70 Stat. 1018) authorizes the acquisition of real estate by 
donation, purchase, exchange of Government-owned lands, or otherwise, 
for ``Military Construction-Army Family Housing at Military 
Installations and Facilities.''

[[Page 231]]



Sec.  644.418  Procedure for exchange.

    (a) Each agreement for the exchange of real property should be 
formalized by written contract specifying the terms and conditions of 
the exchange, including, by reference to exhibits incorporated therein 
or otherwise, the form and terms of the conveyance of the title to the 
property to and from the Government. The agreement, in the case of 
relocation contracts, will be developed in accordance with ER 1180-1-1. 
Where an exchange of land or interests therein is considered desirable 
in the course of a condemnation proceeding, the agreement can be 
incorporated in a stipulation therein (Sec. Sec.  644.111 through 
644.121)
    (b) Submission to the Chief of Engineers of draft of conveyance.
    (1) Conveyance will usually be executed by the Secretary or head of 
the agency involved Sec.  644.441. To avoid impinging on his 
discretionary powers, the execution of any contract or agreement 
involving an exchange of real property interests must be approved in 
advance, be deferred pending execution of the conveyance, or provide 
that the terms and conditions of any grant to be made pursuant to the 
contract will be subject to approval by the Secretary or agency head. It 
is considered preferable that the contract contain a draft of conveyance 
as an exhibit thereto and, where time will permit, be submitted to DAEN-
REM for review prior to final execution of the contract in order to 
avoid possible difficulties arising from subsequent disagreement over 
terms acceptable to the signatory of the Government's conveyance.
    (2) In submitting for final approval and execution the conveyance of 
the Government's interest in land pursuant to a contract for exchange, 
the following data should included to support the proposed action:
    (i) Description and map of the property to be conveyed.
    (ii) Statements as to how and when the Government acquired title to 
the property, the nature and extent of its interest therein, and a 
statement of any encumbrance to which the property is subject and the 
nature thereof, such as easements for road rights-of-way, utility lines, 
etc.
    (iii) A sufficient number of drafts or the conveyance to permit 
distribution thereof to interested agencies and the grantee.
    (iv) Two copies of the contract, option, stipulation in condemnation 
or other agreement which provides for the proposed conveyance, or, in 
lieu thereof, pertinent excerpts therefrom sufficient to clearly show 
the nature and extent of the Government's obligation to execute the 
conveyance.
    (v) A citation of the statutory authority on which the execution of 
the conveyance is to be predicated.
    (vi) Any additional information necessary to a proper understanding 
of the proposed transaction.
    (vii) When the exchange agreement is other than a relocation 
contract, an appraisal report showing the relative fair values of the 
properties to be exchanged.
    (viii) A copy of the conveyance to be made to the United States, or 
a statement by the Attorney General that an acceptable conveyance has 
been executed and delivered to the United States, and that an opinion of 
good title has been made or is not required by regulation to be made.
    (ix) Recommendations of the Division and District Engineers.



Sec.  644.419  Public Law 87-852 easements.

    Public Law 87-852, approved 23 October 1962 (76 Stat. 1129), 
authorizes executive agencies to grant easements on real property of the 
United States for rights-of-way or other purposes on terms and 
considerations deemed necessary to protect the interest of the United 
States, with or without monetary consideration, or other consideration, 
including any interest in real property. The Act also authorizes the 
relinquishment of legislative jurisdiction to the State.



Sec.  644.420  Disposal of property in which the military departments
have a continuing interest under special acts of Congress.

    General. Because of the continuing interest of the departments in 
the following properties and in view of the determinations under the 
Acts on which the disposals are premised, properties

[[Page 232]]

that can be conveyed under authorities discussed in Sec. Sec.  644.421 
through 644.424 are not considered surplus or excess within the meaning 
of these terms as defined in the Federal Property Act.



Sec.  644.421  Highway purposes.

    Title 23 U.S.C. 317 provides that upon application of the Secretary 
of Transportation, land or materials may be transferred to a state for 
the construction or maintenance of a right-of-way for any highway 
adjacent to a Government installation. If, within a period of four 
months after such application by the Secretary of Transportation, the 
Secretary of the Department shall not have certified to the Secretary of 
Transportation that the proposed appropriation of such land or material 
is contrary to the public interest or inconsistent with the purpose for 
which such land or materials have been reserved, they may be 
appropriated and transferred to the state for such purposes. When the 
need for such land or material ceases to exist, they shall revert to the 
control of the department. This section applies only to projects 
constructed on a Federal-aid system, or under the provisions of chapter 
2 of title 23 U.S.C. Usually applications for highway rights-of-way or 
the use of borrow material made under this Act by the Federal Highway 
Administration, Department of Transportation, on behalf of a particular 
state can be and are more simply satisfied by the issuance of a road 
easement or a license to take borrow material. This latter procedure is 
also desirable in that controls necessary to satisfy military 
requirements may be retained. Title 23 U.S.C. 107(d) directs Federal 
agencies to cooperate with the Secretary of Transportation in providing 
rights-of-way, including control of access, for the interstate highway 
system over lands and interests in lands owned by the United States.



Sec.  644.422  Authorized widening of a public highway, street, or alley.

    40 U.S.C. 345c authorizes the conveyance, upon application, of such 
interest in real property as is determined will not be adverse to the 
interests of the United States, to the states or political subdivisions 
for authorized widening of a public highway, street, or alley. The 
conveyance may be made with or without consideration, and subject to 
terms and conditions deemed necessary to protect the interests of the 
United States. Excepted from this authority is the conveyance of any 
interest in real property that can be transferred under title 23 of the 
United States Code (see Sec.  644.421), and to public lands in the 
National Forest System.



Sec.  644.423  Airport development.

    (a) Authority. 49 U.S.C. 1723 provides that

    (a) . . . whenever the Secretary of Transportation determines that 
use of any lands owned or controlled by the United States is reasonably 
necessary for carrying out a project for airport development under this 
subchapter, or for the operation of any public airport, including lands 
reasonably necessary to meet future development of an airport in 
accordance with the national airport system plan, he shall file with the 
head of the department or agency having control of the lands a request 
that the necessary property interests therein be conveyed to the public 
agency sponsoring the project in question or owning or controlling the 
airport. The property interest may consist of the title to, or any other 
interest in, land or any easement through or other interest in airspace. 
(b) Upon receipt of a request from the Secretary under this section, the 
head of the department or agency having control of the lands in question 
shall determine whether the requested conveyance is inconsistent with 
the needs of the department or agency, and shall notify the Secretary of 
his determination within a period of four months after receipt of the 
Secretary's request. If the department or agency head determines that 
the requested conveyance is not inconsistent with the needs of that 
department or agency, the department, or agency head is hereby 
authorized and directed, with the approval of the President and the 
Attorney General of the United States, and without any expense to the 
United States, to perform any acts and to execute any instruments 
necessary to make the conveyance requested. A conveyance may be made 
only on the condition that, at the option of the Secretary, the property 
interest conveyed shall revert to the United States in the event that 
the lands in question are not developed for airport purposes or used in 
a manner consistent with the terms of the conveyance. If only a part of 
the property interest conveyed is not developed for airport purposes, or 
used in a manner consistent with the terms of the conveyance, only that 
particular part shall

[[Page 233]]

at the option of the Secretary, revert to the United States.

    (b) Approval. The requirement for approval by the President was 
waived by Executive Order 12079 dated 18 September 1978. The Attorney 
General delegated his authority to approve to the Assistant Attorney 
General, Land and Natural Resources Division, by Sec.  0.67 of title 28 
of the Code of Federal Regulations (Order No. 468.71 of the Attorney 
General, October 22, 1971: 36 FR 20428). The instrument of conveyance 
must cite authority for the waiver and the delegation as shown in the 
suggested format of deed in ER 405-1-12.
    (c) Requirements for conveyance instrument. Under authority 
delegated by the Secretary of Transportation to the Federal Aviation 
Administration (FAA), when the Administrator of the FAA requests a 
conveyance from a military department, the instrument of conveyance 
requires the following provisions as covenants running with the land, 
binding the grantee, its successors and assigns.
    (1) That the grantee will use the property interest for airport 
purposes, and will develop that interest for airport purposes within one 
year after the date of this conveyance, except that if the property 
interest is necessary to meet future development of an airport in 
accordance with the National Airport System Plan the grantee will 
develop that interest for airport purposes on or before the period 
provided in the plan or within a period satisfactory to the 
Administrator and any interim use of that interest for other than 
airport purposes will be subject to such terms and conditions as the 
Administrator may prescribe.
    (2) That the airport, and its appurtenant areas and its buildings 
and facilities, whether or not the land is conveyed, will be operated as 
a public airport on fair and reasonable terms, without discrimination on 
the basis of race, color, religion, age, sex, handicap or national 
origin, as to airport employment practices, and as to accommodations, 
services, facilities, and other public uses of the airport.
    (3) That the grantee will not grant or permit any exclusive right 
forbidden by section 308(a) of the Federal Aviation Act of 1958 (49 
U.S.C. 1349(a)) at the airport, or at any other airport now owned or 
controlled by it.
    (4) That the grantee agrees that no person shall be excluded from 
any participation, be denied any benefits or be otherwise subjected to 
any discrimination, on the grounds of race, color, religion, age, sex, 
handicap or national origin.
    (5) That the grantee agrees to comply with all requirements imposed 
by or pursuant to part 21 of the Regulations of the Office of the 
Secretary of Transportation (49 CFR part 21)--nondiscrimination in 
federally assisted programs of the Department of Transportation--
effectuation of title IV of the Civil Rights Act of 1964.
    (6) That in furtherance of the policy of the FAA under this 
covenant, the grantee:
    (i) Agrees that, unless authorized by the Administrator, it will 
not, either directly or indirectly, grant or permit any person, firm or 
corporation the exclusive right at the airport, or at any other airport 
now owned or controlled by it, to conduct any aeronautical activities, 
including, but not limited to, charter flights, pilot training, aircraft 
rental and sightseeing, aerial photography, crop dusting, aerial 
advertising and surveying, air carrier operations, aircraft sales and 
services, sale of aviation petroleum products whether or not conducted 
in conjunction with other aeronautical activity, repair and maintenance 
of aircraft, sale of aircraft parts, and any other activities which 
because of their direct relationship to the operation of aircraft can be 
regarded as an aeronautical activity;
    (ii) Agrees that it will terminate any existing exclusive right to 
engage in the sale of gasoline or oil, or both, granted before 17 July 
1962 at such an airport, at the earliest renewal, cancellation, or 
expiration date applicable to the agreement that established the 
exclusive right; and
    (iii) Agrees that it will terminate forthwith any other exclusive 
right to conduct any aeronautical activity now existing at such an 
airport.
    (7) That any later transfer of the property interest conveyed will 
be subject to the covenants and conditions in the instrument of 
conveyance.

[[Page 234]]

    (8) That, if the covenant to develop the property interest (or any 
part thereof) for airport purposes within one year after the date of 
this conveyance is breached, or if the property interest (or any part 
thereof) is not used in a manner consistent with the terms of the 
conveyance, the Administrator may give notice to the grantee requiring 
him to take specified action towards development within a fixed period. 
These notices may be issued repeatedly, and outstanding notices may be 
amended or supplemented. Upon expiration of a period so fixed without 
completion by the grantee of the required action, the Administrator may, 
on behalf of the United States, enter, and take title to, the property 
interest conveyed or the particular part of the interest to which the 
breach relates.
    (9) That, if any covenant or condition in the instrument of 
conveyance, other than the covenant contained in paragraph (c)(7) of 
this section, is breached, the Administrator may, on behalf of the 
United States, immediately enter, and take title to, the property 
interest conveyed or, in his discretion, that part of that interest to 
which the breach relates.
    (10) That a determination by the Administrator that one of the 
foregoing covenants has been breached is conclusive of the facts; and 
that, if the right of entry and possession of title stipulated in the 
foregoing covenants is exercised, the grantee will, upon demand of the 
Administrator, take any action (including prosecution of suit or 
executing of instruments) that may be necessary to evidence transfer to 
the United States of title to the property interest conveyed, or, in the 
Administrator's discretion, to that part of that interest to which the 
breach relates.
    (d) Procedure for conveyance. Upon receipt of a deed from the 
District Engineer, DAEN-REM will submit the deed to the appropriate 
Secretary for execution, and to the Assistant Attorney General, Land and 
Natural Resources Division, for approval, before returning it to the 
District Engineer for delivery to the grantee.
    (1) The deed assembly submitted will contain, in triplicate:
    (i) The request from the Administrator of FAA to the Secretary of 
the military department concerned;
    (ii) The reply from the Secretary involved to the Administrator, 
making the property available;
    (iii) The resolution by the appropriate governing body of the public 
agency sponsoring the project in question indicating authorization for 
acquisition by such agency and its concurrence with the terms and 
conditions of the conveyance.
    (2) Transmittal correspondence shall also set forth:
    (i) The type and condition of the property, including improvements 
acquired therewith or constructed since acquisition;
    (ii) Whether there has been any change in the nature, quantity, 
etc., of the property requested by the agency from the date of its 
original request to the present. If so, details should be furnished 
together with an appropriate amendatory resolution (in triplicate) by 
the governing body of the sponsoring agency;
    (iii) Expenses of transfer. In view of the provision in the Act that 
the conveyance will be made without any expense to the United States, if 
land surveys are required the transferee agency will be required to pay 
cost of making such surveys.



Sec.  644.424  Development of public port or industrial facilities.

    (a) Authority. Section 108 of Pub. L. 86-645 approved 14 July 1960 
(33 U.S.C. 578) authorizes the Secretary of the Army, after certain 
determinations are made, to convey land which is a part of a water 
resource development project to a state, political subdivision thereof, 
port district, port authority, or other body created by the State or 
through a compact between two or more States for the purpose of 
developing or encouraging the development of public port or industrial 
facilities.
    (b) Limitation. Only lands within a navigation project will be made 
available for conveyance for these purposes.
    (c) Delegations, rules, and regulations. Pursuant to rules and 
regulations published in the Federal Register 11 March 1961 (26 FR 2117-
2118; 33 CFR 211.141 through 211.147),

[[Page 235]]

    (1) The Chief of Engineers or the Director of Civil Works has been 
delegated authority to determine:
    (i) That the development of public port or industrial facilities on 
land within a project will be in the public interest;
    (ii) That such development will not interfere with the operation and 
maintenance of the project;
    (iii) That the disposition of the land for these purposes under this 
Act will serve the objectives of the project;
    (iv) If two or more agencies file applications for the same land, 
which agency's intended use of the land will best promote the purpose 
for which the project was authorized; and
    (v) The conditions, reservations and restrictions to be included in 
a conveyance under the Act.
    (2) The District Engineer has been delegated authority to:
    (i) Give notice of any proposed conveyance under the Act and afford 
an opportunity to interested eligible agencies in the general vicinity 
of the land to apply for its purchase; and
    (ii) Determine the period of time in which applications for 
conveyances may be filed.
    (3) Notice. The District Engineer shall give notice of the 
availability of any land for conveyance under this Act and afford an 
opportunity to eligible agencies in the general vicinity of the land to 
apply for its purchase (i) by publication at least twice at not less 
than 15-day intervals in two newspapers having general circulation 
within the state in which the available land is located and, if any 
agency of an adjoining state or states may have an interest in the 
development of such land for public port or industrial facilities, by 
publication at least twice at not less than 15-day intervals in two 
newspapers having general circulation within such state or states, and 
(ii) by letters to all agencies who may be interested in the development 
of public port or industrial facilities on the available land.
    (4) Filing of application. Any agency interested in the development 
of public ports or industrial facilities upon the available land shall 
file a written application with the District Engineer within the time 
designated in the public notice. The application shall state fully the 
purposes for which the land is desired and the scope of proposed 
development.
    (5) Price. No conveyance shall be made for a price less than the 
fair market value of the land.
    (6) Conveyance. Any conveyance of land under this Act for public 
port or industrial facilities will be by quitclaim deed in the form of 
Figure 11-5 in ER 405-1-12 executed by the Secretary of the Army.
    (d) Procedure. (1) Proposals to convey land included in navigation 
projects for development of public port or industrial facilities will be 
forwarded by the District Engineer, through the Division Engineer, to 
HQDA (DAEN-REM), with recommendations, and with the information required 
by Sec.  644.329, and such additional information as will enable the 
Chief of Engineers to make the determinations required under paragraph 
(c)(1) of this section.
    (2) Upon receipt of notification from the Chief of Engineers that 
the property is available for sale for development of public port or 
industrial facilities, the District Engineer shall give notice of such 
availability in accordance with paragraph (c)(3) of this section. The 
public notice will follow substantially the guide format in Figure 11-4 
of ER 405-1-12.
    (3) If two or more applications are received from eligible agencies, 
all applications, with recommendations, will be forwarded, through the 
Division Engineer, to DAEN-REM for the determination referred to in 
paragraph (c)(1)(iv) of this section.
    (4) Upon determination of the actual property to be included in a 
conveyance, the fair market value thereof will be established by an 
appraisal.
    (5) Upon the acceptance of an application, negotiations will be 
conducted at the price established by the appraisal. However, the 
applicant will be advised that the price is subject to approval by the 
Secretary of the Army. This is necessary since the Secretary of the Army 
has not delegated his authority to determine the fair market value for 
conveyances under this Act. If public port facilities that can be used 
in connection with proposed industrial facilities have not been 
constructed in

[[Page 236]]

the vicinity, no disposal under this authority will be authorized which 
does not provide for construction of public port facilities.
    (6) Upon completion of negotiations a quitclaim deed following the 
sample format in Figure 11-5 of ER 405-1-12 will be prepared and 
forwarded, through the Division Engineer, to HQDA (DAEN-REM) for 
execution by the Secretary of the Army, in accordance with the general 
procedure for submission of deeds for execution as outlined in Sec.  
644.441.



Sec.  644.425  Authority and procedure for disposal of surplus property
by DA to eligible public agencies.

    FPMR 101-47.303-2 provides that the disposal agency shall allow a 
reasonable period of time for states, municipalities, and their 
instrumentalities, to perfect a comprehensive and coordinated plan of 
use and procurement of surplus property in which they may be interested. 
This provision applies to surplus property that can be disposed of by 
negotiated sale under the special acts listed in Sec. Sec.  644.428 
through 644.432 for public highways, streets, and alleys under the Act 
listed in Sec. Sec.  644.421 and 644.422, by transfer to the District of 
Columbia under Sec.  644.407, and under the individual agency 
negotiating authority of the Federal Property Act, (40 U.S.C. 484(e)(3). 
A listing of the special acts, with the eligible public agencies, and 
some guides for classification of property for disposal are contained in 
FPMR, 101-47.4905.



Sec.  644.426  Classification.

    Pursuant to FPMR, 101-47.303-1, any item of surplus land not 
reported to GSA for disposal in accordance with Sec. Sec.  644.348 
through 644.367 will be classified according to its highest and best 
use, e.g., industrial, commercial, agricultural, or for disposal under 
the special acts referred to above. Where required by the special acts, 
classification will be coordinated with the interested Federal agency. 
The classification will be recorded on ENG Form 1825 (Real Property 
Classification), with sufficient information to justify the 
classification. Surplus property may be reclassified from time to time 
whenever such action is deemed appropriate. Based on its classification, 
notice of the availability of surplus land for disposal will be given to 
public agencies eligible to procure such property as provided in Sec.  
644.427.



Sec.  644.427  Notice to eligible public agencies.

    FPMR, 101-47.303-2 and 101-47.308-1, et seq., provide a procedure of 
formal notice to eligible public agencies of the availability of surplus 
land for disposal. Notices are not required for property having an 
estimated fair market value of less than $1,000, except where the 
disposal agency has reason to believe that an eligible public agency may 
be interested in the property. Notices as provided in this section will 
be given for all surplus airport property and surplus fee-owned land for 
which the Army is the disposal agency, that is classified for disposal 
under a special act, or if there is reason to believe that a public 
agency may be interested in acquiring the land by negotiation at its 
appraised fair market value under the Federal Property Act (40 U.S.C. 
484(e)(3)(H).



Sec.  644.428  Airport property.

    (a) Eligible transferees. The right to acquire surplus property 
without monetary consideration for airport purposes, under 50 U.S.C. 
1622(g), with the approval of the Administrator of GSA, is limited to 
states, political subdivisions, municipalities and tax-supported 
institutions. This is the proper statutory provision governing transfers 
of entire military airports to state or local agencies for their use as 
public airports. The right of such transferees is subordinate to the 
priority of Federal agencies to acquire the property for their own use. 
Airport property will not be disposed of for any other non-Federal use 
until every reasonable effort has been made to dispose of it for airport 
purposes.
    (b) Preliminary procedures. (1) Request a determination by the 
Administrator of the FAA that the surplus land is essential, suitable or 
desirable for the development, improvement, operation or maintenance of 
a public airport as required by 50 U.S.C. 1622(g)(1).
    (2) Upon receipt of a determination by the Administrator of FAA, 
furnish

[[Page 237]]

the FAA Regional Office with a description of the property, or a copy of 
the Standard Form 118 if the property has been reported to GSA for 
screening, together with a list of the operating and maintenance 
equipment available for disposal with the airfield, and request that a 
survey under the Surplus Property Act be made and that, based thereon, 
recommendations for classification of the property under the Act be 
furnished.
    (c) Classification. District Engineers are authorized to approve ENG 
Form 1825, Real Property Classification, based on FAA recommendations. 
Generally, the recommendations of FAA in regard to classification of 
property, will be followed, except the following will be forwarded to 
DAEN-REM without final classification action: cases involving reduction 
in land areas, runways, taxiways, etc.; controversial cases; and cases 
where changes in the reservations, restrictions, or conditions specified 
in the Act are recommended by FAA. District Engineers will not classify 
as airport property, property in excess of that recommended by FAA or 
property of which the highest and best use is determined to be 
industrial. Where the District Engineer does not agree with the report 
of FAA, he will immediately submit complete data setting forth all 
objections to the report, together with his recommendations, to DAEN-
REM.
    (d) Notice of availability. Upon classification of the property as 
airport property, notice of the proposed disposal will be sent by 
certified mail to the political subdivisions, or municipalities in which 
the property is located, and also to any other state, political 
subdivision, municipality, or tax-supported institution which the 
District Engineer has reason to believe may be interested in the 
property. A reasonable time will be allowed eligible agencies to submit 
an acceptable application. Figure 11-6 in ER 405-1-12 is a format for 
use in preparing the notice.
    (e) Advertising. The proposed disposal of airport property will be 
advertised in at least two newspapers of general circulation within the 
state in which the airport is located. This advertising will insure 
notification to political subdivisions, tax-supported institutions, and 
others that the property is available. Property not classified as 
airport property will be advertised in accordance with the applicable 
requirements for the type of property. However, the first advertising of 
non-airport property adjacent to an airport will contain a statement 
that the property may be acquired under section 13(g) of the Surplus 
Property Act of 1944, as amended, for airport purposes, provided FAA 
approves such acquisition.
    (f) Form of application. Public agencies desiring to acquire surplus 
airport property will be required to submit an Application For Airport 
Property (Figure 11-7 in ER 405-1-12). The application includes the 
provisions of section 13(g) of the Surplus Property Act of 1944, as 
amended. If the applicant desires to enter and use the property prior to 
conveyance, such other terms and conditions considered desirable and 
necessary governing interim use of the property by the applicant will be 
included. The application will be signed by the applicant and forwarded 
to DAEN-REM for acceptance by proper authority in the Department. 
Evidence of the applicant's legal and financial ability to maintain and 
operate the property, as proposed, will also be submitted with the 
application.
    (g) Request for modifications in the provisions of section 13(g) of 
the Surplus Property Act of 1944, as Amended. Should an applicant 
request modifications in the restrictions and conditions imposed by 
section 13(g) of the Surplus Property Act of 1944, as amended, the 
application and all pertinent data, including the FAA report, will be 
forwarded to DAEN-REM. If the requested modification is approved, the 
case will again be referred to FAA for its recommendation. If FAA does 
not concur in the modification, the fact will be reported to DAEN-REM 
for further necessary action.
    (h) Personal property. Non-industrial personal property of any other 
nature or description made available for disposal with an airport and 
located on it may be transferred with the airport on recommendation by 
FAA.
    (i) Meetings with public bodies. Close cooperation will be 
maintained with

[[Page 238]]

FAA, and its representatives will be invited to participate in 
negotiations with public bodies in connection with transfer of airport 
property.
    (j) Land survey. In the event that a property survey is required to 
establish a correct metes and bounds description of the land to be 
transferred as airport property, a survey will be provided by the 
prospective transferee without cost to the Government.
    (k) Transfer instruments. The type of instrument used in conveying 
or transferring the Government's interest will vary according to the 
type of property that may be involved, i.e., wholly Government-owned, 
mixed owned and leased, and leased property. However, instruments of 
conveyances will contain provisions required by the Surplus Property Act 
of 1944, as amended. Where a lease is involved and it is from other than 
the prospective transferee, such transferee will be required to obtain a 
long term lease on the land prior to conveyance of the Government-owned 
improvements. Execution of the lease to the prospective transferee and 
acceptance of the application by the Government should be handled 
simultaneously. Figure 11-8 in ER 405-1-12 is a format of quitclaim deed 
covering fee-owned and leased land (Airport Property). A quitclaim deed 
can be used to surrender leased land and convey the improvements and 
related personal property, or this can be done by supplemental agreement 
to the lease or other type of contract as considered desirable in 
accordance with local conveyancing practices.
    (l) Recordation. All transfer instruments will be recorded by and at 
the expense of the transferee.
    (m) Compliance. The Administrator, FAA, is responsible for 
determining and enforcing compliance of conditions and restrictions 
contained in any instrument of disposal of airport property, and is 
authorized to reform, correct, or amend any such instrument for such 
action as deemed necessary by him under applicable law. Care will be 
exercised to furnish copies of the application, classification, and 
instrument of conveyance to FAA so that it can properly perform its 
compliance function.



Sec.  644.429  Wildlife purposes.

    (a) Authority. The military departments, when acting as a disposal 
agency, are authorized under the provisions of 16 U.S.C. 667b-d, in 
connection with land and improvements that:
    (1) Can be utilized for wildlife conservation purposes by the agency 
of the state exercising administration over the wildlife resources of 
the state wherein the real property lies, or by the Secretary of the 
Interior; and (2) are chiefly valuable for use for any such purpose and 
which, in the determination of the GSA is available for such use, to 
convey such property to such agency without reimbursement or transfer of 
funds if the management thereof for the conservation of wildlife relates 
to other than migratory birds, or to the Secretary of the Interior if 
the property has particular value in carrying out the national migratory 
bird program. Personal property cannot be conveyed or transferred under 
this authority and only such improvements as the District Engineer 
determines to be necessary for proper execution of the applicant's 
program may be conveyed.
    (b) Notice of availability. If property is considered by the 
District Engineer to be valuable for wildlife conservation purposes, or 
if interest has been shown in acquiring the property for that purpose, 
notice of availability should be given to the agency administering state 
wildlife resources and to the Federal Fish and Wildlife Service if the 
property has particular value in carrying out the national migratory 
bird program.
    (c) Classification--Factors to be considered and determinations to 
be made by disposal agency. Should the property be classified as being 
chiefly valuable for purposes other than wildlife conservation purposes, 
such as agricultural, commercial, etc., the property may not be 
transferred to any State or to the Department of the Interior, under the 
authority cited in paragraph (a) of this section. However, should an 
application be received for conveyance of the property for wildlife 
conservation purposes, and the classification of the property indicates 
that it is chiefly valuable for other purposes, the classification, all 
pertinent papers and the

[[Page 239]]

application, together with the Division Engineer's recommendation, will 
be forwarded to HQDA (DAEN-REM), Washington, DC 20314. In addition to 
the determination that the property is chiefly valuable for wildlife 
conservation purposes and is available for such use, the Division 
Engineer will determine, when recommending that property be conveyed for 
such use, that the applicant has the legal and financial ability to 
acquire, operate and maintain the property as proposed, and will furnish 
information to DAEN-REM to support his opinion. With proper safeguards, 
contaminated property can be made available for use in the wildlife 
conservation program.
    (d) Application. Any state desiring to make application for property 
for wildlife conservation will be furnished copies of Application For 
Real Property For the Conservation of Wildlife with accompanying 
instructions for preparation. In evaluating the application, the 
responsible District Engineer will request review of the application by 
the Regional Office of the Fish and Wildlife Service, Department of the 
Interior, and will obtain that Service's recommendation as to the value 
of the property for wildlife conservation purposes.
    (e) Instrument of conveyance. Any instrument of conveyance of 
property for wildlife conservation will contain the restrictions and 
conditions required by 16 U.S.C. 667b, c, d. A Sample Deed for 
Conveyance of Land and Improvements For Conservation of Wildlife, with 
the statutory restrictions and conditions is provided as Figure 11-10 in 
ER 405-1-12.
    (f) Publication of order. The order required to be published in the 
Federal Register after disposal of the property under this authority 
will be processed for publication by the Chief of Engineers.



Sec.  644.430  Shrines, memorials, or religious purposes.

    Pursuant to the provisions of FPMR 101-47.308-5, when the 
Department, acting as a disposal agency, determines that a chapel may 
properly be used in place, a suitable area of land may be sold with the 
chapel for use as a shrine, memorial, or for religious purposes. The 
sale price of land for this purpose will be its fair market value based 
on its highest and best use as established by an appraisal. Deeds 
conveying lands for such purposes will contain no restriction on the use 
of the land. Sale of the chapel building will be subject to the 
procedure and terms and conditions provided in Sec. Sec.  644.472 
through 644.500.



Sec.  644.431  Power transmission lines.

    (a) Authority. Pursuant to the provisions of section 13(d) of the 
Surplus Property Act of 1944, as amended (50 U.S.C., App. 1622(d)), any 
state, or political subdivision thereof, or any state or Government 
agency or instrumentality may certify to the disposal agency that a 
surplus power transmission line and the right of way acquired for its 
construction is needed for or adaptable to the requirements of a public 
or cooperative power project. Whenever any property is reported to GSA 
for screening, it will be assumed that GSA has screened Federal agencies 
for such purpose and no further screening with such agencies is 
necessary. Property not reported to GSA for screening will be screened 
in accordance with Sec. Sec.  644.333 through 644.339. Screening with 
the appropriate state agencies will be conducted in all cases.
    (b) Procedure. Whenever a State, or political subdivision thereof, 
or state or Federal agency or instrumentality certifies that such 
property is needed for or adaptable to the requirements of a public or 
cooperative power project, the property may be sold for such utilization 
at its appraised fair market value. In the event that a sale cannot be 
consummated and the certification is not withdrawn, such facts will be 
reported to DAEN-REM in order that a determination of the action to be 
taken may be obtained from the Administrator, GSA. If no certification 
from a state or Federal instrumentality as outlined above is received 
after proper notice is given, the property may be disposed of in the 
same manner as other excess or surplus real property.

[[Page 240]]



Sec.  644.432  Assignment to Department of Health, Education, and
Welfare (HEW) or successor agencies for health or educational purposes.

    (a) Authority. Under section 203(k)(1) of the Federal Property Act 
of 1949, as amended (40 U.S.C. 484(k)(1)) the Administrator, GSA is 
authorized, under such regulations as he may prescribe and in his 
discretion, to assign to the Secretary of HEW for disposal, such surplus 
real property as is recommended by the Secretary of HEW as being needed 
for school, classroom, or other educational use, or for use in the 
protection of public health, including research. The Secretary of HEW is 
authorized under section 203(k)(1), subject to disapproval by the 
Administrator, GSA after notice to him from the Department of Health, 
Education, and Welfare (HEW), to sell or lease surplus real property for 
such purposes. Pursuant to FPMR 101-47.308-4, a military department, 
when acting as disposal agency is authorized to assign property to HEW 
for disposal for education or health purposes and to disapprove, within 
30 days after notice, any transfer of property proposed to be made by 
HEW for such purposes.
    (b) Notice to Department of Health, Education, and Welfare or 
Successor Agencies. When real property is reported to GSA for screening 
prior to disposal by the military department, notification will be given 
HEW by the GSA Regional Office simultaneously with notification to the 
District Engineer that the property has been determined surplus to 
Federal requirements. The District Engineer will furnish such 
notification directly to the appropriate regional representative of the 
Department of HEW in the case of nonreportable real property immediately 
after he determines that the property is surplus to Federal 
requirements. Such notification will include the following information:
    (1) A brief description of the property in sufficient detail to 
enable a determination of its probable suitability for uses authorized 
in section 203(k)(1) of the Act.
    (2) When the property may be inspected and where and how 
arrangements may be made for inspection of the property.
    (3) That the property will be withheld from advertisement for bids 
for a period of 20 days from the time of the notification unless the 
office submitting the notification is sooner informed in writing as to 
whether the property is needed for school, classroom, or other 
educational use, or for use in the protection of public health, 
including research. If within that time notice is received of a known 
potential need, the property will be held for an additional 45 days or 
until a certification of need or request for assignment is received, 
whichever occurs first.
    (4) The District Engineer shall not give such notification to HEW on 
surplus buildings and improvements located on surplus leaseholds where 
their removal from the site will increase the Government's restoration 
obligations under the lease. Where such a situation exists and GSA is to 
screen the property prior to disposal by the Department, GSA should be 
advised to this effect. Where any surplus buildings and improvements (on 
leaseholds or fee-owned land) are available for off-site disposal, 
notification will be given HEW (unless time restrictions prohibit as set 
out in Sec. Sec.  644.333 through 644.339 and Sec. Sec.  644.348 through 
644.367) but the notification will include the same restoration 
obligations as would be placed in a sale of the property to a private 
party.
    (5) During the 20-day period, action will be taken preparatory to 
advertising the property for sale. All inquiries received concerning 
acquisition of the property for such purposes from the state, or local 
agencies, or qualified organizations seeking the purchase of available 
real property for health or educational purposes will be referred to the 
appropriate field representatives of HEW. If, within the 20-day period, 
HEW shall inform the District Engineer of any known potential 
requirement, the District Engineer will withhold disposition until a 
certification of need is received but not to exceed 45 days.
    (6) Upon receipt from HEW of a certification that the property is 
needed for educational or public health purposes and a request from HEW 
for assignment of the property, if the property is available for such 
purposes, it

[[Page 241]]

will be assigned by the responsible District Engineer by letter 
addressed to the HEW office from which the request for assignment was 
received, citing the Act and GSA regulations as authority therefor. A 
copy of such letter of assignment will be furnished to the Regional 
Office of GSA.
    (7) When notification of the proposed disposal is received from HEW, 
subsequent to assignment, if their is no reason for disapproval of the 
proposed disposition, notice from the responsible District Engineer to 
HEW of approval thereof is not necessary. Under section 203(k)(1), 
approval is automatically given in the absence of notice of disapproval 
within 30 days from the date of notification of the proposed disposal. 
If in the request for assignment HEW furnishes the name of the proposed 
transferee and states that an application from the transferee is on file 
and that the proposed use by the transferee is one authorized under 
section 203(k)(1), the District Engineer, in making the assignment to 
HEW, may state that no objection is interposed to the proposed transfer 
of the property.
    (8) GSA has advised that it is not anticipated that the Corps of 
Engineers, in acting as the disposal agency, would investigate each 
request to it by the Department of HEW, because to make such 
investigations in each case would clearly duplicate the function 
assigned to the Department of HEW. Doubtful cases would only arise in 
connection with property for which the highest and best use is 
industrial or commercial, or where further study may be required by the 
Federal Government concerning future requirements for the property. In 
accordance with a further suggestion by GSA, where there is a reasonable 
doubt as to the propriety of an assignment to HEW or a proposed disposal 
by it, the request will be referred to GSA for final decision. Such 
referrals will be made through DAEN-REM.
    (9) The District Engineer making the assignment of the property will 
request HEW to furnish two copies of the sales contract. Upon receipt of 
these copies, together with a request from HEW that the property be 
transferred, custody will be given to the grantee or transferee named in 
the sales contract.



Sec.  644.433  Surplus disposal to private parties.

    General. Sections 644.435(b) through 644.440 cover general 
procedures for the sale of surplus fee-owned land and easement interests 
and includes actions to be taken preliminary to proceeding with the 
appropriate sale procedures set forth in Sec. Sec.  644.540 through 
644.557.



Sec.  644.434  Cottage site disposal.

    Disposal of lots for cottage site development and use is authorized 
by Pub. L. 84-999 (16 U.S.C. 460e). No new allocations of land for 
private cottage use will be made. The policy concerning phasing out of 
existing cottage site areas is set out in ER 1130-2-400. The DE has 
delegated authority to sell or lease cottage sites. Contract of Sale, 
ENG Form 3297-R, will be used.



Sec.  644.435  Procedure.

    (a) Fee-owned land. When fee-owned land for which the department is 
acting as disposal agency has been found to be surplus to requirements 
of the Federal Government, has been classified under Sec.  644.426 and 
disposal is not made to a state, political subdivision, etc., the 
property will be offered for sale to the highest responsible bidder, 
except under special circumstances provided in Sec. Sec.  644.540 
through 644.557.
    (b) Easements. Easements that are readily assignable will be 
disposed of in the same manner as fee-owned land. Easements will usually 
be disposed of with land to which they are appurtenant. Easements may be 
disposed of to the owner of land which is subject to the easement (the 
servient estate). A determination should be made as to whether the 
disposal should be with or without reimbursement to the Government on 
the basis of all the circumstances and factors involved and with due 
regard to the acquisition cost to the Government. The amount of such 
reimbursement should be the appraised fair market value of the easement. 
In the case of disposal of an easement acquired for the deposit of spoil 
material a minimum charge of $225.00 will be imposed where 
relinquishment is being accomplished for the benefit of the owner of the 
servient estate and where no direct benefit will inure to the 
Government. A statement as to the

[[Page 242]]

commercial value will be made when recommending an easement for 
disposal. The circumstances and factors leading to these determinations 
shall be documented and retained in the files (FPMR 101-47.313-1).



Sec.  644.436  Appraisal.

    Under the usual circumstances prompt action will be taken to 
appraise surplus property concurrently with its classification. 
Appraisals will not be undertaken for property which has been or is 
likely to be classified for disposal for any of the following purposes: 
airport; wildlife conservation; public highways, streets and alleys; 
disposal to the District of Columbia; and property assigned to HEW for 
disposal. Property that is to be disposed of for other than the above 
listed purposes will be appraised.



Sec.  644.437  Disposal plan for fee-owned land.

    A disposal plan will be made for each surplus property. It will 
include the District Engineer's recommendation of the method or methods 
of disposal and the reasons therefor; for example, whether improvements 
or minerals and lands should be sold separately; improvements 
cannibalized; whether the property should be subdivided; the media for 
advertising; and other pertinent factors. In addition, the following 
will be included as part of the disposal plan:
    (a) Description and map of the lands.
    (b) Description of buildings and other improvements.
    (c) Appraisal made in accordance with Sec. Sec.  644.41 through 
644.49, unless exempted by Sec.  644.436.
    (d) Information as to when, from whom, and how the property was 
acquired.
    (e) Information as to the estate which the Government has in the 
land, and reservations and exceptions in and to the Government's title. 
Outstanding interests granted by the Government or reserved or excepted 
in the acquisition of the lands will be stated with particularity. The 
map or plat will delineate any grant, exception, or reservation, such as 
telephone and telegraph, electric transmission, oil, gas and water 
lines.
    (f) Purchase price of land, buildings and improvements acquired with 
the lands, and the cost of buildings and improvements, if any, 
constructed by the United States.
    (g) If there is an indication of valuable minerals, such statement 
will be made with full explanatory data.
    (h) Where the estimated value of the land together with improvements 
and related personal property is in excess of $1,000, the disposal plan 
will be submitted to DAEN-REM for approval.



Sec.  644.438  Disposal plan for easements.

    When recommending disposal of a surplus easement the District 
Engineer will submit the following:
    (a) Information as to when and from whom the easement was acquired.
    (b) The consideration paid therefor.
    (c) Identification of the installation to which it is appurtenant.
    (d) If the easement has no commercial value, the amount that should 
be paid by the owner of the servient estate, representing a rebate on 
the purchase price, or the amount paid for severance damages will be 
specified. (For example, if the easement was acquired for a 15-year 
period and the price paid therefor was substantial and one year after 
acquisition it is returned to the owner of the servient estate, an 
effort should be made to obtain a rebate on the purchase price although 
the easement has no commercial value. The same would be applicable to 
the payment for severance damages).
    (e) If the owner of the servient estate, or other prospective 
grantee, is not willing to pay the appraised value in consideration of 
the release of an easement acquired for a substantial consideration, all 
action to release the easement will be held in abeyance until such time 
as an adequate consideration can be obtained for the release. Note the 
minimum payment for release of spoil easments discussed in paragraph (b) 
of Sec.  644.435.



Sec.  644.439  Sale and conveyance.

    Sales procedure, including advertising, will be in accordance with 
Sec. Sec.  644.540 through 644.557. Normally, conveyance will be by 
deed, prepared and executed as provided in Sec.  644.441.

[[Page 243]]



Sec.  644.440  Application of antitrust laws.

    Section 207 of the Federal Property Act provides that real property 
and related personal property with an aggregate total cost of $1,000,000 
or more, or patents, processes, techniques, or inventions, regardless of 
costs, shall not be disposed of until the advice of the Attorney General 
has been received as to whether the proposed disposal would tend to 
create or maintain a situation inconsistent with the antitrust laws. 
Prior to obligating the Government on any such disposal, the District 
Engineer will furnish DAEN-REM information on the probable terms or 
conditions. DAEN-REM will use this information as the basis for a 
request to the Attorney General for advice (FPMR 101-47.301-2).



Sec.  644.441  Preparation and execution of deeds.

    (a) Authority to execute. All conveyances of fee ownership and other 
permanent interests in land which the Army and Air Force have authority 
to convey under the statutory authorities and delegations set forth in 
Sec. Sec.  644.400 through 644.443 will be executed by the Secretary of 
the Army, for Army land, and by direction of the Secretary of the Air 
Force, for Air Force land. Conveyances of surplus property that have 
been assigned to HEW for disposal will be executed by officers of that 
department.
    (b) Form of deed or instrument. Conveyances of fee-owned land and 
easements shall be by quitclaim deed prepared in conformance with local 
law and practice except where it is found that another form of 
conveyance is necessary or desirable to obtain a reasonable price for 
the property, or to render the title marketable, or for other reasons. 
Appropriate recommendations will be forwarded to DAEN-REM. Forwarding 
correspondence should contain information as to the requirements of 
local law for witnesses, acknowledgment, authentication of 
acknowledgment, and other special requirements. The instrument of 
conveyance should contain a statement that the requirements of 10 U.S.C. 
2662 have been met, or that the conveyance is not subject to these 
requirements.
    (c) Authority for conveyance. Authority for conveyance will be 
recited in the granting clause. Conveyances under the Federal Property 
Act will recite:

    * * * under and pursuant to the Federal Property and Administrative 
Services Act of 1949 (63 Stat. 377), as amended, and the delegation of 
authority to the Secretary of Defense from the Administrator of General 
Services Administration (41 CFR 101-47.601) and the redelegation of 
authority from the Secretary of Defense to the Secretary of the Army 
(Air Force) (20 FR 7113).


Conveyances to states and their instrumentalities under the special 
statutes, listed in Sec. Sec.  644.425 through 644.432, will recite the 
special statutes, as continued in effect by the Federal Property Act and 
the delegations. Conveyances to states for wildlife conservation 
purposes under Pub. L. 537, 80th Congress (Sec.  644.429) will cite the 
special act and recite that the property has been determined surplus 
under the Federal Property Act and delegations thereunder. Conveyances 
releasing the restrictions contained in a flowage easement prohibiting 
the construction and maintenance of structures for human habitation 
should cite as authority for the conveyance the Federal Property and 
Administrative Services Act of 1949 (63 Stat. 377) as amended, and the 
Federal Property Management Regulations (101-47.313-11).
    (d) Conditions in the conveyance. The deed will contain the 
reservations, restrictions, or conditions, required by: (1) The 
directive which authorized the disposal; (2) any special acts under 
which the property is conveyed; and (3) by any contract of sale, 
agreement to extend credit, or relocation contract, pursuant to which 
conveyance is made.
    (e) Acceptance by grantee. Where the instrument of conveyance 
imposes obligations on the grantee, the instrument will be executed and 
excepted by or on behalf of the grantee prior to forwarding for 
execution. If the grantee is a corporation or body politic, the 
instrument will contain a certificate attesting to the authority of the 
officer executing the instrument to act for and bind the corporation or 
body politic, and that his signature is genuine. Where a resolution or 
other special action is necessary to legally bind the

[[Page 244]]

grantee, a copy will be attached to the instrument.
    (f) Execution of deed. (1) The Division Engineer will forward to 
DAEN-REM a draft of the deed, prepared in final form, together with 
copies of as many of the items listed below as are appropriate depending 
on the nature and purpose of the conveyance, any other information 
necessary for a complete understanding of the case, and the remarks and 
recommendations of the Division and District Engineer. Upon approval of 
the proposed disposal by DAEN-REM, the deed will be forwarded to higher 
authority for execution and returned to the District Engineer for 
delivery and distribution.
    (2) Items to be forwarded with draft of deed proposed for execution, 
as appropriate:
    (i) Real Property Classification, ENG Form 1825.
    (ii) Application or plan for use and procurement with 
recommendations and determinations of other interested Federal agencies 
when the conveyance is under one of the special acts listed in 
Sec. Sec.  644.425 through 644.432.
    (iii) Disposal plans.
    (iv) Appraisal where not included in paragraph (f)(2)(iii) of this 
section.
    (v) Statement on advertising conducted.
    (vi) Abstract of bids.
    (vii) Relocation contract or change agreement.
    (g) Distribution of deeds. Deeds will be delivered by the District 
Engineer and recorded by or at the expense of the grantee. Upon delivery 
and recordation of any deed conveying Army, Air Force, or nondefense 
property, the District Engineer will conform two copies by endorsing 
thereon the date and manner of delivery, and the date, time and place of 
recordation in the public land records. One conformed copy will be 
forwarded to HQDA (DAEN-REM) WASH DC 20314, and the other conformed copy 
to HQDA (DAEN-REP) WASH DC 20314. This requirement extends to copies of 
deeds executed by other disposal agencies and furnished District 
Engineers pursuant to FPMR 101-47.307-3(b). Two additional copies of 
deeds delivered by District Engineers will be conformed and furnished 
any other Federal agency charged with compliance enforcement of any 
reservations, restrictions, or conditions in the deed.



Sec. Sec.  644.442-644.443  [Reserved]

            Disposal of Leaseholds and Leasehold Improvements



Sec.  644.444  Authority.

