[Federal Register Volume 88, Number 53 (Monday, March 20, 2023)]
[Proposed Rules]
[Pages 16834-16867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04353]



[[Page 16833]]

Vol. 88

Monday,

No. 53

March 20, 2023

Part IV





Department of Housing and Urban Development





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24 CFR Part 581





General Services Administration





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41 CFR Part 102-75





Department of Health and Human Services





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45 CFR Part 12a





Use of Federal Real Property To Assist the Homeless: Revisions to 
Regulations; Proposed Rule

  Federal Register / Vol. 88, No. 53 / Monday, March 20, 2023 / 
Proposed Rules  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 581

[Docket No. FR 6119-P-01]
RIN 2506-AC49

GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-75

[3090-AK46]

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 12a

RIN 0991-AC14


Use of Federal Real Property To Assist the Homeless: Revisions to 
Regulations

AGENCY: Department of Housing and Urban Development, General Services 
Administration, and Department of Health and Human Services.

ACTION: Proposed rule.

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SUMMARY: The Department of Housing and Urban Development (HUD), the 
General Services Administration (GSA), and the Department of Health and 
Human Services (HHS) (the Agencies) each have distinct responsibilities 
in the administration of the Title V program, authorized by the 
McKinney-Vento Homeless Assistance Act. The program makes suitable 
Federal real properties categorized as underutilized, unutilized, 
excess, or surplus available to States, local government agencies, and 
501(c)(3) tax-exempt non-profit organizations for use to assist the 
homeless. In 2016, the Federal Assets Sales and Transfer Act amended 
Title V of the McKinney-Vento Homeless Assistance Act. This proposed 
rule would incorporate required statutory changes and current 
practices; update references and terminology that are now outdated; and 
revise procedures for more efficient program administration in the 
Agencies' regulations.

DATES: Comment Due Date: May 19, 2023.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule. All submissions must refer to the above docket 
number and title. There are two methods for submitting public comments.
    1. Submission of Comments by Mail. Comments regarding a particular 
agency or its portion of the proposed rule may be submitted by mail to 
the Regulations Division, Office of General Counsel, Department of 
Housing and Urban Development, 451 7th Street SW, Room 10276, 
Washington, DC 20410-0500; Theresa M. Ritta, Program Manager, Real 
Property Management Services, Real Estate Logistics and Operations, 
Program Support Center, ATTN: [RIN: 0991-AC14], 5600 Fishers Lane, 
Suite 6W66, Rockville, Maryland 20852, respectively. Comments for GSA 
must be submitted electronically.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. The Agencies strongly encourage commenters to 
submit comments electronically. Electronic submission of comments 
allows the commenter maximum time to prepare and submit a comment, 
ensures timely receipt, and enables the Agencies to make comments 
immediately available to the public. Comments submitted electronically 
through the www.regulations.gov website can be viewed by other 
commenters and interested members of the public. Commenters should 
follow the instructions provided on that site to submit comments 
electronically.

    Note:  To receive consideration as public comments, comments 
must be submitted through one of the two methods specified above. 
Again, all submissions must refer to the docket number and title of 
the rule.

    No Facsimile (FAX) Comments. FAX comments will not be considered.
    Public Inspection of Public Comments. HUD will make available all 
properly submitted comments and communications for public inspection 
and copying between 8 a.m. and 5 p.m. weekdays at the above HUD 
address. Due to security measures at the HUD Headquarters building, you 
must schedule an appointment in advance to review the public comments 
by calling the Regulations Division at 202-708-3055 (this is not a 
toll-free number). HUD welcomes and is prepared to receive calls from 
individuals who are deaf or hard of hearing, as well as individuals 
with speech or communication disabilities. To learn more about how to 
make an accessible telephone call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs. Copies of all 
comments submitted are also available for inspection and downloading at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For information regarding each 
agency's implementation of these regulations, the contact information 
for that agency follows.
    The Agencies welcome and are prepared to receive calls from 
individuals who are deaf or hard of hearing, as well as individuals 
with speech or communication disabilities. To learn more about how to 
make an accessible telephone call, please visit: https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.
    Department of Housing and Urban Development: Juanita Perry, Senior 
Program Specialist, Office of Special Needs Assistance Programs, 
Community Planning and Development, Department of Housing and Urban 
Development, 451 7th Street SW, Room 7262, Washington, DC 20140; 
[email protected]; telephone number (202)-402-3970 (this is not a toll-
free number).
    General Services Administration: Chris Coneeney, Director, Real 
Property Policy Division, Office of Government-wide Policy, at 202-208-
2956 or [email protected]. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or GSA at [email protected].
    Department of Health and Human Services: Theresa M. Ritta, Program 
Manager, Real Property Management Services; Telephone: (301) 443-2265; 
Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    In 1991, the Agencies jointly published a regulation (56 FR 23789 
(May 24, 1991)), codified at 24 CFR part 581, 41 CFR part 102-75, and 
45 CFR part 12a, implementing the provisions of Title V of the 
McKinney-Vento Homeless Assistance Act (McKinney-Vento Act or Title V) 
(42 U.S.C. 11411). The 1991 regulation established procedures for 
collecting information from landholding agencies about excess, surplus, 
unutilized, and underutilized properties under their control and the 
criteria for determining the properties' suitability for use as 
homeless assistance. It also provided procedures and timelines for the 
application process and agency review of submitted applications to use 
such properties for homeless assistance. The regulation has not been 
updated since its publication in 1991. Since that time, however, the 
McKinney-Vento Act has been amended several times by new legislation, 
including the Homeless Emergency Assistance and Rapid Transition to 
Housing Act (Sec. 1003, Pub. L. 111-22, 1632, 1664-65), the Federal 
Property Management Reform Act of 2016 (114 Pub. L. 318, 130 Stat. 
1608), and most significantly, section 22 of the Federal Assets Sales 
and Transfer Act of 2016 (FASTA) (Pub. L. 114-287, 130 Stat. 1463 
(codified at 40 U.S.C. 1303 note)).

[[Page 16835]]

    Under Section 501 of Title V, HUD handles the suitability 
determination and HHS processes applications from eligible 
organizations and monitors transferred property for compliance with 
programmatic requirements. GSA supports both agencies at various stages 
throughout the entire process. Specifically, GSA screens real 
properties reported by a particular agency as excess with other Federal 
agencies to determine if they are required for use by any other Federal 
agency pursuant to 42 U.S.C. 11411(f)(3). Properties reported to GSA 
for disposal are submitted by GSA to HUD for a determination of 
suitability for use to assist the homeless. Pursuant to 42 U.S.C. 
11411(b)(1)(B), after HUD makes its suitability determination, HUD 
reports the determination to GSA, and GSA notifies HUD whether there is 
a continuing need for the property within the Federal government. In 
practice, if GSA has information that there is a continuing Federal 
need for the property, GSA notifies HUD of the continuing need when GSA 
submits property information to HUD for the suitability determination. 
If there is no continuing Federal need for the property, the property 
is determined surplus to the needs of the Federal government, and if 
HUD determines the property to be suitable, then the property is 
available for application to HHS for homeless assistance use. Pursuant 
to 42 U.S.C. 11411(f)(3)(A), if HHS receives and approves an 
application for surplus property and recommends to GSA that the 
property be conveyed to the applicant for homeless assistance use, GSA 
assigns the property to HHS. HHS then deeds or leases the property to 
the applicant for the purpose(s) stated in the approved application, 
unless a competing request for the property under 40 U.S.C. 550 is 
determined by GSA or HHS to be so meritorious and compelling as to 
outweigh the needs of the homeless.
    Pursuant to 42 U.S.C. 11411(a), HUD is the agency authorized to 
determine whether a property is suitable for homeless assistance use. 
HUD must request information from Federal landholding agencies 
regarding unutilized, underutilized, excess, and surplus Federal real 
properties (including land, buildings, and fixtures) based on the 
requirements of 42 U.S.C. 11411(a). As required by 42 U.S.C. 11411(a), 
HUD must determine which of those properties are suitable for homeless 
assistance no later than thirty days after receiving the information. 
Once HUD has determined a property is suitable for use to assist the 
homeless based on HUD's suitability criteria, HUD must then promptly 
notify each Federal agency of the suitability determination made 
pursuant to HUD's suitability criteria. The landholding agency must 
respond to HUD within 45 days regarding whether the property is 
available for use to assist the homeless. No later than 15 days after 
the end of the 45-day period, HUD must publish a list of all reviewed 
properties on the HUD website, whether HUD determined a reviewed 
property to be suitable for use to assist the homeless, and whether the 
property is available for application for use to assist the homeless. 
HUD must also publish annually all properties that were identified as 
suitable for use to assist the homeless, but were reported to be 
unavailable, and why the properties were unavailable, as required by 42 
U.S.C. 11411(c)(1)(D). GSA also hosts a website listing property 
available for homeless assistance.\1\
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    \1\ General Services Administration, Notices of Determination of 
Homeless Suitability and Availability, Real Property Utilization and 
Disposal, https://disposal.gsa.gov/s/noticetypedetail?type=Homeless+Screening.
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    Pursuant to 42 U.S.C. 11411(c)(1)(C), if HUD determines a property 
is not suitable for homeless assistance use, it must identify the 
reasons for its determination. If HUD determines a property is 
unsuitable for homeless assistance use, there is a 20-day holding 
period to allow any representative of the homeless to request that HUD 
review the unsuitability determination. HUD must review any such 
requests and make a final determination pursuant to 42 U.S.C. 
11411(d)(3), implemented in the regulations at 24 CFR 581.4.
    After HUD publishes its list of suitable properties that are 
available for application, an eligible organization may apply to HHS 
for use of any such property. HHS reviews applications to use suitable 
properties to assist the homeless under 42 U.S.C. 11411(e). After HHS 
receives an initial application, HHS has 10 days, unless extended by 
HHS, to review it and make a determination as to whether the initial 
application is approvable. HHS must maintain a public record of all 
actions taken regarding an application under 42 U.S.C. 11411(e)(3). If 
HHS approves an initial application, the applicant then has 45 days to 
provide a final application detailing a reasonable plan to finance the 
approved homeless assistance program under 42 U.S.C. 11411(e)(4). HHS 
must make a final determination and complete all actions on the final 
application within 15 days of receipt of a final application pursuant 
to 42 U.S.C. 11411(e)(5). HHS is then responsible for pursuing the 
transfer of a suitable property to an approved applicant. In the case 
of excess or surplus properties, HHS will request assignment of the 
property from GSA, and if GSA assigns the property to HHS, HHS will 
enter into a lease or deed with the successful applicant. In the case 
of unutilized or underutilized property, HHS will process applications 
for the use of the property, but the individual landholding agency will 
enter into the lease or permit agreement with the successful applicant. 
HHS is also the responsible agency for ensuring post-transfer 
compliance and monitoring activities for those properties transferred 
by HHS.
    As previously noted, FASTA made several changes to the McKinney-
Vento Act. Section 22 of FASTA amended the McKinney-Vento Act to allow 
for HUD's suitability determinations to be posted electronically; to 
eliminate subsequent posting of previously reported properties 
determined unsuitable with no changes; to change the timeframes related 
to how long suitable and available properties are held for homeless 
assistance use; to change the number of days by which eligible 
organizations must submit an expression of interest to HHS from 60 days 
to 30 days from the date of HUD's publication; to create a two-phased 
application process; to shorten the initial application processing 
period from 90 days to 75 days; and, if approved, provide the applicant 
45 days to submit a final application. If HHS does not approve a final 
application after approving an initial application, disposal of the 
property may proceed in accordance with applicable law.
    In addition to 42 U.S.C. 11411 and the current regulations, the 
Title V Program is guided by Federal court decisions, including the 
March 13, 2017, revised Order in National Law Center on Homelessness 
and Poverty v. Veterans Administration, et al. 1988 WL 136970 (D.D.C. 
1988). Subsequent nationwide litigation, including Colorado Coalition 
for the Homeless v. GSA and HHS, 2019 WL 2723857 (D.CO. 2019), United 
States v. Overcoming Love Ministries, 2018 WL 4054867 (E.D.N.Y. 2018) 
and New Life Evangelistic Center, Inc. v. Sebelius, 753 F.Supp.2d 103 
(D.D.C. 2010) have interpreted and applied key provisions of Title V 
and HHS's regulations. These rulings, taken together with the Agencies' 
experience operating the Title V program over the past thirty years, 
have convinced the Agencies that it is now appropriate to amend this 
joint regulation to achieve the following three goals: harmonize the 
joint regulation with Title V, as

[[Page 16836]]

amended by FASTA; incorporate existing policy and practice requirements 
for the benefit of future applicants; and, for ease of reference, 
expand portions of the joint regulation that cross-reference other 
sections of other regulations by incorporating the referenced portions.

