[Federal Register Volume 60, Number 158 (Wednesday, August 16, 1995)]
[Rules and Regulations]
[Pages 42466-42469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20180]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 387

[Docket No. R-157]
RIN No. 2133-AB18


Utilization and Disposal of Surplus Federal Real Property for 
Development or Operation of a Port Facility

AGENCY: Maritime Administration, Department of Transportation.

ACTION: Final rule.

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

SUMMARY: This rule provides guidance for implementation by the 
Secretary of Transportation, acting by and through the Maritime 
Administrator, Maritime Administration (Secretary), of controlling 
regulations issued by the Administrator of General Services 
(Administrator), as authorized by Public Law 103-160. This rule 
prescribes the terms, reservations, restrictions, and conditions under 
which the Secretary will convey surplus Federal real property and 
related personal property to public entities for use in the development 
or operation of a port facility.

EFFECTIVE DATE: This rule is effective August 16, 1995.

FOR FURTHER INFORMATION CONTACT: James R. Carman, Acting Chief, 
Division of Ports, Maritime Administration, MAR-830, Room 7201, 400 
Seventh Street, SW., Washington, DC, 20590, (202) 366-4357.

SUPPLEMENTARY INFORMATION: Due to the downsizing of the United States 
Government, surplus Federal real property and related personal property 
is becoming available which may be suitable for the development or 
operation of a port facility. Section 2927 of the National Defense 
Authorization Act for Fiscal Year 1994, enacted November 30, 1993, 
Public Law 103-160, amended Section 203 of the Federal Property and 
Administrative Services Act of 1949 (40 U.S.C. 484) to provide that 
under such regulations as the Administrator, after consultation with 
the Secretary of Defense, may prescribe, the Administrator or the 
Secretary of Defense, in the case of property located at a military 
installation closed or realigned pursuant to a base closure law, may, 
in his or her discretion, assign to the Secretary for disposal such 
surplus real property, including buildings, fixtures, and equipment 
situated thereon, as is recommended by the Secretary as being needed 
for the development or operation of a port facility. The 

[[Page 42467]]
Secretary of Transportation delegated the authority to convey such real 
and personal surplus Federal property to the Maritime Administrator (59 
FR 36987, July 20, 1994). The Administrator has issued a final rule (60 
FR 35706, July 11, 1995).
    This rule establishes the terms, reservations, restrictions, and 
conditions of the conveyance, as required by Public Law 103-160, which 
are consistent with the controlling regulations at 41 CFR 101-47.308-
10. Most of the terms, reservations, restrictions, and conditions used 
in this rule are found in other surplus Federal property conveyance 
program regulations of Federal agencies. The port facility definition 
is new and was developed by the Secretary to implement the conveyance 
program.

Rulemaking Analyses and Notices

    This rulemaking has been reviewed under Executive Order 12866 and 
Department of Transportation Regulatory Policies and Procedures (44 FR 
11034, February 26, 1979). It is not considered to be an economically 
significant regulatory action under Section 3(f) of E.O. 12866, since 
it has been determined that it is not likely to result in a rule that 
may have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This rule would not significantly affect other Federal 
agencies; would not materially alter budgetary impacts; does not raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities or the principles set forth in E.O. 12866, and 
has been determined to be a nonsignificant rule under the Department 
Regulatory Policies and Procedures. Accordingly, it is not considered 
to be a significant regulatory action under E.O. 12866. Since this is a 
matter relating to public property it is exempt from the notice 
requirements of the Administrative Procedure Act (5 U.S.C. 553 (a)(2)). 
Furthermore, it is necessary to finalize guidelines to facilitate and 
expedite the selection of the recipients of properties and the actual 
conveyance.
    This rule has not been reviewed by the Office of Management and 
Budget.

Federalism

    The Secretary has analyzed this rulemaking in accordance with the 
principles and criteria contained in Executive Order 12612 and has 
determined that these regulations do not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.
Regulatory Flexibility Act

    The Secretary certifies that this rulemaking will not have a 
significant economic impact on a substantial number of small entities.