    Surplus leasehold interests in real property are disposed of under 
authority delegated by the General Services Administration (GSA) to the 
Department of Defense (DOD). DOD has redelegated this authority to the 
military departments. DEs, within the limits of the authority delegated, 
have been authorized to terminate leases, execute agreements in 
settlement of restoration obligations, and perform necessary restoration 
work required by lease terms, directly or by contract, in accordance 
with the provisions stated in Sec. Sec.  644.444 through 644.471. 
Exceptions are where: (a) Under the terms of the lease the leasehold is 
transferable to third parties or Government-owned improvements on leased 
airport or other special types of leased property have an in-place value 
to the lessor for airport or other special purposes; or (b) the 
leasehold or Government-owned improvements may be disposed of to 
eligible public agencies under special statutes (FPMR 101-47.4905), in 
which cases the procedures provided in Sec. Sec.  644.400 through 
644.443 will be applied to the extent applicable. Disposals within the 
scope of the above exceptions require the prior approval of DAEN-REM.



Sec.  644.445  Procedure for termination of leases.

    When leased premises are no longer required for use by the 
Government, a notice of termination will be given to the lessor in 
accordance with the terms of the lease, effective as of the date of 
vacation. The termination notice will be served sufficiently in advance 
to allow time for compliance by the Government with terms of leases 
providing for removal of improvements and restoration of premises. Where 
a lease does not contain provision for continuing renewal without notice 
and will automatically expire, the Government is not required to give 
notice

[[Page 245]]

when it intends to surrender the premises at the expiration of the 
lease. However, the lessor should be informed, as far in advance as 
possible, of the Department's intention to vacate, in order that he may 
plan for a new tenant for other use of the premises. Where a lease 
provides for a continuing renewal without notice, the DE will ascertain 
in advance of the beginning of each fiscal year whether the using 
service has need during the next fiscal year for the premises. When the 
premises are no longer required, a notice of termination will be served 
in accordance with the terms of the lease. In the event the lease does 
not provide for termination by the Government, but the lessor will 
consent to termination, either in its entirety or partially, a 
supplemental agreement should be entered into to terminate or amend the 
lease as of the date the premises will be vacated, Government 
improvements removed, and restoration completed.
    (a) Forms of Notice of Termination. Where leases provide for 
restoration, Notice of Cancellation (Restoration) will be prepared in 
sextuplet in accordance with Figure 11-11 in ER 405-1-12. Notice of 
Cancellation, Figure 11-12 in ER 405-1-12, will be used for leases which 
do not provide for restoration or for leases where written notice 
requiring restoration has been submitted by the lessor prior to 
termination. Notice of termination will be prepared on the letterhead of 
the DE concerned, who will assign his own form-letter number.
    (b) Manner of serving Notice of Cancellation. The Notice of 
Termination must conform to requirements of state law, and will, 
whenever possible, be served personally upon the lessor. In some states, 
to be legally effective personal service is mandatory, unless expressly 
waived. The lessor will be requested to execute the acknowledgment of 
receipt of notice on the form. Where the service is effected by 
registered or certified mail, a return receipt will be requested and a 
sufficient number of days (in addition to the stipulated period of 
notice) will be allowed for transmission and receipt of notice. The 
return receipt properly signed will be evidence that full notice 
required by the lease has been given. Should the owner refuse or fail to 
acknowledge receipt of the notice, the officer serving the notice will 
so certify thereon, giving the date and method of service. In the case 
of an absentee lessor, where time will not permit use of certified or 
registered mail for effecting service, notice will be given by telegram 
to be delivered, not telephoned, to the addressee. In the case of notice 
by personal service, any available Army facility or personnel in the 
lessor's locality may be used.
    (c) Distribution of Notice of Termination. The original notice of 
termination will be delivered to the lessor; one copy to the finance and 
accounting officer who pays the rental; one copy to the using service; 
and one copy to the DE office files.



Sec.  644.446  Vacation and protection of premises.

    The DE will take action to insure that the premises are vacated by 
the using service on or before the date specified in the termination 
notice (or the date of expiration of the lease where formal notice is 
not required), and will assure provision is made by either the using 
service or the DE, as appropriate, for proper protection of the property 
pending the transfer of custody to the lessor pursuant to Sec. Sec.  
644.368 through 644.375 and AR 405-90.



Sec.  644.447  Joint survey of premises.

    (a) When required. As soon as practical after restoration is 
requested by the lessor, a terminal condition report to reflect the 
condition of the leased property as of the termination of the lease, and 
a terminal survey to determine the extent of restoration required, if 
any, will be prepared. The lessor will be invited to have his estimators 
accompany the survey party. The lessor's estimates of restoration costs 
should be obtained promptly, and included in the terminal survey for 
purposes of comparison in accordance with paragraph (c) of Sec.  
644.454. Survey and condition reports will not be limited to items for 
which the lessor specifically requests restoration, but will include all 
items which the DE determines should be restored in order to fulfill the 
Government's obligation under the lease.

[[Page 246]]

    (b) Contents. The report will show, in detail, the work items 
necessary to place the premises in as good a condition as they were at 
the time they were taken over by the Government, as disclosed by the 
survey and condition report made at that time, reasonable and ordinary 
wear and tear, damages by the elements, or circumstances over which the 
Government has no control, excepted.
    (c) Housing leases. The tenant of leased housing is personally 
responsible for damage to the property, beyond reasonable and ordinary 
wear and tear, resulting from his acts, the acts of members of his 
family, his invitees and licensees. Restoration of leased housing 
therefor should be coordinated with the using service to minimize 
payments for repairs which are the obligation of the Government's 
tenant.



Sec.  644.448  Limits on government obligation to restore.

    The standard lease forms may provide that the Government will, if 
stipulated notice is given by the lessor, restore the premises to as 
good a condition as they were in at the time of entering into 
possession, reasonable and ordinary wear and tear, and damages by the 
elements, or circumstances over which the Government has no control, 
excepted. This requirement is subject to certain limitations.
    (a) Restoration not to exceed fee simple value. The cost of 
restoration, or settlement in lieu thereof, will not exceed the fee 
simple value of the property restored to the condition that existed at 
time of entering into possession, reasonable and ordinary wear and tear, 
and damages by the elements, or circumstances over which the Government 
has no control, excepted. The valuation should be fixed as of the time 
of termination of the lease.
    (b) Where estimated cost of restoration exceeds diminution in value. 
When it appears that the estimated cost of restoration substantially 
exceeds the diminution in the value of the premises, occasioned by the 
Government's use and the damage therefrom, an appraisal will be made of 
the present value of the property in its unrestored condition and a 
separate appraisal will be made of the present value of the property, 
assuming restoration is accomplished as provided in the lease. The 
difference between the unrestored and restored value, as determined by 
comparison of the appraisals will be the amount of diminution in the 
value of the lessor's property and will be the maximum amount of the 
restoration obligation. As to the measure of damages to be used in 
establishing the Government's restoration obligation under leases which 
contain the standard restoration provision, the Comptroller General 
decided that,

    This office would not be warranted in concluding that any greater 
amount could be legally expended for restoration or paid to the lessor 
in lieu thereof than the amount by which the market value of the 
premises has been diminished


(28 Comp. Gen 206). As a corollary, restoration, or payment in lieu 
thereof, is not authorized where Government improvements enhance the 
value of the property. Representatives of the General Accounting Office 
have advised informally that it is not the intention to have appraisals 
made of the before and after value in each instance and that the lack of 
such appraisals will not be the cause for questioning a restoration 
settlement. It is considered, however, that where the estimated cost of 
restoration is a substantial amount in comparison with the value of the 
property covered by the lease, such appraisals should be made. 
Obviously, however, it would not be to the Government's advantage to 
make appraisals where the estimated restoration cost is small.



Sec.  644.449  Requirement for notice by lessor.

    Ordinarily, notification by the lessor of his intention to require 
restoration of the premises is, when required by the terms of the lease, 
a condition precedent to any obligation on the part of the Government to 
restore and is a vested contract right which no part of the Government 
has authority to give away or surrender (16 Comp. Gen 92; Simpson vs. 
United States, 172 U.S. 372; United States vs. American Sales Corp., 27 
F. 2d 389, affirmed in 32 F. 2d 141, certiorari denied, 280 U.S. 574; 
Pac. Hardware Co. vs. United States, 49 Ct. CL 327, 335). However, it 
has been held

[[Page 247]]

in the case of Smith vs. United States, 96 Ct. CL 326, that a formal 
written notice of demand for restoration might be waived, provided 
knowledge of the lessor's intention to require restoration was conveyed 
to the Government orally or by implication at, or prior to, the time 
required under the terms of the lease. In opinion B-48678, 10 April 
1945, the Comptroller General expressed the following views along this 
line:
    (a) In leases pertaining to provisions for termination by the 
Government prior to the end of the term, and which require 60 days 
written notice of demand for restoration, a supplemental agreement 
relinquishing space prior to the end of the term, which contains a 
stipulation excepting restoration from the provisions of the release may 
be regarded as notice to the Government of the lessor's intention to 
require restoration and an otherwise proper claim for restoration may be 
considered where the entire transaction is in the interest of the United 
States.
    (b) In leases which require 30 days written notice of termination 
and 30 days notice of demand for restoration, waiver of termination 
notice by the lessor would constitute sufficient consideration to 
support a waiver of restoration notice by the Government where the 
effect of waiving the notices would be to protect more adequately the 
Government's interest through immediate termination of the lease.
    (c) Generally, in leases which require 90 days written notice of 
demand for restoration and 30 days written notice of termination, if it 
is determined administratively under the particular facts, that the 
failure to give restoration notice until receipt of termination notice 
does not affect the merits of the claim for restoration, or operate to 
the prejudice of the United States, an otherwise proper claim for 
restoration may be considered.
    (d) As a general rule, in leases which require 30 days written 
notice of termination and 30 days written notice of demand for 
restoration, notice of demand for restoration given within a reasonable 
time after receipt of termination notice would be sufficient and, in 
this connection, a few days delay would not be regarded as unreasonable. 
Where restoration is predicated on other than strict compliance by the 
lessor with requirements of the lease relative to notice requiring 
restoration, the facts will be clearly stated in the restoration 
assembly.



Sec.  644.450  Items excluded from usual restoration obligation.

    Damage to the following items will not ordinarily be restored as 
under the standard provisions of the lease it will be attributable to 
reasonable and ordinary wear and tear, damage by the elements, or 
damages by circumstances over which the Government has no control. 
(However, where the lease requires the Government to maintain the 
interior or exterior, or both, such of the items as the Government is 
obligated to repair during the term of the lease should be included in 
the restoration if they have not been maintained adequately by the 
Government and are not in the required condition upon the termination of 
the lease.)
    (a) Foundation work.
    (b) Waterproofing or membraning.
    (c) Exterior tuck pointing.
    (d) Cleaning or repair of catch basins, cesspools, or manholes.
    (e) Repair of: (1) Interior unfinished walls.
    (2) Unfinished hollow tile, concrete block, or gypsum block walls.
    (3) Floor joints, roof trusses (including roof boards and roofing), 
and framing timbers (including studs, sheathings, and exterior surface).
    (4) Insulating materials in walls necessitated by leakage in walls 
or roofs.
    (5) Damage to plaster caused by leakage in wall or roof.
    (6) Windows and floors, where the damage is caused by elements or 
inadequate hinging, counterweighting, caulking or sealing.
    (7) Sheet metal such as eaves, gutters, downspouts, flashings, hips, 
valleys, skylights, ventilators, and metal ceilings.
    (8) Structural steel or iron.
    (9) Fire escapes.
    (10) Heating systems.
    (11) Plumbing systems.
    (12) Ventilating systems and air conditioning systems.
    (13) Power plants.
    (14) Electric wiring.

[[Page 248]]

    (15) Lighting fixtures (or replacement).
    (16) Sprinkler systems.
    (f) Settling or subsidence.
    (g) Other structural repairs to buildings or equipment.



Sec.  644.451  Nature of required restoration.

    Restoration by the Government will ordinarily include the following:
    (a) Wear and tear beyond that which is reasonable and ordinary.
    (b) Damage due to negligence by Government personnel.
    (c) Restoration or reinstallations necessitated by alterations or 
removals by the Government.
    (d) Neutralization of unexploded bombs or artillery projectiles, 
disposition of military scrap, and decontamination of chemically 
contaminated lands or improvements. (See Sec. Sec.  644.516 through 
644.539).



Sec.  644.452  Minor restoration cases--determining extent of restoration
required.

    (a) In minor restoration cases, ENG Form 1440A-R, Joint Terminal 
Condition Survey, will be used. The Government representative, in these 
cases, will also make a detailed investigation as to the extent of 
damages, cost of repairs, and other factors sufficient to properly 
complete and sign ENG Form 1440B-R, Cost of Restoration. In order to 
effect economies, the DE may arrange for the utilitization of the 
services of the Facilities Engineer or the using service to perform 
joint terminal condition surveys. Such use, however, should be coupled 
with issuance of proper instructions for guidance of the respective 
personnel. A restoration case is considered to be minor under the 
following conditions:
    (1) The initial cost of Government improvements or alterations did 
not exceed $5,000; and
    (2) The net salvage value of Government improvements remaining does 
not exceed $1,000; and
    (3) The cash payment to the lessor in lieu of restoration does not 
exceed $1,000; and
    (4) The lessor has agreed to accept a cash settlement in lieu of 
physical restoration.
    (b) Preparation of ENG Form 1440-R. Use of ENG Form 1440B-R is 
premised upon the ability of the field investigator to adequately 
analyze conditions and develop sufficient supporting data as to the cost 
of the items of restoration involved. While this form is considered 
self-explanatory, the following is to be noted:
    (1) The procedure hereunder envisions the use of both ENG Form 
1440A-R and ENG Form 1440B-R, which complement each other.
    (2) The use of ENG Form 1440B-R for estimating restoration costs 
does not waive the requirements for a proper evaluation of the 
Government's restoration obligations either as to the legal principles 
or as to the proper measure of damages.
    (3) Distribution of these forms, together with any supporting 
exhibits, will be accomplished in the same manner as set forth in 
paragraph (b) of Sec.  644.460.



Sec.  644.453  Major restoration cases--determining extent of
restoration required.

    (a) Engineer estimate and appraisal. Any restoration case not 
covered by the definitions of minor restoration case in paragraph (a) of 
Sec.  644.452 is a major restoration case. A complete engineer estimate 
and appraisal will be prepared by the DE for use in negotiating a cash 
settlement, or to determine the cost of restoration, if the work is to 
be performed by the Government. ENG Form 1440-R, Cost of Restoration, 
will be used for this purpose. A copy of this form will be transmitted 
to the General Accounting Office in support of settlements made with 
landowners in the case of military property and contains the minimum 
data required by that office. Such transmittal is not required when 
civil works property is involved. In order to afford a measure of 
flexibility, ENG Form 1440-R is divided into five parts, each relating 
to specific factors, to be used as conditions may require.
    (b) Preparation of ENG Form 1440-R. Comments and instructions for 
preparation of ENG Form 1440-R are contained in the following paragraphs 
which are keyed to the item numbers

[[Page 249]]

on the Recapitulation sheet, part I of the form:
    (1) ``1'' to ``6'' Self-explanatory.
    (2) ``7. Original Cost (Actual or Estimated) of Government-owned 
improvements, fixtures and alterations: (part 4).'' The General 
Accounting Office requires that, in all cases involving the 
relinquishment of Government-owned improvements to lessors in lieu of 
restoration, and in any other cases where a contract is entered into 
between the Government and another party to transfer improvements, the 
original cost of the improvements be given. If not ascertainable, an 
estimate should be submitted. In exceptional cases, where, because of 
the circumstances or expense of the work involved, neither the original 
cost nor a reasonably accurate estimate can be given, an explanation of 
the facts and circumstances is required. Where structures have been 
built under contract, or improvements made under contract, a citation to 
the contract under which the work was performed should be submitted with 
the original cost statement, estimate, or explanation.
    (3) ``8. Estimated Market Value, (Value in place of Government-owned 
improvements, fixtures, and alterations): (part 4).'' An estimate will 
be made of the current market value of the buildings or improvements in 
place. In those cases where it is indicated that the Government-owned 
buildings or improvements located on leased lands may materially enhance 
the value of the leased site, an appraiser will estimate the market 
value of the fee title to the leased area in its unrestored condition. 
He will also separately estimate the market value of the site, assuming 
restoration as provided in the existing lease. The difference between 
the fee title value and restored land value will be reported as the 
``value in place'' of the improvements to be sold or otherwise disposed 
of. ``Value in place'' is defined as the amount by which the 
improvements involved enhance the market value of the leased site. This 
value will serve to establish the top sales price expectancy in 
negotiations with the landowner.
    (4) ``9. Gross Salvage Value of Government-owned property: (part 
4)''. The ``gross salvage value'' is the highest price obtainable in the 
open market for Government-owned improvements when sold for use 
elsewhere than on the leased premises, assuming that no expense to the 
buyer is involved in the dismantling and/or removal of the improvements 
from the leased property to the nearest probable market or location of 
future use. The estimate of gross salvage value should be made in 
accordance with established property appraisal procedures. Because 
market demand usually determines the highest and best use to which the 
components of a group of improvements will be put (e.g., whether a 
building will be worth more on the market for moving intact to a new 
site for continued use as a building, or worth more as a stockpile of 
used construction material), it is important to consider not only 
prevailing market prices and demand for used construction materials in 
the vicinity by contacting sources such as local building trades, 
wrecking companies, used material dealers, etc., but to also give 
consideration to possible interest by house moving and construction 
companies and individuals who might utilize improvements intact. Due 
consideration should also be given in making the estimate to the effect 
that such facts as the original cost of the improvements, the original 
cost of the materials therein, and the deterioration or depreciation of 
the materials in place might have upon the market value.
    (5) ``10. Estimated Cost of Dismantling and/or Removal of 
Government-owned Property: (part 4).'' The estimated dismantling cost 
and/or cost of removal will be itemized in the appropriate column 
opposite the itemized listing of improvements on the ENG Form 1440-R 
(part 4), and the total will be reflected on the recapitulation sheet 
(part 1). The dismantling cost is the amount of expenditure necessary to 
accomplish dismantlement in a manner providing the greatest net return 
to the Government. Net return is the value of the improvements when 
detached or dismantled, less the cost of dismantling or detaching, and 
less the cost of removal. The cost of removal is the cost of moving the 
detached or dismantled improvements to the nearest

[[Page 250]]

probable market or the nearest installation of the Department having 
adequate storage space. In cases of frame buildings having concrete or 
similar permanent-type floors or foundations, the cost of removal of 
such floors or foundations will not be included as an item of 
dismantling and/or removal cost. Instead, it will be treated as an item 
in the estimated ``Cost of Restoration other than Cost of Dismantling 
and Removal'' (Item 12). In developing estimates of gross salvage value 
and costs of dismantling and/or removal, inquiry should be made of 
experienced tradesmen, used material dealers, wrecking contractors, 
etc., familiar with the local market for the types of materials and 
services involving the current costs of loading, hauling, unloading, 
cleaning, stockpiling and other economic factors contributing to the 
current local market value of similar materials in useable form.
    (6) ``11. Estimated Net Salvage Value of Government-owned Property: 
(part 4)''. This amount is obtained by subtracting the estimated cost of 
dismantling and/or removal (Item 10) from the estimated gross salvage 
value (Item 9).
    (7) ``12. Cost of Restoration other than Cost of Dismantling and 
Removal: (part 3)''. From information developed by the joint survey of 
the property, Sec.  644.447 of this part, it is the responsibility of 
the real estate officer, or his representative, to advise the personnel 
responsible for preparing the restoration cost estimate of the items 
which will require restoration, repair or replacement under the terms of 
the lease. A brief statement as to the probable cause of damage, in 
excess of ordinary wear and tear, or resulting from other than 
circumstances over which the Government has no control, will be included 
in the supporting data.
    (8) ``13. Total Cost of Restoration: (Item 10 plus Item 12)''. The 
estimates of cost under Items 10 and 12 will be based on sound 
estimating practices generally employed for the type of work involved. 
The estimates will be predicated on performance of the work by contract 
and, therefore, consideration will be given to justifiable allowances 
for contractor's profits, insurance, employees compensation payments, 
and overhead.
    (9) ``14. Net Cost of Restoration: (Item 9 minus Item 13)''. In 
those cases where the cost of dismantling and/or removal of Government-
owned improvements (as defined in Item 10), and the other costs of 
restoration (as defined in Item 12), exceed the gross salvage value (as 
defined in Item 9), the difference is a minus quantity and constitutes 
the maximum amount of money which the Government can pay the lessor, in 
addition to transferring all improvements to him in lieu of restoration 
and paying rent during the estimated period of restoration (provided 
such improvements are not considered to have an ``in place'' value). If 
this is a plus quantity, it represents the minimum amount of cash that 
the Government can accept from the lessor after transferring to him all 
items of property or equipment shown in the report, less the allowance 
for rental during the estimated period of restoration.
    (10) ``15. Approximate Time Required for Actual Salvaging and 
Restoration Operations''. So long as the owner is deprived of use of his 
property he is entitled to rental stipulated in the lease. A fair 
allowance will be made in a settlement with the lessor to cover a 
reasonable time required to fit the premises for use. If all 
improvements are to be left in place, it may well be that no allowance 
for rental will be required by the lessor for time required for 
salvaging.



Sec.  644.454  Negotiating restoration settlements.

    Negotiated settlements in lieu of performance of actual restoration 
work by the Government are ordinarily favored because they most 
satisfactorily achieve the objectives of fulfilling the Government's 
obligations under the lease in the most efficient and economical manner, 
recouping the greatest amount of the Government's investment in 
improvements to leased property and maintaining good public relations in 
the acquisition and disposal of leaseholds. However, because of variable 
circumstances, this principle cannot be stated as an inflexible rule 
applicable to every case. It is the responsibility of the DE to 
carefully consider all possible approaches within

[[Page 251]]

the scope of this chapter and select the best course of procedure in 
each case.
    (a) Financial limitations which preclude actual restoration. In view 
of the limitations of the Government's restoration obligations to 
amounts not in excess of the fee value of the leased property, or the 
difference in values of the leased property with and without 
restoration, actual performance of restoration work is precluded where 
these amounts would be exceeded, and a settlement in lieu of restoration 
is in order in amounts not to exceed the limitations indicated.
    (b) Settlement where property enhanced in value by improvements. 
Where the leased property has been enhanced in value by the Government's 
improvements, no restoration should be performed nor payment by the 
Government made in lieu thereof. Instead, effort should first be made to 
obtain from the lessor a cash payment to the Government equal to the in 
place value of the improvements, together with a full release of the 
Government from any restoration obligations. If the lessor is not 
willing to pay the in place value, but will offer a lesser amount in 
excess of the estimated net salvage value, settlement may be reached on 
that basis. If the lessor will not agree to make payment of any amount, 
or will offer only an amount which is less than the net salvage value of 
the improvements, consideration should be given to selling the 
improvements for removal and accomplishing any remaining restoration by 
payment in lieu thereof or by actual performance of the work. If it 
becomes necessary or advisable to arrange for separate sale of any or 
all of the improvements, the sale should be accomplished in accordance 
with Sec. Sec.  644.540 through 644.557. The terms of sale in such case 
will require the removal of the improvements on or before the expiration 
or termination of the lease and contains any other special requirements 
applicable to the particular case, including site restoration. Bids 
received should be compared with the highest price offered by the 
lessor, due consideration being given to the cost of restoration, if 
any, which would remain after removal of the improvements. It must 
always be borne in mind that the disposition of public property to 
private parties must be at prices which can be shown to be in the best 
interests of the Government.
    (c) Reaching agreement on estimates of cost. The terminal survey and 
condition reports specify the items to be restored and the lessor's 
estimate of cost. Those items reflected on the ENG Form 1440-R (part 3) 
afford comparison between the lessor's and the Government's estimates. 
Where there is a variance in the estimates and the lessor's total 
estimate is lower, effort will be made to settle on the basis of his 
estimate. If the lessor's overall estimate is higher than the 
Government's, effort will be made to reach agreement on acceptance of 
the Government's total estimate. If the lessor's estimate is 
substantially higher on specific items, it may be desirable to disclose 
the basis on which the Government's estimate is predicated in order to 
demonstrate its reasonableness. The Government's estimate of cost for 
items of restoration may be made available to the lessor upon request. 
When the lessor requests items of work not shown on the Government's 
estimate, careful consideration will be given to his request, further 
inspection of the premises made, when necessary, and a determination 
made as to whether the Government is obligated under the lease to 
perform the work. If no liability is determined to exist, the lessor 
will be fully informed as to the reasons for noninclusion in the 
estimate. If liability is determined to exist, the estimate will be 
adjusted accordingly. In any case where the existence or extent of the 
legal obligation of the Government to restore is questionable, the DE 
will submit the facts, in writing, to DAEN-REM together with his 
recommendation. No lease restoration settlement will be allowed to 
become involved in litigation or formal claims procedure without the 
matter having been submitted to DAEN-REM for review. When a satisfactory 
cash settlement by the Government cannot be negotiated, the DE is 
authorized to perform the actual restoration work.



Sec.  644.455  Claims for loss or damage of personal property.

    In some cases, owners have been allowed to store personal property,

[[Page 252]]

owned by them or under their control, on premises leased from such 
owners by the Government, the personal property not being covered by the 
lease. The rooms in which this property was stored have been broken into 
and, upon termination of the lease, it has been found that much of the 
property is damaged or is missing. Unless the lease specifically places 
some responsibility on the Government, payment for such damaged or 
missing property cannot be included in restoration settlements for 
payment. In the event the lessor refuses to sign a full release, a 
provision may be included in the supplemental agreement releasing the 
Government from all liability except for claims for damage, loss, or 
destruction of personal property stored on the leased premises and not 
covered by the lease, and the lessor advised that he may submit a claim 
for the amounts which he considers due him.



Sec.  644.456  Rent during the period required for restoration.

    A sufficent period of time for performance of the restoration, 
commencing on the date premises are vacated by the Government, will be 
specified in the Government's estimate, and rent allowed in the 
settlement during such period to the extent that the lessor is actually 
deprived of beneficial use. If there is an outstanding maintenance and 
operation contract with the lessor, contained in either the lease or in 
an independent instrument, which fixes compensation in addition to the 
rent, the settlement agreement with the lessor will include the rent and 
such part of the compensation for maintenance and operation as will be 
necessarily incurred by the lessor during the performance of 
restoration.



Sec.  644.457  Settlement where part of the premises is surrendered.

    Where there is a partial reduction of area in a lease requiring 
restoration, the supplemental agreement may contain a settlement in lieu 
of restoration of the area surrendered. A waiver of further claims 
covering the space released will be contained in the supplemental 
agreement.



Sec.  644.458  Documenting lease terminations and restoration settlements.

    In the case of leases in which there is no obligation to restore, 
and in all cases of leases where terminal survey discloses no damage to 
the premises for which the Government is liable, an effort will be made 
to obtain an unqualified release from the lessor as of the date the 
premises are vacated and Government improvements removed. Releases will 
also be obtained as indicated in Sec.  644.462.
    (a) Form to be used. Releases will be executed, in triplicate, on 
ENG Form 232-R, Release (Corporation), or ENG Form 231, Release 
(Partnership), according to whether the lessor is a corporation or 
partnership. If signed by an attorney or agent, evidence of authority 
should be attached to the release. If the lessor is an individual, a 
letter incorporating a Notice of Termination and a Release Clause will 
be sent. The letter will substantially follow the form shown in Figure 
11-16 in ER 405-1-12. Distribution of releases will be accomplished in 
the same manner as set forth in Sec.  644.460.
    (b) Qualified release. In case the lessor declines to sign an 
unqualified release, he should be requested to execute an appropriate 
release subject to exceptions. The exceptions may be enumerated on the 
reverse side of the form.



Sec.  644.459  Preparation of supplemental agreements effecting settlement.

    The terms of settlement in lieu of restoration, negotiated with the 
lessor, will be embodied in a supplemental agreement to the lease, 
antedating termination, substantially in accordance with ENG Form 341, 
Supplemental Agreement Transferring Improvements to Lessor. Supplemental 
agreements may be used to effect restoration settlements of obligations 
incurred under permits, trespass right agreements, and other unnumbered 
contracts for the temporary use of land. Restoration settlements may 
also be effected even though the premises were occupied rent free and 
without formal contract, provided use of the premises was authorized 
properly by the Government (Decision of the Comptroller General B-63340, 
February 1947). Care should be exercised in determining the existence

[[Page 253]]

and extent of the legal obligation of the Government to restore. Payment 
will not be made for doubtful items; instead, the other party to the 
agreement will be advised of his right to submit a claim. On the other 
hand, every effort will be made to agree upon a reasonable settlement as 
to items for which the Government is legally responsible.



Sec.  644.460  Supplemental agreement assembly.

    (a) Composition. Supplemental agreement assembly, covering agreement 
for settlement in lieu of restoration, will be composed of the 
following:
    (1) Completed Notice of Termination.
    (2) ENG Form 340 (Supplemental Agreement Accepting Proposed 
Restoration) or ENG Form 341 (Supplemental Agreement Transferring 
Improvements to Lessor).
    (3) Lessor's notice requiring restoration, unless the lessor has 
signified that restoration is not required.
    (4) Joint terminal survey and condition report.
    (5) ENG Form 1440-R, or 1440A-R and 1440B-R.
    (6) Estimated cost of restoration of leased personal property if not 
otherwise included.
    (7) Statement of cost of any restoration actually performed by the 
Government.
    (b) Distribution. An executed copy of the assembly will be retained 
by the DE. An executed copy of the supplemental agreement will be 
furnished the lessor. Conformed copies will be transmitted to the major 
command, the installation commander and, when monetary consideration is 
involved, to the appropriate finance and accounting office.



Sec.  644.461  Payment for restoration or settlement in lieu of restoration.

    Voucher forms, appropriate to the circumstances, will be used in 
making payment of the settlement. Reference should be made on the 
voucher to the lease and supplemental agreement. The cost of restoration 
work performed directly by the Government, or by contract, or 
compensation in any settlement agreement in lieu of restoration, will be 
paid from funds available for the payment of rental. The limitations of 
section 322 of the Economy Act of 1932, as amended (40 U.S.C. 278a and 
b), on the expenditure of funds for the alteration, improvement, or 
repair of leased premises to 25 percent of rent for the first year, are 
not applicable to costs of performing restoration work pursuant to 
obligations of the lease nor for payments of settlements in lieu thereof 
(20 Comp. Gen. 105).



Sec.  644.462  Performance of restoration work by district engineer
--extension of time.

    Where the lessor will not accept a cash settlement in lieu of 
restoration, or desires the work to be done by the Government, the 
restoration will be performed, without delay, directly or by contract, 
within the limitations outlined in this subpart. Any contract entered 
into for such work should provide for required restoration work to be 
performed on or before the determined effective date of termination of 
the lease. A complete record of the items of work performed and the 
costs thereof will be kept. If the lessor, prior to commencement of the 
work, is not agreeable to executing ENG Form 340, DA Supplemental 
Agreement Accepting Proposed Restoration, efforts will be made, upon 
completion of the work, to obtain a release on ENG Forms 232-R, or 231, 
or on ENG Form 341 in the event of a cash settlement for that part of 
the restoration not performed. Where the Government is obligated to 
perform restoration and remove improvements, and it cannot be 
accomplished by the Government prior to the effective date of 
termination, a supplemental agreement will be prepared, antedating the 
effective date of termination, for such periods as may be required to 
effect restoration and to remove improvements, if the lessor is 
unwilling to terminate the lease and rental thereunder, with the 
reservation that the Government will have a right upon the premises for 
the purpose of performing restoration, conducting sales of improvements 
thereon, or doing similar acts related to restoration.

[[Page 254]]



Sec.  644.463  Termination and settlement of leasehold condemnation
proceedings.

    (a) Leasehold condemnation termination assembly. When leasehold 
estates in land, or other similar limited estates or terms for years, 
acquired or in the process of acquisition, have been determined surplus 
a prompt report will be made to DAEN-REM containing the following items 
of information as appropriate and necessary to a full understanding of 
the proposed disposition action:
    (1) Name of project and using service.
    (2) Style and civil number of the condemnation proceedings in which 
the land is involved.
    (3) Particular tract or tracts involved.
    (4) A citation of the authority pursuant to which the surplus status 
has been determined.
    (5) Three copies of ENG Form 1440-R, or 1440A-R and 1440B-R.
    (6) The proposed date of vacation of premises by Government.
    (7) The term condemned and rights of the Government as to extension 
and cancellation thereof.
    (8) Whether a declaration of taking, or supplement thereto, has been 
filed and the amount of deposit, if any.
    (9) Whether an award or order for payment has been made, and the 
amount of the owner's withdrawal, if any.
    (10) The estimated rental cost through the end of the term acquired 
in the condemnation proceeding.
    (11) The estimated fair rental value of the land for the period of 
occupancy by the Government, including time for restoration.
    (12) Recommendation as to the advisability of abandoning the 
proceeding.
    (13) Request for termination of condemnation proceeding.
    (b) Action by Chief of Engineers. DAEN-REM will review the 
termination assembly and settlement proposal recommended and, if 
approved, recommend to the Department of Justice a basis for settlement 
at the same time requesting the Department of Justice to move for 
termination or conclusion of the proceedings.



Sec.  644.464  Negotiating stipulation where proposed settlement not
acceptable.

    Should the court overrule the motion for abandonment, or should it 
appear that claims for damages will be interposed by the property owner, 
the responsible DE and the Department of Justice representative will 
negotiate with the owner for the purpose of obtaining his consent to the 
abandonment of the condemnation action. The Government will agree to pay 
the owner a sum representing the rental value of the premises for the 
period of occupancy by the Government, plus the cost of restoration as 
determined under Sec. Sec.  644.452 and 644.453. Such estimate will 
include the value of personal property, buildings, crops, and other 
property damaged, destroyed or lost by the Government. DAEN-REM upon 
recommendation of the DE will request the amendment of the proceeding to 
include the taking of any property for which compensation is to be paid. 
The same criteria for settlement with lessors as under a negotiated 
lease will govern. In the event the landowner will not agree to settle, 
his best offer will be submitted to DAEN-REM, with the DE's 
recommendation, for consideration. If a tentative settlement is reached, 
the terms will be included in a stipulation to be filed in the 
condemnation proceedings, after approval by DAEN-REM and the Department 
of Justice, which stipulation will specifically provide:
    (a) That the property owner releases and relinquishes all claims of 
any nature whatsoever which have arisen, or may arise, out of the 
Government's occupancy of the property; and
    (b) That the owner consents to the abandonment and dismissal of the 
condemnation proceedings. Where the settlement amount is to be paid 
directly to the owner by the DE in lieu of deposit in the proceedings, 
the stipulation will so provide.



Sec.  644.465  Physical restoration where stipulation not obtained.

    If such stipulation is not obtainable, then, whether or not a 
declaration of taking has been filed, the owner will be requested to 
designate, in writing, the restoration for which he believes the

[[Page 255]]

Government is liable. The Government will restore the property to the 
condition existing at the time of first entry by the Government, except 
for reasonable and ordinary wear and tear, damage due to acts of God, or 
circumstances over which the Government has no control. The cost of 
restoration or settlement in lieu thereof will be limited as outlined in 
this subpart.



Sec.  644.466  Release and record of physical restoration.

    The responsible DE, upon completion of restoration, will make every 
effort to obtain a release of further claims for damages. A complete 
record of all items of restoration and the cost will be kept for use at 
the final hearing in condemnation or in any collateral proceedings, in 
the event a release is not obtained. Where litigation is anticipated, 
photographic evidence of work peformed will be obtained.



Sec.  644.467  Condition reports.

    Survey and inspection reports covering the real estate, and 
inventory and condition reports covering the personal property located 
therein, made prior to first entry by the Government under condemnation 
proceeding, will be compared with the condition shown by similar reports 
made when the using service vacates the property.



Sec.  644.468  Settlement of claims.

    Claims for damages or restoration filed in condemnation cases, when 
practicable, will be settled in the condemnation proceeding to avoid 
separate suit by the owner to recover compensation to which he may be 
entitled. In such cases request will be made of DAEN-REA-C to have the 
proceeding amended to enlarge the issues to include restoration.



Sec. Sec.  644.469-644.471  [Reserved]

 Disposal of Buildings and Other Improvements (Without the Related Land)



Sec.  644.472  Authority.

    Under authority vested in the GSA by the Federal Property Act, and 
the delegation of such authority made by GSA in FPMR 101-47.302-2, the 
Department of the Army is designated as the disposal agency for the 
following property:
    (a) Leases, permits, licenses, easements, and similar real estate 
interests held by the government in non-Government-owned property 
(including Government-owned improvements located on the premises), 
except when it is determined by either the holding agency or GSA that 
the Government's interest will be best served by the disposal of such 
real estate interests together with other property owned or controlled 
by the Government, that has been or is being reported to GSA as excess; 
and
    (b) Fixtures, structures, and improvements of any kind to be 
disposed of without the underlying land.



Sec.  644.473  Methods of disposal.

    Excess buildings and other improvements may be disposed of by the 
following methods:
    (a) By demolition for utilization of salvage materials in the 
overall Army or Air Force construction or maintenance program. Screening 
with other military departments is not necessary for this purpose.
    (b) By transfer to another Federal agency.
    (c) By assignment to the Department of HEW for disposal for health 
or educational purposes pursuant to section 203k(1) of the Federal 
Property Act (FPMR 101-47.308-4).
    (d) By sale intact for removal from site to the most appropriate of 
the following, according to the circumstances:
    (1) Eligible public agencies (Sec. Sec.  644.400 through 644.443 and 
Sec. Sec.  644.540 through 644.557).
    (2) Boy Scouts of America (Sec. Sec.  644.540 through 644.557).
    (3) Military chapel buildings and chapel equipment to nonprofit 
organizations for use, first as a shrine or memorial and, second as a 
denominational house of worship.
    (4) Owner of the underlying land as a part of restoration settlement 
where disposal of a leasehold is involved.
    (5) An emergency plant facilities contractor.

[[Page 256]]

    (6) The general public, through competitive bidding, unless special 
circumstances warrant a negotiated sale for a specific purpose.
    (e) By donation, abandonment or destruction.



Sec.  644.474  Determining method of disposal.

    DE's are designees of the Chief of Engineers under AR 405-90 to 
determine the method of disposal authorized by law or regulations which 
is most advantageous to the Government. Where alternatives are 
presented, there will be an affirmative finding that the method of 
disposal approved is most advantageous. In the exercise of this 
authority, due consideration will be given to the effect of particular 
methods of disposal on safety and sanitation in the area, the proposed 
or probable future utilization of Government-owned sites by the 
Government, or in the case of leased lands, the restoration obligations 
of the Government under the lease. In order to assure consideration of 
these factors, disposals by transfer to other Government agencies or by 
sale intact will be brought to the attention of the installation 
commander or his representative prior to initiation of disposal action. 
Reasonable requirements for site clearance consistent with the foregoing 
criteria should be favorably considered and disposal conditioned 
accordingly, notwithstanding the fact that such action may result in a 
greater burden to transferee agencies or, in the case of disposal by 
sale intact, may result in a reduction in the monetary return which 
might be reasonably expected in a sale involving less stringent site 
clearance requirements. DAEN-REM will be informed of any instances of 
excessive or unreasonable requirements with respect to site clearance. 
The DE will determine by inspection and survey the method to be used in 
disposal of buildings and improvements.



Sec.  644.475  Excessing Army military and Air Force property.

    The procedures for placing buildings and improvements in excess 
status are set forth in AR 405-90 and AFR 87-4. In instances of land 
acquisition where buildings and improvements were acquired incident 
thereto, DEs are designated by the Chief of Engineers under AR 405-90 to 
make disposition of this property. Coordination with the installation 
commander concerned is required. When, under AFR 87-4, the responsible 
DE is called upon by the Air Force Command to furnish an estimate of the 
value of buildings and improvements for the purpose of determining the 
approval authority for excessing the property, no formal appraisal will 
be made. If, in his opinion, the total property exceeds a value of 
$50,000, he will furnish only a rough estimate of its value in round 
figures. If the property is, in his opinion, of a value of $50,000 or 
less, he will limit his statement to this fact and will not specify an 
estimated valuation.



Sec.  644.476  Excessing civil works property.

    The DE are authorized to approve the disposal of buildings and 
improvements acquired incidental to the acquisition of land in reservoir 
areas, regardless of the original cost thereof, when they are in the way 
of authorized construction or when the land upon which they are located 
is to be permanently or frequently inundated. DEs may authorize the 
disposal of buildings and other improvements in any one or more of the 
following categories, which are located on lands which are not excess 
and which are not expected to become excess, and the sale is to be made 
after advertising:
    (a) Buildings or improvements on land acquired by the Government 
determined to be available for disposal pursuant to ER 735-2-1 (Property 
Accounting Procedures-Civil).
    (b) Buildings or improvements which cannot be kept in repair at a 
reasonable cost.
    (c) Buildings or improvements which are dangerous to life or likely 
to damage adjoining structures or have become hazardous or nuisances.
    (d) Buildings or improvements which are damaged or unsuitable for 
public service.
    (e) Buildings or improvements constructed by the Federal Government 
which occupy or interfere with sites for new construction or for other 
civil works purposes.

[[Page 257]]

    (f) Temporary buildings or improvements which have served the 
purpose for which they were constructed.



Sec.  644.477  Civil works property--reimbursement of appropriation.

    Under title 33, United States Code, section 558, the proceeds from a 
sale or transfer of buildings or improvements may be credited to the 
appropriation for the work for which the property was acquired. 
Buildings or other improvements, including timber, on non-excess land 
come within the purview of this law. For further instructions on 
disposition of proceeds, see Sec.  644.322.



Sec.  644.478  Demolition of buildings and other improvements for
utilization of salvage material.

    With respect to DA property, demolition may be undertaken by the DE 
of buildings on non-excess land made available for disposal, when the 
salvage is to be used in construction or maintenance work by the Corps 
of Engineers or upon specific request from another service where funds 
for the purpose are made available. Real Estate funds will not be used 
for such demolition. Determination of practicability for use of 
buildings or improvements in authorized new construction at other sites 
or for salvage of materials will be made by the DE in accordance with 
existing instructions relating to use of materials in new construction. 
Where restoration of leased premises is being performed, it is the 
responsibility of the Corps of Engineers to perform the necessary 
demolition work as part of the restoration obligation, as set forth in 
Sec. Sec.  644.444 through 644.471. Demolition may be accomplished under 
contract when special or expert services are required for removal of 
certain types of structures and funds are available therefor. Unused 
salvage materials will be turned over to redistribution and salvage 
officers for redistribution or disposal in accordance with existing 
regulations pertaining to personal property. The relocation of buildings 
or improvements on the same installation or for re-erection at another 
installation is not to be accomplished as a real estate function (AR 
420-70). Further, it is provided in AR 420-70 that demolition of 
buildings or improvements where retention of the salvage for use at the 
installation is approved, or where no requirement or market is found for 
buildings or improvements approved for disposal by the Corps of 
Engineers, is a facilities engineering responsibility. Pursuant to AFR 
87-4, disposal of AF buildings and improvements by sale will be 
accomplished by the Corps of Engineers, but all disposal of such 
property by salvage will be accomplished by the base commander.



Sec.  644.479  Authority for transfer of buildings and improvements 
to other Federal agencies.

    Buildings and other imporvements which have been screened for 
defense requirements, as outlined in Sec. Sec.  644.333 through 644.339, 
may be transfered to another Federal agency as hereinafter outlined. The 
authority for the transfer of such property to other Federal agencies is 
outlined in Sec. Sec.  644.400 through 644.443. The responsible DE is 
authorized to transfer buildings or structures for removal from the 
site, which have been made available for disposal by proper authority, 
upon receipt of a request signed by an official of another Federal 
agency.



Sec.  644.480  Procedure for transfer.

    Transfer of buildings to other Federal agencies will be accomplished 
by DD Form 1354. An estimate of value will be shown on DD Form 1354, 
Transfer and Acceptance of Military Real Property, or other forms used 
and, in the case of transfer without reimbursement, the following 
footnote will be made: ``Transfer to (Department or Agency), adjustment 
of funds not required.'' When the transfer is made at the direction of 
GSA, an explanation therefor will also be made on the form. Buildings 
and other improvements which are reported to GSA for screening against 
requirements of other Federal agencies (Sec. Sec.  644.348 through 
644.367) will be transferred to another Federal agency only at the 
direction of GSA and for the amount of reimbursement, if any, determined 
by GSA. Buildings and improvements which are not required to be reported 
to GSA will be screened against requirements of other Federal agencies 
by the responsible DE as provided in Sec. Sec.  644.333 through 644.339.

[[Page 258]]

Upon request by a Federal agency for transfer of such property, the 
responsible DE will determine the amount of reimbursement, if any, in 
accordance with the criteria outlined in Sec. Sec.  644.400 through 
644.443.



Sec.  644.481  Responsibility of transferee.

    Where buildings or other improvements are on lands leased to the 
United States, the agency requesting the buildings will be expected to 
remove the building and restore the premises, as required by the terms 
of the lease, or to accept an assignment of the lease together with all 
obligations thereunder. Where the buildings or other improvements are to 
be removed from non-excess land, the transferee agency will be expected 
to perform reasonable site clearance as may be required by the 
commanding officer.



Sec.  644.482  Assignment to Department of HEW or successor agencies.

    Pursuant to delegation of authority contained in FPMR 101-47.308-4, 
as set forth in Sec. Sec.  644.400 through 644.443, the responsible DE 
may assign buildings or other improvements made available for disposal 
and not required for Federal purposes to HEW upon receipt of request 
therefore from the appropriate regional representative of that 
department for disposal for public health or educational purposes. 
Assignments will be effected by letter addressed as indicated in Sec.  
644.483. Further, pursuant to delegation of authority the Department may 
disapprove within 30 days after notice from HEW, any transfer of 
property proposed to be made by that agency for such purpose. The DE 
will be guided by the policy set forth in Sec. Sec.  644.400 through 
644.443 in regard to the delegation to disapprove transfers by HEW.



Sec.  644.483  Notification of Department of HEW or successor agencies.

    When buildings or other structures are reported to GSA for screening 
pursuant to Sec. Sec.  644.348 through 644.367, the Reports of Excess 
are available to HEW by the Regional Office of GSA, and no notice of the 
proposed disposal need be given by the DEs. Where buildings and other 
structures are not reported to GSA simultaneously with circularization 
of other Federal agencies, HEW will be notified in writing of the 
availability of such structures. Such notification will be addressed to 
the appropriate field representative of HEW, and will include the 
following information:
    (a) A brief description of the buildings and improvements, including 
dimensions of buildings, types of construction, and demountable 
characteristics, if any.
    (b) The extent of building site clearance expected.
    (c) That the improvements must be removed and site clearance 
completed within a specified definite period from the date of assignment 
to HEW (usually 60 to 90 days, depending upon the size of the removal 
operation).
    (d) When improvements may be inspected.
    (e) That the improvements will be withheld from advertisement for 
bids for a period of 20 days from the date of the notification, unless 
the office submitting the notification is sooner informed in writing 
that such property is not needed for school, classroom, or other 
educational use or for use in the protection of public health, including 
research. If within the 20-day period, notice is received of a potential 
need, the property may be held an additional 45 days until a 
certification of need or request for assignment is received.