II. This Proposed Rule

A. Collaborative Changes Across HUD, GSA, and HHS's Individual 
Regulations

    This proposed rule would establish procedures conforming to FASTA, 
incorporate other legislative changes, and codify established policies 
and processes that the Agencies use to govern the program. For greater 
readability, in instances where requirements found in other sections of 
the proposed rule are referenced by citation, this proposed rule would 
instead incorporate those provisions in each agency's individual 
regulations, rather than just the citation, to provide a broader and 
clearer understanding of the Title V program requirements. This 
proposed rule would also provide revised suitability criteria for 
clarity and to address GAO's recommendation in its 2014 report entitled 
Federal Real Property: More Useful Information to Providers Could 
Improve the Homeless Assistance Programs.\2\
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    \2\ https://www.gao.gov/assets/gao-14-739.pdf.
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    The changes in the proposed rule would amend the Agencies' 
individual regulations found in Title 24 (HUD), Title 41 (GSA), and 
Title 45 (HHS) of the Code of Federal Regulations. Provisions of this 
proposed rule that apply to the Agencies collectively would be found in 
each agency's regulations. HUD's and GSA's regulations have included 
all sections applicable to all three Agencies within its regulations 
found in Title 24 and Title 41, respectively. HHS's regulation will 
only include provisions directly applicable to HHS.
    Throughout this proposed rule, the Agencies have renumbered various 
existing sections of their respective regulations. This proposed rule 
references the current section numbers in discussing changes to the 
applicable sections unless otherwise stated. Also of note, within this 
proposed regulation, variations of the terms United States and Federal 
government are intended to be used interchangeably.
1. Definitions
    This proposed rule would remove definitions that are no longer 
relevant, revise other definitions to conform to existing legislation, 
and incorporate new definitions, some of which are currently used but 
are not defined in the existing Title V regulation. The updated 
definitions would modify 24 CFR 581.1, 41 CFR 102-75.1160, and 45 CFR 
12a.1 to provide clarity and consistency regarding the Agencies' roles 
and requirements for potential Title V applicants. The definitions of 
Checklist, Classification, Day, GSA, HHS, HUD, Non-profit organization, 
Representative of the homeless, Suitable property, Underutilized, 
Unsuitable property, and Unutilized property would remain unchanged.
    The definitions of Applicant, Eligible organization, Excess 
property, Homeless, Landholding agency, Lease, Permit, Property, Screen 
and Surplus property would be amended to provide consistent regulatory 
language across the Agencies. The proposed changes to the definitions 
of Applicant, Eligible organization, and Surplus property would be non-
substantive but provide more clarity. The definition of Landholding 
agency would be updated to provide more detail regarding the type of 
agency that typically qualifies as a landholding agency. The definition 
of Lease would be updated to clarify that in the case of underutilized 
and unutilized real properties, landholding agencies would be the only 
party from the Federal government to the lease agreement and that 
landholding agency lease agreements pertain only to underutilized and 
unutilized real properties. The definition of Permit would be amended 
to specify that permits are typically granted for a maximum of one year 
and to clarify that a permit does not grant to the recipient any 
interest in the property.
    The definition of Excess property would be updated to conform with 
40 U.S.C. 102, consistent with the Federal Property Management Reform 
Act of 2016 and remove the word ``discharge'' from an agency's needs or 
responsibilities. The definition of Homeless would be revised to cross-
reference the definition at 42 U.S.C. 11302. The definition of this 
term was amended by the Homeless Emergency Assistance and Rapid 
Transition to Housing Act of 2009 (division B, Pub. L. 111-22). The 
proposed revision is for ease of program administration in the event of 
a future statutory amendment. The revision is not intended to revise 
the current interpretation of ``homeless'' for this program or the 
terms of ``homeless,'' ``homeless individual,'' or ``homeless person'' 
for other programs not covered by this part. The definition of Property 
would be updated to reference 40 U.S.C. 524, pursuant to the Federal 
Property Management Reform Act of 2016, which describes executive 
agencies' property management duties.
    The definition of Screen would be amended to add the term 
``surplus.'' The Agencies are proposing this change to clarify the 
types of properties subject to the screening processes.
    Lastly, the proposed rule would add the following definitions: HUD 
website for clarity, based on FASTA's requirement that HUD publish on 
the HUD website all reviewed properties determined by HUD to be 
suitable for use to assist the homeless and that are available for 
application for use to assist the homeless; Transferee to clarify that 
it means an eligible entity that acquires Federal real property by 
lease, deed, or permit; Transfer document to identify such documents as 
being lease, deed or permit; Substantial noncompliance to clarify that 
it means the failure to take corrective action as directed by HHS, 
based on transferees' and potential funders' concerns that HHS will 
revert a property for a minor issue that was, or could easily be, 
addressed by corrective action; and Related personal property and State 
to conform with 45 CFR 12.1(n) and (p), respectively, as it pertains to 
this part.
    The definitions of Regional Homeless Coordinator and State Homeless 
Coordinator would be removed as they are no longer applicable. The 
definition of ICH would also be removed from the definition section, 
and instead the term ``United States Interagency Council on 
Homelessness'' would be included within the text of the proposed rule 
on its first reference.
2. Applicability
    The proposed rule would expand the sections of the Agencies' 
regulations that identify which properties are not subject to the joint 
regulation by adding properties that are not subject to Federal Real 
Property Council reporting requirements to this list, in accordance 
with 40 U.S.C. 623(i). Additionally, 24 CFR 581.2, 41 CFR 102-75.1161, 
and 45 CFR 12a.2, would be updated to reflect that properties not 
subject to the joint regulation include buildings and property at 
military installations that were approved for closure under the Defense 
Base Closure and Realignment Act of 1990 after October 25, 1994. The 
proposed rule would also amend 24 CFR 581.2(b)(2), 41 CFR 102-
75.1161(b)(2), and 45 CFR 12.a.2(b)(2), to make clear that machinery 
and equipment that is not related personal property is not subject to 
the joint regulation, and that machinery and equipment that is related 
personal property is not subject to the regulation if GSA or the 
landholding agency

[[Page 16837]]

choose to dispose of the machinery and equipment separate from the real 
property. At 24 CFR 581.2(b)(8) and 45 CFR 12a.2(b)(8), the joint 
regulation already includes Indian Reservation land as property not 
subject to the joint regulation but does not include the citation to 40 
U.S.C. 523. This proposed rule would add the citation to these sections 
at newly designated paragraph (a)(9) where it currently does not exist. 
Additionally, the current regulation already provides that properties 
``subject to a court order'' are not subject to the regulation, and 
this proposed rule would specify that this refers only to court orders 
that, for any reason, preclude transfer for use to assist the homeless 
under Title V at proposed 24 CFR 581.2(b)(5), 41 CFR 102-75.1161(b)(5), 
and 45 CFR 12a.2(b)(5). Similarly, the proposed rule would provide 
clarity regarding the current exclusion of mineral and air space rights 
from Title V processing by specifying that these exclusions refer to 
mineral and air space rights that are independent of surface rights. 
This change would be found in newly designated paragraphs (a)(7) and 
(8). Lastly, this proposed rule would exclude from Title V processing 
excess or surplus buildings or fixtures that sit on land owned by a 
landholding agency where the underlying land is not also excess or 
surplus. These changes would be found at proposed paragraph (b)(12) of 
24 CFR 581.2, 41 CFR 102-75.1161, and 45 CFR 12a.2.
3. Collecting Information From Federal Agencies
    The McKinney-Vento Act requires HUD to canvass landholding agencies 
quarterly and requires the landholding agencies to respond with 
property information within 25 days. HUD is then required to make a 
suitability determination on the property within 30 days of receipt of 
the property information. Because of the high number of properties 
being reported to HUD, HUD began accepting property information from 
landholding agencies on an ongoing basis. This proposed rule would 
codify this existing process at 24 CFR 581.3(a) and 41 CFR 102-
75.1162(a). It also would provide that HUD's canvass of landholding 
agencies will include information about previously reported properties 
only if the property's status or classification changed, or if 
improvements were made to the property since the property was last 
reported to HUD. It would clarify that landholding agencies will 
respond to HUD's information collecting canvass in accordance with 40 
U.S.C. 524. This proposed rule would clarify in 24 CFR 581.3(a) and 41 
CFR 102-75.1162(a) that a completed property checklist is the vehicle 
for submitting property information to HUD. Consistent with FASTA, 
paragraphs (d) of 24 CFR 581.3 and 41 CFR 102-75.1162 would provide 
that HUD will review properties with a change in status for suitability 
and repost the property information on the HUD website.
4. Suitability Determination
    HUD has 30 days from the time it receives property information from 
landholding agencies or GSA to make a suitability determination. 
Currently, property that is determined unsuitable may not be made 
available for any other purpose for 20 days after publication under 24 
CFR 581.4(e) and 41 CFR 102-75.1175(e). To request a review of a 
property determined unsuitable for homeless assistance use, a 
representative of the homeless must contact HUD within 20 days of the 
publication of notice that a property is unsuitable pursuant to 24 CFR 
581.4(f)(1) and 41 CFR 102-75.1175(f)(1). Under 24 CFR 581.4(f)(4) and 
41 CFR 102-75.1175(f)(1) of the current regulation, HUD is required to 
notify the landholding agency of the request to review the 
unsuitability determination and advise the landholding agency that it 
should refrain from initiating disposal procedures until HUD has 
completed its reconsideration regarding unsuitability. Regulations 
found at 24 CFR 581.4(f)(4)(i) and 41 CFR 102-75.1175(f)(4)(i) 
currently provide that HUD will act on all review requests within 30 
days after receiving the landholding agency's response and will notify 
the representative of the homeless and the landholding agency in 
writing of its decision. There is currently no deadline, however, for 
the landholding agency to respond to HUD's request for additional 
information. The current regulation also does not outline the 
determination process after HUD receives or does not receive the 
landholding agency's response. As a result, the Agencies are proposing 
in 24 CFR 581.4(f)(4) and 41 CFR 102-75.1163(f)(4) of this proposed 
rule that unless HUD and the landholding agency agree to an extended 
period, the deadline for the landholding agency to respond to HUD's 
request for additional information would be 20 days from the date that 
the landholding agency is notified of the request to review the 
unsuitability determination. If the landholding agency fails to meet 
the deadline or request an extension, HUD would proceed with the appeal 
review with the property information provided in the survey it already 
has and information submitted in the appeal request provided by the 
representative of the homeless. This proposed rule would add at 
proposed paragraph (f)(4)(i) of 24 CFR 581.4 and 41 CFR 102-75.1163 
that HUD will act on requests for review where the landholding agency 
or GSA has failed to meet the deadline within 30 days of such deadline.
    This rule would also propose to incorporate required statutory 
changes under FASTA in proposed sections 24 CFR 581.4(e), (f)(1), and 
(f)(4)(ii) and 41 CFR 102-75.1163(e), (f)(1), and (f)(4)(ii) that allow 
HUD to post suitability determinations on a HUD website or a successor 
technology that is equally accessible and available to the public. This 
proposed rule would update processes by removing the identified toll-
free number from 24 CFR 581.8(b) and revising it to state that HUD will 
establish and maintain ``a toll-free number'' for the public to obtain 
specific information about Title V property reviewed for suitability. 
Persons with inquiries regarding property suitability and other Title V 
related questions will be instructed to submit questions through the 
HUD Title V website, or such other method as HUD may require in 
proposed 24 CFR 581.4(f)(1) and 41 CFR 102-75.1163(f)(1). Persons with 
disabilities may also request an alternative method for submitting 
inquiries when it may be necessary as a reasonable accommodation under 
Federal fair housing laws.
5. Real Property Reported Excess to GSA
    Currently under 24 CFR 581.5 and 41 CFR 102-75.1180, landholding 
agencies are required to submit a report to GSA of properties 
determined as excess along with a copy of any HUD suitability 
determination. These sections in HUD's and GSA's regulations would 
remain substantially the same but would be updated for clarity. Within 
Title 41, this proposed rule would contain this section at the 
redesignated 41 CFR 102-75.1164.
6. Suitability Criteria
    This proposed rule would revise the criteria in 24 CFR 581.6 and 41 
CFR 102-75.1185 that HUD uses to determine suitability to make the 
criteria clearer and more user-friendly for both the Agencies and 
applicants. The Agencies propose to reframe this section by dividing 
the suitability criteria into two categories: (1) properties deemed 
suitable unless the properties have any of the characteristics listed 
in paragraph (a),