Environmental Assessment

    The Secretary has considered the environmental impact of this 
rulemaking and has concluded that the Secretary, as a sponsoring agency 
under the port facility conveyance, is not required to prepare an 
environmental assessment under the National Environmental Policy Act of 
1969 (NEPA). The Secretary will insure that the reuse plan submitted by 
an applicant complies with the provisions of NEPA as prepared by the 
disposal agency.

Paperwork Reduction Act

    This rulemaking contains a reporting requirement that is subject to 
the Office of Management and Budget (OMB) approval under 5 CFR Part 
1320, pursuant to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 
et seq.), as amended, and is being (or has been) submitted.

List of Subjects in 46 CFR Part 387

    Government property management, Surplus Government property.

    Accordingly, new 46 CFR Part 387 is added to read as follows:

PART 387--UTILIZATION AND DISPOSAL OF SURPLUS FEDERAL REAL PROPERTY 
FOR DEVELOPMENT OR OPERATION OF A PORT FACILITY

Sec.
12.1  Scope.
12.2  Definitions.
12.3  Notice of availability of surplus property.
12.4  Applications.
12.5  Surplus property assignment recommendation.
12.6  Terms, reservations, restrictions, and conditions of 
conveyance.

    Authority: Pub. L. 103-160, 107 stat. 1933 (40 U.S.C. 484 (q))


Sec. 12.1  Scope.

    This part is applicable to Surplus Property that is recommended by 
the Secretary as being needed for the development or operation of a 
Port Facility and is appropriate for being assigned to, or that has 
been assigned to the Secretary for conveyance as provided for in Public 
Law 103-160 and 40 U.S.C. 471 et seq.
Sec. 12.2  Definitions.

    (a) Act means the Federal Property and Administrative Services Act 
of 1949 as amended, 40 U.S.C. 471 et seq., and 41 CFR 101-47. Terms 
defined in the Act and not defined in this section have the meanings 
given to them in the Act.
    (b) Applicant means any State, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, 
the Trust Territory of the Pacific Islands, the Commonwealth of the 
Northern Mariana Islands, or any political subdivision, municipality, 
or instrumentality thereof, that has submitted an application to the 
Secretary to obtain surplus Federal property.
    (c) Disposal Agency means the executive agency of the Government 
which has authority to assign property to the Secretary for conveyance 
for development or operation of a port facility.
    (d) Grantee means the Applicant to which surplus Federal property 
is conveyed.
    (e) Grantor means the Secretary.
    (f) Port Facility means any structure and improved property, 
including services connected therewith, whether located on the 
waterfront or inland, which is used or intended for use in developing, 
transferring, or assisting maritime commerce and water dependent 
industries, including, but not limited to, piers, wharves, yards, 
docks, berths, aprons, equipment used to load and discharge cargo and 
passengers from vessels, dry and cold storage spaces, terminal and 
warehouse buildings, bulk and liquid storage terminals, tank farms, 
multimodal transfer terminals, transshipment and receiving stations, 
marinas, foreign trade zones, shipyards, industrial property, fishing 
and aquaculture structures, mixed use waterfront complexes, connecting 
channels and port landside transportation access routes.
    (g) Secretary means the Secretary of Transportation acting by and 
through the Maritime Administrator, Maritime Administration by 
delegation of authority.
    (h) Surplus Property means Federal real and related personal 
property duly determined to be unneeded by a Federal agency which may 
be conveyed to an Applicant for use in the development or operation of 
a port facility.


Sec. 12.3  Notice of availability of surplus property.

    The Disposal Agency shall publish notices of availability of excess 
and surplus Federal real and personal property. The Secretary will 
advise eligible public port agencies, in an 

[[Page 42468]]
appropriate manner, of the availability of Surplus Property that is 
deemed to have port facility potential. Potential Applicants shall 
notify the Secretary, in writing, of a desire to acquire surplus 
Federal property before the expiration of the notice period specified 
in the Notice of Surplus Property--Government Property.


Sec. 12.4  Applications.

    Application forms for conveyance of Surplus Property can be 
obtained from the Maritime Administration, Division of Ports, 400 
Seventh Street, SW, Washington, DC 20590. The applicant shall identify 
on the application form the requested property, agree to the terms/
conditions of the conveyance and shall also submit a Port Facility 
Redevelopment Plan (PFRP) which details the plan of use for the 
property and the associated economic development plan.