Sec.  644.484  Procedure for disposal through the Department of HEW
or successor agencies.

    During the period held, action preparatory to the publication of 
Invitations for Bids and Specifications of Sale of Buildings and 
Improvements will be taken in order to minimize the time lapse between 
the expiration of the 20-day period and the beginning of the sale 
procedure. Inquiries received prior to the expiration of the holding 
period from state or local agencies or qualified organizations seeking 
the purchase of available improvements for health or educational 
purposes, will be referred to the appropriate field representatives of 
HEW.
    (a) Final disposal is not effected until the improvements have been 
transferred by HEW to an eligible recipient. Therefore, in the letter of 
assignment, HEW will be requested to furnish to the

[[Page 259]]

responsible DE, three copies of the sales contract. One copy of the 
contract will be forwarded to the officer accountable for the property, 
together with a certificate of performance upon completion of the 
operation (the latter to be furnished by the HEW contracting officer), 
and one copy will be furnished to the property auditor charged with 
periodic audit of the property records.
    (b) Should HEW fail to consummate disposition of the improvements 
after assignment to it and request cancellation of the assignment, the 
assignment may be cancelled by a letter of cancellation and appropriate 
disposition of the improvements affected. If there is an excessive 
number of such requests, DAEN-REM will be informed in order that 
corrective action may be requested of HEW.



Sec.  644.485  Sale of buildings and other improvements.

    Buildings and other improvements made available for disposal by 
competent authority and not needed for further Federal utilization, or 
assigned to HEW, will be diposed of by sale by the responsible DE. Sales 
will be accomplished in the following manner:
    (a) Sale to lessor where restoration is not required. Where the 
terms of a lease do not require restoration by the Government, it may 
nevertheless be in the best interest of the Government to negotiate a 
sale of the improvements to the lessor. In such cases, the DE is 
authorized to negotiate such sale where the net salvage value of all 
improvements located on the premises involved in any one lease is less 
than $1,000, and the sales price is determined to be as high as can be 
expected under the circumstances and compares favorably with the 
Government estimate prepared in accordance with paragraph (d) of this 
section.
    (b) Sale under options. All leases or other rights of occupancy will 
be examined to determine whether the owner of the land has an option to 
purchase buildings or other improvements. See Sec.  644.486 for sale of 
improvements constructed under Emergency Plant Facilities or similar 
contracts.
    (c) Sale to eligible public agencies, the Boy Scouts, and the 
public. The sales procedure, including notice to eligible public 
agencies and advertising, set forth in Sec. Sec.  644.540 through 
644.557 will be followed in the sale of buildings or other improvements.
    (d) Appraisal. Except as otherwise provided in Sec. Sec.  644.540 
through 644.557 buildings and other improvements will be appraised prior 
to sale. Except as provided in Sec.  644.490, appraisal will be based on 
the highest and best use which may be for (1) removal and use intact; or 
(2) for dismantling, and removal and stockpiling the salvageable 
material for reuse or sale.



Sec.  644.486  Disposal of buildings and improvements constructed under
emergency plant facilities (EPF) or similar contracts.

    Procedure for the disposal of property constructed under a 
facilities contract on lands neither owned by nor leased to the 
Department is set forth as follows:
    (a) By using service. Disposal of structural components as well as 
equipment may be accomplished by the using service. The term 
``structure'' is defined to mean plant equipment which:
    (1) Is held under a facilities contract of the Department;
    (2) Is not readily severable;
    (3) Is a separate building or a complete structural addition to a 
building in which the Government otherwise has no interest, such as a 
wing, and in which a defense contractor carries on part or all of his 
defense production.
    (b) By the Corps of Engineers. Where disposal of structures, as well 
as other plant equipment located within such structure, is to be 
accomplished by the Corps of Engineers, instructions will be issued as 
to the extent to which the Corps of Engineers will participate in such 
action. Subject to special instructions by DAEN-REM, the following 
coordinated actions will be taken:
    (1) The using service will report to the Corps of Engineers the 
property which is excess to the Department's needs.
    (2) The excess directive report will include the designation by name 
and address of a responsible officer of the using service to join with 
the DE concerned as a representative of the Chief

[[Page 260]]

of Engineers. These two representatives will meet with the contractor 
within seven days of their appointment to determine his interest in 
acquiring all or any part of the facilities. This determination will be 
made in the shortest possible time.
    (3) The meeting with the contractor will promptly establish those 
facilities to be retained by the contractor and those to be declared 
excess. Waiver of existing options will be obtained where necessary.
    (4) Equipment that is of no interest to the contractor will be 
disposed of by using service in accordance with applicable regulations.
    (5) Custody of and accountability for the entire facility remains 
with the using service until other arrangements have been completed.
    (6) The Corps of Engineers will complete negotiations for property 
to be retained by the contractor as rapidly as possible.
    (7) When an agreement has been reached with the contractor, the DE 
or his contracting officer may execute the supplemental agreement to the 
lease or facilities contract transferring improvements, including 
machinery and equipment as a unit. Authority for the transfer should be 
recited in the supplemental agreement. In the case of a supplemental 
agreement to a facilities contract, authority will be obtained from the 
using service through its local representative for the DE or his 
contracting officer to sign the supplemental agreement transferring the 
improvements, including machinery and equipment to the contractor. 
(Figure 11-18 in ER 405-1-12 is the suggested format for Supplemental 
Agreement to Emergency Plant Facilities Contract.)
    (8) Upon completion of negotiations, the responsible DE will issue 
instructions to the using service to dispose of equipment not included 
in the final negotiations in accordance with applicable regulations. 
Accountability for the property will be transferred at this time to the 
new owner or, in the case of real property retained by the Department, 
to the Corps of Engineers.
    (9) Property not disposed of to the contractor will be disposed of 
in the same manner as improvements located on surplus leasehold 
property.



Sec.  644.487  Procedure for disposal of surplus chapels.

    By direction of the President and pursuant to GSA and Army 
regulations, special procedures have been established for disposal of 
chapels. Surplus chapels must be segregated from other buildings for 
sale intact, separate and apart from the land, for use as shrines, 
memorials, or for religious purposes. Where the chapel is located on 
surplus land and it is determined the chapel may properly be used in 
place, a suitable area of land may be set aside for such purposes and 
sold with the chapel (Sec.  644.430).



Sec.  644.488  Soliciting applications for purchase of chapels.

    Promptly upon receipt of an approved DA Form 337 (Request for 
Approval of Disposal of Building and Improvements) or AF Form 300, the 
DE will solicit applications by public advertising. Advertising will 
consist of publication of notice in newspapers, paid advertising when 
necessary, posting of notices in public places, and mailing of 
invitations to all known local churches. A period of thirty (30) days 
will be allowed in which to file written applications. Instructions will 
provide that the applicant will give his name, address, and denomination 
if applicable. The advertisement will describe the chapel, give its 
location, terms and conditions of sale, and the time and place where 
application must be filed. The advertisement will also state that the 
sale price will be made available upon request of interested parties, 
and that the Chief of Chaplains will select the purchaser. To assist 
that office in making a recommendation, the following information should 
be included in applications for the purchase of chapels:
    (a) Purpose and intent of the use of the chapel.
    (b) Facilities currently being used by the church/organization 
applying.
    (c) Membership size of the church/organization.
    (d) History of the church/organization and when established locally.
    (e) Denomination and/or organization.

[[Page 261]]



Sec.  644.489  Conditions of sale of chapels.

    When sold under the provisions of Sec.  644.490, chapels shall be 
sold subject to the condition that during their useful life they will be 
maintained and used as shrines or memorials, or for religious purposes, 
and not for any commercial, industrial, or other similar use. The 
contract or deed of sale will provide further that in the event the 
purchaser fails to maintain and use the chapel for such purposes there 
shall become due and payable to the Government the difference, if any, 
between the appraised fair market value of the chapel, as of the date of 
the sale, without restriction on its use, and the price actually paid. 
This difference should be figured at the time of sale and included in 
the contract of sale or deed of conveyance.



Sec.  644.490  Determining price and provisions of sale for chapels.

    (a) Price. The sale price of the chapel structure in the case of 
sale for use as a shrine, or memorial, or denominational house of 
worship, will be at its fair value in the light of the conditions 
imposed relating to its future use, and the estimated cost of removal 
from the site. Appraisals made to establish the price of specific 
chapels will be predicated on:
    (1) The fair value of the material in place, less the cost of 
dismantling, removal of the material to the outside limits of the 
installation, and the cost of restoring the site.
    (2) The restrictions imposed on the future use of the chapel with 
due regard to the difference between the fair value price obtainable in 
the open market and that which might be obtainable in the limited market 
to which sale is restricted.
    (3) In addition to the criteria set forth in paragraphs (a)(1) and 
(2) of this section cognizance will be taken of the prevailing prices of 
chapels being sold by other disposal agencies within the general area in 
which chapels are being disposed of by the Corps of Engineers.
    (b) Provisions of sale. (1) Disposal of chapels which are not excess 
or surplus will be conditioned on the removal of the chapels from the 
premises. In the disposal of chapels located on excess or surplus leased 
land, no commitments will be made to purchasers for the continued use of 
utilities and services (sewer, water, electric, fire protection, 
guarding). Arrangements may be made between the lessor of the premises 
and the purchaser to leave the chapels in place, provided the lessor 
releases the Government from any and all obligations to restore the 
premises occupied by the chapel.
    (2) Care will be exercised that, prior to the disposal of the 
chapel, equipment such as organs, hymn books, and other ecclesiastical 
furnishings have been removed or shipped in accordance with applicable 
regulations.
    (3) All copies of the contract evidencing the sale of chapels will 
be accompanied by copies of the instructions, if any, received from the 
Chief of Chaplains authorizing the disposal. If no such instructions 
have been received, the DE will attach a statement that in the absence 
of instructions, all known interested parties have been contacted and 
that the disposal has been made after due consideration of applications, 
the uses to be made of the chapel building and the need therefor.



Sec.  644.491  Coordination with the Chief of Chaplains.

    The DE will submit applications for the purchase of chapels to DAEN-
REM, who will request the Chief of Chaplains to select the purchaser and 
advise DAEN-REM of his selection. Where no applications are obtained as 
a result of the advertising, the DE will so advise the Chief of 
Chaplains, reporting steps taken to obtain a purchaser, and recommending 
that the chapel be sold without conditions, in the same manner as 
provided for disposal of other buildings. If the Chief of Chaplains does 
not approve this recommendation or issue other appropriate disposal 
instructions within a period of 60 days, DAEN-REM will be informed.



Sec.  644.492  Report on disposal of chapel.

    As soon as practicable after the sale has been consummated, 
notification of disposal of chapels will be made by the DE direct to the 
Chief of Chaplains, with a copy to HQDA (DAEN-REM) WASH DC 20314, by 
letter, which will contain the following information:

[[Page 262]]

    (a) Location and brief description of chapel or chapels.
    (b) Reference to disposal instructions, if any, received from the 
Chief of Chaplains.
    (c) Identity of purchaser and price paid.



Sec.  644.493  Release of restrictions on chapels sold.

    Where the purchaser fails to maintain and use the chapel in 
accordance with the conditions of sale, or the purchaser requests 
release of the conditions, the facts will be reported to DAEN-REM with 
appropriate recommendations. DAEN-REM may release the purchaser from the 
conditions of sale without payment of a monetary consideration upon a 
determination that the property no longer serves the purpose for which 
it was sold, or that such release will not prevent accomplishment of the 
purpose for which the property was sold.



Sec.  644.494  Donation, abandonment or destruction.

    (a) General. Improvements may be abandoned, destroyed or donated to 
a public body, upon a finding in writing by the DE (but in no event 
shall such finding be made by the official directly accountable for the 
property) that the property has no commercial value or that the 
estimated cost of its continued care and handling would exceed the 
estimated proceeds from its sale, or that abandonment or destruction is 
required by military necessity, or by considerations of health, safety 
or security.
    (b) Finding of Fact. The finding will be prepared as a separate 
document headed: Finding of Fact for ------------ The finding will be 
sufficiently complete within itself to justify the decision to donate, 
abandon, or destroy the property proposed, without outside reference. It 
will be drafted to provide, where the finding is made by the District 
Engineer, for approval by the Division Engineer. Finding of fact 
concerning property which had an original cost in excess of $500,000 
requires the approval of DAEN-REM. A copy of each such finding, so 
approved, will be forwarded by the DE to the regional office of GSA.



Sec.  644.495  Donation to a public body.

    A public body, as defined by GSA for this purpose, means any State, 
territory or possession of the United States, any political subdivision 
thereof, the District of Columbia, any agency or instrumentality of any 
of the foregoing, or any agency of the Federal Government. Property as 
to which findings of fact have been made, may be donated to a public 
body.



Sec.  644.496  Abandonment.

    Abandonment, as used herein, has reference to cases where the lessor 
or a permittor Government agency is unwilling to accept transfer of 
buildings or improvements in lieu of restoration, but is willing to 
permit the Department to leave buildings or improvements having no net 
salvage value on their premises. It is desirable to transfer title of or 
accountability for improvements having no net salvage value to lessors 
or permittors instead of obtaining their consent to abandon such 
improvements. Abandonment as authorized herein will not be a means for 
dropping accountability or responsibility for maintenance of 
improvements on non-excess land.



Sec.  644.497  Destruction.

    Disposal by the Corps of Engineers, as authorized in AR 405-90, does 
not contemplate expenditure of funds for destruction of improvements 
which have no sale or salvage value. Accordingly, where such improvement 
have been approved for disposal by the Corps of Engineers, they will be 
referred back to the appropriate Army of Air Force command for disposal 
action under AR 405-90 or AFR 87-4 as appropriate. However, improvements 
with little or no salvage value may be included in the same item with 
other improvements being offered for sale which are more attractive 
improvements without an expenditure of Government funds.

[[Page 263]]



Sec. Sec.  644.498-644.500  [Reserved]

 Disposal of Standing Timber, Crops, and Embedded Gravel, Sand and Stone



Sec.  644.501  Authority.

    (a) Crops. Crops are defined as personal property in FPMR 101-
47.103-12 and are disposed of under FPMR 101-45.309-1 (Sale, 
Abandonment, or Destruction of Personal Property). The Corps of 
Engineers does not dispose of crops on military lands. However, when 
lands are in the custody of the Corps for construction purposes, the 
Corps will dispose of crops thereon.
    (b) Standing timber, embedded gravel, sand or stone. These are 
defined as real property (FPMR 101-47.103-12(c)). The holding agency is 
designated as disposal agency for standing timber and embedded gravel, 
sand, and stone to be disposed of without the underlying land. (FPMR 
Sec.  101-47.302-2).
    (c) Small lots of standing timber. In accordance with AR 405-90, 
installation commanders are authorized to sell small lots of standing 
timber with a value not more than $1,000 that are in conformity with the 
installation Forest Management Plan. Public notice is required of the 
availability of the timber for sale. The total of such sales in any one 
calendar year will not exceed $10,000.
    (d) Restriction on removal of sand, clay, gravel, stone and similar 
material. The Army is without authority to remove such products from 
public domain land located within the military installation where the 
material is to be used off the installation. With permission of the 
Secretary of the Interior, such material may be removed pursuant to 30 
U.S.C. 601. In such cases, DAEN-REM will obtain the necessary 
permission.



Sec.  644.502  Determination of excess status.

    (a) Military. The procedure for excessing and disposal of standing 
timber and embedded gravel, sand and stone is outlined in AR 405-90. The 
procedure for the determination of availability of timber for disposal 
is outlined in AR 420-74.
    (b) Civil works. (1) When the DE believes that standing timber, 
embedded gravel, sand or stone (whether designated for disposition with 
the land or by severance and removal from the land) is excess to 
requirements, he will submit a recommendation to DAEN-REM for approval. 
The DE is authorized, however, to dispose of standing timber or other 
forest products required to be removed incident to construction and 
operational requirements of the project; that which is generated 
incident to recreational development or the management of public park 
and recreational areas or wildlife management areas; or that which is 
generated in accordance with approved forest management supplements to 
the approved Master Plan (ER 1130-2-400). As far as practicable, high 
grade species in short supply will not be disposed of, but will be 
retained for possible defense requirements. When the amount for 
sawtimber under the above criteria available for disposal exceeds 
5,000,000 board feet, request will be made to DAEN-REM, for 
determination of whether there are any defense requirements for the 
timber. The request will include an estimate of the amounts by species 
and the range in sizes. All timber disposals, except those involving 
timber below the project clearing line or in construction sites, will be 
compatible with the planned use of the areas for the purpose to which 
they are allocated in approved Master Plans and such disposals will be 
incidental to that use. The DE may authorize the disposal of growing 
crops when their disposal is deemed necessary to prevent waste.
    (2) Under the provisions of section 5 of the act of 13 June 1902, as 
amended, (33 U.S.C. 558), proceeds from disposal of these items on civil 
works property may be returned to the appropriation.



Sec.  644.503  Methods of disposal.

    Standing timber, crops, sand, gravel, or stone-quarried products, 
authorized for disposal in accordance with the foregoing, will be 
disposed of by transfer to another Federal agency or by sale.



Sec.  644.504  Disposal plan for timber.

    The DE take appropriate action to assure that construction 
contractors are not authorized, in the clearance of

[[Page 264]]

construction sites, to burn or otherwise destroy merchantable timber 
unless circumstances exist which preclude sale or salvage. In preparing 
for disposal of timber, a disposal plan will be prepared which will 
include the following:
    (a) Live timber and merchantable dead timber will be marked for 
cutting in accordance with the land management plan, Master Plan, or 
forestry supplement thereto, and cutting will be limited to the timber 
so marked. The disposal plan will contain sufficient information in this 
respect to permit preparation of specifications for inclusion in the 
invitation for bids.
    (b) Utilization of existing roadways and construction of new roads 
and saw mills should be limited to the minimum necessary.
    (c) Requirement that the customary practices in elimination of fire 
hazards be observed with necessary specifications therefor.
    (d) The installation commander will be consulted to obtain his 
desires in connection with security measures, and other matters 
affecting the installations, and the requirements of such measures will 
be set forth specifically.
    (e) Any measures considered necessary to protect timber and young 
growth not marked for cutting will be specified.
    (f) Where an appraisal is required, the appraisal report will be 
prepared by a competent forester. The report will indicate the number 
and size of each species and classification of trees to be cut; the 
estimated board feet in log scale measurement; linear estimates of pole 
timber, and amount of cord wood. The appraiser should indicate in the 
appraisal report what, in his opinion, should be acceptable as a minimum 
price for different types of timber, as well as a total or lump sum 
estimate for the whole. Methods of administration and sale of timber by 
the Army or Air Force should follow the same general rules employed by 
the U.S. Forest Service in its sales and forestry practices. U.S. Forest 
Service personnel may be available for this work, if desired, on a 
reimbursable basis, provided the size of the area in question and the 
location render such arrangements feasible.
    (g) Minor sales, involving lots with an estimated value of $1,000 or 
less, may be accomplished by the reservoir manager on civil works 
projects under general guidance issued by the DE Real Estate Branch. In 
such minor sales, two or more informal bids, in writing, will be 
obtained, if possible. If only one bid can be obtained, the proposed 
sale will be posted for a period of ten (10) days.



Sec.  644.505  Disposal plan for embedded gravel, sand or stone.

    Prior to offering sand, gravel, or stone for disposal, a disposal 
plan will be prepared, which will include the following:
    (a) Control of transportation facilities which will limit use of 
roads and construction of new roads to the minimum necessary.
    (b) Security measures established by consultation with the 
installation commander to properly protect Government property and other 
interests of the Government.
    (c) Where applicable, the depth or level to which the material may 
be removed, and any restoration of the site after removal.
    (d) Specifications as to methods to establish amount of material 
removed for the purpose of payment.
    (e) With certain exceptions as discussed in paragraph (d) of Sec.  
644.544 an appraisal report will be prepared by a person familiar with 
the material involved and the operations for mining, quarrying or 
otherwise removing it, giving the type or grade of material involved and 
an opinion as to the minimum price that should be acceptable.



Sec.  644.506  Procedure for transfer to another Federal agency.

    As soon as possible after standing timber, embedded sand, gravel, or 
stone are made available for disposal, other Federal agencies having 
activities within the vicinity of the location of the property and 
which, in the opinion to the responsible DE, may desire transfer of the 
property will, to the extent practicable or economical, be notified of 
the availability of the property for disposal. Such notification should 
include the following: information concerning how arrangements can

[[Page 265]]

be made to inspect the property; information concerning conditions 
governing cutting, harvesting, mining, or removal of the property and a 
statement that the property will be advertised for sale upon the 
expiration of fifteen (15) calendar days from the date of the 
notification, unless a request for transfer of the property, or a 
statement that a request for transfer of the property, or a statement 
that a request therefor may be made, is received within the fifteen (15) 
day period. Should a Federal agency request within the fifteen (15) day 
period, that disposal of the property be withheld pending determination 
of a requirement, disposal will be withheld not longer than sixty (60) 
days from the date of notice of availability, unless DAEN-REM approves 
withholding disposal for a longer period. Disposal will not be withheld 
for such sixty (60) day period, extended if applicable, if to do so 
would interfere with construction or other necessary operations. Should 
a request be received from a Federal agency for transfer of the 
property, the property will be transferred in accordance with existing 
procedures without reimbursement except as provided by FPMR 101-47.203-
7. If no request for transfer is received, the property will be 
considered surplus and disposed of by one of the methods outlined in 
Sec. Sec.  644.507 and 644.508. The foregoing instructions do not apply 
to land clearance operations performed either by contract or force 
account. It applies only to those cases where it is proposed to offer 
property for sale.



Sec.  644.507  Sales.

    DEs will be governed by the general procedure set forth in 
Sec. Sec.  644.540 through 644.557 in selling standing timber, growing 
crops, embedded sand or gravel or stone products.



Sec.  644.508  Agreement with Small Business Administration (SBA)
on sale of timber.

    The Department of Defense has entered into an agreement with the SBA 
for the development of a program of assistance for small concerns 
operating in the timber business. This agreement is published for 
compliance as Figure 11-19 in ER 405-1-12. In the implementation of this 
agreement, the DE will cooperate with field representatives of SBA to 
the fullest extent compatible with efficient administration of the 
Army's timber disposal program.



Sec.  644.509  Status as small business.

    (a) Definition. Each invitation for bids for the sale of timber with 
an estimated value of $2,000 or more will contain a definition of small 
business and provision for self-certification of the bidder's status 
within its terms. A definition for use in invitations for bids on Army 
timber is provided in the ``Certificate as to Small Business Status'' 
(Figure 11-20 in ER 405-1-12).
    (b) Self-certification. 13 CFR 121.3-9(c) provides:

    In the absence of a written protest or other information which would 
cause him to question the veracity of the self-certification, the 
contracting officer shall accept the self-certification at face value 
for the particular sale involved.

    (c) Definition for set-asides. The definition of small business 
provided in Figure 11-20 in ER 405-1-12 omits portions of the definition 
prescribed by SBA regulations which are not presently applicable to 
sales of Army timber. The omitted portions relate to sales of timber 
reserved for or involving preferential treatment of small business Sec.  
644.512. These portions of the definition are subject to frequent 
revision by SBA.



Sec.  644.510  Information for SBA on timber sales.

    Representatives of SBA will visit District offices from time to time 
for purposes of coordination and assistance; to furnish names and 
information on prospective bidders from the SBA facilities list; and to 
obtain information on programmed sales of Army timber. In addition to 
the information which may be furnished during the course of these 
visits, the following items of information will be furnished to 
appropriate SBA field offices on each sale of timber products with an 
estimated value of $2,000 or more:
    (a) Advice on proposed or prospective timber sales of Army timber.
    (b) Copies of invitation for bids.
    (c) Name of successful bidder, his status as a small business, the 
bid price,

[[Page 266]]

and an estimate of the amount of timber sold.



Sec.  644.511  Certificate of competency by SBA.

    Section 8(b)(7) of the Small Business Act (15 U.S.C. 637(b)(7)) 
authorizes the SBA to certify the competency of a small business concern 
as to capacity and credit. In any case where timber is being sold on a 
credit basis, if the bid is being questioned solely on the financial 
ability of the bidder and the bidder is a small business concern, the DE 
will notify the appropriate SBA field office immediately and follow the 
other procedures provided by Section III of the DOD-SBA Agreement. A 
certificate of competency issued by SBA will be honored in such cases.



Sec.  644.512  DA-SBA joint set-aside determination.

    Section 15 of the Small Business Act (15 U.S.C. 644), provides that 
where certain joint determinations are made by the SBA and a disposal 
agency, the award of a contract for the sale of Government property 
shall be made to a small business concern. Section IV, Joint Set-Aside 
Determination of the DOD-SBA Agreement implements Section 15 of the 
Small Business Act. It is not anticipated that SBA will recommend that 
Army timber be reserved or set aside for sale to small business concerns 
on an exclusive or preferential basis. In the event recommendations on 
set asides of Army timber are received from SBA field offices, the SBA 
recommendations will be forwarded promptly to HQDA (DAEN-REM) WASH DC 
20314 with DE comments and recommendation.



Sec. Sec.  644.513-644.515  [Reserved]

  Clearance of Explosive Hazards and Other Contamination From Proposed 
                      Excess Land and Improvements



Sec.  644.516  Clearance of Air Force lands.

    The Chief of Engineers has no responsibility for inspecting or 
clearing excess Air Force land of explosives or chemical/biological 
contaminants. When a target or bombing range, or other land under the 
control of the Department of the Air Force, which might be contaminated 
with explosives or other harmful or dangerous substances, becomes excess 
to Defense requirements, the appropriate DE will obtain a certificate as 
to the extent of contamination and clearance thereof from the Commander, 
Air Force Logistics Command (AFLC), Wright-Patterson Air Force Base, 
Ohio 45433. The Corps of Engineers will continue to be the agency with 
which the disposal agencies, purchasers, and former lessors will 
communicate when explosives or objects resembling explosives, are 
discovered on the land after dispostion has been effected. The AFLC, 
upon request of the DE, will neutralize or remove such objects or 
substances and make a report to the requesting agency or person. See 
Sec.  644.535 for support required of the Corps.



Sec.  644.517  Clearance of Army lands.

    The responsibility for performing clearance of ordnance contaminated 
excess Army military real property is placed upon and remains with the 
using command. That command, after completion of the clearance work, 
will furnish the DE a ``Statement of Clearance'' (Appendix E, AR 405-90) 
and a record of the clearance work performed. In addition to the 
Statement of Clearance, the following information will be furnished to 
the DE upon completion of the neutralization:
    (a) Records of the neutralization work performed, including 
statement of methods employed.
    (b) List of dangerous and explosive materials removed.
    (c) Number and names of demolition technicians employed.
    (d) Other data that may be pertinent in the defense of any suit or 
claim that might subsequently arise as a result of civilian occupancy.



Sec.  644.518  Determination of categories.

    Prior to making a recommendation for excess, the state of 
contamination of the property must be determined by the installation 
commander as either of the following:
    (a) Category One. Those lands such as ammunition plants, storage, 
test, impact and training areas, bombing or target ranges, which may 
contain explosives or unexploded ordnance. The

[[Page 267]]

report will include proposed methods of neutralization and the costs 
thereof.
    (b) Category Two. Those lands or buildings which are suspected of 
being contaminated with radiological, industrial-military chemicals, or 
explosives. The U.S. Army Toxic and Hazardous Materials Agency 
(USATHAMA), Aberdeen Proving Ground, Maryland 21010, will be requested 
to determine if the land contains any of the above contaminants, to 
determine the extent of the contamination, and to decontaminate, if 
necessary before such property is reported for disposal.



Sec.  644.519  Responsibilities.

    (a) Category One. The DE, as designee of the Chief of Engineers, 
will satisfy himself that the clearance work, as certified in the 
Statement of Clearance, has been performed and that such clearance 
complies with the requirements of this section. If the DE determines 
that the completed clearance work is not sufficient, he will request the 
using command to perform the necessary additional clearance. The 
Department of Defense Explosives Safety Board (DDESB), has 
responsibility for reviewing and approving, from an explosive safety 
veiwpoint, clearance reports for real property declared excess and 
offered for disposal. DDESB should be consulted for review and analysis 
of accomplished clearance work for Category One property when 
determinations of adequacy are not within the capacities of the DE. 
Requests, fully documented, for review and/or analysis by the Board may 
be forwarded to DAEN-REM for submission to the Board. Department of 
Defense procedures include staff study of all proposed excess reports by 
the Board before grant of ``Prior Approval'' for those disposals 
requiring reports to the Armed Services Committees (10 U.S.C. 2662). 
When the clearance work has been satisfactorily performed, disposal 
action will be continued as set forth in this subpart F. If the DE 
determines that further clearance work is necessary to render the land 
safe for use but that such further clearance work is not economically 
justified, he will make a report to DAEN-REM with his recommendations 
and pertinent supporting data. The report will include a statement of 
the current status of the excess action.
    (b) Category Two. The U.S. Army Toxic and Hazardous Materials Agency 
(USATHAMA) is responsible for the identification and containment and 
elimination of all toxic and hazardous materials, and related 
contamination on all and/or buildings where an excessing action is 
planned. USATHAMA will conduct the survey and assessments of all 
proposed excess property to establish the type and quantities of 
contaminants and then plan, direct and control the program to 
decontaminate and clean up the property. Following the completion of the 
decontamination clean up program, USATHAMA will prepare a clearance 
statement stating the property has been cleared of all toxic and 
hazardous materials reasonably possible to detect using present state-
of-the-art methodology, and it will provide any exceptions or 
restriction for utilization of the property. Clearance statements which 
identify contaminations of ammunition and explosives will be submitted 
to the DDESB for review. Category Two items may include chemical 
munitions or agents, liquid propellants and pyrotechnics. The clearance 
statement will be forwarded through the Major Army Command (MACOM) to 
DAEN-REM.
    (1) Decontamination of Category Two real property will comply with 
the requirements of TB 700-4 (Decontamination of Facilities and 
Equipment). The Bulletin provides general policies, responsibilities and 
procedures applicable whenever potentially contaminated facilities are 
disposed of to other Government agencies, qualified users in industry, 
or to the general public.
    (2) The degrees of decontamination are designated in TB 700-4. 
Contaminated real and personal property excessed for disposal shall be 
decontaminated to XXXXX before it can be removed from the Government 
premises, or transferred to nonqualified Government or industry users.



Sec.  644.520  Contaminated industrial property.

    (a) GSA may arrange to sell contaminated chemical or other 
industrial plants to a purchaser whose operations

[[Page 268]]

will result in the same type of contamination, or who agrees to perform 
the necessary decontamination. Any decontamination work required will be 
monitored by USATHAMA who will also review the completed program for 
adequacy of decontamination. If these arrangements cannot be worked out, 
USATHAMA will decontaminate the property at the request of the Office, 
Chief of Engineers (OCE), or the property may be withdrawn from excess 
and returned to the using command for care and custody.
    (b) A Statement of Clearance is required for industrial property to 
be declared excess in order to establish a qualitative and quantitative 
base line for the contaminants present. In the Statement, USATHAMA will 
provide an adequate description of the nature and extent of the 
contamination. The description furnished to the DE should include the 
following information:
    (1) Name and location of installation.
    (2) Date of final clearance.
    (3) Reference to attached real estate map showing locations of 
contaminated, cleared and restricted areas. The map(s) will be attached 
to the description of contamination.
    (4) Statement that the area has been cleared of toxic and hazardous 
materials reasonably possible to detect either by present state-of-the-
art methodology or by a visual inspection.
    (5) Recommendation as to whether the land or structures may be used 
for any purpose for which it is suited, clearly identifying any areas 
recommended for restricted use and listing restricted tract and building 
numbers.



Sec.  644.521  Limitations on clearance cost.

    The following principles are established for determination of the 
financial limit of clearance operations at excess installations:
    (a) Government-owned land. Clearance work will not be undertaken 
where the estimated cost thereof exceeds the value of the land after 
decontamination plus the estimated cost of keeping it security-fenced 
and posted for a period of 25 years.
    (b) Leased land. Clearance will not be undertaken where the 
estimated cost, plus the cost of any other required land restoration 
work, exceeds the value of the land after clearance and restoration plus 
the estimated cost of keeping it security-fenced and posted for a period 
of 25 years.



Sec.  644.522  Clearance of military scrap.

    Military scrap can contain or be contaminated with explosives, 
chemicals, and other hazardous materials. The primary consideration in 
determining whether scrap metal will be removed should be the safety of 
persons coming on the land in question and, secondarily, the prevention 
of accidents resulting from the sale and/or use of the scrap metal 
subsequent to the land passing from the jurisdiction of the Department. 
The DE will insure the removal or destruction, by using command, of all 
military scrap and scrap metal from lands suitable for cultivation or 
other subsurface operations. In the case of land unsuitable for 
cultivation or other subsurface operations, all military scrap will be 
removed or destroyed and scrap metal removed, if it is reasonably 
possible to do so. Cases where it is considered impracticable to remove 
the scrap metal, will be reported to DAEN-REM for final decision. In 
such instances, pertinent data and the recommendation of the DE will be 
furnished. Disposition of military scrap or scrap metal by dumping into 
inland waters or by land burial in other than an approved landfill is 
prohibited.



Sec.  644.523  Restricting future of artillery and other ranges.

    Experience indicates that, on ranges where high explosive 
projectiles have been fired or dropped, such as artillery, bombs, 
mortars, rockets, grenades, and the like, it is impossible to make 
certain that land in impact areas is absolutely safe for unrestricted 
use. Such impact areas receive a high concentration of fire, and the 
properties of these projectiles are such that many duds are deeply 
buried. Depth of burial, as well as the concentration of fragments or 
components, will affect the dependability of mine detectors. Since there 
is no known definite period within which such projectiles will become 
inert through weathering and corrosion, such contaminated areas can be

[[Page 269]]

safely released for restricted use only, even after decontamination work 
has been carried to its practicable limit. Such restrictions will 
usually be in the form of a recommendation that the land be restricted 
to surface use only. Restrictions will be based solely on the type and/
or extent of contamination. If land is contaminated to such a degree 
that it is considered it cannot be rendered safe for any use, disposal 
action will be suspended and the facts will be reported to DAEN-REM-C 
with the DE recommendations.



Sec.  644.524  Reporting contaminated land to the General Services
Administration.

    Contaminated areas, except industrial properties as covered by Sec.  
644.520 will not be included in a Report of Excess to GSA until such 
time as the affected areas have been cleared by the using command to the 
satisfaction of the DE and a Statement of Clearance has been received. 
If an exception is granted and the Department of the Army, with the 
concurrence of GSA, reports contaminated nonindustrial property excess, 
the report of excess will include statements concerning:
    (a) The extent and type of such contamination;
    (b) Plans for decontamination, if any; and
    (c) The extent to which the property may be excessed without future 
decontamination.



Sec.  644.525  Statement of clearance in reporting excess property
to GSA.

    The Report of Excess will include the Statement of Clearance 
furnished by the using command (Sec.  644.517). The record of the 
clearance work performed by the using command will not be included in 
the Report of Excess but will be preserved in the permanent records of 
the DE. It is anticipated in these cases that the disposal agency (GSA) 
will, at the time the land is offered for sale of lease, give public 
notice of the circumstances surrounding its past and future restricted 
use. Included in such notice will be the statement that the Department 
of the Army is willing to remove or destory any potentially dangerous 
materials discovered at any time in the future, subject to the 
availability of funds for this purpose.



Sec.  644.526  Reporting target ranges.

    All Reports of Excess to GSA covering lands which have been used as 
target ranges of any kind will contain an affirmative or negative 
statement in regard to contamination. This will be by appropriate 
schedule and reference thereto in the following manner:
    (a) If the statement is negative, it will declare that no explosive 
or other contaminating materials were used or stored on any portion of 
the installation.
    (b) If the statement is affirmative, reference will be made to 
appropriate schedules of the Report of Excess containing statements of 
clearance on the installation, or portions thereof.



Sec.  644.527  Recording Statements of Clearance.

    On property disposals for which the Corps of Engineers is the 
disposal agency, the DE will have the Statement of Clearance recorded, 
if possible, as part of the permanent history of the property involved, 
with the proper county land record office. A copy of the report of 
clearance work performed will be furnished DAEN-REM and DAEN-REP.



Sec.  644.528  Return of contaminated leased land to owners.

    Where leased land has been contaminated, whether excess to military 
requirements or being used, it may often prove advisable and economical 
to acquire the fee to such properties. Prior to considering the return 
of contaminated leased land to owners, District Engineers will assist 
installation commanders in preparing an analysis as a basis for 
recommendation to acquire or not acquire such areas. In the case of 
recommended restriction of use, notice should be given the lessor as 
described in Sec.  644.525.
    (a) Where such a restriction reduces the value of the land, the 
Department will, if consistent with the terms of the lease, pay damages 
equal to the reduction in value as of the effective date of termination.
    (b) As stated in Sec.  644.525, the owner should be advised that the 
Department

[[Page 270]]

is willing to remove or destory any potentially dangerous materials that 
may be discovered in the future, subject to the availability of funds.



Sec.  644.529  Supplemental agreement with owner of contaminated
leased land.

    In the event that it becomes necessary to pay damages to a lessor in 
lieu of restoration i.e., decontamination, the following clause, 
appropriately modified to fit the circumstances, will be made a part of 
the supplemental agreement terminating the lease and effecting monetary 
settlement in lieu of restoration. Additionally, in order to protect the 
Government from possible claims for damages from future purchasers, the 
executed supplemental agreement will, in those jurisdictions permitting 
recordation, be recorded by the DE thus providing legal notice to 
subsequent purchasers of the condition of the premises.

           Suggested Clauses for Use in Supplemental Agreement

    Whereas, by reason of the use made of the premises by the Government 
it is impossible to ascertain after completion of decontamination 
operations by the Government that the following described portion of 
land is safe for unrestricted use by the lessor (or state because of use 
made by Government that use of land must be restricted to grazing, 
etc.):
    (Legal Description; utilize hachured/annotated map(s) as attachment 
plus legal description.)
    Now, therefore, in consideration of the payment by the Government of 
the United States to the lessor, (Name of Lessor), of dollars ($ ), 
representing the estimated compensation to which the lessor is entitled 
by reason of the loss of the unrestricted use of the above described 
property, the lessor hereby releases the Government from all claims for 
damages to property and/or injury to persons which may arise out of the 
existence on the premises of unexploded ammunition or chemical/
biological agents. It is mutually understood, however, that for a period 
of 25 years from the date hereof, the Government shall, upon request of 
the lessor, remove or destroy any potentially dangerous materials that 
may be discovered on the land, provided that adequate appropriations are 
available to cover the cost of such service. (If use of the land is 
restricted to surface use, the lessor should agree and convenant, in 
consideration of the payment, to use the land for such purposes only.)



Sec.  644.530  Conditions in conveying land suspected of contamination.

    The following conditions, appropriately modified to conform to local 
law, will be included in deeds conveying land which is, or is suspected 
of being, contaminated with explosive or toxic materials and is 
restricted to surface use: (GSA should be requested to include these 
conditions in deeds that they prepare.)

    Whereas, said property was a part of (Name of Installation) , a 
military installation used for , and portions of this property were 
subject to contamination by the introduction into the said installation 
of bombs, shells and other charges (insert reference to toxic chemical/
biological agents, if applicable) either below or upon the surface 
thereof; and
    Whereas, the grantor has caused the property to be inspected and has 
decontaminated the said property to the extent deemed reasonably 
necessary, and, to the extent deemed consistent with sound economic 
limitations, has cleared the property of all dangerous and explosive 
materials and/or chemical/biological agents, reasonably possible to 
detect, and has made certain recommendations pertaining to the use to 
which the land may be devoted, and the said recommendations are 
contained in a statement, a copy of which is attached hereto and made a 
part hereof; and
    Whereas, the grantor, by attaching such statement, does not intend 
to make, nor shall it be construed to have made, any representations or 
warranties pertaining to the condition of the land; and
    Whereas, the hereinafter-designated grantee has entered into a 
contract to purchase said property with full knowledge of, and 
notwithstanding the foregoing recitals which are incorporated for the 
purpose of disclosing the former use made of the property hereinafter 
described; and
    Whereas, by acceptance of this instrument, the grantee admits and 
confesses to full knowledge with respect to the facts contained in the 
foregoing recitals as to possible contaminated condition of the 
property;
    Now, therefore, by acceptance of this instrument, and as a further 
consideration for this conveyance, the grantee here convenants and 
agrees for himself, his heirs, successors, or assigns, to assume all 
risk for all personal injuries and property damages arising out of 
ownership, maintanance, use, and occupation of the foregoing property; 
and further covenants and agrees to indemnify and save harmless the 
United States of America, its servants, agents, officers, and employees, 
against any and all liability,

[[Page 271]]

claims, causes of action, or suits, due to, arising out of, or resulting 
from, immediately or remotely, the possible contaminated condition, 
ownership, use, occupation, or presence of the grantee, or any other 
person, upon the property, lawfully or otherwise.



Sec.  644.531  Warning to public of danger in handling explosive missiles.

    When any land which has been contaminated with explosive objects, or 
chemical/biological agents, is released for disposal to, or use by, the 
general public in addition to the clearance statement furnished to the 
disposal agency, the DE will publicize, to the fullest extent 
practicable, the possibility of contaminants remaining on the land and 
the inherent danger of handling explosives or other contaminants. Such 
publication should be in the form of articles in official news media, or 
posting of the premises whenever the later is considered most feasible. 
Such publicity should include instructions that, in the event of the 
discovery of an explosive missile, or an object resembling an explosive 
missile, or other contaminant, or in the event of an injury caused by an 
explosion or exposure to toxic agents, such discovery or injury should 
be reported immediately to the DE. An effort should be made to obtain 
the cooperation of local law enforcing agencies to insure the prompt 
reporting of an accident, or the discovery of an explosive missile. The 
majority of accidents are the result of the removal of explosive 
missiles by individuals for sale to scrap dealers. Scrap dealers in the 
vicinity of contaminated lands should be informed of the inherent 
dangers and asked to cooperate by refusing to buy military scrap from 
private parties.



Sec.  644.532  Reporting accidents.

    Immediately upon receipt of information of an accident involving, or 
appearing to involve, explosive or chemical/biological elements 
remaining on, or carried from an excess or surplus installation, whether 
under the jurisdiction of the Corps of Engineers, other Government 
agency, or sold or returned to public or private owners, the DE will 
institute an investigation and prepare a report prescribed by AR 385-40 
and OCE Supplement thereto. Further, upon determination that an accident 
has occurred, the former using command should be requested to send 
qualified explosive, chemical or biological specialists to the scene of 
the accident immediately, in order that proper corrective measures to 
eliminate future accidents may be instituted. HQDA (DAEN-REM) will be 
immediately informed, by teletype, of any accidents due to explosives on 
lands which have been used by the Department involving injuries to 
persons and/or animals, or damages to private property.



Sec.  644.533  Contamination discovered after return of land to owner,
or sale.

    When land has been previously declared clear of explosives or other 
dangerous material so as to be safe for all uses and disposed of, but is 
later found to have been contaminated to such an extent that, in his 
opinion, it is dangerous to the public, the DE will request the former 
using command to re-examine the land for the purpose of determining the 
extent to which the original Statement of Clearance should be revised 
and to determine the kind and cost of any further clearance work by the 
using command which would be required to place the property in the 
condition set forth in the original Statement of Clearance. If further 
clearance work is necessary and considered economically justified, the 
DE will request the using command to perform such work and furnish a new 
Statement of Clearance and record of the further clearance effected. If 
further clearance work is not considered economically justified, he will 
make a report thereof to DAEN-REM with his recommendations and pertinent 
supporting data. Recommendation for reacquisition of contaminated lands 
will be limited to those which involve full restrictions of both surface 
and subsurface uses. Where subsurface use of lands only is to be 
restricted, it is preferable to make compensation to the owners through 
claim procedure, when and if instituted by the owner on his own 
initiative.

[[Page 272]]



Sec.  644.534  Return of public domain land.

    (a) General. The procedures described elsewhere in Sec. Sec.  
644.516 through 644.539 to carry out the continuing responsibility of 
the Department of the Army to assist and advise the land holder and 
protect the public from dangerous substances on or in the land after 
release are equally applicable to public domain lands. Air Force policy 
and procedures are generally comparable.
    (b) Congressional. A provision has been added to several laws 
enacted by Congress that upon request of the Secretary of the Interior 
at the time of final termination of the reservation effected by the Act, 
the Department of the Army shall make safe for nonmilitary uses the land 
withdrawn and reserved, or such portions thereof as may be specified by 
the Secretary of the Interior, by neutralizing unexploded ammunition, 
bombs, artillery projectiles, or other explosive objects and chemical 
agents. The intent of the provision is explained by a statement of the 
Committee on Interior and Insular Affairs, House of Representatives, in 
Report No. 279, 87th Congress, 1st Session: The committee concluded that 
it would be appropriate to amend the bill to designate the Secretary of 
the Interior to act on behalf of the Federal Government in delineating 
the areas to be made safe for nonmilitary use when the lands are no 
longer required for defense purposes. ``It is expected that the 
Secretary of the Interior will not require the Department of the Army to 
proceed with expensive cleanup work in areas where there would be no 
direct benefit. On the other hand, it is anticipated that when potential 
resources or use values are such as to make dedudding or decontamination 
advisable, the Secretary of the Interior will identify those resources 
and values for the Secretary of the Army. This will permit a full and 
complete justification in the event that a separate appropriation 
therefor is required.'' Report No. 279 also quoted the following policy 
statement by the then Bureau of the Budget:

    . . . requirement for decontamination should be related to a 
standard not only of practicability, but also to one of economic 
feasibility that takes into account the desired future use and value of 
the land to be decontaminated.

    (c) Army. The congressional policy outlined above does not change 
the existing Army policy. Its principal effect is to make it clear that 
the Secretary of the Interior has an equal interest with the Secretary 
of the Army in the final decision on whether it is practicable or 
feasible to clear lands for return to the public domain, and the extent 
of clearance. No difficulties in reaching agreement with Interior in 
these matters are anticipated. Where large expenditures are involved it 
will usually be necessary to request a special appropriation, leaving 
the final decision to Congress. In any instance, if difficulty in 
reaching agreement with officials of the Bureau of Land Management (or 
the Secretary of the Interior) should occur, it will be reported 
promptly to DAEN-REM with complete background data for review and 
instructions.



Sec.  644.535  Support in clearance of Air Force lands.

    Where Air Force range lands are proposed for disposal, the AFLC, in 
most cases, will make an economic study to determine the extent of 
clearance that is justified by the relative values of the property 
before and after decontamination. For this purpose, AF commands 
declaring range lands excess will submit a copy of the excess 
recommendation to the AFLC. Upon request, the DE will prepare and 
furnish a disposal planning report to the AF Logistics Command for 
assistance in making the economic study. The disposal planning report 
will include, but need not be limited to, the following:
    (a) A map which depicts and annotates differing areas according to 
their estimated highest and best use.
    (b) An appraisal report reflecting the fair market value of each of 
the differing areas based on their highest and best use, and based on 
the assumption that the lands are entirely free of dangerous materials 
or other contamination. AFLC will compare such evaluation with cost of 
decontamination work. While needed primarily in connection with the 
return of AF range lands to the public domain, economic

[[Page 273]]

studies may be made and disposal planning reports requested by the AF in 
other areas.