[[Page 16838]]

and (2) properties having characteristics that would make the property 
presumptively unsuitable, unless the landholding agencies provide 
further information for HUD to determine the property suitable, in 
proposed paragraph (b).
    In proposed paragraph (a)(1), the proposed rule would revise the 
criteria relating to property located near a container or facility 
storing, handling, or processing flammable or explosive materials to 
provide for suitability if HUD can determine, based on information 
provided by the landholding agency or GSA, that the property complies 
with the acceptable separation distance standards at 24 CFR part 51, 
subpart C and the HUD Guidebook, ``Siting of HUD-Assisted Projects Near 
Hazardous Facilities'' or a successor guidebook, or that appropriate 
mitigating measures, as defined in 24 CFR 51.205, are already in place. 
The proposed rule would remove the reference to 2000 feet and the 
references to gasoline stations, tank trucks, above ground containers 
``with a capacity of 100 gallons or less,'' and larger containers 
providing heating or power. Instead, the proposed rule would utilize 
the more useful acceptable separation distance standards and would 
exclude containers and facilities that are not hazards, as defined in 
24 CFR 51.201. Additionally, in proposed paragraph (a)(2), the proposed 
rule would add coastal barriers as a suitability criterion; properties 
located in a Coastal Barrier System Unit would be determined unsuitable 
because most new federal expenditures and financial assistance, 
including federal flood insurance, are prohibited within Coastal 
Barrier System Units.\3\ A Coastal Barrier System Unit is any 
undeveloped coastal barrier, or combination of closely related 
undeveloped coastal barriers, included within the Coastal Barrier 
Resources System established by the Coastal Barriers Resources Act, as 
amended (codified at 16 U.S.C. 3501).
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    \3\ See U.S. Fish and Wildlife Service, Glossary, Coastal 
Barrier Resources System, https://www.fws.gov/ecological-services/about/glossary.html#CBRA.
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    This proposed rule would also rename the documented deficiencies 
criterion currently at 24 CFR 581.6(a)(5) and 41 CFR 102-75.1185(a)(5) 
as ``Site Safety Conditions'' in newly redesignated paragraph (a)(3) 
and focus that criterion solely on a property's physical 
characteristics, including, as examples, properties that exhibit 
significant contamination from hazardous substances, as defined by 42 
U.S.C. 9601, periodic flooding, sinkholes, or landslides.
    The proposed rule would move the criteria regarding floodways, 
national security concerns, runway clear zones, and inaccessible 
property into paragraph (b), as property presumed unsuitable unless 
information to enable HUD to determine it suitable is provided. The 
proposed rule would also remove the reference in the current rule to 
floodways that have been ``contained or corrected'', since the meaning 
of ``corrected'' is unclear and a floodplain that is ``contained'' 
might still adversely affect the use of portions of the site that are 
located within the ``contained'' floodway to assist the homeless.
    The proposed rule also includes specific questions for public 
comment in section III regarding suitability criteria. The Agencies 
considered several changes to this section and do not expect these 
proposed changes to affect the number of properties deemed suitable.
7. General Policies of HHS
    The proposed rule would add a section General Policies of HHS to 
mirror 45 CFR part 12.3 instead of incorporating that regulation. The 
section highlights the minimum criteria for eligibility for and 
transfers of surplus property.
8. Expressions of Interest Process
    HHS is responsible for accepting expressions of interest for 
properties published by HUD as suitable and available for homeless 
assistance purposes. Pursuant to FASTA, the period in which eligible 
organizations must submit an expression of interest has changed from 60 
days to 30 days from the date of HUD's publication. Therefore, eligible 
organizations must now submit an expression of interest to HHS within 
30 days of HUD's publication date. This proposed change would be found 
at 24 CFR 581.10, 41 CFR 102-75.1169, and 45 CFR 12a.4. In an effort to 
increase efficiency and be environmentally conscious, HHS will accept 
such expressions of interest by email at [email protected]. This change 
is located at paragraph (c) of those sections. HHS's physical address 
would also be updated to its current physical address in the revised 
regulation. Additionally, at paragraph (b), this section would be 
amended to clarify that HUD's determination of suitability does not 
mean a property is necessarily useable for the purpose stated in the 
application, nor does it guarantee subsequent conveyance or transfer of 
a property.
9. Application Process and Requirements
    HHS is responsible for receiving and evaluating applications 
submitted by eligible organizations for properties deemed suitable and 
available. Prior to FASTA, eligible organizations were required to 
submit a single application within 90 days after HHS's receipt of an 
acceptable expression of interest. Under FASTA, the process now 
requires that an eligible organization submit an initial application 
within 75 days following HHS's receipt of an expression of interest, 
unless extended by HHS. If HHS approves the initial application, then a 
final application, setting forth a reasonable financial plan, must be 
submitted within 45 days of HHS's approval of the initial application. 
This proposed rule would incorporate the two-stage application process 
outlined in FASTA and which HHS currently follows.
    The proposed rule would revise the regulation to make the 
application requirements more clear, concise, and consistent with the 
instructions accompanying the application packet. This proposed rule 
would expand the existing regulations found at 24 CFR 581.9, 41 CFR 
102-75.1200 and 45 CFR 12a.9 to describe the specific document an 
applicant must submit with its application to demonstrate its ability 
to hold title to property for the requested purpose(s). This proposed 
rule would also modify the current regulations found at 24 CFR 
581.9(b)(2), 41 CFR 102-75.1200(b)(2) and 45 CFR 12a.5(b)(2) to require 
that applicants certify, rather than merely indicate, that their use of 
the property and any modification(s) made to the property, conform to 
all applicable building codes and local use restrictions, or similar 
limitations, including local zoning regulations. The modification is 
meant to ensure an applicant's proposed program is capable of being 
developed and operated following transfer without hindrances posed by 
local codes, regulations and/or similar limitations. These updates 
would also incorporate existing practice that applicants requesting 
lesser portions of the listed real property will be denied. These 
updated provisions would be found at the newly redesignated paragraphs 
(a)(1) and (a)(2) of 24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR 
12a.5.
    This proposed rule would also expand current 24 CFR 581.9(b)(3), 41 
CFR 102-75.1200(b)(3) and 45 CFR 12a.9(b)(3) to advise applicants that 
the description of the proposed program must also include how the 
applicant intends to implement the proposed

[[Page 16839]]