Sec. 12.5  Surplus property assignment recommendation.

    Before any assignment recommendation is submitted to the Disposal 
Agency by the Secretary the following conditions shall be met:
    (a) The Secretary has received and approved an application for the 
property.
    (b) The Applicant is able, willing, and authorized to assume 
immediate possession of the property and pay administrative expenses 
incidental to the conveyance (application preparation, documentation, 
legal and land transfer costs).
    (c) The Secretary, after consultation with the Secretary of Labor, 
has determined that the property to be conveyed is located in an area 
of serious economic disruption.
    (d) The Secretary, after consultation with the Secretary of 
Commerce, approves the PFRP as part of a necessary economic development 
program.
    (e) The Secretary determines that the application complies with the 
provisions of the National Environmental Policy Act of 1969 as prepared 
by the Disposal Agency.


Sec. 12.6  Terms, reservations, restrictions, and conditions of 
conveyance.

    (a) Conveyances of property shall be on forms approved by, and 
available from the Secretary, and shall include such terms, 
reservations, restrictions and conditions set forth in this part and 
such other terms, reservations, restrictions and conditions as the 
Secretary may deem appropriate or necessary.
    (b) Property shall be conveyed by a quitclaim deed or deeds on an 
``as is, where is'' basis without any warranty, expressed or implied.
    (c) Property shall be used and maintained in perpetuity for the 
purpose for which it was conveyed, and that if the property ceases to 
be used or maintained for that purpose, all or any portion of the 
property shall, in its then existing condition, at the option of the 
Government, revert to the Government.
    (d) The entire Port Facility, including all structures, 
improvements, facilities and equipment in which the deed conveys any 
interest shall be maintained at all times in safe and serviceable 
condition, to assure its efficient operation and use, provided, 
however, that such maintenance shall be required as to structures, 
improvements, facilities and equipment only during the useful life 
thereof, as determined by the Grantor.
    (e) No property conveyed shall be mortgaged or otherwise disposed 
of, or rights or interest granted by the Grantee without the prior 
written consent of the Grantor. However, the Grantor will only review 
leases of five years or more to determine the interest granted therein.
    (f) Property conveyed for a Port Facility shall be used and 
maintained for the use and benefit of the public on fair and reasonable 
terms, without discrimination.
    (g) The Grantee shall, insofar as it is within its powers and to 
the extent reasonable, adequately protect the water and land access to 
the Port Facility.
    (h) The Grantee shall operate and maintain in a safe and 
serviceable condition, as deemed reasonably necessary by Grantor, the 
port and all facilities thereon and connected therewith which are 
necessary to service the maritime users of the Port Facility and will 
not permit any activity thereon which would interfere with its use as a 
Port Facility.
    (i) The Port Facility is subject to the provisions of Title 46 Code 
of Federal Regulations (CFR) Part 340.
    (j) The Grantee shall furnish the Grantor such financial, 
operational and annual utilization reports as may be required.
    (k) Where construction or major renovation is not required or 
proposed, the Port Facility shall be placed into use within twelve (12) 
months from the date of this conveyance. Where construction or major 
renovation is contemplated at the time of conveyance, the property 
shall be placed in service according to the redevelopment time table 
approved by the Grantor in the PFRP.
    (l) The Grantee shall not enter into any transaction which would 
operate to deprive it of any of the rights and powers necessary to 
perform or comply with any or all of the terms, reservations, 
restrictions and conditions set forth in the application and the deed.
    (m) The Grantee shall keep up to date at all times a Port Facility 
layout map of the property described herein showing:
    (1) the boundaries of the Port Facility and all proposed additions 
thereto, and
    (2) the location of all existing and proposed port facilities and 
structures, including all proposed extensions and reductions of 
existing port facilities.
    (n) In the event that any of the terms, reservations, restrictions 
and conditions are not met, observed, or complied with by the Grantee, 
the title, right of possession and all other rights conveyed by the 
deed to the Grantee, or any portion thereof, shall, at the option of 
the Grantor revert to the Government, in its then existing condition 
sixty (60) days following the date upon which demand to this effect is 
made in writing by Grantor or its successor in function, unless within 
said sixty (60) days such default or violation shall have been cured 
and all such terms, reservations, restrictions and conditions shall 
have been met, observed, or complied with, in which event said 
reversion shall not occur.
    (o) The deed will contain a severability clause dealing with the 
terms, reservations, restrictions and conditions of conveyance.
    (p) The Grantee shall remain at all times a State, the District of 
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the 
Virgin Islands, the Trust Territory of the Pacific Islands, the 
Commonwealth of the Northern Mariana Islands, or any political 
subdivision, municipality, or instrumentality thereof.
    (q) The Grantee shall comply at all times with all applicable 
provisions of law, including, the Water Resources Development Act of 
1990.
    (r) The Grantee shall not modify, amend or otherwise change its 
approved PFRP without the prior written consent of Grantor and shall 
implement the PFRP as approved by the Grantor.
    (s) The Government under Section 120 (h)(3) of the Comprehensive, 
Environmental Response, Compensation and Liability Act of 1980, as 
amended, warrants that:
    (1) all remedial action necessary to protect human health and the 
environment with respect to any hazardous substance on the property has 
been taken before the date of the conveyance, and
    (2) any additional remedial action found to be necessary after the 
date of 