Sec. Sec.  644.536-644.539  [Reserved]

                             Sale Procedure



Sec.  644.540  Advertising.

    (a) Definition and purposes. GSA regulations require that disposal 
agencies shall widely publicize all surplus real property which becomes 
available for sale. Sales will be made to the highest responsible bidder 
after advertising. Advertising consists of the preparation of Invitation 
for Bids, the posting of copies thereof in public places, their 
distribution to interested persons or prospective bidders, and 
publication of notice of sale in newspapers where such publication is 
deemed advisable or is required by this subpart F. The purpose of 
advertising and obtaining competition in selling Government property is:
    (1) To give all qualified persons equal opportunity to bid for the 
property.
    (2) To secure for the Government the benefits which flow from 
competition.
    (3) To prevent criticism that favortism has been shown by officers 
or employees of the Government in making sales of public property.
    (b) Notice to Department of Commerce. A condensed statement of 
proposed sales of surplus real property by advertising for competitive 
bids, except where the estimated fair market value of all the property 
included in the advertisement is less than $5,000, shall be prepared for 
publication in the U.S. Department of Commerce publications, ``Commerce 
Business Daily.'' Guideline is contained in the Defense Acquisition 
Regulation (DAR) 1-1005.1, (formerly the Armed Services Procurement 
Regulation). Forward statement to: U.S. Department of Commerce, Commerce 
Business Daily, P.O. Box 5999, Chicago, Illinois 60680.
    (c) Procedure. Whether newspaper advertising in addition to 
distribution and posting of Invitation for Bids is desirable will depend 
upon the value of the property and in some instances the anticipated 
interest in the property. The ever-changing market requires different 
methods or efforts to obtain the best price for the Government. The time 
allowed for submission of bids will depend upon the time available, 
usually 30 days. If available, a longer period may be desirable based on 
value and other factors. A shorter period may be necessary and, in an 
emergency, a period of less than 10 days may be allowed. However, the 
contracting officer should make a record of written findings to support 
such a decision. If the emergency is based on requirements of the using 
command that appear questionable, a report with recommendations should 
be forwarded to DAEN-REM by the most expeditious means.
    (d) Bidders mailing lists. Instructions contained in procurement 
regulations are applicable generally for establishing, maintaining, and 
controlling bidders mailing lists (DAR 2-205). Generally, all proposed 
sales should be preceded by an advance notice, to eliminate 
disinterested bidders and as a measure of economy in printing and 
distributing voluminous Invitation for Bids. Notice to bidders will 
provide that their failure to respond to two successive sales offerings 
will result in the removal of their names from the bidders list. When 
time does not permit an advance notice, one copy of the Invitation may 
be sent to the potential bidder, which contains the following notice: 
``Attention Bidders. If interested in bidding on any or all items, three 
(3) additional copies will be furnished on request.'' The advance notice 
will describe the property offered and ordinarily provide that 
Invitation for Bids will be mailed on request or may be picked up at the 
installation or project at the time the property is inspected.
    (e) Inspection of the property. Upon request, interested persons 
should be permitted to make appropriate inspection of the property, 
including inventory records, plans, specifications, and engineering 
reports, subject to any restrictions necessary in the interest of 
national security and to such reasonable rules as may be prescribed by 
the using command or the DE.



Sec.  644.541  Award of contract.

    (a) Opening of bids. All bids shall be opened and publicly disclosed 
by a duly authorized representative of the responsible DE at the time 
and place

[[Page 274]]

stated in the Invitation and advertisements.
    (b) Award and notice to bidders. Award shall be made with reasonable 
promptness by notice to the responsible bidder whose bid, conforming to 
the Invitation for Bids, will be most advantageous to the Government, 
price and other factors considered, provided that any or all bids may be 
rejected when it is in the public interest to do so. When an award is 
made, unsuccessful bidders should be notified promptly and their earnest 
money deposits returned.
    (c) Equal offers. Equal offers mean two or more offers that are 
equal in all respects taking into consideration the best interests of 
the Government. When equal acceptable offers are received, award shall 
be made by a drawing by lot limited to the equal acceptable offers 
received (See also Sec.  644.542.)
    (d) Public auction. When authorized by GSA, sales of surplus 
property may be made through contract auctioneers. Consideration should 
be given to auction sales when there is likely to be considerable 
interest in the property. GSA Regional Offices have had experience with 
actions, maintain lists of qualified auctioneers, are in a position to 
give other advice and assistance, and may authorize auction sales on 
behalf of GSA, pursuant to FPMR 101-47.304-7. Auctioneers retained under 
contract shall be required to publicly advertise for bids in accordance 
with applicable provisions of that regulation. The prior approval of 
DAEN-REM will be obtained before auction sales are undertaken.



Sec.  644.542  Application of anti-trust laws.

    The Federal Property Act provides that real property and related 
personal property with an aggregate total cost of $1,000,000 or more (or 
personal property with an acquisition cost of $3,000,000 or more) or 
patents, processes, techniques, or inventions, regardless of cost, shall 
not be disposed of to any private interest until the advice of the 
Attorney General has been received as to whether the proposed disposal 
would tend to create or maintain a situation inconsistent with the anti-
trust laws. Prior to obligating the Government on any such disposal, 
Division Engineers will furnish DAEN-REM information on the probable 
terms and conditions of the sale. DAEN-REM will use the information as 
the basis for a request to the Attorney General for advice. Under the 
provision cited, the Attorney General is allowed up to 60 days to 
furnish the advice requested. The Federal Property Management 
Regulation, Sec.  101-47.301.2 provides guidance on the information to 
be furnished. Where indentical bids in excess of the $2,500 are 
received, FPMR 101-47.304-8 provides for a report to the Department of 
Justice. Section 101-47.304-8 provides guidance for such reports to be 
addressed to the Attorney General, WASH, DC, 20530.



Sec.  644.543  Determination of acceptable offers after advertising.

    (a) Generally an acceptable offer is one which:
    (1) Is submitted by a responsible bidder.
    (2) Conforms to the Invitation for Bids.
    (3) Equals or exceeds the appraised fair market value of the 
property.
    (4) Was independently arrived at in open competition.
    (b) A formal appraisal is not required where real property 
components:
    (1) Are to be offered on a competitive sale basis that will 
adequately test the market.
    (2) Are at the same location and are to be sold under a single 
advertisement.
    (3) Have a total estimated fair market value of $10,000 or less for 
all property to be sold.

The determination as to necessity for a formal appraisal because of the 
$10,000 limitation may be made by an experienced real estate employee 
who need not be a real estate appraiser. This determination may be in 
the form of a simple written statement that in the judgment of the 
signer the property is not considered to exceed $10,000 in value. In 
these cases, awards will be supported by a determination by the DE that 
the market was adequately tested, and the price bid reasonable. For the 
purpose of records and reports, the sale price will be recorded as the 
fair market value. If it appears the market was not adequately tested, 
bids

[[Page 275]]

will be rejected and the property readvertised, or, if time does not 
permit readvertising, a sale may be consummated using the procedure 
provided in paragraphs (d) and (e) of this section.
    (c) All land, irrespective of estimated value, and all other real 
property and components with an estimated value in excess of $10,000 
will be appraised. Where an acceptable offer, as defined in paragraphs 
(a) and (b) of this section, is not received for such property as a 
result of public advertising, it will be readvertised unless the 
responsible DE determines, based upon written findings which shall be 
preserved as part of the permanent file, that further public advertising 
will serve no useful purpose.
    (d) Where no acceptable bid is received as a result of the second 
advertising, or a determination was made that further advertising would 
serve no useful purpose or is not feasible, the DE may negotiate a sale 
at the highest price obtainable, provided:
    (1) All bids are first rejected.
    (2) The total of the appraised value for all property included in 
any single sales contract does not exceed $1,000.
    (3) All past bidders, on any of the items, and any other known 
interested parties are afforded a fair opportunity to participate in the 
negotiations.
    (4) The sale price is in excess of the highest bid received as a 
result of advertising.
    (5) In his opinion the price is reasonable.
    (e) Where the appraised or estimated value of all items to be 
included in a single sales contract exceeds $1,000, and no acceptable 
bid is received, the high bidder may at the discretion of the DE be 
given a reasonable period, not to exceed five working days, to increase 
his bid. At the same time all other bids shall be rejected and bid 
deposits returned. If the high bidder increases his offer to an amount 
equal to the total appraised or estimated value of the items involved, 
the DE may consummate the sale. All other cases will be forwarded to 
DAEN-REM together with an opinion as to whether the market was 
adequately tested and the highest price offered is reasonable, and with 
recommendations as to the course of action to be followed. If a 
negotiated sale to other than the highest bidder is recommended, 
information for preparation of a report to the Government Operations 
Committees of Congress will be included, as required in paragraph (c)(2) 
of Sec.  644.544.



Sec.  644.544  Negotiated sales.

    (a) To private parties. Negotiated sales to private parties are not 
viewed with favor. Generally, such negotiated sales will be approved 
only where an emergency exists that will not permit advertising, where 
advertising would serve no useful purpose, or where a negotiated sale is 
in the best interest of the Government. Emergencies which justify sales 
without advertising do not ordinarily justify sales without competition. 
Instances are rare where the emergency is such that time does not permit 
the oral solicitation of quotations from more than one source. In any 
sales which are made without benefit of advertising, competition by 
informal solicitation and quotation will be obtained to the maximum 
extent feasible under the circumstances. Such sales should be negotiated 
at the best terms obtainable and at not less than the appraised fair 
market value.
    (b) To eligible agencies. (1) Acts of Congress listed in the Federal 
Property Management Regulation, Sec.  101-47.4905 (Illustrations), 
authorize negotiated sales of surplus real property to states and other 
eligible public agencies listed therein. The Acts listed, except section 
203(c)(3)(H) of the Federal Property Act (40 U.S.C. 484(c)(3)(H)), cover 
special classifications of property for specialized use, the most 
important of which is disposal of airport property. The section of the 
Act cited authorizes negotiated sales of surplus property to states, 
territories, possessions, political subdivisions thereof, or tax-
supported agencies thereof, provided the appraised fair market value of 
the property and other satisfactory terms of disposal are obtained. (The 
other Acts listed in Sec.  101-47.4905 provide for disposal subject to 
conditions of use but without consideration, or at reduced 
consideration, except power transmission lines which are sold without 
conditions but at the appraised fair

[[Page 276]]

market value.) Notification that surplus property is available for 
disposal will be given to eligible public agencies for all airport 
property and for any other property where there is reason to believe 
that an eligible public agency may be interested in the property or that 
the property may be adaptable to the agency's use (Sec. Sec.  644.400 
through 644.443).
    (2) Title 10, United States Code, Section 4682, authorizes the 
Secretary of the Army to sell obsolete or excess material at fair value 
to the National Council of the Boy Scouts of America. The Judge Advocate 
General has held that buildings and other improvements no longer 
required by the Department be sold to that organization at the appraised 
fair market value.
    (c) Authority to negotiate. (1) The DE is authorized to dispose of 
land, improvements, related personal property and real property 
components (including standing timber and embedded sand, gravel, and 
stone-quarried products in their unmined or natural state) with an 
estimated fair market value of $1,000 or less by negotiated sale without 
advertising, provided that such action is within the purview of 
paragraphs (a) and (b) of this section, and satisfactory terms of 
disposal can be obtained. Except as provided in Sec.  644.543 and 
paragraph (b) of Sec.  644.544 all sales are not less than the appraised 
fair market value. See paragraph (d) of this section for requirement for 
appraisal by contract.
    (2) All other proposals to negotiate sales without advertising will 
be submitted to DAEN-REM for advance approval. In submitting such 
proposals, the nature of the emergency or other situation justifying the 
waiver of advertising will be clearly stated. The property involved will 
be adequately defined, and the appraised fair market value and proposed 
price will be set forth. Negotiated sales of surplus property with an 
appraised value in excess of $1,000 under provisions of the Federal 
Property Act cited in paragraph (b)(1) of this section, require 
submission of an explanatory statement to the Government Operations 
Committees of Congress. Under the FPMR, a statement must be submitted at 
least 35 days in advance of each such negotiated disposal. When 
required, the DE will forward a draft of statement to HQDA (DAEN-REM) 
for transmittal to GSA for submission to the Committees.
    (d) Appraisal by contract. Pursuant to Federal Property Management 
Regulation, Sec.  101-47.304-9(b), where sales are to be negotiated 
under the authority provided by paragraphs (a) and (b) of this section, 
a contract appraisal should be obtained provided that the cost of such a 
contract would not be out of proportion to the recoverable value of the 
property and is in the best interest of the Government. If such is not 
the case, the head of the disposal agency, or his designee, may 
authorize any other appropriate method to obtain an estimate of fair 
market value. Requests for waiver will be forwarded to DAEN-REM.
    (e) Record to justify waiver of advertising. (1) A written 
justification for negotiated sales made under the authority of these 
instructions will be prepared and filed by the DE with the record of 
disposal in each case. A copy of Standard Form 1036 may be used for this 
purpose.
    (2) Except for those cases covered by paragraph (b) of this section, 
the nature of the emergency compelling waiver of advertising, the reason 
why it was considered that advertising would serve no useful purpose, or 
why the negotiated sale was considered to be in the best interest of the 
Government, will be clearly stated. In cases where an explanatory 
statement is transmitted to the Committees on Government Operations, a 
copy of that statement will be furnished the appropriate GSA Regional 
Office and filed with the record of the case as the required 
documentation of justification for waiver of advertising. DAEN-REM will 
make available to the DE necessary copies of such statements for filing 
or distribution.



Sec.  644.545  Form of invitation for bids and contract of sale.

    Sale contract forms will be prepared by the DE conducting the sale. 
ENG Form 571-R, Invitation for Bids, Bid and Acceptance, Sale of Surplus 
Real Property will be used as a guide in sales of bare land or improved 
land and related personal property. ENG Form

[[Page 277]]

1038-R, Invitation for Bids, Bid and Acceptance, Sale and Removal of 
Buildings (or other Real Estate Improvements), will be used as a guide 
in sales of buildings and other improvements for removal from the site. 
These forms are designed for use in normal sales of land and real estate 
improvements pursuant to existing delegations of authority. The DE is 
authorized to change the formats, to rearrange the sequence of 
paragraphs, and to add or to delete paragraphs in whole or part, as 
local circumstances require, but no substantive departure from the forms 
is authorized without prior specific approval of DAEN-REM. Whenever a 
sale is to be conducted pursuant to a special delegation of authority, 
and whenever the circumstances of a sale are such as to render use of 
these forms inappropriate, a form will be devised by the DE to meet the 
requirements of the particular sale involved, and forwarded to DAEN-REM 
for approval. Suggested additional provisions and conditions for use in 
the sale of standing timber are contained in ENG Form 2140-R, Supplement 
to Standard Form 114 for use in Timber Sales Contract. In preparing sale 
contract forms, the following instructions will be followed:
    (a) A definite date and time will be set for the opening of bids.
    (b) Bids will be prepared in quadruplicate, all copies to be signed 
by the bidder.
    (c) The Invitation for Bids will require each bidder to submit with 
his bid a certified check, cashier's check, traveler's check, or United 
States postal money order drawn to the order of the ``Treasurer of the 
United States'' for at least 20 percent of the bid. When the cash bid 
may be a small part of the total consideration (where such dismantling 
and restoration is involved), the DE should set a definite higher amount 
as a bid deposit. Also, in such cases a performance bond, adequate to 
discourage breach of contract after only partial performance, may be 
required.
    (d) For real property components the Invitation for Bids will 
require payment in full within seven days after the successful bidder is 
notified that his bid is accepted and, in any event, prior to removal of 
the property. The time specified for completion of payment for land will 
depend upon the sum of money involved.
    (e) Bids may be submitted for one or any number of items. Items or 
lots of real property will be offered in such reasonable quantities as 
to permit all bidders, small as well as large, to compete on equal 
terms. Land, however, will not be subdivided solely for this purpose, 
and in the case of timber sales or sales of embedded sand, gravel and 
stone, it may not be feasible to have more than one purchaser operating 
in the same area. Further, it may not be to the Government's interest. 
Buildings will be offered for sale as single items whenever practicable 
but submission of bids covering specified groups as an item or all of 
the buildings may be permitted if the DE considers such a procedure is 
in the best interest of the Government. It may sometimes be advantageous 
to divide the buildings into appropriate groups and to permit bidding on 
individual buildings or on specified groups of buildings or on the 
entire lot. When such bids are permitted, the Invitation for Bids, ENG 
Form 1038-R, will be flagged to inform bidders that lump sum bids on the 
entire lot (and specified groupings, if this procedure is appropriate) 
may be made but will not be accepted unless the lump sum bid exceeds the 
total of the highest bids received on each item (or on the groupings).



Sec.  644.546  Credit.

    Payment of the purchase price over an extended period of time should 
be considered only when the price is a considerable amount, and it may 
be to the Government's interest to extend credit. Prior to offering 
property for sale on an extended payment plan basis, approval from DAEN-
REM will be obtained. Extension of credit will be within the limitations 
of FPMR 101-47.304-4. Credit cannot be extended, except to state or 
local governments, nor can any other special condition be applied, 
unless provision was made for it in the Invitation for Bids.

[[Page 278]]



Sec.  644.547  Extensions of time.

    Granting an extension of time, where unusual or unforeseeable 
circumstances are not present, is contrary to the form of the Invitation 
for Bids, and amounts to the application of special conditions not 
provided for therein. This violates GSA regulations and the principles 
of fair competition. Adoption of the following guides in the development 
and administration of sales programs will help to avoid unjustified 
requests for extensions of time:
    (a) Establishment of realistic periods for completion of the sales 
contract.
    (b) Necessary and justified extensions to be authorized subject to 
posting additional bond to insure performance and payment of adequate 
consideration where use of Government land is involved.
    (c) Reasonable restrictions on resale of improvements at the site.
    (d) Prohibition against posting advertising signs and storage of 
salvaged material on the installation pending sale to other customers.



Sec.  644.548  Abstract of bids.

    At the opening of bids, DD Form 1501 or 1501-1 (Abstract of Bids) 
will be prepared showing all bids received, the amount for each item, 
and the total. The successful bid will be encircled in red or typed in 
red.



Sec.  644.549  Payments.

    All payments should be in the form of cash, cashier's check, money 
order, traveler's check, draft, or any other form of payment not subject 
to stoppage or revocation. All such checks, money orders, or drafts 
should be drawn to the order of the ``Treasurer of the United States.''



Sec.  644.550  Sale to employees or military personnel.

    The sale of Government real property will not be made to civilian 
employees or military members of the Department of Defense (including an 
agent, employee or member of the immediate family of such personnel) 
whose duties include any functional or supervisory responsibility for 
the disposal of real property under Army control.



Sec.  644.551  Equal opportunity--sales of timber, embedded sand, gravel,
stone, and surplus structures.

    Consistent with Executive Order 11246 as amended by Executive Order 
No. 11375, every Government contract involving employment shall include 
provisions for equal opportunity in employment, in connection with the 
performance of work under the contract. The equal employment opportunity 
clause in DAR 7-103.18 will be included in all contracts and first-tier 
sub-contracts over $10,000 pertaining to the following real estate 
actions in the United States and its possessions, unless exempted under 
the provisions of DAR 12-805:
    (a) Sale of standing timber.
    (b) Sale of embedded sand, gravel, and stone in their natural state.
    (c) Sale of surplus structures where an appreciable amount of 
dismantling and site restoration is involved.



Sec.  644.552  Statement of contingent or other fees.

    The instructions and procedures contained in section I, part 5, DAR, 
are applicable to the sale of Government-owned real property and will be 
followed. Where applicable the statement set forth in DAR 1-506 will be 
included in Invitation for Bids and Contracts of Sale and an identical 
signed statement will be secured from the prospective purchaser where 
the property is to be sold without advertising for competitive bids. In 
addition to the statement, Standard Form 119 (Contractor's Statement of 
Contingent or Other Fees for Soliciting or Securing, or Resulting From 
Award of Contract) will be completed where either part of the statement 
is answered in the affirmative. The exceptions to the use of the 
statement and Standard Form 119 are set forth in DAR 1-506-3 and may 
apply generally to real property sales of the Army, Air Force and non-
defense agencies except that the monetary limitation prescribed by DAR 
1-506.3 is $1,000 insofar as sales or property of the Department of 
Energy are concerned.

[[Page 279]]



Sec.  644.553  Preparation and distribution of sales documents and
reports of sales.

    (a) Report of funds received. As funds are collected from sales, 
reports will be prepared promptly. Sales may be allowed to accumulate to 
permit the making of fewer reports, but in no case will they go 
unreported longer than 48 hours. DD Form 1131 and supporting papers will 
be signed by the DE conducting the sale.
    (b) Numbering of contracts. The numbering of contracts involving the 
receipt or expenditure of funds will be in accordance with ER 1180-1-1 
(ECI 30-203).
    (c) Documentation and reports of sale. The DE responsible for the 
sale will prepare and retain copies of documents pertaining to the sale, 
and will make required distribution of the following (see paragraph (d) 
of this section).
    (1) Contract--one signed and two authenticated copies.
    (2) DD Form 1501 or 1501C (Abstract of Bids)--one copy (not required 
for negotiated sales).
    (3) DD Form 1131--four copies. All sales will be listed on DD Form 
1131, extended if necessary. Separate forms are not required for each 
contract. When receipts from more than one contract are reported on one 
DD Form 1131, all related contracts will be attached to and transmitted 
with the form.
    (4) Standard Form 1036, Statement and Certificate of Award, attached 
to the original signed contract and the DE's copy of each contract, or 
separate statement justifying negotiation (paragraph (e) of Sec.  
644.544).
    (5) Advertisement, if any--two copies.
    (6) Bond, if any--two signed copies.
    (d) Distribution of reports of sale--(1) Military property. The 
finance officer will be furnished one authenticated copy of the contract 
and four executed copies of DD Form 1131, together with funds collected. 
The finance officer will retain the contract, funds, and one copy of DD 
Form 1131, and will receipt and return to the responsible DE three 
copies of DD Form 1131.
    (2) Civil works property. The finance officer will be furnished four 
executed copies of DD Form 1131, together with funds collected, an 
authenticated copy of each contract, Standard Form 1036 or a statement 
justifying negotiation, copy of advertisement, if any, and original 
signed bond, if any. Three copies of DD Form 1131 (Cash Collection 
Voucher) will be receipted and returned to the DE.



Sec.  644.554  Insurance against loss or damages to buildings and
improvements by fire or acts of God.

    The Department does not carry property insurance of any nature. 
Vendees, however, may be advised as to their liability for certain 
losses and that insurance protection against such risks is optional. 
Under the FPMR, the vendee must provide insurance to protect the United 
States when credit is extended (Sec.  101-47.304-4(f)).



Sec. Sec.  644.555-644.557  [Reserved]

        Inspections To Insure Compliance With Disposal Conditions



Sec.  644.558  Properties requiring compliance inspections.

    The principal properties conveyed which require inspections are for 
the training of civilian components of the Armed Forces. However, other 
properties are sometimes conveyed under special acts of Congress subject 
to conditions required by the authorizing act. These properties will 
also be inspected for compliance with such conditions.



Sec.  644.559  Civilian component training facilities.

    (a) Authority. Under the provisions of the Surplus Property Act of 
1944, as amended, a number of surplus real properties of the United 
States certified by the Governor of the state in which located and by 
the Secretary of the Army, Navy or Air Force as the case was, as being 
suitable and needed for use in training and maintaining civilian 
components of the Armed Forces under their respective jurisdictions, 
were conveyed by the Administrator of the War Assets Administration or 
by the General Services Administration to states, their political 
subdivisions or tax-supported instrumentalities for

[[Page 280]]

such purposes. These conveyances contained a number of covenants, 
conditions, restrictions and reservations, designed to insure the use 
and maintenance of the property and appurtenances for the purpose for 
which conveyed and otherwise to protect the interest of the United 
States. The Secretary of Defense is authorized by (40 U.S.C. 
484(k)(4)(d)) to:
    (1) Determine and enforce compliance with the terms, conditions, 
reservations and restrictions contained in any instrument by which such 
transfer was made;
    (2) Reform, correct, or amend any such instrument by the execution 
of a corrective, reformative, or amendatory instrument where necessary 
to correct such instrument or to conform such transfer to the 
requirements of applicable law; and
    (3) Grant releases from any of the terms, conditions, reservations 
and restrictions contained in, and convey, quitclaim, or release to the 
transferee or other eligible user any right or interest reserved to the 
United States by any instrument by which such transfer was made, if he 
determines that the property so transferred no longer serves the purpose 
for which it was transferred, or that such release, conveyance, or 
quitclaim deed will not prevent accomplishment of the purpose for which 
such property was transferred: Provided, that any such release, 
conveyance, or quitclaim deed may be granted on, or made subject to, 
such terms and conditions as he shall deem necessary to protect or 
advance the interest of the United States.
    (b) Authority delegated. The authority vested in the Secretary of 
Defense under the Act cited in paragraph (a) of this section has been 
redelegated to the Secretary of the Army and the Secretary of the Air 
Force, respectively (Department of Defense Directive 5100.10, dated 16 
March 1972).



Sec.  644.560  Inspections of civilian component training facilities 
and other properties conveyed subject to conditions.

    The DE, within whose areas of military real estate operations are 
located the facilities conveyed under the authority mentioned in Sec.  
644.559, will make physical inspections thereof for the purpose of 
determining compliance with the terms of the conveyance. Any evidence of 
noncompliance should be reported to DAEN-REM in order that appropriate 
recommendations may be made to the respective Secretary for corrective 
action. A detailed statement of the facts and recommendations of the DE 
should be included in the report. Inspections should be scheduled and 
integrated with outlease compliance inspection itineraries in the 
interest of economy. This requirement for inspections extends to 
properties conveyed by the Secretary of the Army or Air Force under 
special legislation, where the deed of conveyance imposes conditions on 
future use of the land. These inspections need not be made annually but 
frequently enough so that the DE is assured that the conditions are 
being observed, and at least every three years. Compliance with 
conditions in deeds for property conveyed for airport purposes under 49 
U.S.C. 1723 and 50 App. U.S.C. 1622g is the responsibility of the 
Secretary of Transportation; for property conveyed for purposes of 
health and education, the Secretary of Health, Education, and Welfare or 
its successor agencies (40 U.S.C. 484(k)(4)). The Commander, U.S. Army 
Materiel Development and Readiness Command, is responsible for 
compliance with the National Security Clause, and similar conditions, in 
deeds conveying industrial properties.



Sec.  644.561  Inspections of civil works properties.

    Disposal of real estate interests which impose restrictions on the 
use of the land, or reserve an estate in the land, will be inspected for 
compliance on an annual or other reasonable basis to assure compliance.

                        PARTS 645	649 [RESERVED]

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                   SUBCHAPTER K_ENVIRONMENTAL QUALITY





PART 651_ENVIRONMENTAL ANALYSIS OF ARMY ACTIONS (AR 200	2)
--Table of Contents



                         Subpart A_Introduction

Sec.
651.1 Purpose.
651.2 References.
651.3 Explanation of abbreviations and terms.
651.4 Responsibilities.
651.5 Army policies.
651.6 NEPA analysis staffing.
651.7 Delegation of authority for non-acquisition systems.
651.8 Disposition of final documents.

  Subpart B_National Environmental Policy Act and the Decision Process

651.9 Introduction.
651.10 Actions requiring environmental analysis.
651.11 Environmental review categories.
651.12 Determining appropriate level of NEPA analysis.
651.13 Classified actions.
651.14 Integration with Army planning.
651.15 Mitigation and monitoring.
651.16 Cumulative impacts.
651.17 Environmental justice.

                     Subpart C_Records and Documents

651.18 Introduction.
651.19 Record of environmental consideration.
651.20 Environmental assessment.
651.21 Finding of no significant impact.
651.22 Notice of intent.
651.23 Environmental impact statement.
651.24 Supplemental EAs and supplemental EISs.
651.25 Notice of availability.
651.26 Record of decision.
651.27 Programmatic NEPA analyses.

                    Subpart D_Categorical Exclusions

651.28 Introduction.
651.29 Determining when to use a CX (screening criteria).
651.30 CX actions.
651.31 Modification of the CX list.

                   Subpart E_Environmental Assessment

651.32 Introduction.
651.33 Actions normally requiring an EA.
651.34 EA components.
651.35 Decision process.
651.36 Public involvement.
651.37 Public availability.
651.38 Existing environmental assessments.
651.39 Significance.

                Subpart F_Environmental Impact Statement

651.40 Introduction.
651.41 Conditions requiring an EIS.
651.42 Actions normally requiring an EIS.
651.43 Format of the EIS.
651.44 Incomplete information.
651.45 Steps in preparing and processing an EIS.
651.46 Existing EISs.

Figures 4-8 to Subpart F of Part 651

          Subpart G_Public Involvement and the Scoping Process

651.47 Public involvement.
651.48 Scoping process.
651.49 Preliminary phase.
651.50 Public interaction phase.
651.51 The final phase.
651.52 Aids to information gathering.
651.53 Modifications of the scoping process.

       Subpart H_Environmental Effects of Major Army Action Abroad

651.54 Introduction.
651.55 Categorical exclusions.
651.56 Responsibilities.

Appendix A to Part 651--References
Appendix B to Part 651--Categorical Exclusions
Appendix C to Part 651--Mitigation and Monitoring
Appendix D to Part 651--Public Participation Plan
Appendix E to Part 651--Content of the Environmental Impact Statement
Appendix F to Part 651--Glossary

    Authority: 42 U.S.C. 4321 et seq.; 40 CFR Parts 1500-1508; E.O. 
12114, 44 FR 1957, 3 CFR, 1979 Comp., p. 356.

    Source: 67 FR 15291, Mar. 29, 2002, unless otherwise noted.



                         Subpart A_Introduction



Sec.  651.1  Purpose.

    (a) This part implements the National Environmental Policy Act of 
1969 (NEPA), setting forth the Army's policies and responsibilities for 
the early integration of environmental considerations into planning and 
decision-making.

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    (b) This part requires environmental analysis of Army actions 
affecting human health and the environment; providing criteria and 
guidance on actions normally requiring Environmental Assessments (EAs) 
or Environmental Impact Statements (EISs), and listing Army actions that 
are categorically excluded from such requirements, provided specific 
criteria are met.
    (c) This part supplements the regulations of the Council on 
Environmental Quality (CEQ) in the Code of Federal Regulations (CFR) (40 
CFR parts 1500-1508) for Army actions, and must be read in conjunction 
with them.
    (d) All Army acquisition programs must use this part in conjunction 
with Department of Defense (DOD) 5000.2-R (Mandatory Procedures for 
Major Defense Acquisition Programs and Major Automated Information 
Systems).
    (e) This part applies to actions of the Active Army and Army 
Reserve, to functions of the Army National Guard (ARNG) involving 
federal funding, and to functions for which the Army is the DOD 
executive agent. It does not apply to Civil Works functions of the US 
Army Corps of Engineers (USACE) or to combat or combat-related 
activities in a combat or hostile fire zone. Operations Other Than War 
(OOTW) or Stability and Support Operations (SASO) are subject to the 
provisions of this part as specified in subpart H of this part. This 
part applies to relevant actions within the United States, which is 
defined as all States; the District of Columbia; territories and 
possessions of the United States; and all waters and airspace subject to 
the territorial jurisdiction of the United States. The territories and 
possessions of the United States include the Virgin Islands, American 
Samoa, Wake Island, Midway Island, Guam, Palmyra Island, Johnston Atoll, 
Navassa Island, and Kingman Reef. This regulation also applies to 
actions in the Commonwealths of Puerto Rico and the Northern Marianas, 
the Republic of the Marshall Islands, and the Federated States of 
Micronesia and Palau (Republic of Belau). In addition, this part 
addresses the responsibility of the Army for the assessment and 
consideration of environmental effects for peacetime SASO operations 
worldwide. Throughout this part, emphasis is placed upon quality 
analysis of environmental effects, not the production of documents. 
Documentation is necessary to present and staff results of the analyses, 
but the objective of NEPA and Army NEPA policy is quality analysis in 
support of the Army decision maker. The term ``analysis'' also includes 
any required documentation to support the analysis, coordinate NEPA 
requirements, and inform the public and the decision maker.



Sec.  651.2  References.

    Required and related publications and referenced forms are listed in 
Appendix A of this part.



Sec.  651.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this part are explained in 
the glossary in Appendix F of this part.



Sec.  651.4  Responsibilities.

    (a) The Assistant Secretary of the Army (Installations and 
Environment) (ASA(I&E)). ASA(I&E) is designated by the Secretary of the 
Army (SA) as the Army's responsible official for NEPA policy, guidance, 
and oversight. In meeting these responsibilities, ASA(I&E) will:
    (1) Maintain liaison with the Office of the Secretary of Defense 
(OSD), Office of Management and Budget (OMB), Council on Environmental 
Quality (CEQ), Environmental Protection Agency (EPA), Congressional 
oversight committees, and other federal, state, and local agencies on 
Army environmental policies.
    (2) Review NEPA training at all levels of the Army, including 
curricula at Army, DOD, other service, other agency, and private 
institutions; and ensure adequacy of NEPA training of Army personnel at 
all levels.
    (3) Establish an Army library for EAs and EISs, which will serve as:
    (i) A means to ascertain adherence to the policies set forth in this 
part, as well as potential process improvements; and
    (ii) A technical resource for proponents and preparers of NEPA 
documentation.

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    (b) The Assistant Secretary of the Army (Acquisition, Logistics, and 
Technology) (ASA(AL&T)). ASA(AL&T) will:
    (1) Under oversight of the ASA(I&E), execute those NEPA policy 
provisions contained herein that pertain to the ASA(AL&T) 
responsibilities in the Army materiel development process, as described 
in Army Regulation (AR) 70-1, Army Acquisition Policy.
    (2) Prepare policy for the Army Acquisition Executive (AAE) to 
develop and administer a process of review and approval of environmental 
analyses during the Army materiel development process.
    (3) Prepare research, development, test, and evaluation (RDT&E) and 
procurement budget justifications to support Materiel Developer (MATDEV) 
implementation of NEPA provisions.
    (c) The Army Acquisition Executive (AEE). The AAE will, under the 
Army oversight responsibilities assigned to ASA(I&E):
    (1) Administer a process to:
    (i) Execute all those NEPA policy provisions contained herein that 
pertain to all acquisition category (ACAT) programs, projects, and 
products;
    (ii) Ensure that Milestone Decision Authorities (MDAs), at all 
levels, assess the effectiveness of environmental analysis in all phases 
of the system acquisition process, including legal review of these 
requirements;
    (iii) Establish resource requirements and program, plan, and budget 
exhibits for inclusion in annual budget decisions;
    (iv) Review and approve NEPA documentation at appropriate times 
during materiel development, in conjunction with acquisition phases and 
milestone reviews as established in the Acquisition Strategy; and
    (v) Establish NEPA responsibility and awareness training 
requirements for Army Acquisition Corps personnel.
    (2) Ensure Program Executive Officers (PEOs), Deputies for Systems 
Acquisition (DSAs), and direct-reporting Program Managers (PMs) will:
    (i) Supervise assigned programs, projects, and products to ensure 
that each environmental analysis addresses all applicable environmental 
laws, executive orders, and regulations.
    (ii) Ensure that environmental considerations are integrated into 
system acquisition plans/strategies, Test and Evaluation Master Plans 
(TEMPs) and Materiel Fielding Plans, Demilitarization/Disposal Plans, 
system engineering reviews/Integrated Process Team (IPT) processes, and 
Overarching Integrated Process Team (OIPT) milestone review processes.
    (iii) Coordinate environmental analysis with appropriate 
organizations to include environmental offices such as Army Acquisition 
Pollution Prevention Support Office (AAPPSO) and U.S. Army Environmental 
Center (USAEC) and operational offices and organizations such as testers 
(developmental/operational), producers, users, and disposal offices.
    (3) Ensure Program, Project, Product Managers, and other MATDEVs 
will:
    (i) Initiate the environmental analysis process prescribed herein 
upon receiving the project office charter to commence the materiel 
development process, and designate a NEPA point of contact (POC) to the 
Director of Environmental Programs (DEP).
    (ii) Integrate the system's environmental analysis (including NEPA) 
into the system acquisition strategy, milestone review planning, system 
engineering, and preliminary design, critical design, and production 
readiness reviews.
    (iii) Apply policies and procedures set forth in this part to 
programs and actions within their organizational and staff 
responsibility.
    (iv) Coordinate with installation managers and incorporate comments 
and positions of others (such as the Assistant Chief of Staff for 
Installation Management (ACSIM) and environmental offices of the 
development or operational testers, producers, users, and disposers) 
into the decision-making process.
    (v) Initiate the analysis of environmental considerations, assess 
the environmental consequences of proposed programs and projects, and 
undergo environmental analysis, as appropriate.
    (vi) Maintain the administrative record of the program's 
environmental analysis in accordance with this part.

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    (vii) Coordinate with local citizens and other affected parties, and 
incorporate appropriate comments into NEPA analyses.
    (viii) Coordinate with ASA(I&E) when NEPA analyses for actions under 
AAE purview require publication in the Federal Register (FR).
    (d) The Deputy Chief of Staff for Operations and Plans (DCSOPS). 
DCSOPS is the proponent for Training and Operations activities. DCSOPS 
will ensure that Major Army Commands (MACOMs) support and/or perform, as 
appropriate, NEPA analysis of fielding issues related to specific local 
or regional concerns when reviewing Materiel Fielding Plans prepared by 
Combat Developers (CBTDEVs) or MATDEVs. This duty will include the 
coordination of CBTDEV and MATDEV information with appropriate MACOMs 
and Deputy Chief of Staff for Logistics (DCSLOG).
    (e) The Assistant Chief of Staff for Installation Management 
(ACSIM). ACSIM is responsible for coordinating, monitoring, and 
evaluating NEPA activities within the Army. The Environmental Programs 
Directorate is the Army Staff (ARSTAF) POC for environmental matters and 
serves as the Army staff advocate for the Army NEPA requirements 
contained in this part. The ACSIM will:
    (1) Encourage environmental responsibility and awareness among Army 
personnel to most effectively implement the spirit of NEPA.
    (2) Establish and maintain the capability (personnel and other 
resources) to comply with the requirements of this part. This 
responsibility includes the provision of an adequately trained and 
educated staff to ensure adherence to the policies and procedures 
specified by this part.
    (f) The Director of Environmental Programs. The director, with 
support of the U.S. Army Environmental Center, and under the ACSIM, 
will:
    (1) Advise Army agencies in the preparation of NEPA analyses, upon 
request.
    (2) Review, as requested, NEPA analyses submitted by the Army, other 
DOD components, and other federal agencies.
    (3) Monitor proposed Army policy and program documents that have 
environmental implications to determine compliance with NEPA 
requirements and ensure integration of environmental considerations into 
decision-making and adaptive management processes.
    (4) Propose and develop Army NEPA guidance pursuant to policies 
formulated by ASA(I&E).
    (5) Advise project proponents regarding support and defense of Army 
NEPA requirements through the budgeting process.
    (6) Provide NEPA process oversight, in support of ASA(I&E), and, as 
appropriate, technical review of NEPA documentation.
    (7) Oversee proponent implementation and execution of NEPA 
requirements, and develop and execute programs and initiatives to 
address problem areas.
    (8) Assist the ASA(I&E) in the evaluation of formal requests for the 
delegation of NEPA responsibilities on a case-by-case basis. This 
assistance will include:
    (i) Determination of technical sufficiency of the description of 
proposed action and alternatives (DOPAA) when submitted as part of the 
formal delegation request (Sec.  651.7).
    (ii) Coordination of the action with the MACOM requesting the 
delegation.
    (9) Periodically provide ASA(I&E) with a summary analysis and 
recommendations on needed improvements in policy and guidance to Army 
activities concerning NEPA implementation, in support of ASA(I&E) 
oversight responsibilities.
    (10) Advise headquarters proponents on how to secure funding and 
develop programmatic NEPA analyses to address actions that are Army-
wide, where a programmatic approach would be appropriate to address the 
action.
    (11) Designate a NEPA PM to coordinate the Army NEPA program and 
notify ASA(I&E) of the designation.
    (12) Maintain manuals and guidance for NEPA analyses for major Army 
programs in hard copy and make this guidance available on the World Wide 
Web (WWW) and other electronic means.
    (13) Maintain a record of NEPA POCs in the Army, as provided by the 
MACOMs and other Army agencies.

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    (14) Forward electronic copies of all EAs, and EISs to AEC to ensure 
inclusion in the Army NEPA library; and ensure those same documents are 
forwarded to the Defense Technical Information Center (DTIC).
    (g) Heads of Headquarters, Army agencies. The heads of headquarters, 
Army agencies will:
    (1) Apply policies and procedures herein to programs and actions 
within their staff responsibility except for state-funded operations of 
the Army National Guard (ARNG).
    (2) Task the appropriate component with preparation of NEPA analyses 
and documentation.
    (3) Initiate the preparation of necessary NEPA analyses, assess 
proposed programs and projects to determine their environmental 
consequences, and initiate NEPA documentation for circulation and review 
along with other planning or decision-making documents. These other 
documents include, as appropriate, completed DD Form 1391 (Military 
Construction Project Data), Case Study and Justification Folders, 
Acquisition Strategies, and other documents proposing or supporting 
proposed programs or projects.
    (4) Coordinate appropriate NEPA analyses with ARSTAF agencies.
    (5) Designate, record, and report to the DEP the identity of the 
agency's single POC for NEPA considerations.
    (6) Assist in the review of NEPA documentation prepared by DOD and 
other Army or federal agencies, as requested.
    (7) Coordinate proposed directives, instructions, regulations, and 
major policy publications that have environmental implications with the 
DEP.
    (8) Maintain the capability (personnel and other resources) to 
comply with the requirements of this part and include provisions for 
NEPA requirements through the Program Planning and Budget Execution 
System (PPBES) process.
    (h) The Assistant Secretary of the Army for Financial Management 
(ASA(FM)). ASA(FM) will establish procedures to ensure that NEPA 
requirements are supported in annual authorization requests.
    (i) The Judge Advocate General (TJAG). TJAG will provide legal 
advice to the Army Staff and assistance in NEPA interpretation, federal 
implementing regulations, and other applicable legal authority; 
determine the legal sufficiency for Army NEPA documentation; and 
interface with the Army General Counsel (GC) and the Department of 
Justice on NEPA-related litigation.
    (j) The Army General Counsel. The Army General Counsel will provide 
legal advice to the Secretary of the Army on all environmental matters, 
to include interpretation and compliance with NEPA and federal 
implementing regulations and other applicable legal authority.
    (k) The Surgeon General. The Surgeon General will provide technical 
expertise and guidance to NEPA proponents in the Army, as requested, in 
order to assess public health, industrial hygiene, and other health 
aspects of proposed programs and projects.
    (l) The Chief, Public Affairs. The Chief, Public Affairs will:
    (1) Provide guidance on issuing public announcements such as 
Findings of No Significant Impact (FNSIs), Notices of Intent (NOIs), 
scoping procedures, Notices of Availability (NOAs), and other public 
involvement activities; and establish Army procedures for issuing/
announcing releases in the FR.
    (2) Review and coordinate planned announcements on actions of 
national interest with appropriate ARSTAF elements and the Office of the 
Assistant Secretary of Defense for Public Affairs (OASD(PA)).
    (3) Assist in the issuance of appropriate press releases to coincide 
with the publication of notices in the FR.
    (4) Provide assistance to MACOM and installation Public Affairs 
Officers (PAOs) regarding the development and release of public 
involvement materials.
    (m) The Chief of Legislative Liaison. The Chief of Legislative 
Liaison will notify Members of Congress of impending proposed actions of 
national concern or interest. The Chief will:
    (1) Provide guidance to proponents at all levels on issuing 
Congressional notifications on actions of national concern or interest.
    (2) Review planned congressional notifications on actions of 
national concern or interest.

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    (3) Prior to (and in concert with) the issuance of press releases 
and publications in the FR, assist in the issuance of congressional 
notifications on actions of national concern or interest.
    (n) Commanders of MACOMs, the Director of the Army National Guard, 
and the U.S. Army Reserve Commander. Commanders of MACOMs, the Director 
of the Army National Guard, and the U.S. Army Reserve Commander will:
    (1) Monitor proposed actions and programs within their commands to 
ensure compliance with this part, including mitigation monitoring, 
utilizing Environmental Compliance Assessment System (ECAS), 
Installation Status Report (ISR), or other mechanisms.
    (2) Task the proponent of the proposed action with funding and 
preparation of NEPA documentation and involvement of the public.
    (3) Ensure that any proponent at the MACOM level initiates the 
required environmental analysis early in the planning process, plans the 
preparation of necessary NEPA documentation, and uses the analysis to 
aid in the final decision.
    (4) Assist in the review of NEPA documentation prepared by DOD and 
other Army or federal agencies, as requested.
    (5) Maintain official record copies of all NEPA documentation for 
which they are the proponent, and file electronic copies of those EAs, 
and final EISs with AEC.
    (6) Provide coordination with Headquarters, Department of the Army 
(HQDA) for proposed actions that have either significant impacts 
requiring an EIS or are of national interest. This process will require 
defining the purpose and need for the action, alternatives to be 
considered, and other information, as requested by HQDA. It also must 
occur early in the process and prior to an irretrievable commitment of 
resources that will prejudice the ultimate decision or selection of 
alternatives (40 CFR 1506.1). When delegated signature authority by 
HQDA, this process also includes the responsibility for complying with 
this part and associated Army environmental policy.
    (7) Approve and forward NEPA documentation, as appropriate, for 
actions under their purview.
    (8) In the case of the Director, ARNG, or his designee, approve all 
federal NEPA documentation prepared by all ARNG activities.
    (9) Ensure environmental information received from MATDEVs is 
provided to appropriate field sites to support site-specific 
environmental analysis and NEPA requirements.
    (10) Designate a NEPA PM to coordinate the MACOM NEPA program and 
maintain quality control of NEPA analyses and documentation that are 
processed through the command.
    (11) Budget for resources to maintain oversight of NEPA and this 
part.
    (o) Installation Commanders; Commanders of U.S. Army Reserve Support 
Commands; and The Adjutant Generals of the Army National Guard. 
Installation Commanders; Commanders of U.S. Army Reserve Support 
Commands; and The Adjutant Generals of the Army National Guard will:
    (1) Establish an installation (command organization) NEPA program 
and evaluate its performance through the Environmental Quality Control 
Committee (EQCC) as required by AR 200-1, Environmental Protection and 
Enhancement.
    (2) Designate a NEPA POC to coordinate and manage the installation's 
(command organization's) NEPA program, integrating it into all 
activities and programs at the installation. The installation commander 
will notify the MACOM of the designation.
    (3) Establish a process that ensures coordination with the MACOM, 
other installation staff elements (to include PAOs and tenants) and 
others to incorporate NEPA requirements early in the planning of 
projects and activities.
    (4) Ensure that actions subject to NEPA are coordinated with 
appropriate installation organizations responsible for such activities 
as master planning, natural and cultural resources management, or other 
installation activities and programs.
    (5) Ensure that funding for environmental analysis is prioritized 
and planned, or otherwise arranged by the proponent, and that 
preparation of NEPA analyses, including the involvement of the public, 
is consistent with the requirements of this part.