program. Such information is crucial to HHS in rendering a 
determination on the adequacy and timeliness of a proposed program and 
likelihood of operational success, and often applications only contain 
a list of proposed services without any description about the programs 
or implementation. The proposed rule would capture these changes at the 
newly redesignated paragraphs (a)(3) of 24 CFR 581.11, 41 CFR 102-
75.1170, and 45 CFR 12a.5.
    This proposed rule would also modify 24 CFR 581.9(b)(4) and 
581.9(b)(5), 41 CFR 102-75.1200(b)(4) and 102-75.1200(b)(5) and 45 CFR 
12a.9(b)(4) and 12a.9(b)(5) for greater clarity regarding the 
application process. These updated paragraphs would be found at newly 
redesignated paragraphs (a)(4) and (a)(5) of 24 CFR 581.11, 41 CFR 102-
75.1170, and 45 CFR 12a.5. Regarding paragraph (a)(4), an applicant 
would be required to demonstrate both that there is an immediate need 
to acquire the property for the proposed program and the applicant's 
ability to utilize all of the Federal real property for which it is 
applying. Additionally, this paragraph would be expanded to clarify 
that an applicant is required, per the application instructions, to 
provide details concerning modifications to the property that need to 
be completed before the program can become operational.
    This proposed rule would also clarify 24 CFR 581.9(b)(4), 41 CFR 
102-75.1200(b)(4) and 45 CFR 12a.9(b)(4), the requirements needed to 
demonstrate an applicant's ability to finance and operate the proposed 
program. Finances typically prove to be the most difficult for 
transferees to navigate to ensure that monies are available to 
successfully operate the program and adequately maintain the property 
during the duration of the transfer term. Formulating a reasonable 
financial plan during the application process ensures that an applicant 
has the methods and means to carry out the application proposal. The 
requisite information provides HHS more confidence in making a 
determination on an application and is designed to both spare 
applicants the time and expense associated with a transfer that is 
likely to fail and protect the United States' residual interest in the 
transferred property. Therefore, rather than requiring that an 
applicant merely ``indicate'' it has financial ability, this proposed 
rule would revise this section to incorporate HHS's current practice of 
requiring that an applicant ``demonstrate'' its financial ability. A 
reasonable financial plan must, at a minimum, be specific and be 
accompanied by supporting documentation which demonstrates that the 
proposed plan is likely to succeed; and neither diminish the value of 
the government's interest in the property nor impair the government's 
ability to revert and immediately dispose of the property with clear 
title, free of any lien or encumbrance. Further, this section would 
memorialize current practice, which permits HHS to grant, to an 
otherwise approved applicant, a short-term lease when a zoning change 
is required or an applicant's financial plan proposes to utilize Low-
Income Housing Tax Credits or other funding sources that typically take 
longer to process than other forms of financing. This enables the 
approved applicant to gain site control of the property that may be 
required for funding and additional time to provide HHS the requisite 
information to ensure the Federal government's interest in the property 
is adequately protected. These proposed changes would be found at newly 
redesignated paragraph (a)(6) of 24 CFR 581.11, 41 CFR 102-75.1170, and 
45 CFR 12a.5.
    This proposed rule would modify 24 CFR 581.9(b)(6), 41 CFR 102-
75.1200(b)(6) and 45 CFR 12a.9(b)(6) to clearly state property 
insurance requirements and the purpose thereof, thereby allowing for 
the omission of the reference to other provisions of the Agencies' 
regulations. This proposed rule would amend 24 CFR 581.9(b)(9), 41 CFR 
102-75.1200(b)(9) and 45 CFR 12a.4(b)(9) pertaining to local government 
notification of the applicant's application for acquisition of surplus 
property for the proposed purpose. The section would be amended to 
incorporate HHS's current practice of requiring that an applicant 
notify the local government in writing and provide evidence of such 
rather than simply indicate in its application that it has done so. 
These changes would be codified at newly redesignated paragraphs (a)(9) 
and (a)(12), respectively, of 24 CFR 581.11, 41 CFR 102-75.1170, and 45 
CFR 12a.5.
    The proposed rule would revise and expand 24 CFR 581.9, 41 CFR 102-
75.1200, and 45 CFR 12a.9 to clarify the requirements regarding the 
transfer of surplus property and to comply with FASTA. Pursuant to 
FASTA, an applicant has the discretion to apply for Federal real 
property for a permit, lease, or deed. An applicant applying for a deed 
must comply with local zoning and certify such in its application by 
providing the required documentation. This proposed rule would 
incorporate HHS's current policy that transfers by deed will only be 
made subsequent to the appropriate certification that the proposed 
program is not in conflict with State or local zoning restrictions, 
building codes, or similar limitations, omitting the need to reference 
other provisions of the Agencies' regulations.
    This proposed rule would also revise 24 CFR 581.9(c), 581.9(d), and 
581.9(e), 41 CFR 102-75.1200(c), 102-75.1200(d), and 102-75.1200(e), 
and 45 CFR 12a.9(c), 12a.9(d), and 12a.9(e) to conform to legislative 
changes required by FASTA. Under FASTA, an initial application is now 
due 75 days following HHS's receipt of an expression of interest. This 
differs from the current regulation requiring the application, in its 
entirety, be submitted within 90 days of an applicant's expression of 
interest. This proposed rule would revise paragraph (c) of the 
previously referenced sections to set forth the new deadline for 
submitting an initial application. Additionally, FASTA reduced the time 
for HHS to review an initial application from 25 days to 10 days of its 
receipt. This proposed rule would reflect this change and revise 
paragraph (d) of the above referenced sections within the Agencies' 
individual regulations. It would also revise the ranking system and 
criteria contained in this section. An initial application would be 
evaluated based on the three statutory criteria: services offered; 
need; and experience. Criteria would no longer be evaluated with 
ranking weights; rather, all criteria would be of equal weight, and 
failure to meet any one criterion would result in the application being 
disapproved. Additionally, each paragraph within this section would be 
revised to conform to legislative changes pursuant to FASTA and to 
eliminate any confusion caused by the March 13, 2017, revised Order in 
National Law Center on Homelessness and Poverty v. Department of 
Veterans Affairs, (D.D.C. 1988).\4\ If HHS approves an initial 
application, an applicant is provided 45 days to submit a final 
application,

[[Page 16840]]

setting forth a reasonable financial plan. HHS will not extend the 
deadline to submit a final application, or any part thereof, as the 
statute does not contain an extension provision or otherwise allow the 
deadline to be extended. HHS will provide a determination within 15 
days of receiving the final application.
---------------------------------------------------------------------------

    \4\ The revised court order provides, in pertinent part: ``No 
later than 15 days after the receipt of the final application, HHS 
shall review, make a final determination, and complete all actions 
on the final application. This period may be extended by agreement 
of HHS and the applicant.'' The language ostensibly provides HHS 
with the discretion to extend the statutory deadline for the final 
application. Consistent with HHS practice since FASTA was 
implemented and judicial decisions such as Colorado Coalition for 
the Homeless v. GSA and HHS, 2019 WL 2723857 (D.CO. 2019) and New 
Life Evangelistic Center, Inc. v. Sebelius, 753 F.Supp.2d 103 
(D.D.C. 2010), HHS will require all final applications to be 
completely submitted within the statutory deadline and will not 
exercise the discretion the Court's order in National Law Center 
purports to give to HHS.
---------------------------------------------------------------------------

10. Surplus Property Transfer Documents
    This proposed rule would add an entirely new section regarding 
transfer documents to conform to legislative changes made pursuant to 
FASTA. Applicants are permitted to apply for surplus property for 
acquisition by lease, deed, or permit. For clarifying purposes, the 
proposed rule would add this section to include relevant provisions of 
41 CFR part 102-75 and 45 CFR part 12 pertaining to general terms and 
conditions of transfers. This proposed change improves the readability 
of the regulation and removes the need for additional cross-references. 
Additionally, the proposed rule omits the provision that requires the 
reversion or abrogation of transferred property, at the discretion of 
HHS, should the property not be placed into use within 8 years. This 
change allows more flexibility to resolve such issues on a case-by-case 
basis and, based on conversations with transferees, provides more 
assurances to funders that property may not be automatically reverted 
should the property not be placed into use within 8 years. These 
proposed changes would be captured at newly redesignated 24 CFR 581.14, 
41 CFR 102-75.1172, and 45 CFR 12a.7.
11. Compliance With the National Environmental Policy Act of 1969 
(NEPA) and Other Related Acts (Environmental Impact)
    At 24 CFR 581.9(b)(8), 41 CFR 102-75.1200(b)(8), and 45 CFR 
12a.9(b)(8), the current regulation already provides general 
application requirements as they pertain to environmental information. 
The proposed rule would expand these sections to clarify and to mirror 
requirements and policies currently required by NEPA and other related 
Acts. This proposed rule would contain this expanded clarification at 
24 CFR 581.16, 41 CFR 102-75.1174, and 45 CFR 12a.8.
12. No Applications Approved
    This proposed rule would modify 24 CFR 581.12, 41 CFR 102-75.1215, 
and 45 CFR 12a.12 to comply with FASTA. Under FASTA, Federal real 
properties shall only be held for 30 days to permit homeless providers 
an opportunity to submit a notice of interest instead of the previous 
60-day holding period. Additionally, FASTA requires GSA or the 
landholding agency to proceed with disposal of surplus property 75 days 
following receipt of an initial expression of interest if no initial 
application or requests for extensions have been received by HHS, or 
within 45 days after an approved initial application if no final 
application has been received. This means that no disposal action can 
be taken by GSA or the landholding agency, as appropriate, until all 
Title V actions are completed. The proposed rule would codify these 
changes in the newly redesignated 24 CFR 581.17, 41 CFR 102-75.1175, 
and 45 CFR 12a.9.
13. Utilization and Enforcement
    This proposed rule would add 24 CFR 581.18, 41 CFR 102-75.1176, and 
45 CFR 12a.10 to clearly articulate a transferee's utilization 
requirements and potential enforcement actions that may be taken, at 
the discretion of HHS, should noncompliance occur. HHS's policies have 
not changed but are included in the regulation to clarify program 
requirements to applicants and transferees. This section also includes 
the Federal government's requirements of transferees in the event of a 
reversion action. Such reversionary language is currently included in 
transfer documents.
14. Other Uses
    The proposed rule would add 24 CFR 581.19, 41 CFR 102-75.1177, and 
45 CFR 12a.11 to incorporate HHS's current policy as it relates to 
``other uses'' of surplus property by transferees. The proposed rule 
would make clear the requirements of transferees should a transferee 
request approval to utilize the property, or a portion thereof, for 
uses other than those stated in the approved original application. In 
adding this section, the Agencies address questions and requests made 
by transferees since inception of the program.
15. Abrogation
    The abrogation process is discussed in various sections of the 
current regulation, and this proposed rule would establish 24 CFR 
581.20, 41 CFR 102-75.1178, and revise 45 CFR 12a.12 to more clearly 
articulate the instances in which HHS may abrogate the conditions and 
restrictions in the transfer document. This proposed rule would address 
the abrogation process in its own section for clarity and simplicity.
16. Compliance Inspections and Reports
    For clarifying purposes, the proposed rule would add this section 
to include provisions of 45 CFR part 12.14 pertaining to compliance 
inspections and reports. HHS's policies have not changed but are 
included in the regulation to be clearer for the public and removes the 
need for additional cross-references. These policies would be captured 
at 24 CFR 581.21, 41 CFR 102-75.1179, and 45 CFR 12a.13.
17. No Right of Administrative Review for Agency Decisions
    Title V, as amended by FASTA, does not provide for internal 
administrative review of HHS application decisions. Accordingly, the 
proposed rule would establish 24 CFR 581.22 and 41 CFR 102-75.1180, and 
modify 45 CFR 12a.14 to codify HHS's existing policy that no agency 
reconsideration or appeal shall be granted. HHS's application decision 
constitutes final agency action in accordance with the Administrative 
Procedure Act (5 U.S.C. 704).
18. Public Notice and Holding Period Under FASTA & Technical Changes
    This proposed rule would make changes throughout HUD's and GSA's 
existing regulations and implement FASTA amendments to the McKinney-
Vento Act, including that suitability determinations for properties are 
published electronically on the HUD website and that HUD will post a 
list of all properties reviewed, including a description of the 
property, its address, and classification on the HUD website, rather 
than in the Federal Register. The language ``on the HUD website'' would 
be added to 24 CFR 581.8(a) and 41 CFR 102-75.1167(a) and in place of 
``Federal Register'' as necessary, throughout HUD's and GSA's 
regulations. In addition, the proposed rule would revise 24 CFR 
581.8(b) and 41 CFR 102-75.1167(b) to remove identification of a 
specific toll-free number to accommodate any necessary changes to the 
toll-free number in the future and more closely align with 42 U.S.C. 
11411(c)(2)(C). The proposed rule also clarifies that the list of all 
properties published on the HUD website is sent to the United States 
Interagency Council on Homelessness within the same timeframe as HUD's 
publishing of the list of all reviewed properties to the HUD website. 
Requirements for the agency annual suitable property report would be 
added to 24 CFR 581.3(b) and 41 CFR 102-75.1162(b), and the proposed 
rule would clarify that the list of all properties published in the 
Federal Register no later than February 15 of each year would be a list 
of all properties from the agency annual suitable property reports, 
reported to HUD pursuant to 24 CFR 581.3(b) and

[[Page 16841]]

41 CFR 102-75.1162(b). To reflect the transition to publishing 
electronically, the proposed rule also removes the requirement for 
physical copies of the list of all properties published in the Federal 
Register be available for review in HUD buildings.
    Additional technical changes would be made throughout the 
regulations for clarity, including at proposed sections 24 CFR 581.8 
and 581.12, 45 CFR 12a.6, and 41 CFR 102-75.1167 and 102-75.1171.