[[Page 42469]]
the conveyance shall be conducted by the Government.
    (t) The Government reserves the right of access to any and all 
portions of the property for purposes of environmental investigation, 
remediation or other corrective action and compliance inspection 
purposes.
    (u) The Grantee shall agree that in the event, the Grantor 
exercises its option to revert all right, title, and interest in and to 
any portion of the property to the Government, or Grantee voluntarily 
returns title to the property in lieu of a reverter, the Grantee shall 
provide protection to, and maintenance of the property at all times 
until such time as the title is actually reverted or returned to and 
accepted by the Government. Such protection and maintenance shall, at a 
minimum, conform to the standards prescribed in regulations 
implementing the Act.
    (v) The Grantor expressly reserves from the conveyance:
    (1) oil, gas and mineral rights,
    (2) improvements without land,
    (3) military chapels, and
    (4) property disposed of pursuant to 204 (c) of the Act.
    (w) The Government reserves all right, title, and interest in and 
to all property of whatsoever nature not specifically conveyed, 
together with right of removal thereof from the Port Facility within 
one (1) year from the date of the deed.
    (x) The Grantee shall agree to maintain any portion of the property 
identified as ``historical'' in accordance with recommended approaches 
in the Secretary of Interior Standards for Historic Property at 16 
U.S.C. 461-470w-6.
    (y) Prior to the use of any property by children under seven (7) 
years of age, the Grantee shall remove all lead-based paint hazards and 
all potential lead-based paint hazards in accordance with applicable 
lead-based paint laws and regulations.
    (z) The Grantee agrees that any construction or alteration is 
prohibited unless a determination of no hazard to air navigation is 
issued by the Federal Aviation Administration.
    (aa) The Grantee shall agree that in its use and occupancy of the 
Port Facility it shall comply with all laws relating to asbestos.
    (bb) All construction on any portion of the property identified as 
``wetlands'' as determined by the appropriate District of the Army 
Corps of Engineers shall comply with Department of the Army Wetland 
Construction Restrictions contained in Title 33 CFR, Parts 320 through 
330.
    (cc) The Grantee shall agree to maintain, indemnify and hold 
harmless the Grantor and the Government from any and all claims, 
demands, costs or judgments for damages to persons or property that may 
arise from the use of the property by the Grantee, guests, employees 
and lessees.
    (dd) The Grantor, on written request from the Grantee, may grant 
release from any of the terms, reservations, restrictions and 
conditions contained in the deed, or the Grantor may release the 
Grantee from any terms, restrictions, reservations or conditions if the 
Grantor determines that the property so conveyed no longer serves the 
purpose for which it was conveyed.
    (ee) The Grantor shall make reforms, corrections or amendments to 
the deed if necessary to correct such deed or to conform such deed to 
the requirements of applicable law.

    Dated: August 10, 1995.

    By order of the Maritime Administrator.
Joel C. Richard,
Secretary, Maritime Administrator.
[FR Doc. 95-20180 Filed 8-15-95; 8:45 am]
BILLING CODE 4910-81-P