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    (6) Approve NEPA analyses for actions under their purview. The 
Adjutant General will review and endorse documents and forward to the 
NGB for final approval.
    (7) Ensure the proponent initiates the NEPA analysis of 
environmental consequences and assesses the environmental consequences 
of proposed programs and projects early in the planning process.
    (8) Assist in the review of NEPA analyses affecting the installation 
or activity, and those prepared by DOD and other Army or federal 
agencies, as requested.
    (9) Provide information through the chain of command on proposed 
actions of national interest to higher headquarters prior to initiation 
of NEPA documentation.
    (10) Maintain official record copies of all NEPA documentation for 
which they are the proponent and forward electronic copies of those 
final EISs and EAs through the MACOM to AEC.
    (11) Ensure that the installation proponents initiate required 
environmental analyses early in the planning process and plan the 
preparation of necessary NEPA documentation.
    (12) Ensure NEPA awareness and/or training is provided for 
professional staff, installation-level proponents, and document 
reviewers (for example, master planning, range control, etc.).
    (13) Solicit support from MACOMs, CBTDEVs, and MATDEVs, as 
appropriate, in preparing site-specific environmental analysis.
    (14) Ensure that local citizens are aware of and, where appropriate, 
involved in NEPA analyses, and that public comments are obtained and 
considered in decisions regarding proposals.
    (15) Use environmental impact analyses to determine the best 
alternatives from an environmental perspective, and to ensure that these 
determinations are part of the Army decision process.
    (p) Environmental Officers. Environmental officers (at the 
Installation, MACOM, and Army activity level) shall, under the authority 
of the Installation Commander; Commanders of U.S. Army Reserves Regional 
Support Commands; and Director NGB-ARE (Installation Commanders):
    (1) Represent the Installation, MACOM, or activity Commander on NEPA 
matters.
    (2) Advise the proponent on the selection, preparation, and 
completion of NEPA analyses and documentation. This approach will 
include oversight on behalf of the proponent to ensure adequacy and 
support for the proposed action, including mitigation monitoring.
    (3) Develop and publish local guidance and procedures for use by 
NEPA proponents to ensure that NEPA documentation is procedurally and 
technically correct. (This includes approval of Records of Environmental 
Consideration (RECs).)
    (4) Identify any additional environmental information needed to 
support informed Army decision-making.
    (5) Budget for resources to maintain oversight with NEPA and this 
part.
    (6) Assist proponents, as necessary, to identify issues, impacts, 
and possible alternatives and/or mitigations relevant to specific 
proposed actions.
    (7) Assist, as required, in monitoring to ensure that specified 
mitigation measures in NEPA analyses are accomplished. This monitoring 
includes assessing the effectiveness of the mitigations.
    (8) Ensure completion of agency and community coordination.
    (q) Proponents. Proponents at all levels will:
    (1) Identify the proposed action, the purpose and need, and 
reasonable alternatives for accomplishing the action.
    (2) Fund and prepare NEPA analyses and documentation for their 
proposed actions. This responsibility will include negotiation for 
matrix support and services outside the chain of command when additional 
expertise is needed to prepare, review, or otherwise support the 
development and approval of NEPA analyses and documentation. These NEPA 
costs may be borne by successful contract offerors.
    (3) Ensure accuracy and adequacy of NEPA analyses, regardless of the 
author. This work includes incorporation of comments from appropriate 
servicing Army environmental and legal staffs.

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    (4) Ensure adequate opportunities for public review and comment on 
proposed NEPA actions, in accordance with applicable laws and EOs as 
discussed in Sec.  651.14 (e). This step includes the incorporation of 
public and agency input into the decision-making process.
    (5) Ensure that NEPA analysis is prepared and staffed sufficiently 
to comply with the intent and requirements of federal laws and Army 
policy. These documents will provide enough information to ensure that 
Army decision makers (at all levels) are informed in the performance of 
their duties (40 CFR 1501.2, 1505.1). This result requires coordination 
and resolution of important issues developed during the environmental 
analysis process, especially when the proposed action may involve 
significant environmental impacts, and includes the incorporation of 
comments from an affected installation's environmental office in 
recommendations made to decision makers.
    (6) Adequately fund and implement the decision including all 
mitigation actions and effectiveness monitoring.
    (7) Prepare and maintain the official record copy of all NEPA 
analyses and documentation for which they are the proponent. This step 
will include the provision of electronic copies of all EAs, final EISs, 
and Records of Decision (RODs), through their chain of command, to AEC, 
and forwarding of those same documents to the Defense Technical 
Information Center (DTIC) as part of their public distribution 
procedures. In addition, copies of all EAs and FNSIs (in electronic 
copy) will be provided to ODEP. A copy of the documentation should be 
maintained for six years after signature of the FNSI/ROD.
    (8) Maintain the administrative record for the environmental 
analysis performed. The administrative record shall be retained by the 
proponent for a period of six years after completion of the action, 
unless the action is controversial or of a nature that warrants keeping 
it longer. The administrative record includes all documents and 
information used to make the decision. This administrative record should 
contain, but is not limited to, the following types of records:
    (i) Technical information used to develop the description of the 
proposed action, purpose and need, and the range of alternatives.
    (ii) Studies and inventories of affected environmental baselines.
    (iii) Correspondence with regulatory agencies.
    (iv) Correspondence with, and comments from, private citizens, 
Native American tribes, Alaskan Natives, local governments, and other 
individuals and agencies contacted during public involvement.
    (v) Maps used in baseline studies.
    (vi) Maps and graphics prepared for use in the analysis.
    (vii) Affidavits of publications and transcripts of any public 
participation.
    (viii) Other written records that document the preparation of the 
NEPA analysis.
    (ix) An index or table of contents for the administrative record.
    (9) Identify other requirements that can be integrated and 
coordinated within the NEPA process. After doing so, the proponent 
should establish a strategy for concurrent, not sequential, compliance; 
sharing similar data, studies, and analyses; and consolidating 
opportunities for public participation. Examples of relevant statutory 
and regulatory processes are given in Sec.  651.14 (e).
    (10) Identify and coordinate with public agencies, private 
organizations, and individuals that may have an interest in or 
jurisdiction over a resource that might be impacted. Coordination should 
be accomplished in cooperation with the Installation Environmental 
Offices in order to maintain contact and continuity with the regulatory 
and environmental communities. Applicable agencies include, but are not 
limited to:
    (i) State Historic Preservation Officer.
    (ii) Tribal Historic Preservation Officer.
    (iii) U.S. Fish and Wildlife Service.
    (iv) Regional offices of the EPA.
    (v) State agencies charged with protection of the environment, 
natural resources, and fish and wildlife.
    (vi) USACE Civil Works regulatory functions, including Clean Water 
Act, Section 404, permitting and wetland protection.

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    (vii) National Marine Fisheries Service.
    (viii) Local agencies and/or governing bodies.
    (ix) Environmental interest groups.
    (x) Minority, low-income, and disabled populations.
    (xi) Tribal governments.
    (xii) Existing advisory groups (for example, Restoration Advisory 
Boards, Citizens Advisory Commissions, etc.).
    (11) Identify and coordinate, in concert with environmental offices, 
proposed actions and supporting environmental analyses with local and/or 
regional ecosystem management initiatives such as the Mojave Desert 
Ecosystem Management Initiative or the Chesapeake Bay Initiative.
    (12) Review Army policies, including AR 200-1 (Environmental 
Protection and Enhancement), AR 200-3 (Natural Resources--Land, Forest, 
and Wildlife Management), and AR 200-4 (Cultural Resources Management) 
to ensure that the proposed action is coordinated with appropriate 
resource managers, operators, and planners, and is consistent with 
existing Army plans and their supporting NEPA analyses.
    (13) Identify potential impacts to (and consult with as appropriate) 
American Indian, Alaskan Native, or Native Hawaiian lands, resources, or 
cultures (for example, sacred sites, traditional cultural properties, 
treaty rights, subsistence hunting or fishing rights, or cultural items 
subject to the Native American Graves Protection and Repatriation Act 
(NAGPRA)). All consultation shall be conducted on a Government-to-
Government basis in accordance with the Presidential Memorandum on 
Government-to-Government Relations with Tribal Governments (April 29, 
1994) (3 CFR, 1994 Comp., p. 1007) and AR 200-4 (Cultural Resources 
Management). Proponents shall consider, as appropriate, executing 
Memoranda of Agreements (MOAs) with interested Native American groups 
and tribes to facilitate timely and effective participation in the NEPA 
process. These agreements should be accomplished in cooperation with 
Installation Environmental Offices in order to maintain contact and 
continuity with the regulatory and environmental communities.
    (14) Review NEPA documentation that relies upon mitigations that 
were not accomplished to determine if the NEPA analysis needs to be 
rewritten or updated. Such an update is required if the unaccomplished 
mitigation was used to support a FNSI. Additional public notice/
involvement must accompany any rewrites.
    (r) The Commander, U.S. Army Training and Doctrine Command (TRADOC). 
The Commander, TRADOC will:
    (1) Ensure that NEPA requirements are understood and options 
incorporated in the Officer Foundation Standards (OFS).
    (2) Integrate environmental considerations into doctrine, training, 
leader development, organization, materiel, and soldier (DTLOMS) 
processes.
    (3) Include environmental expert representation on all Integrated 
Concept Teams (ICTs) involved in requirements determinations.
    (4) Ensure that TRADOC CBTDEVs retain and transfer any environmental 
analysis or related data (such as alternatives analysis) to the MATDEV 
upon approval of a materiel need. This information and data will serve 
as the basis for the MATDEV's Acquisition Strategy and subsequent NEPA 
analyses.
    (5) Ensure that environmental considerations are incorporated into 
the Mission Needs Statements (MNSs) and Operational Requirements 
Documents (ORDs).



Sec.  651.5  Army policies.

    (a) NEPA establishes broad federal policies and goals for the 
protection of the environment and provides a flexible framework for 
balancing the need for environmental quality with other essential 
societal functions, including national defense. The Army is expected to 
manage those aspects of the environment affected by Army activities; 
comprehensively integrating environmental policy objectives into 
planning and decision-making. Meaningful integration of environmental 
considerations is accomplished by efficiently and effectively informing 
Army planners and decision makers. The Army will use the flexibility of 
NEPA to ensure implementation in the most cost-efficient and effective 
manner. The

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depth of analyses and length of documents will be proportionate to the 
nature and scope of the action, the complexity and level of anticipated 
effects on important environmental resources, and the capacity of Army 
decisions to influence those effects in a productive, meaningful way 
from the standpoint of environmental quality.
    (b) The Army will actively incorporate environmental considerations 
into informed decision-making, in a manner consistent with NEPA. 
Communication, cooperation, and, as appropriate, collaboration between 
government and extra-government entities is an integral part of the NEPA 
process. Army proponents, participants, reviewers, and approvers will 
balance environmental concerns with mission requirements, technical 
requirements, economic feasibility, and long-term sustainability of Army 
operations. While carrying out its mission, the Army will also encourage 
the wise stewardship of natural and cultural resources for future 
generations. Decision makers will be cognizant of the impacts of their 
decisions on cultural resources, soils, forests, rangelands, water and 
air quality, fish and wildlife, and other natural resources under their 
stewardship, and, as appropriate, in the context of regional ecosystems.
    (c) Environmental analyses will reflect appropriate consideration of 
non-statutory environmental issues identified by federal and DOD orders, 
directives, and policy guidance. Some examples are in Sec.  651.14 (e). 
Potential issues will be discussed and critically evaluated during 
scoping and other public involvement processes.
    (d) The Army will continually take steps to ensure that the NEPA 
program is effective and efficient. Effectiveness of the program will be 
determined by the degree to which environmental considerations are 
included on a par with the military mission in project planning and 
decision-making. Efficiency will be promoted through the following:
    (1) Awareness and involvement of the proponent in the NEPA process.
    (2) NEPA technical and awareness training, as appropriate, at all 
decision levels of the Army.
    (3) Where appropriate, the use of programmatic analyses and tiering 
to ensure consideration at the appropriate decision levels, elimination 
of repetitive discussion, consideration of cumulative effects, and focus 
on issues that are important and appropriate for discussion at each 
level.
    (4) Use of the scoping and public involvement processes to limit the 
analysis of issues to those which are of interest to the public and/or 
important to the decision-making at hand.
    (5) Elimination of needless paperwork by focusing documents on the 
major environmental issues affecting those decisions.
    (6) Early integration of the NEPA process into all aspects of Army 
planning, so as to prevent disruption in the decision-making process; 
ensuring that NEPA personnel function as team members, supporting the 
Army planning process and sound Army decision-making. All NEPA analyses 
will be prepared by an interdisciplinary team.
    (7) Partnering or coordinating with agencies, organizations, and 
individuals whose specialized expertise will improve the NEPA process.
    (8) Oversight of the NEPA program to ensure continuous process 
improvement. NEPA requirements will be integrated into other 
environmental reporting requirements, such as the ISR.
    (9) Clear and concise communication of data, documentation, and 
information relevant to NEPA analysis and documentation.
    (10) Environmental analysis of strategic plans based on:
    (i) Scoping thoroughly with agencies, organizations, and the public;
    (ii) Setting specific goals for important environmental resources;
    (iii) Monitoring of impacts to these resources;
    (iv) Reporting of monitoring results to the public; and
    (v) Adaptive management of Army operations to stay on course with 
the strategic plan's specific resource goals.
    (11) Responsive staffing through HQDA and the Secretariat. To the 
extent possible, documents and transmittal packages will be acted upon 
within 30 calendar days of receipt by each office through which they are 
staffed. These actions will be approved

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and transmitted, if the subject material is adequate; or returned with 
comment in those cases where additional work is required. Cases where 
these policies are violated should be identified to ASA (I&E) for 
resolution.
    (e) Army leadership and commanders at all levels are required to:
    (1) Establish and maintain the capability (personnel and other 
resources) to ensure adherence to the policies and procedures specified 
by this part. This should include the use of the PPBES, EPR, and other 
established resourcing processes. This capability can be provided 
through the use of a given mechanism or mix of mechanisms (contracts, 
matrix support, and full-time permanent (FTP) staff), but sufficient FTP 
staff involvement is required to ensure:
    (i) Army cognizance of the analyses and decisions being made; and
    (ii) Sufficient institutional knowledge of the NEPA analysis to 
ensure that Army NEPA responsibilities (pre- and post-decision) are met. 
Every person preparing, implementing, supervising, and managing projects 
involving NEPA analysis must be familiar with the requirements of NEPA 
and the provisions of this part.
    (2) Ensure environmental responsibility and awareness among 
personnel to most effectively implement the spirit of NEPA. All 
personnel who are engaged in any activity or combination of activities 
that significantly affect the quality of the human environment will be 
aware of their NEPA responsibility. Only through alertness, foresight, 
notification through the chain of command, and training and education 
will NEPA goals be realized.
    (f) The worldwide, transboundary, and long-range character of 
environmental problems will be recognized, and, where consistent with 
national security requirements and U.S. foreign policy, appropriate 
support will be given to initiatives, resolutions, and programs designed 
to maximize international cooperation in protecting the quality of the 
world human and natural environment. Consideration of the environment 
for Army decisions involving activities outside the United States (see 
Sec.  651.1(e)) will be accomplished pursuant to Executive Order 12114 
(Environmental Effects Abroad of Major Federal Actions, 4 January 1979), 
host country final governing standards, DOD Directive (DODD) 6050.7 
(Environmental Effects Abroad of Major DOD Actions), DOD Instructions 
(DODIs), and the requirements of this part. An environmental planning 
and evaluation process will be incorporated into Army actions that may 
substantially affect the global commons, environments of other nations, 
or any protected natural or ecological resources of global importance.
    (g) Army NEPA documentation must be periodically reviewed for 
adequacy and completeness in light of changes in project conditions.
    (1) Supplemental NEPA documentation is required when:
    (i) The Army makes substantial changes in the proposed action that 
are relevant to environmental concerns; or
    (ii) There are significant new circumstances or information relevant 
to environmental concerns and bearing on the proposed action or its 
impact.
    (2) This review requires that the proponent merely initiate another 
``hard look'' to ascertain the adequacy of the previous analyses and 
documentation in light of the conditions listed in paragraph (g)(1) of 
this section. If this review indicates no need for new or supplemental 
documentation, a REC can be produced in accordance with this part. 
Proponents are required to periodically review relevant existing NEPA 
analyses to ascertain the need for supplemental documentation and 
document this review in a REC format.
    (h) Contractors frequently prepare EISs and EAs. To obtain unbiased 
analyses, contractors must be selected in a manner avoiding any conflict 
of interest. Therefore, contractors will execute disclosure statements 
specifying that they have no financial or other interest in the outcome 
of the project. The contractor's efforts should be closely monitored 
throughout the contract to ensure an adequate assessment/statement and 
also avoid extensive, time-consuming, and costly analyses or revisions. 
Project proponents and NEPA program managers must be continuously 
informed and involved.

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    (i) When appropriate, NEPA analyses will reflect review for 
operations security principles and procedures, described in AR 530-1 
(Operations Security (OPSEC)), on the cover sheet or signature page.
    (j) Environmental analyses and associated investigations are 
advanced project planning, and will be funded from sources other than 
military construction (MILCON) funds. Operations and Maintenance Army 
(OMA), Operations and Maintenance, Army Reserve (OMAR), and Operations 
and Maintenance, Army National Guard (OMANG), RDT&E, or other operating 
funds are the proper sources of funds for such analysis and 
documentation. Alternative Environmental Compliance Achievement Program 
(non-ECAP) funds will be identified for NEPA documentation, monitoring, 
and other required studies as part of the MILCON approval process.
    (k) Costs of design and construction mitigation measures required as 
a direct result of MILCON projects will be paid from MILCON funds, which 
will be included in the cost estimate and description of work on DD Form 
1391, Military Construction Project Data.
    (l) Response actions implemented in accordance with the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) or the Resource Conservation and Recovery Act (RCRA) are not 
legally subject to NEPA and do not require separate NEPA analysis. As a 
matter of Army policy, CERCLA and RCRA analysis and documentation should 
incorporate the values of NEPA and:
    (1) Establish the scope of the analysis through full and open public 
participation;
    (2) Analyze all reasonable alternative remedies, evaluating the 
significance of impacts resulting from the alternatives examined; and
    (3) Consider public comments in the selection of the remedy. The 
decision maker shall ensure that issues involving substantive 
environmental impacts are addressed by an interdisciplinary team.
    (m) MATDEVs, scientists and technologists, and CBTDEVs are 
responsible for ensuring that their programs comply with NEPA as 
directed in this part.
    (1) Prior to assignment of a MATDEV to plan, execute, and manage a 
potential acquisition program, CBTDEVs will retain environmental 
analyses and data from requirements determination activities, and 
Science and Technology (S&T) organizations will develop and retain data 
for their technologies. These data will transition to the MATDEV upon 
assignment to plan, execute, and manage an acquisition program. These 
data (collected and produced), as well as the decisions made by the 
CBTDEVs, will serve as a foundation for the environment, safety, and 
health (ESH) evaluation of the program and the incorporation of program-
specific NEPA requirements into the Acquisition Strategy. Programmatic 
ESH evaluation is considered during the development of the Acquisition 
Strategy as required by DOD 5000.2-R for all ACAT programs. Programmatic 
ESH evaluation is not a NEPA document. It is a planning, programming, 
and budgeting strategy into which the requirements of this part are 
integrated. Environmental analysis must be a continuous process 
throughout the materiel development program. During this continuous 
process, NEPA analysis and documentation may be required to support 
decision-making prior to any decision that will prejudice the ultimate 
decision or selection of alternatives (40 CFR 1506.1). In accordance 
with DOD 5000.2.R, the MATDEV is responsible for environmental analysis 
of acquisition life-cycle activities (including disposal). Planning to 
accomplish these responsibilities will be included in the appropriate 
section of the Acquisition Strategy.
    (2) MATDEVs are responsible for the documentation regarding general 
environmental effects of all aspects of the system (including operation, 
fielding, and disposal) and the specific effects for all activities for 
which he/she is the proponent.
    (3) MATDEVs will include, in their Acquisition Strategy, provisions 
for developing and supplementing their NEPA analyses and documentation,

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and provide data to support supplemental analyses, as required, 
throughout the life cycle of the system. The MATDEV will coordinate with 
ASA (AL&T) or MACOM proponent office, ACSIM, and ASA(I&E), identifying 
NEPA analyses and documentation needed to support milestone decisions. 
This requirement will be identified in the Acquisition Strategy and the 
status will be provided to the ACSIM representative prior to milestone 
review. The Acquisition Strategy will outline the system-specific plans 
for NEPA compliance, which will be reviewed and approved by the 
appropriate MDA and ACSIM. Compliance with this plan will be addressed 
at Milestone Reviews.
    (n) AR 700-142 requires that environmental requirements be met to 
support materiel fielding. During the development of the Materiel 
Fielding Plan (MFP), and Materiel Fielding Agreement (MFA), the MATDEV 
and the materiel receiving command will identify environmental 
information needed to support fielding decisions. The development of 
generic system environmental and NEPA analyses for the system under 
evaluation, including military construction requirements and new 
equipment training issues, will be the responsibility of the MATDEV. The 
development of site-specific environmental analyses and NEPA 
documentation (EAs/EISs), using generic system environmental analyses 
supplied by the MATDEV, will be the responsibility of the receiving 
Command.
    (o) Army proponents are encouraged to draw upon the special 
expertise available within the Office of the Surgeon General (OSG) 
(including the U.S. Army Center for Health Promotion and Preventive 
Medicine (USACHPPM)), and USACE District Environmental Staff to identify 
and evaluate environmental health impacts, and other agencies, such as 
USAEC, can be used to assess potential environmental impacts). In 
addition, other special expertise is available in the Army, DOD, other 
federal agencies, state and local agencies, tribes, and other 
organizations and individuals. Their participation and assistance is 
also encouraged.



Sec.  651.6  NEPA analysis staffing.

    (a) NEPA analyses will be prepared by the proponent using 
appropriate resources (funds and manpower). The proponent, in 
coordination with the appropriate NEPA program manager, shall determine 
what proposal requires NEPA analysis, when to initiate NEPA analysis, 
and what level of NEPA analysis is initially appropriate. The proponent 
shall remain intimately involved in determining appropriate milestones, 
timelines, and inputs required for the successful conduct of the NEPA 
process, including the use of scoping to define the breadth and depth of 
analysis required. In cases where the document addresses impacts to an 
environment whose management is not in the proponents' chain of command 
(for example, installation management of a range for MATDEV testing or 
installation management of a fielding location), the proponent shall 
coordinate the analysis and preparation of the document and identify the 
resources needed for its preparation and staffing through the command 
structure of that affected activity.
    (b) The approving official is responsible for approving NEPA 
documentation and ensuring completion of the action, including any 
mitigation actions needed. The approving official may be an installation 
commander; or, in the case of combat/materiel development, the MATDEV, 
MDA, or AAE.
    (c) Approving officials may select a lead reviewer for NEPA analysis 
before approving it. The lead reviewer will determine and assemble the 
personnel needed for the review process. Funding needed to accomplish 
the review shall be negotiated with the proponent, if required. Lead 
reviewer may be an installation EC or a NEPA POC designated by an MDA 
for a combat/materiel development program.
    (d) The most important document is the initial NEPA document (draft 
EA or draft EIS) being processed. Army reviewers are accountable for 
ensuring thorough early review of draft NEPA analyses. Any organization 
that raises new concerns or comments during final staffing will explain 
why issues were not raised earlier. NEPA analyses requiring public 
release in the FR will be forwarded to ASA(I&E), through the

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chain of command, for review. This includes all EISs and all EAs that 
are of national interest or concern. The activities needed to support 
public release will be coordinated with ASA(I&E). Public release will 
not proceed without ASA(I&E) approval.
    (e) Public release of NEPA analyses in the FR should be limited to 
EISs, or EAs that are environmentally controversial or of national 
interest or concern. When analyses address actions affecting numerous 
sites throughout the Continental United States (CONUS), the proponent 
will carefully evaluate the need for publishing an NOA in the FR, as 
this requires an extensive review process, as well as supporting 
documentation alerting EPA and members of Congress of the action. At a 
minimum, and depending on the proponent's command structure, the 
following reviews must be accomplished:
    (1) The NEPA analysis must be reviewed by the MACOM Legal Counsel or 
TJAG, ACSIM, ASA(I&E), and Office of General Counsel (OGC).
    (2) The supporting documentation must be reviewed by Office of the 
Chief of Legislative Liaison (OCLL) and Office of the Chief of Public 
Affairs (OCPA).
    (3) Proponents must allow a minimum of 30 days to review the 
documentation and must allow sufficient time to address comments from 
these offices prior to publishing the NOA.
    (4) The proponent may consider publishing the NOA in local 
publication resources near each site. Proponents are strongly advised to 
seek the assistance of the local environmental office and command 
structure in addressing the need for such notification.



Sec.  651.7  Delegation of authority for non-acquisition systems.

    (a) MACOMs can request delegation authority and responsibility for 
an EA of national concern or an EIS from ASA(I&E). The proponent, 
through the appropriate chain of command, and with the concurrence of 
environmental offices, forwards to HQDA (ODEP) the request to propose, 
prepare, and finalize an EA and FNSI or EIS through the ROD stage. The 
request must include, at a minimum, the following:
    (1) A description of the purpose and need for the action.
    (2) A description of the proposed action and a preliminary list of 
alternatives to that proposed action, including the ``no action'' 
alternative. This constitutes the DOPAA.
    (3) An explanation of funding requirements, including cost 
estimates, and how they will be met.
    (4) A brief description of potential issues of concern or 
controversy, including any issues of potential Army-wide impact.
    (5) A plan for scoping and public participation.
    (6) A timeline, with milestones for the EIS action.
    (b) If granted, a formal letter will be provided by ASA(I&E) 
outlining extent, conditions, and requirements for the NEPA action. Only 
the ASA(I&E) can delegate this authority and responsibility. When 
delegated signature authority by HQDA, the MACOM will be responsible for 
complying with this part and associated Army environmental policy. This 
delegation, at the discretion of ASA(I&E), can include specific 
authority and responsibility for coordination and staffing of:
    (1) EAs and FNSIs, and associated transmittal packages, as specified 
in Sec.  651.35(c).
    (2) NOIs, Preliminary Draft EISs (PDEISs), Draft EISs (DEISs), Final 
EISs (FEISs), RODs and all associated transmittal packages as specified 
in Sec.  651.45. Such delegation will specify requirements for 
coordination with ODEP and ASA (I&E).



Sec.  651.8  Disposition of final documents.

    All NEPA documentation and supporting administrative records shall 
be retained by the proponent's office for a minimum of six years after 
signature of the FNSI/ROD or the completion of the action, whichever is 
greater. Copies of EAs, and final EISs will be forwarded to AEC for 
cataloging and retention in the Army NEPA library. The DEIS and FEIS 
will be retained until the proposed action and any mitigation program is 
complete or the information therein is no longer valid. The ACSIM shall 
forward copies of all FEISs to DTIC, the National Archives, and Records 
Administration.

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  Subpart B_National Environmental Policy Act and the Decision Process



Sec.  651.9  Introduction.

    (a) The NEPA process is the systematic examination of possible and 
probable environmental consequences of implementing a proposed action. 
Integration of the NEPA process with other Army projects and program 
planning must occur at the earliest possible time to ensure that:
    (1) Planning and decision-making reflect Army environmental values, 
such as compliance with environmental policy, laws, and regulations; and 
that these values are evident in Army decisions. In addition, Army 
decisions must reflect consideration of other requirements such as 
Executive Orders and other non-statutory requirements, examples of which 
are enumerated in Sec.  651.14(e).
    (2) Army and DOD environmental policies and directives are 
implemented.
    (3) Delays and potential conflicts in the process are minimized. The 
public should be involved as early as possible to avoid potential 
delays.
    (b) All Army decision-making that may impact the human environment 
will use a systematic, interdisciplinary approach that ensures the 
integrated use of the natural and social sciences, planning, and the 
environmental design arts (section 102(2)(a), Public Law 91-190, 83 
Stat. 852, National Environmental Policy Act of 1969 (NEPA)). This 
approach allows timely identification of environmental effects and 
values in sufficient detail for concurrent evaluation with economic, 
technical, and mission-related analyses, early in the decision process.
    (c) The proponent of an action or project must identify and describe 
the range of reasonable alternatives to accomplish the purpose and need 
for the proposed action or project, taking a ``hard look'' at the 
magnitude of potential impacts of implementing the reasonable 
alternatives, and evaluating their significance. To assist in 
identifying reasonable alternatives, the proponent should consult with 
the installation environmental office and appropriate federal, tribal, 
state, and local agencies, and the general public.



Sec.  651.10  Actions requiring environmental analysis.

    The general types of proposed actions requiring environmental impact 
analysis under NEPA, unless categorically excluded or otherwise included 
in existing NEPA documentation, include:
    (a) Policies, regulations, and procedures (for example, Army and 
installation regulations).
    (b) New management and operational concepts and programs, including 
logistics; RDT&E procurement; personnel assignment; real property and 
facility management (such as master plans); and environmental programs 
such as Integrated Natural Resource Management Plan (INRMP), Integrated 
Cultural Resources Management Plan (ICRMP), and Integrated Pest 
Management Plan. NEPA requirements may be incorporated into other Army 
plans in accordance with 40 CFR 1506.4.
    (c) Projects involving facilities construction.
    (d) Operations and activities including individual and unit 
training, flight operations, overall operation of installations, or 
facility test and evaluation programs.
    (e) Actions that require licenses for operations or special material 
use, including a Nuclear Regulatory Commission (NRC) license, an Army 
radiation authorization, or Federal Aviation Administration air space 
request (new, renewal, or amendment), in accordance with AR 95-50.
    (f) Materiel development, operation and support, disposal, and/or 
modification as required by DOD 5000.2-R.
    (g) Transfer of significant equipment or property to the ARNG or 
Army Reserve.
    (h) Research and development including areas such as genetic 
engineering, laser testing, and electromagnetic pulse generation.
    (i) Leases, easements, permits, licenses, or other entitlement for 
use, to include donation, exchange, barter, or Memorandum of 
Understanding (MOU). Examples include grazing leases, grants of easement 
for highway right-of-way, and requests by the public to

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use land for special events such as air shows or carnivals.
    (j) Federal contracts, grants, subsidies, loans, or other forms of 
funding such as Government-Owned, Contractor-Operated (GOCO) industrial 
plants or housing and construction via third-party contracting.
    (k) Request for approval to use or store materials, radiation 
sources, hazardous and toxic material, or wastes on Army land. If the 
requester is non-Army, the responsibility to prepare proper 
environmental documentation may rest with the non-Army requester, who 
will provide needed information for Army review. The Army must review 
and adopt all NEPA documentation before approving such requests.
    (l) Projects involving chemical weapons/munitions.



Sec.  651.11  Environmental review categories.

    The following are the five broad categories into which a proposed 
action may fall for environmental review:
    (a) Exemption by law. The law must apply to DOD and/or the Army and 
must prohibit, exempt, or make impossible full compliance with the 
procedures of NEPA (40 CFR 1506.11). While some aspects of Army 
decision-making may be exempted from NEPA, other aspects of an action 
are still subject to NEPA analysis and documentation. The fact that 
Congress has directed the Army to take an action does not constitute an 
exemption.
    (b) Emergencies. In the event of an emergency, the Army will, as 
necessary, take immediate actions that have environmental impacts, such 
as those to promote national defense or security or to protect life or 
property, without the specific documentation and procedural requirements 
of other sections of this part. In such cases, at the earliest 
practicable time, the HQDA proponent will notify the ODEP, which in turn 
will notify the ASA(I&E). ASA(I&E) will coordinate with the Deputy Under 
Secretary of Defense for Installations and Environment (DUSD(IE)) and 
the CEQ regarding the emergency and subsequent NEPA compliance after the 
emergency action has been completed. These notifications apply only to 
actions necessary to control the immediate effects of the emergency. 
Other actions remain subject to NEPA review (40 CFR 1506.11). A public 
affairs plan should be developed to ensure open communication among the 
media, the public, and the installation. The Army will not delay an 
emergency action necessary for national defense, security, or 
preservation of human life or property in order to comply with this part 
or the CEQ regulations. However, the Army's on-site commander dealing 
with the emergency will consider the probable environmental consequences 
of proposed actions, and will minimize environmental damage to the 
maximum degree practicable, consistent with protecting human life, 
property, and national security. State call-ups of ARNG during a natural 
disaster or other state emergency are excluded from this notification 
requirement. After action reports may be required at the discretion of 
the ASA(I&E).
    (c) Categorical Exclusions (CXs). These are categories of actions 
that normally do not require an EA or an EIS. The Army has determined 
that they do not individually or cumulatively have a substantial effect 
on the human environment. Qualification for a CX is further described in 
subpart D and appendix B of this part. In accordance with Sec.  651.29, 
actions that degrade the existing environment or are environmentally 
controversial or adversely affect environmentally sensitive resources 
will require an EA.
    (d) Environmental Assessment. Proposed Army actions not covered in 
the first three categories (paragraphs (a) through (c) of this section) 
must be analyzed to determine if they could cause significant impacts to 
the human or natural environment (see Sec.  651.39). The EA determines 
whether possible impacts are significant, thereby warranting an EIS. 
This requires a ``hard look'' at the magnitude of potential impacts, 
evaluation of their significance, and documentation in the form of 
either an NOI to prepare an EIS or a FNSI. The format (Sec.  651.34) and 
requirements for this analysis are addressed in subpart E of this part 
(see Sec.  651.33 for actions normally requiring an EA). The

[[Page 297]]

EA is a valuable planning tool to discuss and document environmental 
impacts, alternatives, and controversial actions, providing public and 
agency participation, and identifying mitigation measures.
    (e) EIS. When an action clearly has significant impacts or when an 
EA cannot be concluded by a FNSI, an EIS must be prepared. An EIS is 
initiated by the NOI (Sec.  651.22), and will examine the significant 
environmental effects of the proposed action as well as accompanying 
measures to mitigate those impacts. This process requires formal 
interaction with the public, a formal ``scoping'' process, and specified 
timelines for public review of the documentation and the incorporation 
of public comments. The format and requirements for the EIS are 
addressed in subpart F of this part (see Sec.  651.42 for actions 
normally requiring an EIS).



Sec.  651.12  Determining appropriate level of NEPA analysis.

    (a) The flow chart shown in Figure 1 summarizes the process for 
determining documentation requirements, as follows:

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[GRAPHIC] [TIFF OMITTED] TR29MR02.000

    (1) If the proposed action qualifies as a CX (subpart D of this 
part), and the screening criteria are met (Sec.  651.29), the action can 
proceed. Some CXs require a REC.
    (2) If the proposed action is adequately covered within an existing 
EA or EIS, a REC is prepared to that effect. The REC should state the 
applicable EA or EIS title and date, and identify where it may be 
reviewed (Sec.  651.19, Figure 3). The REC is then attached to the 
proponent's record copy of that EA or EIS.
    (3) If the proposed action is within the general scope of an 
existing EA or

[[Page 299]]

EIS, but requires additional information, a supplement is prepared, 
considering the new, modified, or missing information. Existing 
documents are incorporated by reference and conclusions are published as 
either a FNSI or NOI to supplement the EIS.
    (4) If the proposed action is not covered adequately in any existing 
EA or EIS, or is of a significantly larger scope than that described in 
the existing document, an EA is prepared, followed by either a FNSI or 
NOI to prepare an EIS. Initiation of an EIS may proceed without first 
preparing an EA, if deemed appropriate by the proponent.
    (5) If the proposed action is not within the scope of any existing 
EA or EIS, then the proponent must begin the preparation of a new EA or 
EIS, as appropriate.
    (b) The proponent of a proposed action may adopt appropriate 
environmental documents (EAs or EISs) prepared by another agency (40 CFR 
1500.4(n) and 1506.3). In such cases, the proponent will document their 
use in a REC FNSI, or ROD.



Sec.  651.13  Classified actions.

    (a) For proposed actions and NEPA analyses involving classified 
information, AR 380-5 (Department of the Army Information Security 
Program) will be followed.
    (b) Classification does not relieve a proponent of the requirement 
to assess and document the environmental effects of a proposed action.
    (c) When classified information can be reasonably separated from 
other information and a meaningful environmental analysis produced, 
unclassified documents will be prepared and processed in accordance with 
this part. Classified portions will be kept separate and provided to 
reviewers and decision makers in accordance with AR 380-5.
    (d) When classified information is such an integral part of the 
analysis of a proposal that a meaningful unclassified NEPA analysis 
cannot be produced, the proponent, in consultation with the appropriate 
security and environmental offices, will form a team to review 
classified NEPA analysis. This interdisciplinary team will include 
environmental professionals to ensure that the consideration of 
environmental effects will be consistent with the letter and intent of 
NEPA, including public participation requirements for those aspects 
which are not classified.



Sec.  651.14  Integration with Army planning.

    (a) Early integration. The Army goal is to concurrently integrate 
environmental reviews with other Army planning and decision-making 
actions, thereby avoiding delays in mission accomplishment. To achieve 
this goal, proponents shall complete NEPA analysis as part of any 
recommendation or report to decision makers prior to the decision 
(subject to 40 CFR 1506.1). Early planning (inclusion in Installation 
Master Plans, INRMPs, ICRMPs, Acquisition Strategies, strategic plans, 
etc.) will allow efficient program or project execution later in the 
process.
    (1) The planning process will identify issues that are likely to 
have an effect on the environment, or to be controversial. In most 
cases, local citizens and/or existing advisory groups should assist in 
identifying potentially controversial issues during the planning 
process. The planning process also identifies minor issues that have 
little or no measurable environmental effect, and it is sound NEPA 
practice to reduce or eliminate discussion of minor issues to help focus 
analyses. Such an approach will minimize unnecessary analysis and 
discussion in the NEPA process and documents.
    (2) Decision makers will be informed of and consider the 
environmental consequences at the same time as other factors such as 
mission requirements, schedule, and cost. If permits or coordination are 
required (for example, Section 404 of the Clean Water Act, Endangered 
Species Act consultation, Section 106 of the National Historic 
Preservation Act (NHPA), etc.), they should be initiated no later than 
the scoping phase of the process and should run parallel to the NEPA 
process, not sequential to it. This practice is in accordance with the 
recommendations

[[Page 300]]

presented in the CEQ publication entitled ``The National Environmental 
Policy Act: A Study of Its Effectiveness After Twenty-five Years.''
    (3) NEPA documentation will accompany the proposal through the Army 
review and decision-making processes. These documents will be forwarded 
to the planners, designers, and/or implementers, ensuring that the 
recommendations and mitigations upon which the decision was based are 
being carried out. The implementation process will provide necessary 
feedback for adaptive environmental management; responding to 
inaccuracies or uncertainties in the Army's ability to accurately 
predict impacts, changing field conditions, or unexpected results from 
monitoring. The integration of NEPA into the ongoing planning activities 
of the Army can produce considerable savings to the Army. \1\
---------------------------------------------------------------------------

    \1\ For example, a well-executed EA or EIS on an Installation Master 
Plan can eliminate the need for many case-by-case analyses and 
documentation for construction projects. After the approval of an 
adequate comprehensive plan (which adequately addresses the potential 
for environmental effects), subsequent projects can tier off of the 
Master Plan NEPA analysis (AR 210-20). Other integration of the NEPA 
process and broad-level planning can lead to the ``tiering'' of NEPA, 
allowing the proponent to minimize the effort spent on individual 
projects, and ``incorporating by reference'' the broader level 
environmental considerations. This tiering allows the development of 
program level (programmatic) EAs and EISs, which can introduce greater 
economies of scale. These assessments are addressed in more detail in 
paragraph (c) of this section.
---------------------------------------------------------------------------

    (b) Time limits. The timing of the preparation, circulation, 
submission, and public availability of NEPA documentation is important 
to ensure that environmental values are integrated into Army planning 
and decisions.
    (1) Categorical exclusions. When a proposed action is categorically 
excluded from further environmental review (subpart D and appendix B of 
this part), the proponent may proceed immediately with that action upon 
receipt of all necessary approvals, (including local environmental 
office confirmation that the CX applies to the proposal) and the 
preparation of a REC, if required.
    (2) Findings of no significant impact. (i) A proponent will make an 
EA and draft FNSI available to the public for review and comment for a 
minimum of 30 days prior to making a final decision and proceeding with 
an action. If the proposed action is one of national concern, is 
unprecedented, or normally requires an EIS (Sec.  651.42), the FNSI must 
be published in the FR. Otherwise, the FNSI must be published in local 
newspapers and be made widely available. The FNSI must articulate the 
deadline for receipt of comments, availability of the EA for review, and 
steps required to obtain the EA. This can include a POC, address, and 
phone number; a location; a reference to a website; or some equivalent 
mechanism. (In no cases will the only coordination mechanism be a 
website.) At the conclusion of the appropriate comment period, as 
specified in Figure 2, the decision maker may sign the FNSI and take 
immediate action, unless sufficient public comments are received to 
warrant more time for their resolution. Figure 2 follows:

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[GRAPHIC] [TIFF OMITTED] TR29MR02.001

    (ii) A news release is required to publicize the availability of the 
EA and draft FNSI, and a simultaneous announcement that includes 
publication in the FR must be made by HQDA, if warranted (see Sec.  
651.35 (e)). The 30-day waiting period begins at the time that the draft 
FNSI is publicized (40 CFR 1506.6(b)).
    (iii) In cases where the 30-day comment period jeopardizes the 
project and the full comment period would provide no public benefit, the 
period may be shortened with appropriate approval by a higher decision 
authority (such as a MACOM). In no circumstances should the public 
comment period for an EA/draft FNSI be less than 15 days. A deadline and 
POC for receipt of comments must be included in the draft FNSI and the 
news release.
    (3) EIS. The EPA publishes a weekly notice in the FR of the EISs 
filed during the preceding week. This notice usually occurs each Friday. 
An NOA reaching EPA on a Friday will be published in the following 
Friday issue of the FR. Failure to deliver an NOA to EPA by close of 
business on Friday will result in an additional one-week delay. A news 
release publicizing the action will be made in conjunction with the 
notice in the FR. The following time periods, calculated from the 
publication date of the EPA notice, will be observed:
    (i) Not less than 45 days for public comment on DEISs (40 CFR 
1506.10(c)).
    (ii) Not less than 15 days for public availability of DEISs prior to 
any public hearing on the DEIS (40 CFR 1506(c)(2)).
    (iii) Not less than 90 days from filing the DEIS prior to any 
decision on the proposed action. These periods may run concurrently (40 
CFR 1506.10(b) and (c)).
    (iv) The time periods prescribed here may be extended or reduced in 
accordance with 40 CFR 1506.10(b)(2) and (d).
    (v) When variations to these time limits are set, the Army agency 
should consider the factors in 40 CFR 1501.8(b)(1).
    (vi) The proponent may also set time limits for other procedures or 
decisions related to DEISs and FEISs as listed in 40 CFR 1501.8(b)(2).
    (vii) Because the entire EIS process could require more than one 
year (Figure 2 in paragraph (b)(2)(i) of this section), the process must 
begin as soon as the project is sufficiently mature to allow analysis of 
alternatives and the proponent must coordinate with all staff elements 
with a role to play in the NEPA process. DEIS preparation and response 
to comments constitute the largest portion of time to prepare an FEIS.

[[Page 302]]

    (viii) A public affairs plan should be developed that provides for 
periodic interaction with the community. There is a minimum public 
review time of 90 days between the publication of the DEIS and the 
announcement of the ROD. After the availability of the ROD is announced, 
the action may proceed. This announcement must be made through the FR 
for those EISs for which HQDA signs the ROD. For other EISs, 
announcements in the local press are adequate. Figure 2 in paragraph 
(b)(2)(i) of this section indicates typical and required time periods 
for EISs.
    (c) Programmatic environmental review (tiering). (1) Army agencies 
are encouraged to analyze actions at a programmatic level for those 
programs that are similar in nature or broad in scope (40 CFR 1502.4(c), 
1502.20, and 1508.23). This level of analysis will eliminate repetitive 
discussions of the same issues and focus on the key issues at each 
appropriate level of project review. When a broad programmatic EA or EIS 
has been prepared, any subsequent EIS or EA on an action included within 
the entire program or policy (particularly a site-specific action) need 
only summarize issues discussed in the broader statement and concentrate 
on the issues specific to the subsequent action. \2\ This subsequent 
document will state where the earlier document is available.
---------------------------------------------------------------------------

    \2\ As an example, an appropriate way to address diverse weapon 
system deployments would be to produce site-specific EAs or EISs for 
each major deployment installation, using the generic environmental 
effects of the weapon system identified in a programmatic EA or EIS 
prepared by the MATDEV.
---------------------------------------------------------------------------

    (2) Army proponents are normally required to prepare many types of 
management plans that must include or be accompanied by appropriate NEPA 
analysis. NEPA analysis for these types of plans can often be 
accomplished with a programmatic approach, creating an analysis that 
covers a number of smaller projects or activities. In cases where such 
activities are adequately assessed as part of these normal planning 
activities, a REC can be prepared for smaller actions that cite the 
document in which the activities were previously assessed. Care must be 
taken to ensure that site-specific or case-specific conditions are 
adequately addressed in the existing programmatic document before a REC 
can be used, and the REC must reflect this consideration. If additional 
analyses are required, they can ``tier'' off the original analyses, 
eliminating duplication. Tiering, in this manner, is often applicable to 
Army actions that are long-term, multi-faceted, or multi-site.
    (d) Scoping. (1) When the planning for an Army project or action 
indicates a need for an EIS, the proponent initiates the scoping process 
(see subpart G of this part for procedures and actions). This process 
determines the scope of issues to address in the EIS and identifies the 
significant issues related to the proposed action. During the scoping, 
process participants identify the range of actions, alternatives, and 
impacts to consider in the EIS (40 CFR 1508.25). For an individual 
action, the scope may depend on the relationship of the proposed action 
to other NEPA documents. The scoping phase of the NEPA process, as part 
of project planning, will identify aspects of the proposal that are 
likely to have an effect or be controversial; and will ensure that the 
NEPA analyses are useful for a decision maker. For example, the early 
identification and initiation of permit or coordination actions can 
facilitate problem resolution, and, similarly, cumulative effects can be 
addressed early in the process and at the appropriate spatial and 
temporal scales.
    (2) The extent of the scoping process, including public involvement, 
will depend on several factors. These factors include:
    (i) The size and type of the proposed action.
    (ii) Whether the proposed action is of regional or national 
interest.
    (iii) Degree of any associated environmental controversy.
    (iv) Size of the affected environmental parameters.
    (v) Significance of any effects on them.
    (vi) Extent of prior environmental review.
    (vii) Involvement of any substantive time limits.