B. Changes to HUD's Regulations

    The proposed changes to regulations found at 24 CFR part 581 relate 
to each agency's responsibilities under the McKinney-Vento Act in an 
effort to provide the public with a comprehensive understanding of the 
Title V process. Part 581 would continue to contain HUD's 
responsibilities under Title V while also publishing all changes 
discussed above, including new sections explained above in II.A.10, 
II.A.11, and II.A.13 through II.A.16.

C. Changes to GSA's Regulations

    The regulations found at 41 CFR 102-75 (subpart H) would relate to 
GSA's role in the use of Federal real property to assist the homeless 
along with the other Agencies' responsibilities. Since this regulation 
will be published jointly with HUD and HHS, subpart H would be updated 
to include all changes discussed above, including new sections 
explained above in II.A.10, II.A.11, and II.A.13 through II.A.16. This 
proposed rule would also update subpart H to include a section on 
waivers previously contained in HUD's regulations at 24 CFR 581.13 but 
never published in GSA's regulations. Lastly, sections in subpart H 
would be renumbered throughout the regulation as noted above.

D. Changes to HHS's Regulations

    The regulations found at 45 CFR 12a would solely relate to HHS's 
portion of the proposed rule. Part 12a would be updated to include all 
changes discussed above, except sections that are not applicable to 
HHS, which include II.A.3 through II.A.6. The changes to Part 12a would 
also include new sections explained in II.A.10, II.A.11, and II.A.13 
through II.A.16.

III. Questions for Public Comment

    HUD and GSA seek public comment on the suitability criteria in 24 
CFR 581.6 and 41 CFR 102-75.1165 and on the proposal to exclude 
property from the screening process if it is only available for removal 
for off-site use. For each of the questions asked below, and regarding 
any other issue, the Agencies are interested in public comment on 
whether and how the Agencies should refine the suitability criteria 
such that HUD can determine properties suitable under the statute 
notwithstanding certain conditions that will not be remedied by 
landholding agencies before property is transferred by long-term lease 
or deed. Specifically, the Agencies seek comment on how suitability 
criteria can protect the public from conditions that represent a clear 
threat to personal physical safety and health if left unremedied, while 
not inappropriately identifying properties as unsuitable due to low-
risk conditions that HUD determines can easily be remedied by a 
transferee. Additionally, HHS seeks public comment regarding potential 
barriers to the development of a plan to finance under the modified 
application process in this proposed rule. While the following 
questions are not exhaustive, the Agencies are particularly interested 
in comments on the following questions:
    Question 1. Are there cases or scenarios in which the Agencies 
should consider revising the proposed suitability criteria at 24 CFR 
581.6(a)(1) and 41 CFR 102-75.1165 to allow HUD to determine that a 
property is suitable in its current condition if acceptable separation 
distance standards, including mitigating measures defined in 24 CFR 
51.205, are not in place, but the risks associated with the presence of 
flammable or explosive materials are extremely low or would be 
mitigated through the transferee's routine compliance with applicable 
Federal, state, or local law? If so, what changes should HUD consider 
to the proposed rule? In its review of comments, the Agencies will not 
consider changes that would require an agency to impose, monitor, or 
enforce mitigating actions by transferees.
    Question 2. If an incidental portion of a property is in a floodway 
or runway clear zone should the entire property be determined 
unsuitable?
    Question 3: Should there be other changes to the suitability 
criteria?
    Question 4: The Agencies are also considering amending the 
regulations' applicability to exclude property only available for 
removal for off-site use from the screening process. How would 
interested members of the public view this change?
    Question 5: Given the requirements and limitations in the revised 
statute, what if any, barriers would you foresee to the development of 
a plan to finance under the modified application process as outlined in 
this proposed rule and how, specifically, could HHS act within its 
authority to address those barriers?

IV. Findings and Certifications

HUD

Regulatory Review--Executive Orders 12866 and 13563

    Under Executive Order 12866 (Regulatory Planning and Review), a 
determination must be made by the Office of Management and Budget (OMB) 
regarding whether a regulatory action is significant and therefore 
subject to review in accordance with the requirements of the executive 
order. This proposed rule was determined to be a ``significant 
regulatory action'' as defined in Section 3(f) of the order (although 
not an economically significant regulatory action under the order). 
Executive Order 13563 (Improving Regulations and Regulatory Review) 
directs executive agencies to analyze regulations that are ``outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them in accordance with what has been 
learned.'' Executive Order 13563 also directs that, where relevant, 
feasible, and consistent with regulatory objectives, and to the extent 
permitted by law, agencies are to identify and consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public. This rule streamlines the process for Federal 
surplus transfers pursuant to the Federal Assets and Sales Act of 2016.
    This proposed rule was determined to be a significant regulatory 
action under section 3(f) of Executive Order 12866 (although not an 
economically significant regulatory action under the order). The 
Agencies prepared an initial Regulatory Impact Analysis (RIA) that 
addresses the costs and benefits of the proposed rule and is part of 
the docket file for this rule.

Environmental Review

    A Finding of No Significant Impact (FONSI) with respect to the 
environment has been made in accordance with HUD regulations at 24 CFR 
part 50, which implement Section 102(2)(C) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is 
available for public inspection between the hours of 8 a.m. and 5 p.m. 
weekdays in the Regulations Division, Office of General Counsel, 
Department of Housing and Urban Development, 451 7th Street SW, Room 
10276, Washington, DC 20410-0500. Due to security measures at the HUD 
Headquarters building, please schedule an appointment to review the

[[Page 16842]]

FONSI by calling the Regulations Division at 202-708-3055 (this is not 
a toll-free number). HUD welcomes and is prepared to receive calls from 
individuals who are deaf or hard of hearing, as well as individuals 
with speech or communication disabilities. To learn more about how to 
make an accessible telephone call, please visit https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-
1538) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and on the private sector. This proposed rule does not 
impose any Federal mandate on any state, local, or tribal government, 
or on the private sector, within the meaning of UMRA.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    This proposed rule imposes no additional requirements on small 
entities. The rule conforms the Agencies' existing regulation with 
required statutory changes under the Federal Assets Sale and Transfer 
Act of 2016 and other legislative changes. This proposed rule also 
provides for HUD's suitability determinations to be published 
electronically rather than in the Federal Register. Accordingly, the 
undersigned certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits, to the 
extent practicable and permitted by law, an agency from publishing any 
rule that has federalism implications if the rule either imposes 
substantial direct compliance costs on state and local governments and 
is not required by statute, or preempts state law, unless the relevant 
requirements of Section 6 of the Executive Order are met. This rule 
does not have federalism implications and does not impose substantial 
direct compliance costs on state and local governments or preempt state 
law within the meaning of the Executive Order.

Paperwork Reduction Act

    The information collection requirements for part 581 contained in 
this proposed rule pertain to HHS's Title V application. HHS's 
information collection requirements have been approved by OMB under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB 
control number 0937-0191. In accordance with the Paperwork Reduction 
Act, an agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information, unless the collection 
displays a currently valid OMB control number.

GSA

Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This proposed rule is not anticipated to be a significant regulatory 
action and, therefore, was not subject to review under Section 6(b) of 
E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

Congressional Review Act

    This rule is not a major rule under 5 U.S.C. 804(2). Subtitle E of 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(codified at 5 U.S.C. 801-808), also known as the Congressional Review 
Act or CRA, generally provides that before a rule may take effect, the 
agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. A major rule under the CRA 
cannot take effect until 60 days after it is published in the Federal 
Register. OIRA has determined that this rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

Regulatory Flexibility Act

    GSA certifies this rule will not have a significant economic impact 
on a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This proposed rule 
applies only to Federal agencies and employees.

Paperwork Reduction Act

    The proposed rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

HHS

Regulatory Review--Executive Orders 12866 and 13563

    Under Executive Order 12866 (Regulatory Planning and Review), a 
determination must be made by the Office of Management and Budget (OMB) 
regarding whether a regulatory action is significant and therefore 
subject to review in accordance with the requirements of the order. 
This rule was determined to be a ``significant regulatory action'' as 
defined in Section 3(f) of the order (although not an economically 
significant regulatory action under the order). Executive Order 13563 
(Improving Regulations and Regulatory Review) directs executive 
agencies to analyze regulations that are ``outmoded, ineffective, 
insufficient, or excessively burdensome, and to modify, streamline, 
expand, or repeal them in accordance with what has been learned.'' 
Executive Order 13563 also directs that, where relevant, feasible, and 
consistent with regulatory objectives, and to the extent permitted by 
law, agencies are to identify and consider regulatory approaches that 
reduce burdens and maintain flexibility and freedom of choice for the 
public. This rule streamlines the process for Federal surplus property 
transfers pursuant to the Federal Assets and Sales Act of 2016.

Environmental Review

    National Environmental Policy Act of 1969 (NEPA). Actions resulting 
from this proposed rule amendment may constitute a major Federal action 
significantly affecting the quality of the human environment. A 
detailed statement under NEPA is not specifically required for purposes 
of the proposed rule amendment, however, actions involving specific 
property transactions may require further NEPA analysis as an action 
may not be covered by the categorical exclusion published at 47 FR 
2414-02 on January 11, 1982. HHS will, prior to making a final decision 
to convey or lease, or to amend, reform, or grant an approval or 
release with respect to a previous conveyance or lease of surplus 
property for homeless assistance purposes, ensure an environmental 
review and/or assessment is conducted, if applicable, and appropriately 
document the

[[Page 16843]]

proposed transaction, in keeping with applicable provisions of NEPA.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-
1538) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and on the private sector. This proposed rule does not 
impose any Federal mandate on any state, local, or tribal government, 
or on the private sector, within the meaning of UMRA.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule imposes no significant economic impacts or 
additional requirements on a substantial number of small entities as 
defined by RFA. The rule conforms the Agencies' existing regulations 
with required statutory changes under the Federal Assets Sale and 
Transfer Act of 2016 and other legislative changes, and to address 
certain issues that have arisen since the inception of the program. 
Accordingly, the undersigned certifies that this proposed rule will not 
have a significant economic impact on a substantial number of small 
entities.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits to the 
extent practicable and permitted by law, an agency from publishing any 
rule that has federalism implications if the rule either imposes 
substantial direct compliance costs on state and local governments and 
is not required by statute, or preempts state law, unless the relevant 
requirements of Section 6 of the Executive Order are met. This rule 
does not have federalism implications and does not impose substantial 
direct compliance costs on state and local governments or preempt state 
law within the meaning of the Executive Order.