[[Page 303]]

    (viii) Requirements by other laws for environmental review.
    (ix) Cumulative impacts.
    (3) Through scoping, many future controversies can be eliminated, 
and public involvement can be used to narrow the scope of the study, 
concentrating on those aspects of the analysis that are truly important.
    (4) The proponent may incorporate scoping as part of the EA process, 
as well. If the proponent chooses a public involvement strategy, the 
extent of scoping incorporated is at the proponent's discretion.
    (e) Analyses and documentation. Several statutes, regulations, and 
Executive Orders require analyses, consultation, documentation, and 
coordination, which duplicate various elements and/or analyses required 
by NEPA and the CEQ regulations; often leading to confusion, duplication 
of effort, omission, and, ultimately, unnecessary cost and delay. 
Therefore, Army proponents are encouraged to identify, early in the NEPA 
process, opportunities for integrating those requirements into proposed 
Army programs, policies, and projects. Environmental analyses required 
by this part will be integrated as much as practicable with other 
environmental reviews, laws, and Executive Orders (40 CFR 1502.25). 
Incorporation of these processes must ensure that the individual 
requirements are met, in addition to those required by NEPA. The NEPA 
process does not replace the procedural or substantive requirements of 
other environmental statutes and regulations. Rather, it addresses them 
in one place so the decision maker has a concise and comprehensive view 
of the major environmental issues and understands the interrelationships 
and potential conflicts among the environmental components. NEPA is the 
``umbrella'' that facilitates such coordination by integrating processes 
that might otherwise proceed independently. Prime candidates for such 
integration include, but are not limited to, the following:
    (1) Clean Air Act, as amended (General Conformity Rule, 40 CFR parts 
51 and 93).
    (2) Endangered Species Act.
    (3) NHPA, sections 106 and 110.
    (4) NAGPRA (Public Law 101-601, 104 Stat. 3048).
    (5) Clean Water Act, including Section 404(b)(1).
    (6) American Indian Religious Freedom Act.
    (7) Fish and Wildlife Coordination Act.
    (8) Comprehensive Environmental Response, Compensation, and 
Liability Act.
    (9) Resource Conservation and Recovery Act.
    (10) Pollution Prevention Act.
    (11) The Sikes Act, Public Law 86-797, 74 Stat. 1052.
    (12) Federal Compliance with Right-to-Know Laws and Pollution 
Prevention Requirements (Executive Order 12856, 3 CFR, 1993 Comp., p. 
616).
    (13) Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (Executive Order 12898, 3 CFR, 
1994 Comp., p. 859).
    (14) Indian Sacred Sites (Executive Order 13007, 3 CFR, 1996 Comp., 
p. 196).
    (15) Protection of Children From Environmental Health Risks and 
Safety Risks (Executive Order 13045, 3 CFR, 1997 Comp., p. 198).
    (16) Federal Support of Community Efforts Along American Heritage 
Rivers (Executive Order 13061, 3 CFR, 1997 Comp., p. 221).
    (17) Floodplain Management (Executive Order 11988, 3 CFR, 1977 
Comp., p. 117).
    (18) Protection of Wetlands (Executive Order 11990, 3 CFR, 1977 
Comp., p. 121).
    (19) Environmental Effects Abroad of Major Federal Actions 
(Executive Order 12114, 3 CFR, 1979 Comp., p. 356).
    (20) Invasive Species (Executive Order 13112, 3 CFR, 1999 Comp., p. 
159).
    (21) AR 200-3, Natural Resources--Land, Forest, and Wildlife 
Management.
    (22) Environmental analysis and documentation required by various 
state laws.
    (23) Any cost-benefit analyses prepared in relation to a proposed 
action (40 CFR 1502.23).
    (24) Any permitting and licensing procedures required by federal and 
state law.

[[Page 304]]

    (25) Any installation and Army master planning functions and plans.
    (26) Any installation management plans, particularly those that deal 
directly with the environment.
    (27) Any stationing and installation planning, force development 
planning, and materiel acquisition planning.
    (28) Environmental Noise Management Program.
    (29) Hazardous waste management plans.
    (30) Integrated Cultural Resource Management Plan as required by AR 
200-4 and DODD 4700.4, Natural Resources Management Program.
    (31) Asbestos Management Plans.
    (32) Integrated Natural Resource Management Plans, AR 200-3, Natural 
Resources--Land, Forest, and Wildlife Management, and DODD 4700.4, 
Natural Resources Management Program.
    (33) Environmental Baseline Surveys.
    (34) Programmatic Environment, Safety, and Health Evaluation (PESHE) 
as required by DOD 5000.2-R and DA Pamphlet 70-3, Army Acquisition 
Procedures, supporting AR 70-1, Acquisition Policy.
    (35) The DOD MOU to Foster the Ecosystem Approach signed by CEQ, and 
DOD, on 15 December 1995; establishing the importance of ``non-listed,'' 
``non-game,'' and ``non-protected'' species.
    (36) Other requirements (such as health risk assessments), when 
efficiencies in the overall Army environmental program will result.
    (f) Integration into Army acquisition. The Army acquisition 
community will integrate environmental analyses into decision-making, as 
required in this part ensuring that environmental considerations become 
an integral part of total program planning and budgeting, PEOs, and 
Program, Product, and Project Managers integrate the NEPA process early, 
and acquisition planning and decisions reflect national and Army 
environmental values and considerations. By integrating pollution 
prevention and other aspects of any environmental analysis early into 
the materiel acquisition process, the PEO and PM facilitate the 
identification of environmental cost drivers at a time when they can be 
most effectively controlled. NEPA program coordinators should refer to 
DA Pamphlet 70-3, Army Acquisition Procedures, and the Defense 
Acquisition Deskbook (DAD) for current specific implementation guidance, 
procedures, and POCs.
    (g) Relations with local, state, regional, and tribal agencies. (1) 
Army installation, agency, or activity environmental officers or 
planners should establish a continuing relationship with other agencies, 
including the staffs of adjacent local, state, regional, and tribal 
governments and agencies. This relationship will promote cooperation and 
resolution of mutual land use and environment-related problems, and 
promote the concept of regional ecosystem management as well as general 
cooperative problem solving. Many of these ``partners'' will have 
specialized expertise and access to environmental baseline data, which 
will assist the Army in day-to-day planning as well as NEPA-related 
issues. MOUs are encouraged to identify areas of mutual interest, 
establish POCs, identify lines of communication between agencies, and 
specify procedures to follow in conflict resolution. Additional 
coordination is available from state and area-wide planning and 
development agencies. Through this process, the proponent may gain 
insights on other agencies' approaches to EAs, surveys, and studies 
applicable to the current proposal. These other agencies would also be 
able to assist in identifying possible participants in scoping 
procedures for projects requiring an EIS.
    (2) In some cases, local, state, regional, or tribal governments or 
agencies will have sufficient jurisdiction by law or special expertise 
with respect to reasonable alternatives or significant environmental, 
social, or economic impacts associated with a proposed action. When 
appropriate, proponents of an action should determine whether these 
entities have an interest in becoming a cooperating agency (Sec.  651.45 
(b) and 40 CFR 1501.6). If cooperating agency status is established, a 
memorandum of agreement is required to document specific expectations, 
roles, and responsibilities, including analyses to be performed, time 
schedules, availability of pre-decisional information, and other issues. 
Cooperating agencies may use their own funds, and the designation of 
cooperating agency status

[[Page 305]]

neither enlarges nor diminishes the decision-making status of any 
federal or non-federal entities (see CEQ Memorandum for Heads of Federal 
Agencies entitled ``Designation of Non-Federal Agencies to be 
Cooperating Agencies in Implementing the Procedural Requirements of the 
National Environmental Policy Act'' dated 28 July 1999, available from 
the President's Council on Environmental Quality (CEQ), Executive Office 
of the President of the U.S.). In determining sufficient jurisdiction or 
expertise, CEQ regulations can be used as guidance.
    (h) The Army as a cooperating agency. Often, other agencies take 
actions that can negatively impact the Army mission. In such cases, the 
Army may have some special or unique expertise or jurisdiction.
    (1) The Army may be a cooperating agency (40 CFR 1501.6) in order 
to:
    (i) Provide information or technical expertise to a lead agency.
    (ii) Approve portions of a proposed action.
    (iii) Ensure the Army has an opportunity to be involved in an action 
of another federal agency that will affect the Army.
    (iv) Provide review and approval of the portions of EISs and RODs 
that affect the Army.
    (2) Adequacy of an EIS is primarily the responsibility of the lead 
agency. However, as a cooperating agency with approval authority over 
portions of a proposal, the Army may adopt an EIS if review concludes 
the EIS adequately satisfies the Army's comments and suggestions.
    (3) If the Army is a major approval authority for the proposed 
action, the appropriate Army official may sign the ROD prepared by the 
lead agency, or prepare a separate, more focused ROD. If the Army's 
approval authority is only a minor aspect of the overall proposal, such 
as issuing a temporary use permit, the Army need not sign the lead 
agency's ROD or prepare a separate ROD.
    (4) The magnitude of the Army's involvement in the proposal will 
determine the appropriate level and scope of Army review of NEPA 
documents. If the Army is a major approval authority or may be severely 
impacted by the proposal or an alternative, the Army should undertake 
the same level of review as if it were the lead agency. If the 
involvement is limited, the review may be substantially less. The lead 
agency is responsible for overall supervision of the EIS, and the Army 
will attempt to meet all reasonable time frames imposed by the lead 
agency.
    (5) If an installation (or other Army organization) should become 
aware of an EIS being prepared by another federal agency in which they 
may be involved within the discussion of the document, they should 
notify ASA(I&E) through the chain of command. ASA(I&E) will advise 
regarding appropriate Army participation as a cooperating agency, which 
may simply involve local coordination.



Sec.  651.15  Mitigation and monitoring.

    (a) Throughout the environmental analysis process, the proponent 
will consider mitigation measures to avoid or minimize environmental 
harm. Mitigation measures include:
    (1) Avoiding the impact altogether, by eliminating the action or 
parts of the action.
    (2) Minimizing impacts by limiting the degree or magnitude of the 
action and its implementation.
    (3) Rectifying the impact; by repairing, rehabilitating, or 
restoring the adverse effect on the environment.
    (4) Reducing or eliminating the impact over time, by preservation 
and maintenance operations during the life of the action.
    (5) Compensating for the impact, by replacing or providing 
substitute resources or environments. (Examples and further 
clarification are presented in appendix C of this part.)
    (b) When the analysis proceeds to an EA or EIS, mitigation measures 
will be clearly assessed and those selected for implementation will be 
identified in the FNSI or the ROD. The proponent must implement those 
identified mitigations, because they are commitments made as part of the 
Army decision. The proponent is responsible for responding to inquiries 
from the public or other agencies regarding the status of mitigation 
measures adopted in the NEPA process. The mitigation shall become a line 
item in the proponent's

[[Page 306]]

budget or other funding document, if appropriate, or included in the 
legal document implementing the action (for example, contracts, leases, 
or grants). Only those practical mitigation measures that can reasonably 
be accomplished as part of a proposed alternative will be identified. 
Any mitigation measures selected by the proponent will be clearly 
outlined in the NEPA decision document, will be budgeted and funded (or 
funding arranged) by the proponent, and will be identified, with the 
appropriate fund code, in the EPR (AR 200-1). Mitigations will be 
monitored through environmental compliance reporting, such as the ISR 
(AR 200-1) or the Environmental Quality Report. Mitigation measures are 
identified and funded in accordance with applicable laws, regulations, 
or other media area requirements.
    (c) Based upon the analysis and selection of mitigation measures 
that reduce environmental impacts until they are no longer significant, 
an EA may result in a FNSI. If a proponent uses mitigation measures in 
such a manner, the FNSI must identify these mitigating measures, and 
they become legally binding and must be accomplished as the project is 
implemented. If any of these identified mitigation measures do not 
occur, so that significant adverse environmental effects could 
reasonably expected to result, the proponent must publish an NOI and 
prepare an EIS.
    (d) Potential mitigation measures that appear practical, and are 
unobtainable within expected Army resources, or that some other agency 
(including non-Army agencies) should perform, will be identified in the 
NEPA analysis to the maximum extent practicable. A number of factors 
determine what is practical, including military mission, manpower 
restrictions, cost, institutional barriers, technical feasibility, and 
public acceptance. Practicality does not necessarily ensure resolution 
of conflicts among these items, rather it is the degree of conflict that 
determines practicality. Although mission conflicts are inevitable, they 
are not necessarily insurmountable; and the proponent should be cautious 
about declaring all mitigations impractical and carefully consider any 
manpower requirements. The key point concerning both the manpower and 
cost constraints is that, unless money is actually budgeted and manpower 
assigned, the mitigation does not exist. Coordination by the proponent 
early in the process will be required to allow ample time to get the 
mitigation activities into the budget cycle. The project cannot be 
undertaken until all required mitigation efforts are fully resourced, or 
until the lack of funding and resultant effects, are fully addressed in 
the NEPA analysis.
    (e) Mitigation measures that were considered but rejected, including 
those that can be accomplished by other agencies, must be discussed, 
along with the reason for the rejection, within the EA or EIS. If they 
occur in an EA, their rejection may lead to an EIS, if the resultant 
unmitigated impacts are significant.
    (f) Proponents may request assistance with mitigation from 
cooperating non-Army agencies, when appropriate. Such assistance is 
appropriate when the requested agency was a cooperating agency during 
preparation of a NEPA document, or has the technology, expertise, time, 
funds, or familiarity with the project or the local ecology necessary to 
implement the mitigation measure more effectively than the lead agency.
    (g) The proponent agency or other appropriate cooperating agency 
will implement mitigations and other conditions established in the EA or 
EIS, or commitments made in the FNSI or ROD. Legal documents 
implementing the action (such as contracts, permits, grants) will 
specify mitigation measures to be performed. Penalties against a 
contractor for noncompliance may also be specified as appropriate. 
Specification of penalties should be fully coordinated with the 
appropriate legal advisor.
    (h) A monitoring and enforcement program for any mitigation will be 
adopted and summarized in the NEPA documentation (see appendix C of this 
part for guidelines on implementing such a program). Whether adoption of 
a monitoring and enforcement program is applicable (40 CFR 1505.2(c)) 
and

[[Page 307]]

whether the specific adopted action requires monitoring (40 CFR 1505.3) 
may depend on the following:
    (1) A change in environmental conditions or project activities 
assumed in the EIS (such that original predictions of the extent of 
adverse environmental impacts may be too limited);
    (2) The outcome of the mitigation measure is uncertain (for example, 
new technology);
    (3) Major environmental controversy remains associated with the 
selected alternative; or
    (4) Failure of a mitigation measure, or other unforeseen 
circumstances, could result in a failure to meet achievement of 
requirements (such as adverse effects on federal or state listed 
endangered or threatened species, important historic or archaeological 
sites that are either listed or eligible for nomination to the National 
Register of Historic Places, wilderness areas, wild and scenic rivers, 
or other public or private protected resources). Proponents must follow 
local installation environmental office procedures to coordinate with 
appropriate federal, tribal, state, or local agencies responsible for a 
particular program to determine what would constitute ``adverse 
effects.''
    (i) Monitoring is an integral part of any mitigation system.
    (1) Enforcement monitoring ensures that mitigation is being 
performed as described in the NEPA documentation, mitigation 
requirements and penalty clauses are written into any contracts, and 
required provisions are enforced. The development of an enforcement 
monitoring program is governed by who will actually perform the 
mitigation: a contractor, a cooperating agency, or an in-house (Army) 
lead agency. Detailed guidance is contained in Appendix C of this part. 
The proponent is ultimately responsible for performing any mitigation 
activities. All monitoring results will be sent to the installation 
Environmental Office; in the case of the Army Reserves, the Regional 
Support Commands (RSCs); and, in the case of the National Guard, the 
NGB.
    (2) Effectiveness monitoring measures the success of the mitigation 
effort and/or the environmental effect. While quantitative measurements 
are desired, qualitative measures may be required. The objective is to 
obtain enough information to judge the effect of the mitigation. In 
establishing the monitoring system, the responsible agent should 
coordinate the monitoring with the Environmental Office. Specific steps 
and guidelines are included in appendix C of this part.
    (j) The monitoring program, in most cases, should be established 
well before the action begins, particularly when biological variables 
are being measured and investigated. At this stage, any necessary 
contracts, funding, and manpower assignments must be initiated. 
Technical results from the analysis should be summarized by the 
proponent and coordinated with the installation Environmental Office. 
Subsequent coordination with the concerned public and other agencies, as 
arranged through development of the mitigation plan, will be handled 
through the Environmental Office.
    (k) If the mitigations are effective, the monitoring should be 
continued as long as the mitigations are needed to address impacts of 
the initial action. If the mitigations are ineffective, the proponent 
and the responsible group should re-examine the mitigation measures, in 
consultation with the Environmental Office and appropriate experts, and 
resolve the inadequacies of the mitigation or monitoring. Professionals 
with specialized and recognized expertise in the topic or issue, as well 
as concerned citizens, are essential to the credibility of this review. 
If a different program is required, then a new system must be 
established. If ineffective mitigations are identified which were 
required to reduce impact below significance levels (Sec.  651.35 (g)), 
the proponent may be required to publish an NOI and prepare an EIS 
(paragraph (c) of this section).
    (l) Environmental monitoring report. An environmental monitoring 
report is prepared at one or more points after program or action 
execution. Its purpose is to determine the accuracy of impact 
predictions. It can serve as the basis for adjustments in mitigation 
programs and to adjust impact predictions in future projects. Further

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guidance and clarification are included in appendix C of this part.



Sec.  651.16  Cumulative impacts.

    (a) NEPA analyses must assess cumulative effects, which are the 
impact on the environment resulting from the incremental impact of the 
action when added to other past, present, and reasonably foreseeable 
future actions. Actions by federal, non-federal agencies, and private 
parties must be considered (40 CFR 1508.7).
    (b) The scoping process should be used to identify possible 
cumulative impacts. The proponent should also contact appropriate off-
post officials, such as tribal, state, county, or local planning 
officials, to identify other actions that should be considered in the 
cumulative effects analysis.
    (c) A suggested cumulative effects approach is as follows:
    (1) Identify the boundary of each resource category. Boundaries may 
be geographic or temporal. For example, the Air Quality Control Region 
(AQCR) might be the appropriate boundary for the air quality analysis, 
while a watershed could be the boundary for the water quality analysis. 
Depending upon the circumstances, these boundaries could be different 
and could extend off the installation.
    (2) Describe the threshold level of significance for that resource 
category. For example, a violation of air quality standards within the 
AQCR would be an appropriate threshold level.
    (3) Determine the environmental consequence of the action. The 
analysis should identify the cause and effect relationships, determine 
the magnitude and significance of cumulative effects, and identify 
possible mitigation measures.



Sec.  651.17  Environmental justice.

    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority and Low-Income Populations, 11 February 1994, 3 CFR, 
1994 Comp., p. 859) requires the proponent to determine whether the 
proposed action will have a disproportionate impact on minority or low-
income communities, both off-post and on-post.



                     Subpart C_Records and Documents



Sec.  651.18  Introduction.

    NEPA documentation will be prepared and published double-sided on 
recycled paper. The recycled paper symbol should be presented on the 
inside of document covers.



Sec.  651.19  Record of environmental consideration.

    A Record of Environmental Consideration (REC) is a signed statement 
submitted with project documentation that briefly documents that an Army 
action has received environmental review. RECs are prepared for CXs that 
require them, and for actions covered by existing or previous NEPA 
documentation. A REC briefly describes the proposed action and 
timeframe, identifies the proponent and approving official(s), and 
clearly shows how an action qualifies for a CX, or is already covered in 
an existing EA or EIS. When used to support a CX, the REC must address 
the use of screening criteria to ensure that no extraordinary 
circumstances or situations exist. A REC has no prescribed format, as 
long as the above information is included. To reduce paperwork, a REC 
can reference such documents as real estate Environmental Baseline 
Studies (EBSs) and other documents, as long as they are readily 
available for review. While a REC may document compliance with the 
requirements of NEPA, it does not fulfill the requirements of other 
environmental laws and regulations. Figure 3 illustrates a possible 
format for the REC as follows:

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[GRAPHIC] [TIFF OMITTED] TR29MR02.002



Sec.  651.20  Environmental assessment.

    An EA is intended to assist agency planning and decision-making. 
While required to assess environmental impacts and evaluate their 
significance, it is routinely used as a planning document to evaluate 
environmental impacts, develop alternatives and mitigation measures, and 
allow for agency and public participation. It:
    (a) Briefly provides the decision maker with sufficient evidence and 
analysis for determining whether a FNSI or an EIS should be prepared.
    (b) Assures compliance with NEPA, if an EIS is not required and a CX 
is inappropriate.
    (c) Facilitates preparation of an EIS, if required.
    (d) Includes brief discussions of the need for the proposed action, 
alternatives to the proposed action (NEPA, section 102(2)(e)), 
environmental impacts, and a listing of persons and agencies consulted 
(see subpart E of this part for requirements).
    (e) The EA provides the proponent, the public, and the decision 
maker with sufficient evidence and analysis for determining whether 
environmental impacts of a proposed action are potentially significant. 
An EA is substantially less rigorous and costly than an EIS, but 
requires sufficient detail to identify and ascertain the significance of 
expected impacts associated with the proposed action and its 
alternatives. The EA can often provide the required ``hard look'' at the 
potential environmental effects of an action, program, or policy within 
1 to 25 pages, depending upon the nature of the action and project-
specific conditions.



Sec.  651.21  Finding of no significant impact.

    A Finding of No Significant Impact (FNSI) is a document that briefly 
states why an action (not otherwise excluded) will not significantly 
affect the environment, and, therefore, that an EIS will not be 
prepared. The FNSI includes a summary of the EA and notes any related 
NEPA documentation. If the EA is attached, the FNSI need not repeat any 
of the EA discussion, but may incorporate it by reference. The draft 
FNSI will be made available to the public for review and comment for

[[Page 310]]

30 days prior to the initiation of an action, except in special 
circumstances when the public comment period is reduced to 15 days, as 
discussed in Sec.  651.14(b)(2)(iii). Following the comment period and 
review of public comments, the proponent forwards a decision package 
that includes a comparison of environmental impacts associated with 
reasonable alternatives, summary of public concerns, revised FNSI (if 
necessary), and recommendations for the decision maker. The decision 
maker reviews the package, makes a decision, and signs the FNSI or the 
NOI (if the FNSI no longer applies). If a FNSI is signed by the decision 
maker, the action can proceed immediately.



Sec.  651.22  Notice of intent.

    A Notice of Intent (NOI) is a public notice that an EIS will be 
prepared. The NOI will briefly:
    (a) Describe the proposed and alternative actions.
    (b) Describe the proposed scoping process, including when and where 
any public meetings will be held.
    (c) State the name and address of the POC who can answer questions 
on the proposed action and the EIS (see Sec.  651.45(a) and Sec.  651.49 
for application).



Sec.  651.23  Environmental impact statement.

    An Environmental Impact statement (EIS) is a detailed written 
statement required by NEPA for major federal actions significantly 
affecting the quality of the human environment (42 U.S.C. 4321). A more 
complete discussion of EIS requirements is presented in subpart F of 
this part.



Sec.  651.24  Supplemental EAs and supplemental EISs.

    As detailed in Sec.  651.5(g) and in 40 CFR 1502.9(c), proposed 
actions may require review of existing NEPA documentation. If conditions 
warrant a supplemental document, these documents are processed in the 
same way as an original EA or EIS. No new scoping is required for a 
supplemental EIS filed within one year of the filing of the original 
ROD. If the review indicates no need for a supplement, that 
determination will be documented in a REC.



Sec.  651.25  Notice of availability.

    The Notice of Availability (NOA) is published by the Army to inform 
the public and others that a NEPA document is available for review. A 
NOA will be published in the FR, coordinating with EPA for draft and 
final EISs (including supplements), for RODs, and for EAs and FNSIs 
which are of national concern, are unprecedented, or normally require an 
EIS. EAs and FNSIs of local concern will be made available in accordance 
with Sec.  651.36. This agency NOA should not be confused with the EPA's 
notice of availability of weekly receipts (NWR) \3\ of EISs.
---------------------------------------------------------------------------

    \3\ This notice is published by the EPA and officially begins the 
public review period. The NWR is published each Friday, and lists the 
EISs that were filed the previous week.
---------------------------------------------------------------------------



Sec.  651.26  Record of decision.

    The Record of Decision (ROD) is a concise public document 
summarizing the findings in the EIS and the basis for the decision. A 
public ROD is required under the provisions of 40 CFR 1505.2 after 
completion of an EIS (see Sec.  651.45 (j) for application). The ROD 
must identify mitigations which were important in supporting decisions, 
such as those mitigations which reduce otherwise significant impacts, 
and ensure that appropriate monitoring procedures are implemented (see 
Sec.  651.15 for application).



Sec.  651.27  Programmatic NEPA analyses.

    These analyses, in the form of an EA or EIS, are useful to examine 
impacts of actions that are similar in nature or broad in scope. These 
documents allow the ``tiering'' of future NEPA documentation in cases 
where future decisions or unknown future conditions preclude complete 
NEPA analyses in one step. These documents are discussed further in 
Sec.  651.14(c).



                    Subpart D_Categorical Exclusions



Sec.  651.28  Introduction.

    Categorical Exclusions (CXs) are categories of actions with no 
individual or

[[Page 311]]

cumulative effect on the human or natural environment, and for which 
neither an EA nor an EIS is required. The use of a CX is intended to 
reduce paperwork and eliminate delays in the initiation and completion 
of proposed actions that have no significant impact.



Sec.  651.29  Determining when to use a CX (screening criteria).

    (a) To use a CX, the proponent must satisfy the following three 
screening conditions:
    (1) The action has not been segmented. Determine that the action has 
not been segmented to meet the definition of a CX. Segmentation can 
occur when an action is broken down into small parts in order to avoid 
the appearance of significance of the total action. An action can be too 
narrowly defined, minimizing potential impacts in an effort to avoid a 
higher level of NEPA documentation. The scope of an action must include 
the consideration of connected, cumulative, and similar actions (see 
Sec.  651.51(a)).
    (2) No exceptional circumstances exist. Determine if the action 
involves extraordinary circumstances that would preclude the use of a CX 
(see paragraphs (b) (1) through (14) of this section).
    (3) One (or more) CX encompasses the proposed action. Identify a CX 
(or multiple CXs) that potentially encompasses the proposed action 
(Appendix B of this part). If no CX is appropriate, and the project is 
not exempted by statute or emergency provisions, an EA or an EIS must be 
prepared, before a proposed action may proceed.
    (b) Extraordinary circumstances that preclude the use of a CX are:
    (1) Reasonable likelihood of significant effects on public health, 
safety, or the environment.
    (2) Reasonable likelihood of significant environmental effects 
(direct, indirect, and cumulative).
    (3) Imposition of uncertain or unique environmental risks.
    (4) Greater scope or size than is normal for this category of 
action.
    (5) Reportable releases of hazardous or toxic substances as 
specified in 40 CFR part 302, Designation, Reportable Quantities, and 
Notification.
    (6) Releases of petroleum, oils, and lubricants (POL) except from a 
properly functioning engine or vehicle, application of pesticides and 
herbicides, or where the proposed action results in the requirement to 
develop or amend a Spill Prevention, Control, or Countermeasures Plan.
    (7) When a review of an action that might otherwise qualify for a 
Record of Non-applicability (RONA) reveals that air emissions exceed de 
minimis levels or otherwise that a formal Clean Air Act conformity 
determination is required.
    (8) Reasonable likelihood of violating any federal, state, or local 
law or requirements imposed for the protection of the environment.
    (9) Unresolved effect on environmentally sensitive resources, as 
defined in paragraph (c) of this section.
    (10) Involving effects on the quality of the environment that are 
likely to be highly controversial.
    (11) Involving effects on the environment that are highly uncertain, 
involve unique or unknown risks, or are scientifically controversial.
    (12) Establishes a precedent (or makes decisions in principle) for 
future or subsequent actions that are reasonably likely to have a future 
significant effect.
    (13) Potential for degradation of already existing poor 
environmental conditions. Also, initiation of a degrading influence, 
activity, or effect in areas not already significantly modified from 
their natural condition.
    (14) Introduction/employment of unproven technology.
    (c) If a proposed action would adversely affect ``environmentally 
sensitive'' resources, unless the impact has been resolved through 
another environmental process (e.g., CZMA, NHPA, CWA, etc.) a CX cannot 
be used (see paragraph (e) of this section). Environmentally sensitive 
resources include:
    (1) Proposed federally listed, threatened, or endangered species or 
their designated critical habitats.
    (2) Properties listed or eligible for listing on the National 
Register of Historic Places (AR 200-4).
    (3) Areas having special designation or recognition such as prime or 
unique

[[Page 312]]

agricultural lands; coastal zones; designated wilderness or wilderness 
study areas; wild and scenic rivers; National Historic Landmarks 
(designated by the Secretary of the Interior); 100-year floodplains; 
wetlands; sole source aquifers (potential sources of drinking water); 
National Wildlife Refuges; National Parks; areas of critical 
environmental concern; or other areas of high environmental sensitivity.
    (4) Cultural Resources as defined in AR 200-4.
    (d) The use of a CX does not relieve the proponent from compliance 
with other statutes, such as RCRA, or consultations under the Endangered 
Species Act or the NHPA. Such consultations may be required to determine 
the applicability of the CX screening criteria.
    (e) For those CXs that require a REC, a brief (one to two sentence) 
presentation of conclusions reached during screening is required in the 
REC. This determination can be made using current information and 
expertise, if available and adequate, or can be derived through 
conversation, as long as the basis for the determination is included in 
the REC. Copies of appropriate interagency correspondence can be 
attached to the REC. Example conclusions regarding screening criteria 
are as follows:
    (1) ``USFWS concurred in informal coordination that E/T species will 
not be affected''.
    (2) ``Corps of Engineers determined action is covered by nationwide 
general permit''.
    (3) ``SHPO concurred with action''.
    (4) ``State Department of Natural Resources concurred that no effect 
to state sensitive species is expected''.



Sec.  651.30  CX actions.

    Types of actions that normally qualify for CX are listed in Appendix 
B of this part.



Sec.  651.31  Modification of the CX list.

    The Army list of CXs is subject to continual review and 
modification, in consultation with CEQ. Additional modifications can be 
implemented through submission, through channels, to ASA (I&E) for 
consideration and consultation. Subordinate Army headquarters may not 
modify the CX list through supplements to this part. Upon approval, 
proposed modifications to the list of CXs will be published in the 
Federal Register, providing an opportunity for public review and 
comment.



                   Subpart E_Environmental Assessment



Sec.  651.32  Introduction.

    (a) An EA is intended to facilitate agency planning and informed 
decision-making, helping proponents and other decision makers understand 
the potential extent of environmental impacts of a proposed action and 
its alternatives, and whether those impacts (or cumulative impacts) are 
significant. The EA can aid in Army compliance with NEPA when no EIS is 
necessary. An EA will be prepared if a proposed action:
    (1) Is not an emergency (Sec.  651.11(b)).
    (2) Is not exempt from (or an exception to) NEPA (Sec.  651.11(a)).
    (3) Does not qualify as a CX (Sec.  651.11(c)).
    (4) Is not adequately covered by existing NEPA analysis and 
documentation (Sec.  651.19).
    (5) Does not normally require an EIS (Sec.  651.42).
    (b) An EA can be 1 to 25 pages in length and be adequate to meet the 
requirements of this part, depending upon site-specific circumstances 
and conditions. Any analysis that exceeds 25 pages in length should be 
evaluated to consider whether the action and its effects are significant 
and thus warrant an EIS.



Sec.  651.33  Actions normally requiring an EA.

    The following Army actions normally require an EA, unless they 
qualify for the use of a CX:
    (a) Special field training exercises or test activities in excess of 
five acres on Army land of a nature or magnitude not within the annual 
installation training cycle or installation master plan.
    (b) Military construction that exceeds five contiguous acres, 
including contracts for off-post construction.

[[Page 313]]

    (c) Changes to established installation land use that generate 
impacts on the environment.
    (d) Alteration projects affecting historically significant 
structures, archaeological sites, or places listed or eligible for 
listing on the National Register of Historic Places.
    (e) Actions that could cause significant increase in soil erosion, 
or affect prime or unique farmland (off Army property), wetlands, 
floodplains, coastal zones, wilderness areas, aquifers or other water 
supplies, prime or unique wildlife habitat, or wild and scenic rivers.
    (f) Actions proposed during the life cycle of a weapon system if the 
action produces a new hazardous or toxic material or results in a new 
hazardous or toxic waste, and the action is not adequately addressed by 
existing NEPA documentation. Examples of actions normally requiring an 
EA during the life cycle include, but are not limited to, testing, 
production, fielding, and training involving natural resources, and 
disposal/demilitarization. System design, development, and production 
actions may require an EA, if such decisions establish precedent (or 
make decisions, in principle) for future actions with potential 
environmental effects. Such actions should be carefully considered in 
cooperation with the development or production contractor or government 
agency, and NEPA analysis may be required.
    (g) Development and approval of installation master plans.
    (h) Development and implementation of Integrated Natural Resources 
Management Plans (INRMPs) (land, forest, fish, and wildlife) and 
Integrated Cultural Resources Management Plans (ICRMPs).
    (i) Actions that take place in, or adversely affect, important 
wildlife habitats, including wildlife refuges.
    (j) Field activities on land not controlled by the military, except 
those that do not alter land use to substantially change the environment 
(for example, patrolling activities in a forest). This includes firing 
of weapons, missiles, or lasers over navigable waters of the United 
States, or extending 45 meters or more above ground level into the 
national airspace. It also includes joint air attack training that may 
require participating aircraft to exceed 250 knots at altitudes below 
3000 feet above ground level, and helicopters, at any speed, below 500 
feet above ground level.
    (k) An action with substantial adverse local or regional effects on 
energy or water availability. Such impacts can only be adequately 
identified with input from local agencies and/or citizens.
    (l) Production of hazardous or toxic materials.
    (m) Changes to established airspace use that generate impacts on the 
environment or socioeconomic systems, or create a hazard to non-
participants.
    (n) An installation pesticide, fungicide, herbicide, insecticide, 
and rodenticide-use program/plan.
    (o) Acquisition, construction, or alteration of (or space for) a 
laboratory that will use hazardous chemicals, drugs, or biological or 
radioactive materials.
    (p) An activity that affects a federally listed threatened or 
endangered plant or animal species, a federal candidate species, a 
species proposed for federal listing, or critical habitat.
    (q) Substantial proposed changes in Army-wide doctrine or policy 
that potentially have an adverse effect on the environment (40 CFR 
1508.18 (b)(1)).
    (r) An action that may threaten a violation of federal, state, or 
local law or requirements imposed for the protection of the environment.
    (s) The construction and operation of major new fixed facilities or 
the substantial commitment of installation natural resources supporting 
new materiel at the installation.



Sec.  651.34  EA components.

    EAs should be 1 to 25 pages in length, and will include:
    (a) Signature (Review and Approval) page.
    (b) Purpose and need for the action.
    (c) Description of the proposed action.
    (d) Alternatives considered. The alternatives considered, including 
appropriate consideration of the ``No Action'' alternative, the 
``Proposed Action,'' and all other appropriate and

[[Page 314]]

reasonable alternatives that can be realistically accomplished. In the 
discussion of alternatives, any criteria for screening alternatives from 
full consideration should be presented, and the final disposition of any 
alternatives that were initially identified should be discussed.
    (e) Affected environment. This section must address the general 
conditions and nature of the affected environment and establish the 
environmental setting against which environmental effects are evaluated. 
This should include any relevant general baseline conditions focusing on 
specific aspects of the environment that may be impacted by the 
alternatives. EBSs and similar real estate or construction environmental 
baseline documents, or their equivalent, may be incorporated and/or 
referenced.
    (f) Environmental consequences. Environmental consequences of the 
proposed action and the alternatives. The document must state and assess 
the effects (direct, indirect, and cumulative) of the proposed action 
and its alternatives on the environment, and what practical mitigation 
is available to minimize these impacts. Discussion and comparison of 
impacts should provide sufficient analysis to reach a conclusion 
regarding the significance of the impacts, and is not merely a 
quantification of facts.
    (g) Conclusions regarding the impacts of the proposed action. A 
clear statement will be provided regarding whether or not the described 
impacts are significant. If the EA identifies potential significant 
impacts associated with the proposed action, the conclusion should 
clearly state that an EIS will be prepared before the proposed action is 
implemented. If no significant impacts are associated with the project, 
the conclusion should state that a FNSI will be prepared. Any 
mitigations that reduce adverse impacts must be clearly presented. If 
the EA depends upon mitigations to support a resultant FNSI, these 
mitigations must be clearly identified as a subsection of the 
Conclusions.
    (h) Listing of preparers, and agencies and persons consulted. Copies 
of correspondence to and from agencies and persons contacted during the 
preparation of the EA will be available in the administrative record and 
may be included in the EA as appendices. In addition, the list of 
analysts/preparers will be presented.
    (i) References. These provide bibliographic information for cited 
sources. Draft documents should not be cited as references without the 
expressed permission of the proponent of the draft material.



Sec.  651.35  Decision process.

    (a) An EA results in either a FNSI or an NOI to prepare an EIS. 
Initiation of an NOI to prepare an EIS should occur at any time in the 
decision process when it is determined that significant effects may 
occur as a result of the proposed action. The proponent should notify 
the decision maker of any such determination as soon as possible.
    (b) The FNSI is a document (40 CFR 1508.13) that briefly states why 
an action (not otherwise excluded) will not significantly affect the 
environment, and, therefore, an EIS will not be prepared. It summarizes 
the EA, noting any NEPA documents that are related to, but are not part 
of, the scope of the EA under consideration. If the EA is attached, the 
FNSI may incorporate the EA's discussion by reference. The draft FNSI 
will be made available to the public for review and comment for 30 days 
prior to the initiation of an action (see Sec.  651.14(b)(2)(iii) for an 
exception). Following the comment period, the decision maker signs the 
FNSI, and the action can proceed. It is important that the final FNSI 
reflect the decision made, the response to public comments, and the 
basis for the final decision.
    (c) The FNSI must contain the following:
    (1) The name of the action.
    (2) A brief description of the action (including any alternatives 
considered).
    (3) A short discussion of the anticipated environmental effects.
    (4) The facts and conclusions that have led to the FNSI.
    (5) A deadline and POC for further information or receipt of public 
comments (see Sec.  651.47).
    (d) The FNSI is normally no more than two typewritten pages in 
length.

[[Page 315]]

    (e) The draft FNSI will be made available to the public prior to 
initiation of the proposed action, unless it is a classified action (see 
Sec.  651.13 for security exclusions). Draft FNSIs that have national 
interest should be submitted with the proposed press release, along with 
a Questions and Answers (Q&A) package, through command channels to 
ASA(I&E) for approval and subsequent publication in the FR. Draft FNSIs 
having national interest will be coordinated with OCPA. Local 
publication of the FNSI will not precede the FR publication. The text of 
the publication should be identical to the FR publication.
    (f) For actions of only regional or local interest, the draft FNSI 
will be publicized in accordance with Sec.  651.14(b)(2). Distribution 
of the draft FNSI should include any agencies, organizations, and 
individuals that have expressed interest in the project, those who may 
be affected, and others deemed appropriate.
    (g) Some FNSIs will require the implementation of mitigation 
measures to reduce potential impacts below significance levels, thereby 
eliminating the requirement for an EIS. In such instances, the following 
steps must be taken:
    (1) The EA must be made readily available to the public for review 
through traditional publication and distribution, and through the World 
Wide Web (WWW) or similar technology. This distribution must be planned 
to ensure that all appropriate entities and stakeholders have easy 
access to the material. Ensuring this availability may necessitate the 
distribution of printed information at locations that are readily 
accessible and frequented by those who are affected or interested.
    (2) Any identified mitigations must be tracked to ensure 
implementation, similar to those specified in an EIS and ROD.
    (3) The EA analysis procedures must be sufficiently rigorous to 
identify and analyze impacts that are individually or cumulatively 
significant.
    (h) The proponent is responsible for funding the preparation, 
staffing, and distribution of the draft FNSI and EA package, and the 
incorporation of public/agency review and comment. The proponent shall 
also ensure appropriate public and agency meetings, which may be 
required to facilitate the NEPA process in completing the EA. The 
decision maker will approve and sign the EA and FNSI documents. 
Proponents will ensure that the EA and FNSI, to include drafts, are 
provided in electronic format to allow for maximum information flow 
throughout the process.
    (i) The proponent should ensure that the decision maker is 
continuously informed of key findings during the EA process, 
particularly with respect to potential impacts and controversy related 
to the proposed action.



Sec.  651.36  Public involvement.

    (a) The involvement of other agencies, organizations, and 
individuals in the development of EAs and EISs enhances collaborative 
issue identification and problem solving. Such involvement demonstrates 
that the Army is committed to open decision-making and builds the 
necessary community trust that sustains the Army in the long term. 
Public involvement is mandatory for EISs (see Sec.  651.47 and Appendix 
D of this part for information on public involvement requirements).
    (b) Environmental agencies and the public will be involved to the 
extent practicable in the preparation of an EA. If the proponent elects 
to involve the public in the development of an EA, Sec.  651.47 and 
Appendix D of this part may be used as guidance. When considering the 
extent practicable of public interaction (40 CFR 1501.4(b)), factors to 
be weighed include:
    (1) Magnitude of the proposed project/action.
    (2) Extent of anticipated public interest, based on experience with 
similar proposals.
    (3) Urgency of the proposal.
    (4) National security classification.
    (5) The presence of minority or economically-disadvantaged 
populations.
    (c) Public involvement must begin early in the proposal development 
stage, and during preparation of an EA. The direct involvement of 
agencies with jurisdiction or special expertise is an integral part of 
impact analysis,

[[Page 316]]

and provides information and conclusions for incorporation into EAs. 
Unclassified documents incorporated by reference into the EA or FNSI are 
public documents.
    (d) Copies of public notices, ``scoping'' letters, EAs, draft FNSIs, 
FNSIs, and other documents routinely sent to the public will be sent 
directly to appropriate congressional, state, and district offices.
    (e) To ensure early incorporation of the public into the process, a 
plan to include all interested or affected parties should be developed 
at the beginning of the analysis and documentation process. Open 
communication with the public is encouraged as a matter of Army policy, 
and the degree of public involvement varies. Appropriate public notice 
of the availability of the completed EA/draft FNSI shall be made (see 
Sec.  651.35) (see also AR 360-5 (Public Information)). The plan will 
include the following:
    (1) Dissemination of information to local and installation 
communities.
    (2) Invitation and incorporation of public comments on Army actions.
    (3) Consultation with appropriate persons and agencies.
    (f) Further guidance on public participation requirements (to 
potentially be used for EAs and EISs, depending on circumstances) is 
presented in Appendix D of this part.



Sec.  651.37  Public availability.

    Documents incorporated into the EA or FNSI by reference will be 
available for public review. Where possible, use of public libraries and 
a list of POCs for supportive documents is encouraged. A depository 
should be chosen which is open beyond normal business hours. To the 
extent possible, the WWW should also be used to increase public 
availability of documents.



Sec.  651.38  Existing environmental assessments.

    EAs are dynamic documents. To ensure that the described setting, 
actions, and effects remain substantially accurate, the proponent or 
installation Environmental Officer is encouraged to periodically review 
existing documentation that is still relevant or supporting current 
action. If an action is not yet completed, substantial changes in the 
proposed action may require supplementation, as specified in Sec.  651.5 
(g).



Sec.  651.39  Significance.

    (a) If the proposed action may or will result in significant impacts 
to the environment, an EIS is prepared to provide more comprehensive 
analyses and conclusions about the impacts. Significant impacts of 
socioeconomic consequence alone do not merit an EIS.
    (b) Significance of impacts is determined by examining both the 
context and intensity of the proposed action (40 CFR 1508.27). The 
analysis should establish, by resource category, the threshold at which 
significance is reached. For example, an action that would violate 
existing pollution standards; cause water, air, noise, soil, or 
underground pollution; impair visibility for substantial periods; or 
cause irreparable harm to animal or plant life could be determined 
significant. Significant beneficial effects also occur and must be 
addressed, if applicable.
    (c) The proponent should use appropriate methods to identify and 
ascertain the ``significance'' of impacts. The use of simple analytical 
tools, which are subject to independent peer review, fully documented, 
and available to the public, is encouraged. \4\ In particular, where 
impacts are unknown or are suspected to be of public interest, public 
involvement should be initiated early in the EA (scoping) process.
---------------------------------------------------------------------------

    \4\ EIFS is one such Army system for evaluating regional economic 
impacts under NEPA. This system is mandated, as Army policy, for use in 
NEPA analyses. Other similar tools may be mandated for use in the Army, 
and will be documented in guidance published pursuant to this part.
---------------------------------------------------------------------------



                Subpart F_Environmental Impact Statement



Sec.  651.40  Introduction.

    (a) An EIS is a public document designed to ensure that NEPA 
policies and goals are incorporated early into the programs and actions 
of federal agencies. An EIS is intended to provide a full, open, and 
balanced discussion of significant environmental impacts that

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may result from a proposed action and alternatives, allowing public 
review and comment on the proposal and providing a basis for informed 
decision-making.
    (b) The NEPA process should support sound, informed, and timely 
(early) decision-making; not produce encyclopedic documents. CEQ 
guidance (40 CFR 1502.7) should be followed, establishing a page limit 
of 150 pages (300 pages for complex projects). To the extent 
practicable, EISs will ``incorporate by reference'' any material that is 
reasonably available for inspection by potentially interested persons 
within the time allowed for comment. The incorporated material shall be 
cited in the EIS and its content will be briefly described. Material 
based on proprietary data, that is itself not available for review and 
comment, shall not be incorporated by reference.



Sec.  651.41  Conditions requiring an EIS.

    An EIS is required when a proponent, preparer, or approving 
authority determines that the proposed action has the potential to:
    (a) Significantly affect environmental quality, or public health or 
safety.
    (b) Significantly affect historic (listed or eligible for listing in 
the National Register of Historic Places, maintained by the National 
Park Service, Department of Interior), or cultural, archaeological, or 
scientific resources, public parks and recreation areas, wildlife refuge 
or wilderness areas, wild and scenic rivers, or aquifers.
    (c) Significantly impact prime and unique farmlands located off-
post, wetlands, floodplains, coastal zones, or ecologically important 
areas, or other areas of unique or critical environmental sensitivity.
    (d) Result in significant or uncertain environmental effects, or 
unique or unknown environmental risks.
    (e) Significantly affect a federally listed threatened or endangered 
plant or animal species, a federal candidate species, a species proposed 
for federal listing, or critical habitat.
    (f) Either establish a precedent for future action or represent a 
decision in principle about a future consideration with significant 
environmental effects.
    (g) Adversely interact with other actions with individually 
insignificant effects so that cumulatively significant environmental 
effects result.
    (h) Involve the production, storage, transportation, use, treatment, 
and disposal of hazardous or toxic materials that may have significant 
environmental impact.
    (i) Be highly controversial from an environmental standpoint.
    (j) Cause loss or destruction of significant scientific, cultural, 
or historical resources.