Paperwork Reduction Act

    Under the Paperwork Reduction Act, all Departments are required to 
submit to the Office of Management and Budget for review and approval 
or any reporting or recordkeeping requirements in a proposed or final 
rule. This proposed rule amendment does contain information collection 
requirements which have been approved by the Office of Management and 
Budget under control number 0937-0191.

List of Subjects

24 CFR Part 581

    Administrative practice and procedure, Homeless, Reporting and 
recordkeeping requirements, Surplus Government property.

41 CFR Part 102-75

    Federal buildings and facilities, Government property management, 
Rates and fares, Surplus Government property.

45 CFR Part 12a

    Government Property, Surplus Government Property, Grant programs--
health, Grant programs--housing and community development, Homeless, 
Housing, Public Assistance Programs.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT:

    Accordingly, for the reasons stated above, HUD proposes to amend 24 
CFR part 581 as follows:

PART 581--USE OF FEDERAL REAL PROPERTY TO ASSIST THE HOMELESS

0
1. The authority citation for part 581 continues to read as follows:

    Authority:  42 U.S.C. 11411 note; 42 U.S.C. 3535(d).

0
2. Amend Sec.  581.1 by:
0
a. Revising the definitions of Applicant, Eligible organization, Excess 
property, and Homeless;
0
b. Adding the definition of HUD website;
0
c. Removing the definition of ICH;
0
d. Revising the definitions of Landholding agency, Lease, Non-profit 
organization, Permit, Property;
0
e. Removing the definition of Regional homeless coordinator;
0
f. Adding the definition of Related personal property;
0
g. Revising the definition of Screen;
0
h. Adding the definition of State;
0
i. Removing the definition of State homeless coordinator;
0
j. Adding the definition of Substantial noncompliance;
0
k. Revising the definitions of Suitable property and Surplus property;
0
l. Adding the definitions of Transfer document and Transferee.
    The revisions and additions read as follows:


Sec.  581.1  Definitions.

    Applicant means any eligible organization which has submitted an 
application to the Department of Health and Human Services to obtain 
use of a certain suitable property to assist the homeless.
* * * * *
    Eligible organization means a State or local government agency, or 
a private, non-profit organization that provides assistance to the 
homeless, and that is authorized by its charter or by State law to 
enter into an agreement with the Federal government for use of property 
for the purposes of this part. Eligible organizations that are private, 
non-profit organizations interested in applying for suitable property 
must be tax exempt under section 501(c)(3) of the Internal Revenue Code 
at the time of application and remain tax exempt throughout the time 
the Federal government retains a reversionary interest in the property.
    Excess property means any property under the control of a Federal 
Executive agency that the head of the agency determines is not required 
to meet the agency's needs or responsibilities, pursuant to 40 U.S.C. 
524.
* * * * *
    Homeless is defined in 42 U.S.C. 11302. This term is synonymous 
with ``Homeless Individual'' and ``Homeless Person.''
* * * * *
    HUD website means a website maintained by HUD providing information 
about HUD, including any successor websites or technologies that are 
equally accessible and available to the public.
    Landholding agency means the Federal department or agency with 
statutory authority to control property. For purposes of this part, the 
landholding agency is typically the Federal department or agency that 
had custody and accountability on behalf of the Federal government, of 
a certain piece of property at the time that such property was reported 
to HUD for a suitability determination pursuant to 42 U.S.C. 11411.
    Lease means an agreement in writing between either HHS for surplus 
property or landholding agencies for underutilized and unutilized 
properties and the applicant giving rise to the relationship of lessor 
and lessee for the use of Federal property for a term of at least one 
year under the conditions set forth in the lease document.
    Non-profit organization means an organization recognized as a non-
profit by the State in which the organization operates, no part of the 
net earnings of which inures to the benefit of any member, founder, 
contributor, or individual; that has a voluntary board; that has an 
accounting system or has designated an entity that will maintain

[[Page 16844]]

a functioning accounting system for the organization in accordance with 
generally accepted accounting procedures; and that practices 
nondiscrimination in the provision of assistance.
    Permit means a license granted by a landholding agency to use 
unutilized or underutilized property for a specific amount of time, 
usually one year or less, under terms and conditions determined by the 
landholding agency. A permit does not grant to the recipient an estate 
in land or any interest in the property.
    Property means real property consisting of vacant land or 
buildings, or a portion thereof, that is excess, surplus, or designated 
as unutilized or underutilized in surveys by the heads of landholding 
agencies conducted pursuant to 40 U.S.C. 524.
    Related personal property means any personal property that is 
located on real property and is either an integral part of or useful in 
the operation of that property or is determined by GSA to be otherwise 
related to the property.
* * * * *
    Screen means the process by which GSA surveys Federal Executive 
agencies to determine if they have an interest in using excess Federal 
property to carry out a particular agency mission, and then surveys 
State, local and non-profit entities, to determine if any such entity 
has an interest in using surplus Federal property to carry out a 
specific public use.
    State means a State of the United States, and includes the District 
of Columbia, the Commonwealth of Puerto Rico, and the Territories and 
possessions of the United States.
    Substantial noncompliance means failure to take corrective action 
as directed by HHS.
    Suitable property means that HUD has determined that a certain 
property satisfies the criteria listed in Sec.  581.6.
    Surplus property means any excess property not required by any 
Federal landholding agency for its needs or the discharge of its 
responsibilities, as determined by GSA.
    Transfer document means a lease, deed, or permit transferring 
surplus, unutilized or underutilized property.
    Transferee means an eligible entity that acquires Federal property 
by lease, deed, or permit.
* * * * *
0
3. Revise Sec.  581.2 to read as follows:


Sec.  581.2  Applicability.

    (a) This part applies to Federal property that has been designated 
by Federal landholding agencies as unutilized, underutilized, excess or 
surplus and is therefore subject to the provisions of Title V of the 
McKinney Act, as amended (42 U.S.C. 11411).
    (b) The following categories of properties are not subject to this 
part (regardless of whether they may be unutilized or underutilized):
    (1) Buildings and property at military installations that were 
approved for closure under the Defense Base Closure and Realignment Act 
of 1990 (part A of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note) 
after October 25, 1994.
    (2) Machinery and equipment not determined to be related personal 
property by the landholding agency or GSA or determined to be related 
personal property that the landholding agency or GSA chooses to dispose 
of separate from real property.
    (3) Government-owned, contractor-operated machinery, equipment, 
land, and other facilities reported excess for sale only to the using 
contractor and subject to a continuing military requirement.
    (4) Properties subject to special legislation directing a 
particular action.
    (5) Properties subject to a court order that, for any reason, 
precludes transfer for use to assist the homeless under the authority 
of 42 U.S.C. 11411.
    (6) Property not subject to Federal Real Property Council reporting 
requirements in accordance with 40 U.S.C. 623(i).
    (7) Mineral rights interests independent of surface rights.
    (8) Air space interests independent of surface rights.
    (9) Indian Reservation land subject to 40 U.S.C. 523.
    (10) Property interests subject to reversion.
    (11) Easements.
    (12) Any building or fixture that is excess, or surplus, that is on 
land owned by a landholding agency, where the underlying land is not 
excess or surplus.
    (13) Property purchased in whole or in part with Federal funds if 
title to the property is not held by a Federal landholding agency as 
defined in this part.
0
4. In Sec.  581.3 revise paragraphs (a), (b), and (d) to read as 
follows:


Sec.  581.3  Collecting the Information.

    (a) Canvass of landholding agencies. On a quarterly basis, HUD will 
canvass each landholding agency to collect information about property 
described as unutilized, underutilized, excess or surplus in accordance 
with 40 U.S.C. 524; however, HUD will accept property information 
between canvasses. Each canvass will collect information on properties 
not previously reported, and about property reported previously where 
the status or classification of the property has changed, or 
improvements have been made to the property. HUD will request 
descriptive information on properties sufficient to make a reasonable 
determination, under the criteria described below, of the suitability 
of a property for use to assist the homeless. Landholding agencies must 
report property information to HUD using the property checklist 
developed by HUD for that purpose. Property checklists submitted in 
response to a canvass must be submitted to HUD within 25 days of 
receipt of the canvass.
    (b) Agency annual suitable property report. By December 31 of each 
year, each landholding agency must notify HUD of the current 
availability status and classification of each property controlled by 
the agency that:
    (1) was included in a list of suitable properties published that 
year by HUD, and
    (2) remains available for application for use to assist the 
homeless or has become available for application during that year.
* * * * *
    (d) Change in status. If the information provided on the property 
checklist changes subsequent to HUD's determination of suitability, 
including any improvements or other alterations to the physical 
condition of the land or the buildings on the property, and the 
property remains unutilized, underutilized, excess or surplus, the 
landholding agency must submit a revised property checklist in response 
to the next quarterly canvass. HUD will review for suitability and, if 
it differs from the previous determination, repost the property 
information on the HUD website. For example, property determined 
unsuitable due to extensive deterioration may have had improvements, or 
property determined suitable may subsequently be found to be 
extensively deteriorated.
0
5. In Sec.  581.4 revise paragraphs (a), (b), (d), (e), and (f) to read 
as follows:


Sec.  581.4  Suitability Determination.

    (a) Suitability determination. Within 30 days after the receipt of 
a completed property checklist from landholding agencies either in 
response to a quarterly canvass, or between canvasses, HUD will 
determine, using the criteria set forth in Sec.  581.6 whether a 
property is suitable for use to assist the homeless and report its 
determination to the landholding agency. Properties that are under 
lease, contract, license, or agreement by which a Federal agency 
retains a real property interest or which

[[Page 16845]]

are scheduled to become unutilized or underutilized will be reviewed 
for suitability no earlier than six months prior to the expected date 
when the property will become unutilized or underutilized.
    (b) Scope of suitability. HUD will determine the suitability of a 
property for use to assist the homeless without regard to any 
particular use.
* * * * *
    (d) Record of suitability determination. HUD will assign an 
identification number to each property reviewed for suitability. HUD 
will maintain a public record of the following:
    (1) The suitability determination for a particular piece of 
property, and the reasons for that determination; and
    (2) The landholding agency's response to the determination pursuant 
to the requirements of Sec.  581.7(a).
    (e) Property determined unsuitable. Property that is reviewed by 
HUD under this section and that is determined unsuitable for use to 
assist the homeless may not be made available for any other purpose for 
20 days after publication of a notice of unsuitability on the HUD 
website.
    (f) Procedures for appealing unsuitability determinations.
    (1) To request review of a determination of unsuitability, a 
representative of the homeless must contact HUD, in writing, through 
the U.S. Mail, email, or the HUD website, or such other method as HUD 
may require, within 20 days of publication of notice of unsuitability.
    (2) Requests for review of a determination of unsuitability may be 
made only by representatives of the homeless.
    (3) The request for review must specify the grounds on which it is 
based, i.e., HUD has improperly applied the criteria or HUD has relied 
on incorrect or incomplete information in making the determination 
(e.g., that property is in a floodplain but not in a floodway).
    (4) Upon receipt of a request to review a determination of 
unsuitability, HUD will notify the landholding agency or GSA that such 
a request has been made. The landholding agency or GSA shall have 20 
days from receipt of the notice from HUD, or an extended period agreed 
to between HUD and the landholding agency or GSA, to provide any 
information pertinent to the review. The landholding agency or GSA must 
refrain from initiating disposal procedures until HUD has completed its 
reconsideration regarding unsuitability. If the landholding agency or 
GSA fails to meet the deadline, HUD will move forward with the appeal 
review with the property information it already has and information 
submitted in the appeal request provided by the representative of the 
homeless.
    (i) HUD will act on all requests for review within 30 days of 
receipt of the landholding agency's or GSA's response, or, if the 
landholding agency or GSA failed to meet the deadline, within 30 days 
of such deadline, and will notify the representative of the homeless 
and the landholding agency or GSA in writing of its decision.
    (ii) If a property is determined suitable as a result of the 
review, HUD will request the landholding agency's or GSA's 
determination of availability pursuant to Sec.  581.7, upon receipt of 
which HUD will promptly publish the determination on the HUD website.
0
6. Amend Sec.  581.5 by:
0
a. Revising paragraphs (b), (c), (e), (f), (g), and (h); and
0
b. Adding paragraph (i).
    The revisions and additions read as follows:


Sec.  581.5  Real property reported excess to GSA.