Sec.  651.42  Actions normally requiring an EIS.

    The following actions normally require an EIS:
    (a) Significant expansion of a military facility or installation.
    (b) Construction of facilities that have a significant effect on 
wetlands, coastal zones, or other areas of critical environmental 
concern.
    (c) The disposal of nuclear materials, munitions, explosives, 
industrial and military chemicals, and other hazardous or toxic 
substances that have the potential to cause significant environmental 
impact.
    (d) Land acquisition, leasing, or other actions that may lead to 
significant changes in land use.
    (e) Realignment or stationing of a brigade or larger table of 
organization equipment (TOE) unit during peacetime (except where the 
only significant impacts are socioeconomic, with no significant 
biophysical environmental impact).
    (f) Training exercises conducted outside the boundaries of an 
existing military reservation where significant environmental damage 
might occur.
    (g) Major changes in the mission or facilities either affecting 
environmentally sensitive resources (see Sec.  651.29(c)) or causing 
significant environmental impact (see Sec.  651.39).



Sec.  651.43  Format of the EIS.

    The EIS should not exceed 150 pages in length (300 pages for very 
complex proposals), and must contain the following (detailed content is 
discussed in appendix E of this part):
    (a) Cover sheet.
    (b) Summary.

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    (c) Table of contents.
    (d) Purpose of and need for the action.
    (e) Alternatives considered, including proposed action and no-action 
alternative.
    (f) Affected environment (baseline conditions) that may be impacted.
    (g) Environmental and socioeconomic consequences.
    (h) List of preparers.
    (i) Distribution list.
    (j) Index.
    (k) Appendices (as appropriate).



Sec.  651.44  Incomplete information.

    When the proposed action will have significant adverse effects on 
the human environment, and there is incomplete or unavailable 
information, the proponent will ensure that the EIS addresses the issue 
as follows:
    (a) If the incomplete information relevant to reasonably foreseeable 
significant adverse impacts is essential to a reasoned choice among 
alternatives and the overall costs of obtaining it are not exorbitant, 
the Army will include the information in the EIS.
    (b) If the information relevant to reasonably foreseeable 
significant adverse impacts cannot be obtained because the overall costs 
of obtaining it are exorbitant or the means to obtain it are not known 
(for example, the means for obtaining it are beyond the state of the 
art), the proponent will include in the EIS:
    (1) A statement that such information is incomplete or unavailable.
    (2) A statement of the relevance of the incomplete or unavailable 
information to evaluating the reasonably foreseeable significant adverse 
impacts on the human environment.
    (3) A summary of existing credible scientific evidence that is 
relevant to evaluating the reasonably foreseeable significant adverse 
impacts on the human environment.
    (4) An evaluation of such impacts based upon theoretical approaches 
or research methods generally accepted in the scientific community.



Sec.  651.45  Steps in preparing and processing an EIS.

    (a) NOI. The NOI initiates the formal scoping process and is 
prepared by the proponent.
    (1) Prior to preparing an EIS, an NOI will be published in the FR 
and in newspapers with appropriate or general circulation in the areas 
potentially affected by the proposed action. The OCLL will be notified 
by the ARSTAF proponent of pending EISs so that congressional 
coordination may be effected. After the NOI is published in the FR, 
copies of the notice may also be distributed to agencies, organizations, 
and individuals, as the responsible official deems appropriate.
    (2) The NOI transmittal package includes the NOI, the press release, 
information for Members of Congress, memorandum for correspondents, and 
a ``questions and answers'' (Q&A) package. The NOI shall clearly state 
the proposed action and alternatives, and state why the action may have 
unknown and/or significant environmental impacts.
    (3) The proponent forwards the NOI and the transmittal package to 
the appropriate HQDA (ARSTAF) proponent for coordination and staffing 
prior to publication. The ARSTAF proponent will coordinate the NOI with 
HQDA (ODEP), OCLL, TJAG, OGC, OCPA, relevant MACOMs, and others). Only 
the Deputy Assistant Secretary of the Army for Environment, Safety, and 
Occupational Health (DASA(ESOH)) can authorize release of an NOI to the 
FR for publication, unless that authority has been delegated. A cover 
letter (similar to Figure 5 in Sec.  651.46) will accompany the NOI. An 
example NOI is shown in Figure 6 in Sec.  651.46.
    (b) Lead and cooperating agency determination. As soon as possible 
after the decision is made to prepare an EIS, the proponent will contact 
appropriate federal, tribal, state, and local agencies to identify lead 
or cooperating agency responsibilities concerning EIS preparation. At 
this point, a public affairs plan must be developed. In the case of 
State ARNG actions that have federal funding, the NGB will be the lead 
agency for the purpose of federal compliance with NEPA. The State may be 
either a

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joint lead or a cooperating agency, as determined by NGB.
    (c) Scoping. The proponent will begin the scoping process described 
in Sec.  651.48. Portions of the scoping process may take place prior to 
publication of the NOI.
    (d) DEIS preparation and processing. Prior to publication of a DEIS, 
the proponent can prepare a PDEIS, allowing for internal organization 
and the resolution of internal Army consideration, prior to a formal 
request for comments.
    (1) PDEIS. Based on information obtained and decisions made during 
the scoping process, the proponent may prepare the PDEIS. To expedite 
headquarters review, a summary document is also required to present the 
purpose and need for the action, DOPAA, major issues, unresolved issues, 
major potential controversies, and required mitigations or monitoring. 
This summary will be forwarded, through the chain of command, to ODEP, 
the DASA(ESOH), and other interested offices for review and comment. If 
requested by these offices, a draft PDEIS can be provided following 
review of the summary. The PDEIS is not normally made available to the 
public and should be stamped ``For Internal Use Only-Deliberative 
Process.''
    (2) DEIS. The Army proponent will advise the DEIS preparer of the 
number of copies to be forwarded for final HQDA review and those for 
filing with the EPA. Distribution may include interested congressional 
delegations and committees, governors, national environmental 
organizations, the DOD and federal agency headquarters, and other 
selected entities. The Army proponent will finalize the FR NOA, the 
proposed news release, and the EPA filing letter for signature of the 
DASA(ESOH). A revised process summary of the contents (purpose and need 
for the action, DOPAA, major issues, unresolved issues, major potential 
controversies, and required mitigations or monitoring) will accompany 
the DEIS to HQDA for review and comment. If the action has been 
delegated by the ASA(I&E), only the process summary is required, unless 
the DEIS is requested by HQDA.
    (i) When the DEIS has been formally approved, the preparer can 
distribute the DEIS to the remainder of the distribution list. The DEIS 
must be distributed prior to, or simultaneously with, filing with EPA. 
The list includes federal, state, regional, and local agencies, private 
citizens, and local organizations. The EPA will publish the NOA in the 
FR. The 45-day comment period begins on the date of the EPA notice in 
the FR.
    (ii) Following approval, the proponent will forward five copies of 
the DEIS to EPA for filing and notice in the FR; publication of EPA's 
NWR commences the public comment period. The proponent will distribute 
the DEIS prior to, or simultaneously with, filing with EPA. Distribution 
will include appropriate federal, state, regional, and local agencies; 
Native American tribes; and organizations and private citizens who have 
expressed interest in the proposed action.
    (iii) For proposed actions that are environmentally controversial, 
or of national interest, the OCLL shall be notified of the pending 
action so that appropriate congressional coordination may be effected. 
The OCPA will coordinate public announcements through its chain of 
command. Proponents will ensure that the DEIS and subsequent NEPA 
documents are provided in electronic format to allow for maximum 
information flow throughout the process.
    (e) Public review of DEIS. The DEIS public comment period will be no 
less than 45 days. If the statement is unusually long, a summary of the 
DEIS may be circulated, with an attached list of locations where the 
entire DEIS may be reviewed (for example, local public libraries). 
Distribution of the complete DEIS should be accompanied by the 
announcement of availability in established newspapers of major 
circulation, and must include the following:
    (1) Any federal agency that has jurisdiction by law or special 
expertise with respect to any environmental impact involved and any 
appropriate federal, state, or local agency authorized to develop and 
enforce environmental standards.

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    (2) The applicant, if the proposed action involves any application 
of proposal for the use of Army resources.
    (3) Any person, organization, or agency requesting the entire DEIS.
    (4) Any Indian tribes, Native Alaskan organizations, or Native 
Hawaiian organizations potentially impacted by the proposed action.
    (5) Chairs/co-chairs of any existing citizen advisory groups (for 
example, Restoration Advisory Boards).
    (f) Public meetings or hearings. Public meetings or hearings on the 
DEIS will be held in accordance with the criteria established in 40 CFR 
1506.6(c) and (d) or for any other reason the proponent deems 
appropriate. News releases should be prepared and issued to publicize 
the meetings or hearings at least 15 days prior to the meeting.
    (g) Response to comments. Comments will be incorporated in the DEIS 
by modification of the text and/or written explanation. Where possible, 
similar comments will be grouped for a common response. The preparer or 
a higher authority may make individual response, if considered 
desirable.
    (h) The FEIS. If the changes to the DEIS are exclusively 
clarifications or minor factual corrections, a document consisting of 
only the DEIS comments, responses to the comments, and errata sheets may 
be prepared and circulated. If such an abbreviated FEIS is anticipated, 
the DEIS should contain a statement advising reviewers to keep the 
document so they will have a complete set of ``final'' documents. The 
final EIS to be filed with EPA will consist of a complete document 
containing a new cover sheet, the errata sheets, comments and responses, 
and the text of the draft EIS. Coordination, approval, filing, and 
public notice of an abbreviated FEIS are the same as for a draft DEIS. 
If extensive modifications are warranted, the proponent will prepare a 
new, complete FEIS. Preparation, coordination, approval, filing, and 
public notice of the FEIS are the same as the process outlined for the 
DEIS. The FEIS distribution must include any person, organization, or 
agency that submitted substantive comments on the DEIS. One copy 
(electronic) of the FEIS will be forwarded to ODEP. The FEIS will 
clearly identify the Army's preferred alternative unless prohibited by 
law.
    (i) Decision. No decision will be made on a proposed action until 30 
days after EPA has published the NWR of the FEIS in the FR, or 90 days 
after the NWR of the DEIS, whichever is later. EPA publishes NWRs 
weekly. Those NWRs ready for EPA by close of business Friday are 
published in the next Friday's issue of the FR.
    (j) ROD. The ROD documents the decision made and the basis for that 
decision.
    (1) The proponent will prepare a ROD for the decision maker's 
signature, which will:
    (i) Clearly state the decision by describing it in sufficient detail 
to address the significant issues and ensure necessary long-term 
monitoring and execution.
    (ii) Identify all alternatives considered by the Army in reaching 
its decision, specifying the environmentally preferred alternative(s). 
The Army will discuss preferences among alternatives based on relevant 
factors including environmental, economic, and technical considerations 
and agency statutory missions.
    (iii) Identify and discuss all such factors, including any essential 
considerations of national policy that were balanced by the Army in 
making its decision. Because economic and technical analyses are 
balanced with environmental analysis, the agency preferred alternative 
will not necessarily be the environmentally preferred alternative.
    (iv) Discuss how those considerations entered into the final 
decision.
    (v) State whether all practicable means to avoid or minimize 
environmental harm from the selected alternative have been adopted, and 
if not, why they were not.
    (vi) Identify or incorporate by reference the mitigation measures 
that were incorporated into the decision.
    (2) Implementation of the decision may begin immediately after 
approval of the ROD.
    (3) The proponent will prepare an NOA to be published in the FR by 
the HQDA proponent, following congressional notification. Processing and 
approval of the NOA is the same as for an NOI.

[[Page 321]]

    (4) RODs will be distributed to agencies with authority or oversight 
over aspects of the proposal, cooperating agencies, appropriate 
congressional, state, and district offices, all parties that are 
directly affected, and others upon request.
    (5) One electronic copy of the ROD will be forwarded to ODEP.
    (6) A monitoring and enforcement program will be adopted and 
summarized for any mitigation (see Appendix C of this part).
    (k) Pre-decision referrals. 40 CFR part 1504 specifies procedures to 
resolve federal agency disagreements on the environmental effects of a 
proposed action. Pre-decision referrals apply to interagency 
disagreement on a proposed action's potential unsatisfactory effects.
    (l) Changes during preparation. If there are substantial changes in 
the proposed action, or significant new information relevant to 
environmental concerns during the proposed action's planning process, 
the proponent will prepare revisions or a supplement to any 
environmental document or prepare new documentation as necessary.
    (m) Mitigation. All measures planned to minimize or mitigate 
expected significant environmental impacts will be identified in the EIS 
and the ROD. Implementation of the mitigation plan is the responsibility 
of the proponent (see Appendix C of this part). The proponent will make 
available to the public, upon request, the status and results of 
mitigation measures associated with the proposed action. For weapon 
system acquisition programs, the proponent will coordinate with the 
appropriate responsible parties before identifying potential mitigations 
in the EIS/ROD.
    (n) Implementing the decision. The proponent will provide for 
monitoring to assure that decisions are carried out, particularly in 
controversial cases or environmentally sensitive areas (Appendix C of 
this part). Mitigation and other conditions that have been identified in 
the EIS, or during its review and comment period, and made part of the 
decision (and ROD), will be implemented by the lead agency or other 
appropriate consenting agency. The proponent will:
    (1) Include appropriate conditions in grants, permits, or other 
approvals.
    (2) Ensure that the proponent's project budget includes provisions 
for mitigations.
    (3) Upon request, inform cooperating or commenting agencies on the 
progress in carrying out adopted mitigation measures that they have 
proposed and that were adopted by the agency making the decision.
    (4) Upon request, make the results of relevant monitoring available 
to the public and Congress.
    (5) Make results of relevant monitoring available to citizens 
advisory groups, and others that expressed such interest during the EIS 
process.



Sec.  651.46  Existing EISs.

    A newly proposed action must be the subject of a separate EIS. The 
proponent may extract and revise the existing environmental documents in 
such a way as to bring them completely up to date, in light of the new 
proposals. Such a revised EIS will be prepared and processed entirely 
under the provisions of this part. If an EIS of another agency is 
adopted, it must be processed in accordance with 40 CFR 1506.3. Figures 
4 through 8 to Subpart F of part 651 follow:

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                Sec. Figures 4-8 to Subpart F of Part 651
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          Subpart G_Public Involvement and the Scoping Process



Sec.  651.47  Public involvement.

    (a) As a matter of Army policy, public involvement is required for 
all EISs, and is strongly encouraged for all Army actions, including 
EAs. The requirement (40 CFR 1506.6) for public involvement recognizes 
that all potentially interested or affected parties will be involved, 
when practicable, whenever analyzing environmental considerations. This 
requirement can be met at the very beginning of the process by 
developing a plan to include all affected parties and implementing the 
plan with appropriate adjustments as it proceeds (AR 360-5). The plan 
will include the following:
    (1) Information dissemination to local and installation communities 
through such means as news releases to local media, announcements to 
local citizens groups, and Commander's letters at each phase or 
milestone (more frequently if needed) of the project. The dissemination 
of this information will be based on the needs and desires of the local 
communities.
    (2) Each phase or milestone (more frequently if needed) of the 
project will be coordinated with representatives of local, state, 
tribal, and federal government agencies.
    (3) Public comments will be invited and two-way communication 
channels

[[Page 327]]

will be kept open through various means as stated above. These two-way 
channels will be dynamic in nature, and should be updated regularly to 
reflect the needs of the local community.
    (4) Public affairs officers at all levels will be kept informed.
    (b) When an EIS is being prepared, public involvement is a requisite 
element of the scoping process (40 CFR 1501.7(a)(1)).
    (c) Proponents will invite public involvement in the review and 
comment of EAs and draft FNSIs (40 CFR 1506.6).
    (d) Persons and agencies to be consulted include the following:
    (1) Municipal, township, and county elected and appointed officials.
    (2) Tribal, state, county, and local government officials and 
administrative personnel whose official duties include responsibility 
for activities or components of the affected environment related to the 
proposed Army action.
    (3) Local and regional administrators of other federal agencies or 
commissions that may either control resources potentially affected by 
the proposed action (for example, the U.S. Fish and Wildlife Service); 
or who may be aware of other actions by different federal agencies whose 
effects must be considered with the proposed Army action (for example, 
the GSA).
    (4) Members of existing citizen advisory groups, such as Restoration 
Advisory Boards and Citizen Advisory Commissions.
    (5) Members of identifiable population segments within the 
potentially affected environments, whether or not they have clearly 
identifiable leaders or an established organization, such as farmers and 
ranchers, homeowners, small business owners, minority communities and 
disadvantaged communities, and tribal governments in accordance with 
White House Memorandum on Government to Government Relations with Native 
American Tribal Governments (April 29, 1994).
    (6) Members and officials of those identifiable interest groups of 
local or national scope that may have interest in the environmental 
effects of the proposed action or activity (for example, hunters and 
fishermen, Izaak Walton League, Sierra Club, and the Audubon Society).
    (7) Any person or group that has specifically requested involvement 
in the specific action or similar actions.
    (e) The public involvement processes and procedures through which 
participation may be solicited include the following:
    (1) Direct individual contact. Such interaction can identify persons 
and their opinions and initial positions, affecting the scope of issues 
that the EIS must address. Such limited contact may satisfy public 
involvement requirements when the expected significance and controversy 
of environmental effects is very limited.
    (2) Small workshops or discussion groups.
    (3) Larger public gatherings that are held after some formulation of 
the potential issues. The public is invited to express its views on the 
proposed courses of action. Public suggestions or alternative courses of 
action not already identified may be expressed at these gatherings that 
need not be formal public hearings.
    (4) Identifying and applying other processes and procedures to 
accomplish the appropriate level of public involvement.
    (f) The meetings described in paragraph (e) of this section should 
not be public hearings in the early stages of evaluating a proposed 
action. Public hearings do not substitute for the full range of public 
involvement procedures under the purposes and intent, as described in 
paragraph (e) of this section.
    (g) Public surveys or polls may be performed to identify public 
opinion of a proposed action, as appropriate (AR 335-15).



Sec.  651.48  Scoping process.

    (a) The scoping process (40 CFR 1501.7) is intended to aid in 
determining the scope of the analyses and significant issues related to 
the proposed action. The process requires appropriate public 
participation immediately following publication of the NOI in the FR. It 
is important to note that scoping is not synonymous with a public 
meeting. The Army policy is that EISs for legislative proposals 
significantly affecting the environment will

[[Page 328]]

go through scoping unless extenuating circumstances make it impractical. 
In some cases, the scoping process may be useful in the preparation of 
EAs and should be employed when it is useful.
    (b) The scoping process identifies relevant issues related to a 
proposed action through the involvement of all potentially interested or 
affected parties (affected federal, state, and local agencies; 
recognized Indian tribes; interest groups, and other interested persons) 
in the environmental analysis and documentation. This process should:
    (1) Eliminate issues from detailed consideration which are not 
significant, or which have been covered by prior environmental review; 
and
    (2) Make the analysis and documentation more efficient by providing 
focus to the effort. Proper scoping identifies reasonable alternatives 
and the information needed for their evaluation, thereby increasing 
public confidence in the Army decisionmaking process.
    (c) Proper scoping will reduce both costs and time required for an 
EA or EIS. This is done through the documentation of all potential 
impacts and the focus of detailed consideration on those aspects of the 
action which are potentially significant or controversial. To assist in 
this process the Army will use the Environmental Impact Computer System 
(EICS) starting in Fiscal Year (FY) 04, as appropriate. This system will 
serve to structure all three stages of the scoping process (Sec.  
651.49, 651.50, and 651.51) and provide focus on those actions that are 
important and of interest to the public. While these discussions focus 
on EIS preparation and documents to support that process, the three 
phases also apply if scoping is used for an EA. If used in the 
preparation of an EA, scoping, and documents to support that process, 
can be modified and adopted to ensure efficient public iteration and 
input to the decision-making process.
    (d) When the planning for a project or action indicates the need for 
an EIS, the proponent initiates the scoping process to identify the 
range of actions, alternatives, and impacts for consideration in the EIS 
(40 CFR 1508.25). The extent of the scoping process (including public 
involvement) will depend upon:
    (1) The size and type of the proposed action.
    (2) Whether the proposed action is of regional or national interest.
    (3) Degree of any associated environmental controversy.
    (4) Importance of the affected environmental parameters.
    (5) Significance of any effects on them.
    (6) Extent of prior environmental review.
    (7) Involvement of any substantive time limits.
    (8) Requirements by other laws for environmental review.
    (e) The proponent may incorporate scoping in the public involvement 
(or environmental review) process of other requirements, such as an EA. 
In such cases, the extent of incorporation is at the discretion of the 
proponent, working with the affected Army organization or installation. 
Such integration is encouraged.
    (f) Scoping procedures fall into preliminary, public interaction, 
and final phases. These phases are discussed in Sec. Sec.  651.49, 
651.50, and 651.51, respectively.



Sec.  651.49  Preliminary phase.

    In the preliminary phase, the proponent agency or office identifies, 
as early as possible, how it will accomplish scoping and with whose 
involvement. Key points will be identified or briefly summarized by the 
proponent, as appropriate, in the NOI, which will:
    (a) Identify the significant issues to be analyzed in the EIS.
    (b) Identify the office or person responsible for matters related to 
the scoping process. If they are not the same as the proponent of the 
action, that distinction will be made.
    (c) Identify the lead and cooperating agency, if already determined 
(40 CFR 1501.5 and 1501.6).
    (d) Identify the method by which the agency will invite 
participation of affected parties, and identify a tentative list of the 
affected parties to be notified. A key part of this preliminary 
identification is to solicit input regarding other parties who would be 
interested in the proposed project or affected by it.

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    (e) Identify the proposed method for accomplishing the scoping 
procedure.
    (f) Indicate the relationship between the timing of the preparation 
of environmental analyses and the tentative planning and decisionmaking 
schedule including:
    (1) The scoping process itself.
    (2) Collection or analysis of environmental data, including required 
studies.
    (3) Preparation of draft and final EISs (DEISs and FEISs), and 
associated review periods.
    (4) Filing of the ROD.
    (5) Taking the action.
    (6) For a programmatic EIS, preparation of a general expected 
schedule for future specific implementing (tiered) actions that will 
involve separate environmental analysis.
    (g) If applicable, identify the extent to which the EIS preparation 
process is exempt from any of the normal procedural requirements of this 
part, including scoping.



Sec.  651.50  Public interaction phase.

    (a) During this portion of the process, the proponent will invite 
comments from all affected parties and respondents to the NOI to assist 
in developing issues for detailed discussion in the EIS. Assistance in 
identifying possible participants is available from the ODEP.
    (b) In addition to the affected parties identified in paragraph (a) 
of this section, participants should include the following:
    (1) Technical representatives of the proponent. Such persons must be 
able to describe the technical aspects of the proposed action and 
alternatives to other participants.
    (2) One or more representatives of any Army-contracted consulting 
firm, if one has been retained to participate in writing the EIS or 
providing reports that the Army will use to create substantial portions 
of the EIS.
    (3) Experts in various environmental disciplines, in any technical 
area where foreseen impacts are not already represented among the other 
scoping participants.
    (c) In all cases, the participants will be provided with information 
developed during the preliminary phase and with as much of the following 
information that may be available:
    (1) A brief description of the environment at the affected location. 
When descriptions for a specific location are not available, general 
descriptions of the probable environmental effects will be provided. 
This will also address the extent to which the environment has been 
modified or affected in the past.
    (2) A description of the proposed alternatives. The description will 
be sufficiently detailed to enable evaluation of the range of impacts 
that may be caused by the proposed action and alternatives. The amount 
of detail that is sufficient will depend on the stage of the development 
of the proposal, its magnitude, and its similarity to other actions with 
which participants may be familiar.
    (3) A tentative identification of ``any public environmental 
assessments and other environmental impact statements that are being or 
will be prepared that are related to but are not part of the scope of 
the impact statement under consideration'' (40 CFR 1501.7(a)(5)).
    (4) Any additional scoping issues or limitations on the EIS, if not 
already described during the preliminary phase.
    (d) The public involvement should begin with the NOI to publish an 
EIS. The NOI may indicate when and where a scoping meeting will take 
place and who to contact to receive preliminary information. The scoping 
meeting is an informal public meeting, and initiates a continuous 
scoping process, allowing the Army to scope the action and the impacts 
of alternatives. It is a working session where the gathering and 
evaluation of information relating to potential environmental impacts 
can be initiated.
    (e) Starting with this information (paragraph (d) of this section), 
the person conducting the scoping process will use input from any of the 
involved or affected parties. This will aid in developing the 
conclusions. The proponent determines the final scope of the EIS. If the 
proponent chooses not to require detailed treatment of significant 
issues or factors in the EIS, in spite of relevant technical or 
scientific objections by any participant, the proponent will

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clearly identify (in the environmental consequences section of the EIS) 
the criteria that were used to eliminate such factors.



Sec.  651.51  The final phase.

    (a) The initial scope of the DEIS is determined by the proponent 
during and after the public interaction phase of the process. Detailed 
analysis should focus on significant issues (40 CFR 1501.7(a)(2)). To 
determine the appropriate scope, the proponent must consider three 
categories of actions, alternatives, and impacts.
    (1) The three categories of actions (other than unconnected single 
actions) are as follows:
    (i) Connected actions are those that are closely related and should 
be discussed in the same impact statement. Actions are connected if they 
automatically trigger other actions that may require EISs, cannot or 
will not proceed unless other actions are previously or simultaneously 
taken, are interdependent parts of a larger action, and depend on the 
larger action for their justification.
    (ii) Cumulative actions are those that, when viewed with other past 
and proposed actions, have cumulatively significant impacts and should 
be discussed in the same impact statement.
    (iii) Similar actions are those that have similarities which provide 
a basis for evaluating their environmental consequences together, such 
as common timing or geography, and may be analyzed in the EIS. Agencies 
should do so when the best way to assess such actions is to treat them 
in a single EIS.
    (2) The three categories of alternatives are as follows:
    (i) No action.
    (ii) Other reasonable courses of action.
    (iii) Mitigation measures (not in the proposed action).
    (3) The three categories of impacts are as follows:
    (i) Direct.
    (ii) Indirect.
    (iii) Cumulative.
    (4) The proponent can also identify any public EAs and EISs, 
prepared by the Army or another federal agency, related to, but not part 
of, the EIS under consideration (40 CFR 1501.7(a)(5)). Assignments for 
the preparation of the EIS among the lead and any cooperating agencies 
can be identified, with the lead agency retaining responsibility for the 
statement (40 CFR 1501.7(a)(4)); along with the identification of any 
other environmental review and consultation requirements so the lead and 
cooperating agencies may prepare other required analyses and studies 
concurrently with the EIS (40 CFR 1501.7(a)(6)).
    (b) The identification and elimination of issues that are 
insignificant, non-controversial, or covered by prior environmental 
review can narrow the analysis to remaining issues and their 
significance through reference to their coverage elsewhere (40 CFR 
1501.7(a)(3)).
    (c) As part of the scoping process, the lead agency may:
    (1) Set time limits, as provided in Sec.  651.14(b), if they were 
not already indicated in the preliminary phase.
    (2) Prescribe overall page limits for the EIS in accordance with the 
CEQ regulations that emphasize conciseness.
    (d) All determinations reached by the proponent during the scoping 
process will be clearly conveyed to the preparers of the EIS in a Scope 
of Statement. The Scope of Statement will be made available to 
participants in the scoping process and to other interested parties upon 
request. Any scientific or technical conflicts that arise between the 
proponent and scoping participants, cooperating agencies, other federal 
agencies, or preparers will be identified during the scoping process and 
resolved or discussed by the proponent in the DEIS.



Sec.  651.52  Aids to information gathering.

    The proponent may use or develop graphic or other innovative methods 
to aid information gathering, presentation, and transfer during the 
three scoping phases. These include methods for presenting preliminary 
information to scoping participants, obtaining and consolidating input 
from participants, and organizing determinations on scope for use during 
preparation of the DEIS. The use of the World Wide Web

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(WWW) for these purposes is encouraged. Suggested uses include the 
implementation of a continuous scoping process, facilitating ``virtual'' 
public participation, as well as the dissemination of analyses and 
information as they evolve.



Sec.  651.53  Modifications of the scoping process.

    (a) If a lengthy period exists between a decision to prepare an EIS 
and the time of preparation, the proponent will initiate the NOI at a 
reasonable time in advance of preparation of the DEIS. The NOI will 
state any tentative conclusions regarding the scope of the EIS made 
prior to publication of the NOI. Reasonable time for public 
participation will be allowed before the proponent makes any final 
decisions or commitments on the EIS.
    (b) The proponent of a proposed action may use scoping during 
preparation of environmental review documents other than an EIS, if 
desired. In such cases, the proponent may use these procedures or may 
develop modified procedures, as needed.



       Subpart H_Environmental Effects of Major Army Action Abroad



Sec.  651.54  Introduction.

    (a) Protection of the environment is an Army priority, no matter 
where the Army actions are undertaken. The Army is committed to pursuing 
an active role in addressing environmental quality issues in Army 
relations with neighboring communities and assuring that consideration 
of the environment is an integral part of all decisions. This section 
assigns responsibilities for review of environmental effects abroad of 
major Army actions, as required by Executive Order 12114, Environmental 
Effects Abroad of Major Federal Actions, dated January 4, 1979, 3 CFR, 
1979 Comp.,p.356. This section applies to HQDA and Army agencies' 
actions that would significantly affect the quality of the human 
environment outside the United States.
    (b) Executive Order 12114 and DODD 6050.7, Environmental Effects 
Abroad of Major Department of Defense Actions (planned currently to be 
replaced by a DODI, Analyzing Defense Actions With the Potential for 
Significant Impacts Outside the United States) provide guidance for 
analyzing the environmental impacts of Army actions abroad and in the 
global commons. Army components will, consistent with diplomatic factors 
(including applicable Status of Forces Agreements (SOFAs) and stationing 
agreements), national security considerations, and difficulties of 
obtaining information, document the review of potential environmental 
impacts of Army actions abroad and in the global commons as set forth in 
DODD 6050.7 (or DODI upon publication). The analysis and documentation 
of potential environmental impacts of Army actions abroad and in the 
global commons should, to the maximum extent possible, be incorporated 
into existing decision-making processes; planning for military 
exercises, training plans, and military operations.



Sec.  651.55  Categorical exclusions.

    The list of CXs in Appendix B of this part may be used in reviewing 
potential environmental impacts of major actions abroad and in the 
global commons, in accordance with DODD 6050.7 (or DODI upon 
publication) and Executive Order 12114, section 2-5(c).



Sec.  651.56  Responsibilities.

    (a) The ASA(I&E) will:
    (1) Serve as the Secretary of the Army's responsible official for 
environmental matters abroad.
    (2) Maintain liaison with the DUSD(IE) on matters concerning 
Executive Order 12114, DODD 6050.7, and this part.
    (3) Coordinate actions with other Secretariat offices as 
appropriate.
    (b) The DEP will:
    (1) Serve as ARSTAF proponent for implementation of Executive Order 
12114, DODD 6050.7, and this part.
    (2) Apply this part when planning and executing overseas actions, 
where appropriate in light of applicable statutes and SOFAs.
    (c) The DCSOPS will:
    (1) Serve as the focal point on the ARSTAF for integrating 
environmental considerations required by Executive Order 12114 into Army 
plans and activities. Emphasis will be placed

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on those actions reasonably expected to have widespread, long-term, and 
severe impacts on the global commons or the territories of foreign 
nations.
    (2) Consult with the Office of Foreign Military Rights Affairs of 
the Assistant Secretary of Defense (International Security Affairs) 
(ASD(ISA)) on significant or sensitive actions affecting relations with 
another nation.
    (d) TJAG, in coordination with the OGC, will provide advice and 
assistance concerning the requirements of Executive Order 12114 and DODD 
6050.7.
    (e) The Chief of Public Affairs will provide advice and assistance 
on public affairs as necessary.



                 Sec. Appendix A to Part 651--References

    Military publications and forms are accessible from a variety of 
sources through the use of electronic media or paper products. In most 
cases, electronic publications and forms that are associated with 
military organizations can be accessed at various address or web sites 
on the Internet. Since electronic addresses can frequently change, or 
similar web links can also be modified at several locations on the 
Internet, it's advisable to access those sites using a search engine 
that is most accommodative, yet beneficial to the user. Additionally, in 
an effort to facilitate the public right to information, certain 
publications can also be purchased through the National Technical 
Information Service (NTIS). Persons interested in obtaining certain 
types of publications can write to the National Technical Information 
Service, 5285 Port Royal Road, Springfield, VA 22161.

                    Section I--Required Publications

AR 360-5
    Army Public Affairs, Public Information.

                    Section II--Related Publications

    A related publication is merely a source of additional information. 
The user does not have to read it to understand this part.

                                 AR 5-10

    Reduction and Realignment Actions.

                                AR 11-27

    Army Energy Program.

                                AR 95-50

    Airspace and Special Military Operation Requirements.

                               AR 140-475

    Real Estate Selection and Acquisition: Procedures and Criteria.

                                AR 200-1

    Environmental Protection and Enhancement.

                                AR 200-3

    Natural Resources--Land, Forest, and Wildlife Management.

                                AR 200-4

    Cultural Resources Management.

                                AR 210-10

    Administration.

                                AR 210-20

    Master Planning for Army Installations.

                                AR 335-15

    Management Information Control System.

                                AR 380-5

    Department of the Army Information Security Program.

                                AR 385-10

    Army Safety Program.

                                AR 530-1

    Operations Security (OPSEC).

                               DA PAM 70-3

    Army Acquisition Procedures.

                      Defense Acquisition Deskbook

    An electronic knowledge presentation system available through the 
Deputy Under Secretary of Defense (Acquisition Reform) and the Office of 
the Under Secretary of Defense (Acquisition and Technology).

                              DOD 5000.2-R

    Mandatory Procedures for Major Defense Acquisition Programs and 
Major Automated Information Systems.

                              DODD 4100.15

    Commercial Activities Program.

                               DODD 4700.4

    Natural Resources Management Program, Integrated Natural Resources 
Management Plan (INRMP), Integrated Cultural Resources Management Plan 
(ICRMP).

                               DODD 6050.7

    Environmental Effects Abroad of Major Department of Defense Actions.

                               DODI 4715.9

    Environmental Planning and Analysis

[[Page 333]]

                          Executive Order 11988

    Floodplain Management, 3 CFR, 1977 Comp., p. 117

                          Executive Order 11990

    Protection of Wetlands, 3 CFR, 1977 Comp., p. 121.

                          Executive Order 12114

    Environmental Effects Abroad of Major Federal Actions, 3 CFR, 1979 
comp., p. 356.

                          Executive Order 12778

    Civil Justice Reform, 3 CFR, 1991 Comp., p. 359.

                          Executive Order 12856

    Federal Compliance with Right-to-Know Laws and Pollution Prevention 
Requirements, 3 CFR, 1993 Comp., p. 616.

                          Executive Order 12861

    Elimination of One-Half of Executive Branch Internal Regulations, 3 
CFR, 1993 Comp., p. 630.

                          Executive Order 12866

    Regulatory Planning and Review, 3 CFR, 1993 Comp., p. 638.

                          Executive Order 12898

    Federal Actions to Address Environmental Justice in Minority and 
Low-Income Populations, 3 CFR, 1994 Comp., p. 859.

                          Executive Order 13007

    Indian Sacred Sites, 3 CFR, 1996 Comp., p. 196.

                          Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks, 3 CFR, 1997 Comp., p. 198.

                          Executive Order 13061

    Federal Support of Community Efforts Along American Heritage Rivers, 
3 CFR, 1997 Comp., p. 221.

                          Executive Order 13083

    Federalism, 3 CFR, 1998 Comp., p. 146.
    Public Laws: American Indian Religious Freedom Act.
    42 U.S.C. 1996.

                              Clean Air Act

    As amended (42 U.S.C. 7401, et seq.).

                         Clean Water Act of 1977

    Public Law 95-217, 91 Stat. 1566 and Public Law 96-148, Sec. 1(a)-
(c), 93 Stat. 1088.
    Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980.
    As amended (CERCLA, Superfund) (42 U.S.C. 9601 et seq.) Endangered 
Species Act of 1973.
    Public Law 93-205, 87 Stat. 884.

                   Fish and Wildlife Coordination Act

    Public Law 85-624, Sec. 2, 72 Stat. 563 and Public Law 89-72, Sec. 
6(b), 79 Stat. 216.

                National Environmental Policy Act of 1969

    Public Law 91-190, 83 Stat. 852.

                   National Historic Preservation Act

    Public Law 89-665, 80 Stat. 915.

         Native American Graves Protection and Repatriation Act

    Public Law 101-601, 104 Stat. 3048.

                    Pollution Prevention Act of 1990

    Public Law 101-508, Title VI, Subtitle G, 104 Stat. 13880-321.

             Resource Conservation and Recovery Act of 1976

    Public Law 94-580, 90 Stat. 2795.

                                Sikes Act

    Public Law 86-797, 74 Stat. 1052.
    Note. The following CFRs may be found in your legal office or law 
library. Copies may be purchased from the Superintendent of Documents, 
Government Printing Office, Washington, DC 20401.

                             36 CFR Part 800

    Advisory Council on Historic Preservation.

                         40 CFR Parts 1500-1508

    Council on Environmental Quality.

                      Section III--Prescribed Forms

    This section contains no entries.

                      Section IV--Referenced Forms

                              DA Form 2028

    Recommended Changes to Publications and Blank Forms.

                              DD Form 1391

    Military Construction Project Data.



           Sec. Appendix B to Part 651--Categorical Exclusions

                      Section I--Screening Criteria

    Before any CXs can be used, Screening Criteria as referenced in 
Sec.  651.29 must be met.

                         Section II--List of CXs

    (a) For convenience only, the CXs are grouped under common types of 
activities

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(for example, administration/ operation, construction/demolition, and 
repair and maintenance). Certain CXs require a REC, which will be 
completed and signed by the proponent. Concurrence on the use of a CX is 
required from the appropriate environmental officer (EO), and that 
signature is required on the REC. The list of CXs is subject to 
continual review and modification. Requests for additions or changes to 
the CXs (along with justification) should be sent, through channels, to 
the ASA (I&E). Subordinate Army headquarters may not modify the CX list 
through supplements to this part. Proposed modifications to the list of 
CXs will be published in the FR by HQDA, to provide opportunity for 
public comment.
    (b) Administration/operation activities:
    (1) Routine law and order activities performed by military/military 
police and physical plant protection and security personnel, and 
civilian natural resources and environmental law officers.
    (2) Emergency or disaster assistance provided to federal, state, or 
local entities (REC required).
    (3) Preparation of regulations, procedures, manuals, and other 
guidance documents that implement, without substantive change, the 
applicable HQDA or other federal agency regulations, procedures, 
manuals, and other guidance documents that have been environmentally 
evaluated (subject to previous NEPA review).
    (4) Proposed activities and operations to be conducted in an 
existing non-historic structure which are within the scope and 
compatibility of the present functional use of the building, will not 
result in a substantial increase in waste discharged to the environment, 
will not result in substantially different waste discharges from current 
or previous activities, and emissions will remain within established 
permit limits, if any (REC required).
    (5) Normal personnel, fiscal, and administrative activities 
involving military and civilian personnel (recruiting, processing, 
paying, and records keeping).
    (6) Routinely conducted recreation and welfare activities not 
involving off-road recreational vehicles.
    (7) Deployment of military units on a temporary duty (TDY) or 
training basis where existing facilities are used for their intended 
purposes consistent with the scope and size of existing mission.
    (8) Preparation of administrative or personnel-related studies, 
reports, or investigations.
    (9) Approval of asbestos or lead-based paint management plans 
drafted in accordance with applicable laws and regulations (REC 
required).
    (10) Non-construction activities in support of other agencies/
organizations involving community participation projects and law 
enforcement activities.
    (11) Ceremonies, funerals, and concerts. This includes events such 
as state funerals, to include flyovers.
    (12) Reductions and realignments of civilian and/or military 
personnel that: fall below the thresholds for reportable actions as 
prescribed by statute (10 U.S.C. 2687) and do not involve related 
activities such as construction, renovation, or demolition activities 
that would otherwise require an EA or an EIS to implement (REC 
required). This includes reorganizations and reassignments with no 
changes in force structure, unit redesignations, and routine 
administrative reorganizations and consolidations (REC required).
    (13) Actions affecting Army property that fall under another federal 
agency's list of categorical exclusions when the other federal agency is 
the lead agency (decision maker), or joint actions on another federal 
agency's property that fall under that agency's list of categorical 
exclusions (REC required).
    (14) Relocation of personnel into existing federally-owned (or 
state-owned in the case of ARNG) or commercially-leased space, which 
does not involve a substantial change in the supporting infrastructure 
(for example, an increase in vehicular traffic beyond the capacity of 
the supporting road network to accommodate such an increase is an 
example of substantial change) (REC required).
    (c) Construction and demolition:
    (1) Construction of an addition to an existing structure or new 
construction on a previously undisturbed site if the area to be 
disturbed has no more than 5.0 cumulative acres of new surface 
disturbance. This does not include construction of facilities for the 
transportation, distribution, use, storage, treatment, and disposal of 
solid waste, medical waste, and hazardous waste (REC required).
    (2) Demolition of non-historic buildings, structures, or other 
improvements and disposal of debris therefrom, or removal of a part 
thereof for disposal, in accordance with applicable regulations, 
including those regulations applying to removal of asbestos, 
polychlorinated biphenyls (PCBs), lead-based paint, and other special 
hazard items (REC required).
    (3) Road or trail construction and repair on existing rights-of-ways 
or on previously disturbed areas.
    (d) Cultural and natural resource management activities:
    (1) Land regeneration activities using only native trees and 
vegetation, including site preparation. This does not include forestry 
operations (REC required).

[[Page 335]]

    (2) Routine maintenance of streams and ditches or other rainwater 
conveyance structures (in accordance with USACE permit authority under 
Section 404 of the Clean Water Act and applicable state and local 
permits), and erosion control and stormwater control structures (REC 
required).
    (3) Implementation of hunting and fishing policies or regulations 
that are consistent with state and local regulations.
    (4) Studies, data collection, monitoring and information gathering 
that do not involve major surface disturbance. Examples include 
topographic surveys, bird counts, wetland mapping, and other resources 
inventories (REC required).
    (5) Maintenance of archaeological, historical, and endangered/
threatened species avoidance markers, fencing, and signs.
    (e) Procurement and contract activities:
    (1) Routine procurement of goods and services (complying with 
applicable procedures for sustainable or ``green'' procurement) to 
support operations and infrastructure, including routine utility 
services and contracts.
    (2) Acquisition, installation, and operation of utility and 
communication systems, mobile antennas, data processing cable and 
similar electronic equipment that use existing right-of-way, easement, 
distribution systems, and/or facilities (REC required).
    (3) Conversion of commercial activities under the provisions of AR 
5-20. This includes only those actions that do not change the actions or 
the missions of the organization or alter the existing land-use 
patterns.
    (4) Modification, product improvement, or configuration engineering 
design change to materiel, structure, or item that does not change the 
original impact of the materiel, structure, or item on the environment 
(REC required).
    (5) Procurement, testing, use, and/or conversion of a commercially 
available product (for example, forklift, generator, chain saw, etc.) 
which does not meet the definition of a weapon system (Title 10, U.S.C., 
Section 2403. ``Major weapon systems: Contractor guarantees''), and does 
not result in any unusual disposal requirements.
    (6) Acquisition or contracting for spares and spare parts, 
consistent with the approved Technical Data Package (TDP).
    (7) Modification and adaptation of commercially available items and 
products for military application (for example, sportsman's products and 
wear such as holsters, shotguns, sidearms, protective shields, etc.), as 
long as modifications do not alter the normal impact to the environment 
(REC required).
    (8) Adaptation of non-lethal munitions and restraints from law 
enforcement suppliers and industry (such as rubber bullets, stun 
grenades, smoke bombs, etc.) for military police and crowd control 
activities where there is no change from the original product design and 
there are no unusual disposal requirements. The development and use by 
the military of non-lethal munitions and restraints which are similar to 
those used by local police forces and in which there are no unusual 
disposal requirements (REC required).
    (f) Real estate activities:
    (1) Grants or acquisitions of leases, licenses, easements, and 
permits for use of real property or facilities in which there is no 
significant change in land or facility use. Examples include, but are 
not limited to, Army controlled property and Army leases of civilian 
property to include leases of training, administrative, general use, 
special purpose, or warehouse space (REC required).
    (2) Disposal of excess easement areas to the underlying fee owner 
(REC required).
    (3) Transfer of real property administrative control within the 
Army, to another military department, or to other federal agency, 
including the return of public domain lands to the Department of 
Interior, and reporting of property as excess and surplus to the GSA for 
disposal (REC required).
    (4) Transfer of active installation utilities to a commercial or 
governmental utility provider, except for those systems on property that 
has been declared excess and proposed for disposal (REC required).
    (5) Acquisition of real property (including facilities) where the 
land use will not change substantially or where the land acquired will 
not exceed 40 acres and the use will be similar to current or ongoing 
Army activities on adjacent land (REC required).
    (6) Disposal of real property (including facilities) by the Army 
where the reasonably foreseeable use will not change significantly (REC 
required).
    (g) Repair and maintenance activities:
    (1) Routine repair and maintenance of buildings, airfields, grounds, 
equipment, and other facilities. Examples include, but are not limited 
to: Removal and disposal of asbestos-containing material (for example, 
roof material and floor tile) or lead-based paint in accordance with 
applicable regulations; removal of dead, diseased, or damaged trees; and 
repair of roofs, doors, windows, or fixtures (REC required for removal 
and disposal of asbestos-containing material and lead-based paint or 
work on historic structures).
    (2) Routine repairs and maintenance of roads, trails, and 
firebreaks. Examples include, but are not limited to: grading and 
clearing the roadside of brush with or without the use of herbicides; 
resurfacing a road to its original conditions; pruning vegetation, 
removal of dead, diseased, or damaged trees and cleaning culverts; and 
minor soil stabilization activities.
    (3) Routine repair and maintenance of equipment and vehicles (for 
example, autos,

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tractors, lawn equipment, military vehicles, etc.) which is 
substantially the same as that routinely performed by private sector 
owners and operators of similar equipment and vehicles. This does not 
include depot maintenance of unique military equipment.
    (h) Hazardous materials/hazardous waste management and operations:
    (1) Use of gauging devices, analytical instruments, and other 
devices containing sealed radiological sources; use of industrial 
radiography; use of radioactive material in medical and veterinary 
practices; possession of radioactive material incident to performing 
services such as installation, maintenance, leak tests, and calibration; 
use of uranium as shielding material in containers or devices; and 
radioactive tracers (REC required).
    (2) Immediate responses in accordance with emergency response plans 
(for example, Spill Prevention Control and Countermeasure Plan (SPCCP)/
Installation Spill Contingency Plan (ISCP), and Chemical Accident and 
Incident Response Plan) for release or discharge of oil or hazardous 
materials/substances; or emergency actions taken by Explosive Ordnance 
Demolition (EOD) detachment or Technical Escort Unit.
    (3) Sampling, surveying, well drilling and installation, analytical 
testing, site preparation, and intrusive testing to determine if 
hazardous wastes, contaminants, pollutants, or special hazards (for 
example, asbestos, PCBs, lead-based paint, or unexploded ordnance) are 
present (REC required).
    (4) Routine management, to include transportation, distribution, 
use, storage, treatment, and disposal of solid waste, medical waste, 
radiological and special hazards (for example, asbestos, PCBs, lead-
based paint, or unexploded ordnance), and/or hazardous waste that 
complies with EPA, Army, or other regulatory agency requirements. This 
CX is not applicable to new construction of facilities for such 
management purposes.
    (5) Research, testing, and operations conducted at existing enclosed 
facilities consistent with previously established safety levels and in 
compliance with applicable federal, state, and local standards. For 
facilities without existing NEPA analysis, including contractor-operated 
facilities, if the operation will substantially increase the extent of 
potential environmental impacts or is controversial, an EA (and possibly 
an EIS) is required.
    (6) Reutilization, marketing, distribution, donation, and resale of 
items, equipment, or materiel; normal transfer of items to the Defense 
Logistics Agency. Items, equipment, or materiel that have been 
contaminated with hazardous materials or wastes will be adequately 
cleaned and will conform to the applicable regulatory agency's 
requirements.
    (i) Training and testing:
    (1) Simulated war games (classroom setting) and on-post tactical and 
logistical exercises involving units of battalion size or smaller, and 
where tracked vehicles will not be used (REC required to demonstrate 
coordination with installation range control and environmental office).
    (2) Training entirely of an administrative or classroom nature.
    (3) Intermittent on-post training activities (or off-post training 
covered by an ARNG land use agreement) that involve no live fire or 
vehicles off established roads or trails. Uses include, but are not 
limited to, land navigation, physical training, Federal Aviation 
Administration (FAA) approved aerial overflights, and small unit level 
training.
    (j) Aircraft and airfield activities:
    (1) Infrequent, temporary (less than 30 days) increases in air 
operations up to 50 percent of the typical installation aircraft 
operation rate (REC required).
    (2) Flying activities in compliance with Federal Aviation 
Administration Regulations and in accordance with normal flight patterns 
and elevations for that facility, where the flight patterns/elevations 
have been addressed in an installation master plan or other planning 
document that has been subject to NEPA public review.
    (3) Installation, repair, or upgrade of airfield equipment (for 
example, runway visual range equipment, visual approach slope 
indicators).
    (4) Army participation in established air shows sponsored or 
conducted by non-Army entities on other than Army property.