    (a) * * *
    (b) If a landholding agency reports an excess property to GSA that 
HUD has already determined to be suitable for use to assist the 
homeless, GSA will screen the property pursuant to paragraph (h) of 
this section and will advise HUD of the availability of the property 
for use by the homeless as provided in paragraph (e) of this section. 
In lieu of the above, GSA may submit a new checklist to HUD and follow 
the procedures in paragraphs (c) through (h) of this section.
    (c) If a landholding agency reports an excess property to GSA that 
has not been reviewed by HUD for homeless assistance suitability, GSA 
will complete a property checklist, based on information provided by 
the landholding agency, and will forward this checklist to HUD for a 
suitability determination. This checklist will reflect any change in 
classification, such as from unutilized or underutilized to excess or 
surplus.
* * * * *
    (e) When GSA receives notification from HUD listing suitable excess 
properties, GSA will transmit a response to HUD within 45 days 
regarding the availability of the property. GSA's response will include 
the following for each identified property:
    (1) A statement that there is no other compelling Federal need for 
the property and, therefore, the property will be determined surplus; 
or
    (2) A statement that there is further and compelling Federal need 
for the property (including a full explanation of such need) and that, 
therefore, the property is not presently available for use to assist 
the homeless.
    (f) When GSA submits a checklist to HUD in accordance with 
paragraphs (b) and (c) of this section, the information regarding the 
availability of the property, as specified in paragraph (e)(1) and (2) 
of this section, may be included with the checklist if it is known at 
the time of submittal.
    (g) When a surplus property is determined as suitable, confirmed as 
available by GSA, and notice is published on the HUD website, GSA will 
concurrently notify HHS, State and local government units, and known 
homeless assistance providers that have expressed interest in the 
particular property, and other organizations, as appropriate, 
concerning suitable properties.
    (h) Upon submission of a Report of Excess to GSA, GSA may screen 
the property for Federal use. In addition, GSA may screen State and 
local governmental units and eligible non-profit organizations to 
determine interest in the property in accordance with current 
regulations. (See 41 CFR 102-75.1220, 102-75.255 and 102-75.350).
    (i) The landholding agency will retain custody and accountability 
and will protect and maintain any property that is reported excess to 
GSA as provided in 41 CFR 102-75.965.
0
7. Revise Sec.  581.6 to read as follows:


Sec.  581.6  Suitability criteria.

    (a) In general, properties will be determined suitable unless a 
property's characteristics include one or more of the following 
conditions:
    (1) Flammable or explosive hazards. Property located less than an 
acceptable separation distance (under the standards in 24 CFR part 51, 
subpart C and the HUD Guidebook, ``Siting of HUD-Assisted Projects Near 
Hazardous Facilities'' or successor guidebook) from any stationary 
above-ground container or facility which stores, handles, or processes 
hazardous substances of an explosive or fire prone nature (excluding 
containers and facilities that are not hazards as defined in 24 CFR 
51.201), unless HUD can determine during the review period based on 
information provided by the landholding agency that appropriate 
mitigating measures, as defined in 24 CFR 51.205, are already in place.
    (2) Coastal Barriers. Property located in a System Unit, as defined 
at 16 U.S.C. 3502(7), under the Coastal Barrier

[[Page 16846]]

Resources Act, as amended (16 U.S.C. 3501 et seq.).
    (3) Site Safety Conditions. Property with a documented and 
extensive condition(s) that represents a clear threat to personal 
physical safety or health. Such conditions may include, but are not 
limited to, significant contamination from hazardous substances, as 
defined by 42 U.S.C. 9601, periodic flooding, sinkholes, or landslides.
    (b) In the cases below, properties will be determined unsuitable, 
unless the landholding agencies provide information to enable HUD to 
determine the property is suitable:
    (1) Inaccessible. Property that is inaccessible, meaning that the 
property is not accessible by road (including property on small 
offshore islands) or is landlocked (e.g., can be reached only by 
crossing private property and there is no established right or means of 
entry).
    (2) National Security. Property located in an area to which the 
general public is denied access in the interest of national security 
(e.g., where a special pass or security clearance is a condition of 
entry to the property), unless there is an alternative method to gain 
access without compromising national security.
    (3) Runway clear zones. Property located within a runway clear zone 
or a military airfield clear zone.
    (4) Floodway. Property located in a floodway, unless only an 
incidental portion of the property is in the floodway and that 
incidental portion does not affect the use of the remainder of the 
property to assist the homeless.
0
8. Revise Sec.  581.7 to read as follows:


Sec.  581.7  Determination of availability for suitable properties.

    (a) Within 45 days after receipt of notification from HUD pursuant 
to Sec.  581.4(a) that a property has been determined to be suitable, 
each landholding agency or GSA must transmit to HUD a statement of one 
of the following:
    (1) In the case of unutilized or underutilized property--
    (i) An intention to declare the property excess;
    (ii) An intention to make the property available for use to assist 
the homeless; or
    (iii) The reasons why the property cannot be declared excess or 
made available for use to assist the homeless. The reasons given must 
be different from those listed as suitability criteria in Sec.  581.6.
    (2) In the case of excess property which has been reported to GSA--
    (i) A statement that there is no compelling Federal need for the 
property, and, therefore, the property will be determined surplus; or
    (ii) A statement that there is a further and compelling Federal 
need for the property (including a full explanation of such need) and 
therefore, the property is not presently available for use to assist 
the homeless.
    (b) [Reserved]
0
9. Revise Sec.  581.8 to read as follows:


Sec.  581.8  Public notice of determination.

    (a) No later than 15 days after the most recent 45-day period has 
elapsed for receiving responses from the landholding agencies or GSA 
regarding availability, HUD will post on the HUD website a list of all 
properties reviewed, including a description of the property, its 
address, and classification. The following designations will be made:
    (1) Properties that are suitable and available.
    (2) Properties that are suitable and unavailable.
    (3) Properties that are suitable and to be declared excess.
    (4) Properties that are unsuitable.
    (b) HUD will establish and maintain a toll-free number for the 
public to obtain specific information about properties in paragraph (a) 
of this section.
    (c) No later than 15 days after the most recent 45-day period has 
elapsed for receiving responses from the landholding agencies or GSA 
regarding availability, HUD will transmit to the United States 
Interagency Council on Homelessness (USICH) a copy of the list of all 
properties in paragraph (a) of this section. The USICH will immediately 
distribute to all state and regional homeless coordinators area-
relevant portions of the list. The USICH will encourage the state and 
regional homeless coordinators to disseminate this information widely.
    (d) No later than February 15 of each year, HUD will publish in the 
Federal Register a list of all properties in the agency annual suitable 
property reports, reported to HUD pursuant to Sec.  581.3(b).
    (e) HUD will publish an annual list of properties determined 
suitable, but which agencies reported unavailable including the reasons 
such properties are not available.
0
10. Revise Sec.  581.9 to read as follows:


Sec.  581.9  General Policies of HHS.

    (a) It is the policy of HHS to foster and assure maximum 
utilization of surplus property for homeless assistance purposes.
    (b) Transfers may be made only to eligible organizations.
    (c) Eligible organizations must be authorized, in the State in 
which the requested property is located, to carry out the activity for 
which it requests the property.
    (d) Property will be requested for assignment only when HUD has 
made a final determination that the property is suitable for use to 
assist the homeless, GSA has determined it is available, and HHS has 
determined it is needed for homeless assistance purposes. The amount of 
real and related personal property to be transferred shall not exceed 
normal operating requirements of the applicant. Such property will not 
be requested for assignment unless it is needed at the time of 
application for homeless assistance purposes or will be so needed 
within the immediate or foreseeable future.
    (e) Transfers by deed will be made only after the applicant's 
financial plan is approved and the applicant provides certification 
that the proposed program is permissible under all applicable State and 
local zoning restrictions, building codes, and similar limitations.
0
11. Revise Sec.  581.10 to read as follows:


Sec.  581.10  Expression of interest process.

    (a) Properties published by HUD as suitable and available pursuant 
to Sec.  581.8, for application for use to assist the homeless shall 
not be available for any other purpose for a period of 30 days 
beginning on the date of publication. Any eligible organization 
interested in any underutilized, unutilized, excess, or surplus 
property for use to assist the homeless must send to HHS a written 
expression of interest in that property within 30 days after the 
property has been published on the HUD website.
    (b) Although a property may be determined suitable by HUD, HUD's 
determination does not mean a property is necessarily useable for the 
purpose(s) stated in the application, nor does it guarantee subsequent 
conveyance or transfer of a property.
    (c) If a written expression of interest to apply for suitable 
property for use to assist the homeless is received by HHS within the 
30-day holding period, such property may not be made available for any 
other purpose until the date HHS or the appropriate landholding agency 
has completed action on the application submitted pursuant to that 
expression of interest.
    (d) The expression of interest should identify the specific 
property, briefly describe the proposed use, include the name of the 
organization, and indicate whether it is a public body or a private, 
non-profit organization. The expression of interest must be sent to HHS 
by email, [email protected], or by mail at the following address: 
Department of

[[Page 16847]]

Health and Human Services, Program Manager, Federal Real Property 
Assistance Program, Real Estate Logistics and Operations, 5600 Fishers 
Lane, Rockville, Maryland 20852.
    (1) HHS will notify the landholding agency (for unutilized and 
underutilized properties) or GSA (for excess and surplus properties) 
when an expression of interest has been received for a certain 
property.
    (e) An expression of interest may be sent to and accepted by HHS 
any time after the 30-day holding period has expired only if the 
property remains available as determined by GSA or the landholding 
agency for application to assist the homeless. In such a case, an 
application submitted pursuant to this expression of interest may be 
approved for use by the homeless if:
    (1) There are no pending applications or written expressions of 
interest made under any law for use of the property for any purpose; 
and
    (2) In the case of excess or surplus property, GSA has not received 
a bona fide offer to purchase that property or advertised for the sale 
of the property by public auction.
0
12. Revise Sec.  581.11 to read as follows:


Sec.  581.11  Application Process and Requirements.