         Sec. Appendix C to Part 651--Mitigation and Monitoring

    (a) The CEQ regulations (40 CFR parts 1500-1508) recognize the 
following five means of mitigating an environmental impact. These five 
approaches to mitigation are presented in order of desirability.
    (1) Avoiding the impact altogether by not taking a certain action or 
parts of an action. This method avoids environmental impact by 
eliminating certain activities in certain areas. As an example, the 
Army's Integrated Training Area Management (ITAM) program accounts for 
training requirements and activities while considering natural and 
cultural resource conditions on ranges and training land. This program 
allows informed management decisions associated with the use of these 
lands, and has mitigated potential impacts by limiting activities to 
areas that are compatible with Army training needs. Sensitive habitats 
and other resources are thus protected, while the mission requirements 
are still met.
    (2) Minimizing impacts by limiting the degree or magnitude of the 
action and its implementation. Limiting the degree or magnitude of the 
action can reduce the extent of

[[Page 337]]

an impact. For example, changing the firing time or the number of rounds 
fired on artillery ranges will reduce the noise impact on nearby 
residents. Using the previous ITAM example, the conditions of ranges can 
be monitored, and, when the conditions on the land warrant, the 
intensity or magnitude of the training on that parcel can be modified 
through a variety of decisions.
    (3) Rectifying the impact by repairing, rehabilitating, or restoring 
the effect on the environment. This method restores the environment to 
its previous condition or better. Movement of troops and vehicles across 
vegetated areas often destroys vegetation. Either reseeding or 
replanting the areas with native plants after the exercise can mitigate 
this impact.
    (4) Reducing or eliminating the impact over time by preservation and 
maintenance operations during the life of the action. This method 
designs the action so as to reduce adverse environmental effects. 
Examples include maintaining erosion control structures, using air 
pollution control devices, and encouraging car pools in order to reduce 
transportation effects such as air pollution, energy consumption, and 
traffic congestion.
    (5) Compensating for the impact by replacing or providing substitute 
resources or environments (40 CFR 1508.20). This method replaces the 
resource or environment that will be impacted by the action. Replacement 
can occur in-kind or otherwise; for example, deer habitat in the project 
area can be replaced with deer habitat in another area; an in-kind 
replacement at a different location. This replacement can occur either 
on the impact site or at another location. This type of mitigation is 
often used in water resources projects.
    (b) The identification and evaluation of mitigations involves the 
use of experts familiar with the predicted environmental impacts. Many 
potential sources of information are available for assistance. These 
include sources within the Army such as the USACHPPM, the USAEC, the 
MACOM environmental office, the ODEP, COE research laboratories, COE 
districts and divisions, and DoD Regional Support Centers. State 
agencies are another potential source of information, and the 
appropriate POC within these agencies may be obtained from the 
installation environmental office. Local interest groups may also be 
able to help identify potential mitigation measures. Other suggested 
sources of assistance include:
    (1) Aesthetics:
    (i) Installation Landscape Architect.
    (ii) COE District Landscape Architects.
    (2) Air Quality:
    (i) Installation Environmental Specialist.
    (ii) Installation Preventive Medicine Officer.
    (3) Airspace:
    (i) Installation Air Traffic and Airspace Officers.
    (ii) DA Regional Representative to the FAA.
    (iii) DA Aeronautical Services.
    (iv) Military Airspace Management System Office.
    (v) Installation Range Control Officer.
    (4) Earth Science:
    (i) Installation Environmental Specialist.
    (ii) USACE District Geotechnical Staff.
    (5) Ecology:
    (i) Installation Environmental Specialist.
    (ii) Installation Wildlife Officer.
    (iii) Installation Forester.
    (iv) Installation Natural Resource Committee.
    (v) USACE District Environmental Staff.
    (6) Energy/Resource Conservation: Installation Environmental 
Specialist.
    (7) Health and Safety:
    (i) Installation Preventive Medicine Officer.
    (ii) Installation Safety Officer.
    (iii) Installation Hospital.
    (iv) Installation Mental Hygiene or Psychiatry Officer.
    (v) Chaplain's Office.
    (8) Historic/Archaeological Resources:
    (i) Installation Environmental Specialist.
    (ii) Installation Historian or Architect.
    (iii) USACE District Archaeologist.
    (9) Land Use Impacts: (i) Installation Master Planner.
    (ii) USACE District Community Planners.
    (10) Socioeconomics:
    (i) Personnel Office.
    (ii) Public Information Officer.
    (iii) USACE District Economic Planning Staff.
    (11) Water Quality:
    (i) Installation Environmental Specialist.
    (ii) Installation Preventive Medicine Officer.
    (iii) USACE District Environmental Staff.
    (12) Noise:
    (i) Preventive Medicine Officer.
    (ii) Directorate of Public Works.
    (iii) Installation Master Planner.
    (13) Training Impacts:
    Installation Director of Plans, Training, and Mobilization
    (c) Several different mitigation techniques have been used on 
military installations for a number of years. The following examples 
illustrate the variety of possible measures:
    (1) There are maneuver restrictions in areas used extensively for 
tracked vehicle training. These restrictions are not designed to 
infringe on the military mission, but rather to reduce the amount of 
damage to the training area.
    (2) Aerial seeding has been done on some installations to reduce 
erosion problems.
    (3) Changing the time and/or frequency of operations has been used. 
This may involve changing the season of the year, the time of

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day, or even day of the week for various activities. These changes avoid 
noise impacts as well as aesthetic, transportation, and some ecological 
problems.
    (4) Reducing the effects of construction has involved using 
techniques that keep heavy equipment away from protected trees and 
quickly re-seeding areas after construction.
    (d) Monitoring and enforcement programs are applicable (40 CFR 
1505.2(c)) and the specific adopted action is an important case (40 CFR 
1505.3) if:
    (1) There is a change in environmental conditions or project 
activities that were assumed in the EIS, such that original predictions 
of the extent of adverse environmental impacts may be too limited.
    (2) The outcome of the mitigation measure is uncertain, such as in 
the case of the application of new technology.
    (3) Major environmental controversy remains associated with the 
selected alternative.
    (4) Failure of a mitigation measure, or other unforeseen 
circumstances, could result in serious harm to federal-or state-listed 
endangered or threatened species; important historic or archaeological 
sites that are either on, or meet eligibility requirements for 
nomination to the National Register of Historic Places; wilderness 
areas, wild and scenic rivers, or other public or private protected 
resources. Evaluation and determination of what constitutes serious harm 
must be made in coordination with the appropriate federal, state, or 
local agency responsible for each particular program.
    (e) Five basic considerations affect the establishment of monitoring 
programs:
    (1) Legal requirements. Permits for some actions will require that a 
monitoring system be established (for example, dredge and fill permits 
from the USACE). These permits will generally require both enforcement 
and effectiveness monitoring programs.
    (2) Protected resources. These include federal-or state-listed 
endangered or threatened species, important historic or archaeological 
sites (whether or not these are listed or eligible for listing on the 
National Register of Historic Places), wilderness areas, wild and scenic 
rivers, and other public or private protected resources. Private 
protected resources include areas such as Audubon Society Refuges, 
Nature Conservancy lands, or any other land that would be protected by 
law if it were under government ownership, but is privately owned. If 
any of these resources are affected, an effectiveness and enforcement-
monitoring program must be undertaken in conjunction with the federal, 
state, or local agency that manages the type of resource.
    (3) Major environmental controversy. If a controversy remains 
regarding the effect of an action or the effectiveness of a mitigation, 
an enforcement and effectiveness monitoring program must be undertaken. 
Controversy includes not only scientific disagreement about the 
mitigation's effectiveness, but also public interest or debate.
    (4) Mitigation outcome. The probability of the mitigation's success 
must be carefully considered. The proponent must know if the mitigation 
has been successful elsewhere. The validity of the outcome should be 
confirmed by expert opinion. However, the proponent should note that a 
certain technique, such as artificial seeding with the natural 
vegetation, which may have worked successfully in one area, may not work 
in another.
    (5) Changed conditions. The final consideration is whether any 
condition, such as the environmental setting, has changed (for example, 
a change in local land use around the area, or a change in project 
activities, such as increased amount of acreage being used or an 
increased movement of troops). Such changes will require preparation of 
a supplemental document (see Sec. Sec.  651.5(g) and 651.24) and 
additional monitoring. If none of these conditions are met (that is, 
requirement by law, protected resources, no major controversy is 
involved, effectiveness of the mitigation is known, and the 
environmental or project conditions have not changed), then only an 
enforcement monitoring program is needed. Otherwise, both an enforcement 
and effectiveness monitoring program will be required.
    (f) Enforcement monitoring program. The development of an 
enforcement monitoring program is governed by who will actually perform 
the mitigation; a contractor, a cooperating agency, or an in-house 
(Army) lead agency. The lead agency is ultimately responsible for 
performing any mitigation activities.
    (1) Contract performance. Several provisions must be made in work to 
be performed by contract. The lead agency must ensure that contract 
provisions include the performance of the mitigation activity and that 
penalty clauses are written into the contracts. It must provide for 
timely inspection of the mitigation measures and is responsible for 
enforcing all contract provision.
    (2) Cooperating agency performance. The lead agency must ensure 
that, if a cooperating agency performs the work, it understands its role 
in the mitigation. The lead agency must determine and agree upon how the 
mitigation measures will be funded. It must also ensure that any 
necessary formal paperwork such as cooperating agreements is complete.
    (3) Lead agency performance. If the lead agency performs the 
mitigation, the proponent must ensure that needed tasks are performed, 
provide appropriate funding in the project budget, arrange for necessary 
manpower allocations, and make any necessary changes in the agency 
(installation) regulations (such as environmental or range regulations).

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    (g) Effectiveness monitoring. Effectiveness monitoring is often 
difficult to establish. The first step is to determine what must be 
monitored, based on criteria discussed during the establishment of the 
system; for example, the legal requirements, protected resources, area 
of controversy, known effectiveness, or changed conditions. Initially, 
this can be a very broad statement, such as reduction of impacts on a 
particular stream by a combination of replanting, erosion control 
devices, and range regulations. The next step is finding the expertise 
necessary to establish the monitoring system. The expertise may be 
available on-post or may be obtained from an outside source. After a 
source of expertise is located, the program can be established using the 
following criteria:
    (1) Any technical parameters used must be measurable; for example, 
the monitoring program must be quantitative and statistically sound.
    (2) A baseline study must be completed before the monitoring begins 
in order to identify the actual state of the system prior to any 
disturbance.
    (3) The monitoring system must have a control, so that it can 
isolate the effects of the mitigation procedures from effects 
originating outside the action.
    (4) The system's parameters and means of measuring them must be 
replicable.
    (5) Parameter results must be available in a timely manner so that 
the decision maker can take any necessary corrective action before the 
effects are irreversible.
    (6) Not every mitigation has to be monitored separately. The 
effectiveness of several mitigation actions can be determined by one 
measurable parameter. For example, the turbidity measurement from a 
stream can include the combined effectiveness of mitigation actions such 
as reseeding, maneuver restrictions, and erosion control devices. 
However, if a method combines several parameters and a critical change 
is noted, each mitigation measurement must be examined to determine the 
problem.



         Sec. Appendix D to Part 651--Public Participation Plan

    The objective of the plan will be to encourage the full and open 
discussion of issues related to Army actions. Some NEPA actions will be 
very limited in scope, and may not require full public participation and 
involvement. Other NEPA actions will obviously be of interest, not only 
to the local community, but to others across the country as well.
    (a) To accomplish this objective, the plan will require:
    (1) Dissemination of information to local and installation 
communities through such means as news releases to local media, 
announcements to local citizens groups, and Commander's letters. Such 
information may be subject to Freedom of Information Act and operations 
security review.
    (2) The invitation of public comments through two-way communication 
channels that will be kept open through various means.
    (3) The use of fully informed public affairs officers at all levels.
    (4) Preparation of EAs which incorporate public involvement 
processes whenever appropriate (40 CFR 1506.6).
    (5) Consultation of persons and agencies such as:
    (i) Municipal, township, and county elected and appointed officials.
    (ii) Tribal, state, county, and local government officials and 
administrative personnel whose official duties include responsibility 
for activities or components of the affected environment related to the 
proposed Army action.
    (iii) Local and regional administrators of other federal agencies or 
commissions that may either control resources potentially affected by 
the proposed action (for example, the U.S. Fish and Wildlife Service) or 
who may be aware of other actions by different federal agencies whose 
effects must be considered with the proposed Army action (for example, 
the GSA).
    (iv) Members of identifiable population segments within the 
potentially affected environments, whether or not they have clearly 
identifiable leaders or an established organization such as farmers and 
ranchers, homeowners, small business owners, and Native Americans.
    (v) Members and officials of those identifiable interest groups of 
local or national scope that may have an interest in the environmental 
effects of the proposed action or activity (for example, hunters and 
fishermen, Isaak Walton League, Sierra Club, and the Audubon Society).
    (vi) Any person or group that has specifically requested involvement 
in the specific action or similar actions.
    (b) Public involvement should be solicited using the following 
processes and procedures:
    (1) Direct individual contact. Such limited contact may suffice for 
all required public involvement, when the expected environmental effect 
is of a very limited scope. This contact should identify:
    (i) Persons expected to express an opinion and later participate.
    (ii) Preliminary positions of such persons on the scope of issues 
that the analysis must address.
    (2) Small workshops or discussion groups.
    (3) Larger public gatherings that are held after some formulation of 
the potential issues, inviting the public to express views on the 
proposed courses of action. Public suggestions or additional alternative 
courses

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of action may be expressed at these gatherings which need not be formal 
public hearings.
    (4) Any other processes and procedures to accomplish the appropriate 
level of public involvement.
    (c) Scoping Guidance. All affected parties must be included in the 
scoping process (AR 360-5). The plan must include the following:
    (1) Information disseminated to local and installation communities 
through such means as news releases to local media, announcements to 
local citizens groups, and Commander's letters at each phase or 
milestone (more frequently if needed) of the project. Such information 
may be subject to Freedom of Information Act and operations security 
review.
    (2) Each phase or milestone (more frequently if needed) of the 
project will be coordinated with representatives of local, state, and 
federal government agencies.
    (3) Public comments will be invited and two-way communication 
channels will be kept open through various means as stated above.
    (4) Public affairs officers at all levels will be kept informed.
    (5) When an EIS is being prepared, public involvement is a requisite 
element of the scoping process (40 CFR 1501.7(a)(1)).
    (6) Preparation of EAs will incorporate public involvement processes 
whenever appropriate (40 CFR 1506.6).
    (7) Persons and agencies to be consulted include the following:
    (i) Municipal, township, and county elected and appointed officials.
    (ii) Tribal, state, county, and local government officials and 
administrative personnel whose official duties include responsibility 
for activities or components of the affected environment related to the 
proposed Army action.
    (iii) Local and regional administrators of other federal agencies or 
commissions that may either control resources potentially affected by 
the proposed action (for example, the U.S. Fish and Wildlife Service); 
or who may be aware of other actions by different federal agencies whose 
effects must be considered with the proposed Army action, (for example, 
the GSA).
    (iv) Members of identifiable population segments within the 
potentially affected environments, whether or not they have clearly 
identifiable leaders or an established organization such as farmers and 
ranchers, homeowners, small business owners, and Indian tribes.
    (v) Members and officials of those identifiable interest groups of 
local or national scope that may have interest in the environmental 
effects of the proposed action or activity (for example, hunters and 
fishermen, Isaak Walton League, Sierra Club, and the Audubon Society).
    (vi) Any person or group that has specifically requested involvement 
in the specific action or similar actions.
    (8) The public involvement processes and procedures by which 
participation may be solicited include the following:
    (i) The direct individual contact process identifies persons 
expected to express an opinion and participate in later public meetings. 
Direct contact may also identify the preliminary positions of such 
persons on the scope of issues that the EIS will address. Such limited 
contact may suffice for all required public involvement, when the 
expected environmental effect is of very limited scope.
    (ii) Small workshops or discussion groups.
    (iii) Larger public gatherings that are held after some formulation 
of the potential issues. The public is invited to express its views on 
the proposed courses of action. Public suggestions or alternative 
courses of action not already identified may be expressed at these 
gatherings that need not be formal public hearings.
    (iv) Identifying and applying other processes and procedures to 
accomplish the appropriate level of public involvement.
    (9) The meetings described above should not be public hearings in 
the early stages of evaluating a proposed action. Public hearings do not 
substitute for the full range of public involvement procedures under the 
purposes and intent of (a) of this appendix.
    (10) Public surveys or polls to identify public opinion of a 
proposed action will be performed (AR 335-15, chapter 10).
    (d) Preparing the Notice of Intent. In preparing the NOI, the 
proponent will:
    (1) In the NOI, identify the significant issues to be analyzed in 
the EIS.
    (2) In the NOI, identify the office or person responsible for 
matters related to the scoping process. If they are not the same as the 
proponent of the action, make that distinction.
    (3) Identify the lead and cooperating agency, if already determined 
(40 CFR 1501.5 and 1501.6).
    (4) Identify the method by which the agency will invite 
participation of affected parties; and identify a tentative list of the 
affected parties to be notified.
    (5) Identify the proposed method for accomplishing the scoping 
procedure.
    (6) Indicate the relationship between the timing of the preparation 
of environmental analyses and the tentative planning and decision-making 
schedule including:
    (i) The scoping process itself.
    (ii) Collecting or analyzing environmental data, including studies 
required of cooperating agencies.
    (iii) Preparation of DEISs and FEISs.
    (iv) Filing of the ROD.
    (v) Taking the action.

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    (7) For a programmatic EIS, preparing a general expected schedule 
for future specific implementing actions that will involve separate 
environmental analysis.
    (8) If applicable, in the NOI, identify the extent to which the EIS 
preparation process is exempt from any of the normal procedural 
requirements of this part, including scoping.



    Sec. Appendix E to Part 651--Content of the Environmental Impact 
                                Statement

    (a) EISs will:
    (1) Be analytic rather than encyclopedic. Impacts will be discussed 
in proportion to their significance; and insignificant impacts will only 
be briefly discussed, sufficient to show why more analysis is not 
warranted.
    (2) Be kept concise and no longer than absolutely necessary to 
comply with NEPA, CEQ regulations, and this part. Length should be 
determined by potential environmental issues, not project size. The EIS 
should be no longer than 300 pages.
    (3) Describe the criteria for selecting alternatives, and discuss 
those alternatives, including the ``no action'' alternative, to be 
considered by the ultimate decision maker.
    (4) Serve as a means to assess environmental impacts of proposed 
military actions, rather than justifying decisions.
    (b) The EIS will consist of the following:
    (1) Cover sheet. The cover sheet will not exceed one page (40 CFR 
1502.11) and will be accompanied by a signature page for the proponent, 
designated as preparer; the installation environmental office (or other 
source of NEPA expertise), designated as reviewer; and the Installation 
Commander (or other Activity Commander), designated as approver. It will 
include:
    (i) The following statement: ``The material contained in the 
attached (final or draft) EIS is for internal coordination use only and 
may not be released to non-Department of Defense agencies or individuals 
until coordination has been completed and the material has been cleared 
for public release by appropriate authority.'' This sheet will be 
removed prior to filing the document with the EPA.
    (ii) A list of responsible agencies including the lead agency and 
any cooperating agency.
    (iii) The title of the proposed action that is the subject of the 
statement and, if appropriate, the titles of related cooperating agency 
actions, together with state and county (or other jurisdiction as 
applicable) where the action is located.
    (iv) The name, address, and telephone number of the person at the 
agency who can supply further information, and, as appropriate, the name 
and title of the major approval authority in the command channel through 
HQDA staff proponent.
    (v) A designation of the statement as a draft, final, or draft or 
final supplement.
    (vi) A one-paragraph abstract of the statement that describes only 
the need for the proposed action, alternative actions, and the 
significant environmental consequences of the proposed action and 
alternatives.
    (vii) The date by which comments must be received, computed in 
cooperation with the EPA.
    (2) Summary. The summary will stress the major conclusions of 
environmental analysis, areas of controversy, and issues yet to be 
resolved. The summary presentation will focus on the scope of the EIS, 
including issues that will not be evaluated in detail. It should list 
all federal permits, licenses, and other entitlements that must be 
obtained prior to proposal implementation. Further, a statement of 
compliance with the requirements of other federal environmental 
protection laws will be included (40 CFR 1502.25). To simplify 
consideration of complex relationships, every effort will be made to 
present the summary of alternatives and their impacts in a graphic 
format with the narrative. The EIS summary should be written at the 
standard middle school reading level. This summary should not exceed 15 
pages. An additional summary document will be prepared for separate 
submission to the DEP and the ASA(I&E). This will identify progress ``to 
the date,'' in addition to the standard EIS summary which:
    (i) Summarizes the content of the document (from an oversight 
perspective).
    (ii) Outlines mitigation requirements (to improve mitigation 
tracking and the programming of funds).
    (iii) Identifies major and unresolved issues and potential 
controversies. For EIS actions that have been delegated by the ASA(I&E), 
this document will also include status of requirements and conditions 
established by the delegation letter.
    (3) Table of contents. This section will provide for the table of 
contents, list of figures and tables, and a list of all referenced 
documents, including a bibliography of references within the body of the 
EIS. The table of contents should have enough detail so that searching 
for sections of text is not difficult.
    (4) Purpose of and need for the action. This section should clearly 
state the nature of the problem and discuss how the proposed action or 
range of alternatives would solve the problem. This section will briefly 
give the relevant background information on the proposed action and 
summarize its operational, social, economic, and environmental 
objectives. This section is designed specifically to call attention to 
the benefits of the proposed action. If a cost-benefit analysis has been 
prepared for the proposed action, it may be included here, or attached 
as an appendix and referenced here.

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    (5) Alternatives considered, including proposed action and no action 
alternative. This section presents all reasonable alternatives and their 
likely environmental impacts, written in simple, nontechnical language 
for the lay reader. A no action alternative must be included (40 CFR 
1502.14(d)). A preferred alternative need not be identified in the DEIS; 
although a preferred alternative generally must be included in the FEIS 
(40 CFR 1502.14(e)). The environmental impacts of the alternatives 
should be presented in comparative form, thus sharply defining the 
issues and providing a clear basis for choice among the options that are 
provided the decision maker and the public (40 CFR 1502.14). The 
information should be summarized in a brief, concise manner. The use of 
graphics and tabular or matrix format is encouraged to provide the 
reviewer with an at-a-glance review. In summary, the following points 
are required:
    (i) A description of all reasonable alternatives, including the 
preferred action, alternatives beyond DA jurisdiction (40 CFR 
1502.14(c)), and the no action alternative.
    (ii) A comparative presentation of the environmental consequences of 
all reasonable alternative actions, including the preferred alternative.
    (iii) A description of the mitigation measures and/or monitoring 
procedures (Sec.  651.15) nominated for incorporation into the proposed 
action and alternatives, as well as mitigation measures that are 
available but not incorporated and/or monitoring procedures (Sec.  
651.15).
    (iv) Listing of any alternatives that were eliminated from detailed 
study. A brief discussion of the reasons for which each alternative was 
eliminated.
    (6) Affected environment (baseline conditions) that may be impacted. 
This section will contain information about existing conditions in the 
affected areas in sufficient detail to understand the potential effects 
of the alternatives under consideration (40 CFR 1502.15). Affected 
elements could include, for example, biophysical characteristics 
(ecology and water quality); land use and land use plans; architectural, 
historical, and cultural amenities; utilities and services; and 
transportation. This section will not be encyclopedic. It will be 
written clearly and the degree of detail for points covered will be 
related to the significance and magnitude of expected impacts. Elements 
not impacted by any of the alternatives need only be presented in 
summary form, or referenced.
    (7) Environmental and socioeconomic consequences. This section forms 
the scientific and analytic basis for the comparison of impacts. It 
should discuss:
    (i) Direct effects and their significance.
    (ii) Indirect effects and their significance.
    (iii) Possible conflicts between the proposed action and existing 
land use plans, policies, and controls.
    (iv) Environmental effects of the alternatives, including the 
proposed action and the no action alternative.
    (v) Energy requirements and conservation potential of various 
alternatives and mitigation measures.
    (vi) Irreversible and irretrievable commitments of resources 
associated with the proposed action.
    (vii) Relationship between short-term use of the environment and 
maintenance and enhancement of long-term productivity.
    (viii) Urban quality, historic, and cultural resources, and design 
of the built environment, including the reuse and conservation potential 
of various alternatives and mitigation measures.
    (ix) Cumulative effects of the proposed action in light of other 
past, present, and foreseeable actions.
    (x) Means to mitigate or monitor adverse environmental impacts.
    (xi) Any probable adverse environmental effects that cannot be 
avoided.
    (8) List of preparers. The EIS will list the names of its preparers, 
together with their qualifications (expertise, experience, and 
professional disciplines) (40 CFR 1502.17), including those people who 
were primarily responsible for preparing (research, data collection, and 
writing) the EIS or significant background or support papers, and basic 
components of the statement. When possible, the people who are 
responsible for a particular analysis, as well as an analysis of 
background papers, will be identified. If some or all of the preparers 
are contractors' employees, they must be identified as such. 
Identification of the firm that prepared the EIS is not, by itself, 
adequate to meet the requirements of this point. Normally, this list 
will not exceed two pages. Contractors will execute disclosure 
statements specifying that they have no financial or other interest in 
the outcome of the project. These statements will be referenced in this 
section of the EIS.
    (9) Distribution list. For the DEIS, a list will be prepared 
indicating from whom review and comment is requested. The list will 
include public agencies and private parties or organizations. The 
distribution of the DEIS and FEIS will include the CBTDEVs from whom 
comments were requested, irrespective of whether they provided comments.
    (10) Index. The index will be an alphabetical list of topics in the 
EIS, especially of the types of effects induced by the various 
alternative actions. Reference may be made to either page number or 
paragraph number.
    (11) Appendices (as appropriate). If an agency prepares an appendix 
to an EIS, the appendix will consist of material prepared in

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connection with an EIS (distinct from material not so prepared and 
incorporated by reference), consist only of material that substantiates 
any analysis fundamental to an impact statement, be analytic and 
relevant to the decision to be made, and be circulated with the EIS or 
readily available.



                  Sec. Appendix F to Part 651--Glossary

                        Section I--Abbreviations

                                   AAE

    Army Acquisition Executive.

                                 AAPPSO

    Army Acquisition Pollution Prevention Support Office.

                                  ACAT

    Acquisition Category.

                                  ACSIM

    Assistant Chief of Staff for Installation Management.

                                  ADNL

    A-weighted day-night levels.

                                  AQCR

    Air Quality Control Region.

                                   AR

    Army Regulation.

                                  ARNG

    Army National Guard.

                                 ARSTAF

    Army Staff.

                                ASA(AL&T)

    Assistant Secretary of the Army (Acquisition, Logistics, and 
Technology).

                                 ASA(FM)

    Assistant Secretary of the Army for Financial Management.

                                ASA(I&E)

    Assistant Secretary of the Army (Installations and Environment).

                                ASD(ISA)

    Assistant Secretary of Defense (International Security Affairs).

                                  CARD

    Cost Analysis Requirements Description.

                                 CBTDEV

Combat Developer.

                                   CEQ

    Council on Environmental Quality.

                                 CERCLA

    Comprehensive Environmental Response Compensation and Liability Act.

                                  CDNL

    C-Weighted Day-Night Levels.

                                   CFR

    Code of Federal Regulations.

                                  CONUS

    Continental United States.

                                   CX

    Categorical Exclusion.

                                   DA

    Department of the Army.

                                   DAD

    Defense Acquisition Deskbook.

                               DASA(ESOH)

    Deputy Assistant Secretary of the Army (Environment, Safety, and 
Occupational Health).

                                 DCSLOG

    Deputy Chief of Staff for Logistics.

                                 DCSOPS

    Deputy Chief of Staff for Operations and Plans.

                                  DEIS

    Draft Environmental Impact Statement.

                                   DEP

    Director of Environmental Programs.

                                   DOD

    Department of Defense.

                                  DOPAA

    Description of Proposed Action and Alternatives.

                                   DSA

    Deputy for System Acquisition.

                                  DTIC

    Defense Technical Information Center.

                                 DTLOMS

    Doctrine, Training, Leader Development, Organization, Materiel, and 
Soldier.

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                                DUSD(IE)

    Deputy Under Secretary of Defense for Installations and Environment.

                                   EA

    Environmental Assessment.

                                   EBS

    Environmental Baseline Studies.

                                   EC

    Environmental Coordinator.

                                  ECAP

    Environmental Compliance Achievement Program.

                                  ECAS

    Environmental Compliance Assessment System.

                                  EE/CA

    Engineering Evaluation/Cost Analysis.

                                  EICS

    Environmental Impact Computer System.

                                  EIFS

    Economic Impact Forecast System.

                                   EIS

    Environmental Impact Statement.

                                   EJ

    Environmental Justice.

                                   EOD

    Explosive Ordnance Demolition.

                                   EPA

    Environmental Protection Agency.

                                   EPR

    Environmental Program Requirements.

                                  EQCC

    Environmental Quality Control Committee.

                                   ESH

    Environment, Safety, and Health.

                                   FAA

    Federal Aviation Administration.

                                  FEIS

    Final Environmental Impact Statement.

                                  FNSI

    Finding of No Significant Impact.

                                   FR

    Federal Register.

                                   FS

    Feasibility Study.

                                   FTP

    Full-Time Permanent.

                                   GC

    General Counsel.

                                  GOCO

    Government-Owned, Contractor-Operated.

                                   GSA

    General Services Administration.

                                  HQDA

    Headquarters, Department of the Army.

                                  ICRMP

    Integrated Cultural Resources Management Plan.

                                   ICT

    Integrated Concept Team.

                                  INRMP

    Integrated Natural Resources Management Plan.

                                   IPT

    Integrated Process Team.

                                  ISCP

    Installation Spill Contingency Plan.

                                   ISR

    Installation Status Report.

                                  ITAM

    Integrated Training Area Management.

                                  LCED

    Life Cycle Environmental Documentation.

                                  MACOM

    Major Army Command.

                                 MATDEV

    Materiel Developer.

                                   MDA

    Milestone Decision Authority.

                                   MFA

    Materiel Fielding Agreement.

                                   MFP

    Materiel Fielding Plan.

[[Page 345]]

                                 MILCON

    Military Construction.

                                   MNS

    Mission Needs Statement.

                                   MOA

    Memorandum of Agreement.

                                   MOU

    Memorandum of Understanding.

                                 NAGPRA

    Native American Graves Protection and Repatriation Act.

                                  NEPA

    National Environmental Policy Act.

                                   NGB

    National Guard Bureau.

                                  NHPA

    National Historic Preservation Act.

                                   NOA

    Notice of Availability.

                                   NOI

    Notice of Intent.

                                   NPR

    National Performance Review.

                                   NRC

    Nuclear Regulatory Commission.

                                   NWR

    Notice of Availability of Weekly Receipts (EPA).

                                OASD(PA)

    Office of the Assistant Secretary of Defense for Public Affairs.

                                  OCLL

    Office of the Chief of Legislative Liaison.

                                  OCPA

    Office of the Chief of Public Affairs.

                                  ODEP

    Office of the Director of Environmental Programs.

                                   OFS

    Officer Foundation Standards.

                                   OGC

    Office of General Counsel.

                                  OIPT

    Overarching Integrated Process Team.

                                   OMA

    Operations and Maintenance Army.

                                  OMANG

    Operations and Maintenance Army National Guard.

                                  OMAR

    Operations and Maintenance Army Reserve.

                                  OOTW

    Operations Other Than War.

                                  OPSEC

    Operations Security.

                                   ORD

    Operating Requirements Document.

                                   OSD

    Office of the Secretary of Defense.

                                   OSG

    Office of the Surgeon General.

                                   PAO

    Public Affairs Officer.

                                   PCB

    Polychlorinated Biphenyls.

                                  PDEIS

    Preliminary Draft Environmental Impact Statement.

                                   PEO

    Program Executive Officer.

                                   PM

    Program Manager.

                                   POC

    Point of Contact.

                                   POL

    Petroleum, Oils, and Lubricants.

                                  PPBES

    Program Planning and Budget Execution System.

                                  RCRA

    Resource Conservation and Recovery Act.

                                  RDT&E

    Research, Development, Test, and Evaluation.

[[Page 346]]

                                   REC

    Record of Environmental Consideration.

                                   ROD

    Record of Decision.

                                  RONA

    Record of Non-Applicability.

                                   RSC

    Regional Support Command.

                                   S&T

    Science and Technology.

                                   SA

    Secretary of the Army.

                                  SARA

    Superfund Amendments and Reauthorization Act.

                                  SASO

    Stability and Support Operations.

                                  SOFA

    Status of Forces Agreement.

                                  SPCCP

    Spill Prevention Control and Countermeasure Plan.

                                   TDP

    Technical Data Package.

                                   TDY

    Temporary Duty.

                                  TEMP

    Test and Evaluation Master Plan.

                                  TJAG

    The Judge Advocate General.

                                   TOE

    Table of Organization Equipment.

                                 TRADOC

    U.S. Army Training and Doctrine Command.

                                  USACE

    U.S. Army Corps of Engineers.

                                USACHPPM

    U.S. Army Center for Health Promotion and Preventive Medicine.

                                  USAEC

    U.S. Army Environmental Center.

                                 U.S.C.

    United States Code.

                            Section II--Terms

                          Categorical Exclusion

    A category of actions that do not require an EA or an EIS because 
Department of the Army (DA) has determined that the actions do not have 
an individual or cumulative impact on the environment.

      Environmental (or National Environmental Policy Act) Analysis

    This term, as used in this part, will include all documentation 
necessary to coordinate and staff analyses or present the results of the 
analyses to the public or decision maker.

                           Foreign Government

    A government, regardless of recognition by the United States, 
political factions, and organizations, that exercises governmental power 
outside the United States.

                             Foreign Nations

    Any geographic area (land, water, and airspace) that is under the 
jurisdiction of one or more foreign governments. It also refers to any 
area under military occupation by the United States alone or jointly 
with any other foreign government. Includes any area that is the 
responsibility of an international organization of governments; also 
includes contiguous zones and fisheries zones of foreign nations.

                             Global Commons

    Geographical areas outside the jurisdiction of any nation. They 
include the oceans outside territorial limits and Antarctica. They do 
not include contiguous zones and fisheries zones of foreign nations.

             Headquarters, Department of the Army proponent

    As the principal planner, implementer, and decision authority for a 
proposed action, the HQDA proponent is responsible for the substantive 
review of the environmental documentation and its thorough consideration 
in the decision-making process.

                          Major Federal Action

    Reinforces, but does not have a meaning independent of, 
``significantly affecting the environment,'' and will be interpreted in 
that context. A federal proposal with ``significant effects'' requires 
an EIS, whether it is ``major'' or not. Conversely, a ``major federal 
action'' without ``significant effects'' does not necessarily require an 
EIS.

[[Page 347]]

                                Preparers

    Personnel from a variety of disciplines who write environmental 
documentation in clear and analytical prose. They are primarily 
responsible for the accuracy of the document.

                                Proponent

    Proponent identification depends on the nature and scope of a 
proposed action as follows:
    (1) Any Army structure may be a proponent. For instance, the 
installation/activity Facility Engineer (FE)/Director of Public Works 
becomes the proponent of installation-wide Military Construction Army 
(MCA) and Operations and Maintenance (O&M) Activity; Commanding General, 
TRADOC becomes the proponent of a change in initial entry training; and 
the Program Manager becomes the proponent for a major acquisition 
program. The proponent may or may not be the preparer.
    (2) In general, the proponent is the unit, element, or organization 
that is responsible for initiating and/or carrying out the proposed 
action. The proponent has the responsibility to prepare and/or secure 
funding for preparation of the environmental documentation.

                 Significantly Affecting the Environment

    The significance of an action's, program's, or project's effects 
must be evaluated in light of its context and intensity, as defined in 
40 CFR 1508.27.

              Section III--Special Abbreviations and Terms

    This part uses the following abbreviations, brevity codes or 
acronyms not contained in AR 310-50. These include use for electronic 
publishing media and computer terminology, as follows:
    WWW World Wide Web.

                        PARTS 652	654 [RESERVED]



PART 655_RADIATION SOURCES ON ARMY LAND--Table of Contents



    Authority: 10 U.S.C. 3013.

    Source: 76 FR 6693, Feb. 8, 2011, unless otherwise noted.



Sec.  Subch. L  Oversight of radiation sources brought on Army land 
by non-Army entities (AR 385-10).

    (a) As used in this section:
    Agreement State has the same meaning as provided in 10 CFR 30.4.
    Byproduct material has the same meaning as provided in 10 CFR 
20.1003.
    Radiation has the same meaning as provided in 10 CFR 20.1003.
    Radioactive material includes byproduct material, source material, 
and special nuclear material.
    Source material has the same meaning as provided in 10 CFR 20.1003.
    Special nuclear material has the same meaning as provided in 10 CFR 
20.1003.
    (b) Army radiation permits are required for use, storage, or 
possession of ionizing radiation sources by non-Army entities (including 
their civilian contractors) on an Army installation. Such use, storage, 
or possession of ionizing radiation sources must be in connection with 
an activity of the Department of Defense or in connection with a service 
to be performed on the installation for the benefit of the Department of 
Defense, in accordance with 10 U.S.C. 2692(b)(1). Approval by the 
garrison commander is required to obtain an Army radiation permit. For 
the purposes of this section, an ionizing radiation source is:
    (1) Radioactive material used, stored, or possessed under the 
authority of a specific license issued by the Nuclear Regulatory 
Commission (NRC) or an Agreement State (10 CFR parts 30, 40, and 70 or 
the equivalent regulations of an Agreement State); or
    (2) A machine-produced ionizing radiation source capable of 
producing an area, accessible to individuals, in which radiation levels 
could result in an individual receiving a dose equivalent in excess of 
0.1 rem (1 mSv) in 1 hour at 30 centimeters from the ionizing radiation 
source or from any surface that the radiation penetrates.
    (c) A permit is not required for non-Army entities (including their 
civilian contractors) that use Army licensed radioactive material on an 
Army installation in coordination with the Army NRC licensee. The non-
Army entity must obtain permission from the Army NRC licensee to use the 
radioactive materials and be in compliance with all of the Army NRC 
license conditions prior to beginning work on Army land.
    (d) Other Military Departments are exempt from the requirement of 
paragraph (b) of this section to obtain an Army radiation permit; 
however, the garrison Radiation Safety Officer

[[Page 348]]

(RSO) must be notified prior to ionizing radiation sources being brought 
onto the installation.
    (e) Applicants will apply for an Army radiation permit by letter 
with supporting documentation (paragraph (f) of this section) to the 
garrison commander through the appropriate tenant commander or garrison 
director. Submit the letter so that the garrison commander receives the 
application at least 30 calendar days before the requested effective 
date of the permit.
    (f) The Army radiation permit application will include a proposed 
effective date and duration (not to exceed 12 months) for the Army 
radiation permit and describe the purposes for which the ionizing 
radiation source will be used. The application will include: 
Identification of the trained operating personnel who will be 
responsible for implementation of the activities authorized by the 
permit and a summary of their professional qualifications; the 
applicant's point-of-contact name and phone number; the applicant's 
radiation safety Standing Operating Procedures (SOPs); storage 
provisions when the ionizing radiation source is not in use; and 
procedures for notifying the garrison of reportable incidents/accidents.
    (g) The garrison commander may approve the application only if the 
applicant provides evidence to show that one of the following is true:
    (1) The applicant possesses a valid NRC license or Department of 
Energy (DOE) radiological work permit that allows the applicant to use 
the ionizing radiation source in the manner requested in the Army 
radiation permit application;
    (2) The applicant possesses a valid Agreement State license that 
allows the applicant to use the ionizing radiation source in the manner 
requested in the Army radiation permit application. An applicant 
operating in areas subject to exclusive Federal jurisdiction (Agreement 
States Letter SP-96-022) has to file a NRC Form-241, Report of Proposed 
Activities in Non-Agreement States, with the NRC in accordance with 10 
CFR 150.20(b);
    (3) For machine-produced ionizing radiation sources, the applicant 
has an appropriate State authorization that allows the applicant to use 
the ionizing radiation source as requested in the Army radiation permit 
application and has in place a radiation safety program that complies 
with applicable Army regulations; or
    (4) For installations outside of the United States, the applicant 
has an appropriate host-nation authorization as necessary that allows 
the applicant to use the ionizing radiation source in the manner 
requested in the Army radiation permit application and has in place a 
radiation safety program that complies with applicable Army regulations 
and host nation laws and regulations.
    (h) Applicants and permit holders shall comply with all applicable 
Federal, state, interstate, and local laws and regulations, status-of-
forces agreements (SOFAs), and other international agreements.
    (i) Each Army radiation permit will require the permit holder to 
remove its permitted ionizing radiation sources from Army property prior 
to the expiration of the permit and restore all real or personal 
property of the Army that was modified, altered, or otherwise changed as 
a result of the permit holder's activities to the condition such 
property was in prior to the effective date of the permit.
    (j) An Army radiation permit issued pursuant to this section shall 
be valid for no more than 12 months.
    (k) Disposal of radioactive material by non-Army entities on Army 
property is prohibited. However, the garrison commander may give written 
authorization for releases of radioactive material to the atmosphere or 
to the sanitary sewerage system if such releases are in compliance with 
all applicable Federal, State, interstate, and local laws and 
regulations, including but not limited to, the NRC regulations at 10 CFR 
part 20, Subpart K, or the equivalent requirements of an Agreement 
State, and regulations issued by the Army or the Department of Defense, 
to include compliance with any applicable requirement to obtain a 
permit, license, or other authorization, or to submit any information, 
notification, or report for such release.

                        PARTS 656	667 [RESERVED]

[[Page 349]]



                SUBCHAPTER L_ARMY CONTRACTING [RESERVED]



                        PARTS 668	699 [RESERVED]

[[Page 351]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 353]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2018)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

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     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 355]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 356]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)

[[Page 357]]

         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 358]]

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)

[[Page 359]]

      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)

[[Page 360]]

        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)

[[Page 361]]

       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)

[[Page 362]]

        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)

[[Page 363]]

      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Parts 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

[[Page 364]]

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)

[[Page 365]]

        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)

[[Page 366]]

        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  (Parts 1100--1199) [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

[[Page 367]]

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]

[[Page 368]]

            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)

[[Page 369]]

       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

[[Page 370]]

        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]

[[Page 371]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 372]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 373]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2018)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII

[[Page 374]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Career, Technical and Adult Education, Office of  34, IV
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, XI; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense Contract Audit Agency                     32, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I

[[Page 375]]

  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical and Adult Education, Office   34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Career, Technical, and Adult Education, Office  34, IV
       of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99

[[Page 376]]

  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV

[[Page 377]]

Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI

[[Page 378]]

Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Enforcement Bureau, Bureau of        30, II
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI

[[Page 379]]

  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VII
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI

[[Page 380]]

  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 5, IV; 45, 
                                                  VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV

[[Page 381]]

Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of                           2, X;5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI

[[Page 382]]

Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 383]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2013 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2013

32 CFR
                                                                   78 FR
                                                                    Page
Chapter V
633.11 Revised.....................................................29019
633.13 Revised.....................................................29019

                                  2014

                       (No regulations published)

                                  2015

32 CFR
                                                                   80 FR
                                                                    Page
Chapter V
635 Revised; interim...............................................28549

                                  2016

32 CFR
                                                                   81 FR
                                                                    Page
Chapter V
635 Regulation at 80 FR 28549 confirmed............................17385
635.1 Amended......................................................17386
635.3 (c) introductory text and (2) amended........................17386
635.5 (b) revised; (d), (e) introductory text and (4) amended......17386
635.6 (c) amended; (e)(1) and (2) revised..........................17386
    (a) revised....................................................78912
635.8 (d)(3) amended...............................................17386
635.17 (b) introductory text amended...............................17386

                                  2017

                       (No regulations published)

                                  2018

    Regulations published from January 1, 2018, through July 1, 2018

32 CFR
                                                                   83 FR
                                                                    Page
Chapter V
632 Removed........................................................24405
636 Removed........................................................24405


                                  [all]