    (a) Upon receipt of an expression of interest, HHS will send an 
application packet to the interested entity. The application packet 
requires the applicant to provide certain information, including the 
following--
    (1) Acquisition type. The applicant must state whether it is 
requesting acquisition of the property by lease, deed, or permit. A 
lease of one year, extendable at HHS's discretion, with the concurrence 
of GSA or the landholding agency, may be granted when the applicant's 
initial application is approved and the applicant's final application 
outlining the applicant's financial plan is found to be otherwise 
reasonable based on the criteria in paragraph (a)(7) of this section, 
but either a change in zoning is required or the financial plan 
proposes to utilize Low-Income Housing Tax Credits or other funding 
sources that typically take longer to process than other forms of 
financing.
    (2) Description of the applicant organization. The applicant must 
document that it satisfies the definition of an ``eligible 
organization'' as specified in Sec.  581.1. The applicant must document 
its authority to hold property for the proposed program and plan of use 
by providing a copy of its Articles of Organization, Charter, 
Certification from State of Non-Profit Organization status, or other 
appropriate document or citation. Private, non-profit organizations 
applying for the acquisition of a certain property must document that 
they are tax exempt under section 501(c)(3) of the Internal Revenue 
Code.
    (3) Description of the property desired. The applicant must 
describe the listed property desired, including existing zoning. 
Applicants must certify that any modification(s) made to and use of the 
property will conform to all applicable building codes, and local use 
restrictions, or similar limitations. In accordance with GSA policy, 
determinations regarding parcelization are made prior to screening. 
Therefore, expressions of interest and applications for portions of 
listed properties will not be accepted.
    (4) Description of the proposed program. The applicant must fully 
describe the proposed program and plan of use, including implementation 
plans.
    (5) Demonstration of need. The applicant must demonstrate that the 
property is needed for homeless assistance purposes at the time of 
application and how the program will address the needs of the homeless 
population to be assisted. The applicant must demonstrate that it has 
an immediate need and ability to utilize all of the property for which 
it is applying.
    (6) Demonstrate that the property is suitable and adaptable for the 
proposed program and plan of use. The applicant must fully explain why 
the property is suitable and describe what, if any, modification(s) 
will be made to the property before the program becomes operational.
    (7) Ability to finance and operate the proposed program. If the 
applicant's initial application is approved, the applicant must set 
forth a reasonable plan to finance the approved program within 45 days 
of the initial approval. To be considered reasonable, the plan must, at 
a minimum:
    (i) specifically describe all anticipated costs and sources of 
funding for the proposed program, including any property modifications;
    (ii) be accompanied by supporting documentation which demonstrates 
that the proposed plan is likely to succeed;
    (iii) demonstrate that the applicant is ready, willing, able, and 
authorized to assume care, custody, and maintenance of the property;
    (iv) demonstrate that it has secured the necessary dedicated funds, 
or the ability to obtain such funds, to carry out the approved proposed 
program and plan of use for the property, including administrative 
expenses incident to the transfer by deed, lease, or permit;
    (v) not diminish the value of the government's interest in the 
property nor impair the government's ability to revert and immediately 
dispose of the property free of any and all liens, encumbrances, or 
anything else which renders the property unmarketable. Deed transfers 
will only be made after an applicant demonstrates its financial plan 
adequately protects the United States' interest in the property; and
    (vi) neither subject the Federal government's interest in the 
property to foreclosure nor impose obligations (e.g., extended use 
agreements) on the Federal government.
    (8) Compliance with non-discrimination requirements. Each applicant 
under this part must certify in writing that it will comply with all 
requirements of federal law and HHS policy, as amended, relating to 
non-discrimination, including the following: the Fair Housing Act (42 
U.S.C. 3601-3619) and implementing regulations; and, as applicable, 
Executive Order 11063 (Equal Opportunity in Housing) and implementing 
regulations; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 
to d-4) (Non-discrimination in Federally Assisted Programs) and 
implementing regulations; Section 1557 of the Affordable Care Act and 
implementing regulations; the prohibitions against discrimination on 
the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 
6101-6107) and implementing regulations; the prohibitions against 
discrimination against otherwise qualified individuals with 
disabilities under section 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 794) and implementing regulations; and Titles II or III of the 
Americans with Disabilities Act and implementing regulations, as 
applicable. The applicant must maintain the required records to 
demonstrate compliance with all applicable Federal laws and HHS 
policies related to non-discrimination.
    (9) Insurance and Indemnification. The applicant must certify that 
it will insure the property against loss, damage, or destruction to 
protect the residual financial interest of the United States. The 
United States shall be named as an additional insured. Applicants must 
provide proof of insurance annually or upon request. Failure to 
maintain sufficient insurance may result in adverse action, including 
reversion of the property, at the discretion of HHS. Applicants, and 
all affiliated parties utilizing the property, as approved by HHS, must 
indemnify the United States and hold the United States harmless for all 
actions involving use of the property.

[[Page 16848]]

    (10) Historic preservation. Where applicable, the applicant must 
provide information that will enable HHS to comply with Federal 
historic preservation requirements.
    (11) Environmental information. The applicant must provide 
sufficient information to allow HHS to analyze the potential impact of 
the applicant's proposal on the environment, in accordance with the 
instructions provided with the application packet. HHS will assist 
applicants in obtaining any pertinent environmental information in the 
possession of HUD, GSA, or the landholding agency. However, the burden 
is on the applicant to submit sufficient documentation for analysis by 
HHS.
    (12) Local government notification. The applicant must certify that 
it has notified the applicable unit of general local government 
responsible for sewer, water, police, and fire services, in writing, of 
its proposed program for the specific property and submit a copy of 
that written notification.
    (13) Zoning and Local Use Restrictions. An applicant requesting a 
deed must certify that it has consulted all State and local 
governmental entities that will have jurisdiction over the property and 
that the proposed use will comply with all applicable zoning and local 
use restrictions, including local building code requirements. An 
applicant that applies for a lease or permit is not required to comply 
with local zoning requirements, as long as the Federal government 
retains ownership of the property. Deed transfers will only be made 
after the applicant has provided acceptable written proof that the 
proposed program is not in conflict with State or local zoning laws and 
restrictions, building codes, or similar limitations.
    (b) Scope of evaluations. Due to the short time frame imposed by 
statute for evaluating applications, HHS's evaluation will, generally, 
be limited to the information contained in the application. It is 
therefore incumbent on applicants to provide thorough and complete 
applications.
    (c) Deadline for Initial Application. An initial application must 
be received by HHS, at the above email address or other address 
indicated by HHS, within 75 days after an expression of interest is 
received from a particular applicant for that property. Upon written 
request from the applicant, HHS may, in its discretion, grant 
extensions authorized by 42 U.S.C. 11411(e)(2)(A), provided that the 
appropriate landholding agency or GSA concurs with the extension.
    (d) Evaluation of initial application.
    (1) Upon receipt of an initial application, HHS will review it for 
completeness, and, if incomplete, may, in its discretion, return it or 
ask the applicant to furnish any missing or additional required 
information prior to final evaluation of the initial application.
    (2) HHS will evaluate each initial application within 10 days of 
receipt and will promptly advise the applicant of its decision. All 
initial applications will be reviewed on the basis of the following 
elements:
    (i) Services offered. The extent and range of proposed services, 
such as meals, shelter, job training, and counseling.
    (ii) Need. The demand for the program, the program's ability to 
satisfy unmet needs of the community, and the degree to which the 
available property will be fully utilized.
    (iii) Experience. Demonstrated ability to provide the services, 
such as prior success in operating similar programs and recommendations 
attesting to that fact by Federal, State, and local authorities.
    (e) Deadline and Evaluation of Final Application.
    (1) If HHS approves an initial application, HHS will notify the 
applicant and provide the applicant 45 days in which to provide a final 
application. The final application shall set forth a reasonable plan to 
finance, as specified in Sec.  581.11(a)(7), the approved program as 
set forth in the initial application. Applicants may not modify the 
approved initial application within its final application proposal.
    (2) Upon receipt of the final application, HHS will make a 
determination within 15 days and notify the applicant.
    (3) Unlike with initial applications, requests for extensions are 
not authorized by 42 U.S.C. 11411 and thus will not be considered for 
final applications.
    (4) Applications are evaluated on a first-come, first-served basis. 
HHS will notify all organizations that have submitted expressions of 
interest for a particular property whether an earlier application 
received for that property has been approved.
    (f) Competing Applications. If HHS receives more than one final 
application simultaneously, HHS will evaluate all applications and make 
a determination based on each application's merit. HHS will rank 
approved applications based on the elements listed in paragraph (a) of 
this section, and notify the landholding agency, or GSA, as 
appropriate, of the approved applicant.
0
13. Revise Sec.  581.12 to read as follows:


Sec.  581.12  Action on approved applications.

    (a) Unutilized and underutilized properties.
    (1) When HHS approves an application, it will so notify the 
applicant and forward a copy of the application to the landholding 
agency. The landholding agency will execute the lease, or permit 
document, as appropriate, in consultation with the applicant.
    (2) The landholding agency maintains the discretion to decide the 
following:
    (i) The length of time the property will be available. (Leases and 
permits will be for a period of at least one year unless the applicant 
requests a shorter term.)
    (ii) The terms and conditions of the lease or permit document 
(except that a landholding agency may not charge any fees or impose any 
costs).
    (b) Excess and surplus properties.
    (1) When HHS approves an application, it will so notify the 
applicant and request that GSA assign the property to HHS for transfer. 
Requests to GSA for the assignment of surplus property to HHS for 
homeless assistance purposes will be based on the following conditions:
    (i) HHS has a fully approved application for the property;
    (ii) The applicant is able, willing, and authorized to assume 
immediate care, custody, and maintenance of the property;
    (iii) The applicant is able, willing and authorized to pay the 
administrative expenses incident to the transfer; and
    (iv) The applicant has secured the necessary funds, or had 
demonstrated the ability to obtain such funds, to carry out the 
approved program of use of the property.
    (2) Upon receipt of an acceptable assignment, HHS will execute the 
transfer document in accordance with the procedures and requirements 
set out in this part and any other terms and conditions HHS and GSA 
determine are appropriate or necessary. Custody and accountability of 
the property will remain throughout the lease term with the landholding 
agency (i.e., the agency which initially reported the property as 
excess) and throughout the deed term with the transferee.
    (3) Prior to assignment to HHS, GSA may consider other Federal uses 
and other important national needs in deciding the disposition of 
surplus property. Priority of consideration will normally be given to 
uses to assist the homeless. However, both GSA and HHS may consider any 
competing request for the property made under 40 U.S.C. 550 that is so 
meritorious and compelling

[[Page 16849]]

that it outweighs the needs of the homeless.
    (4) Whenever GSA or HHS decides in favor of a competing request 
over a request for property for homeless assistance, the agency making 
the decision will transmit to the appropriate committees of Congress an 
explanatory statement which details the need satisfied by conveyance of 
the surplus property, and the reasons for determining that such need 
was so meritorious and compelling as to outweigh the needs of the 
homeless.
0
14. Add Sec.  581.14 to read as follows:


Sec.  581.14  Surplus Property Transfer Documents.

    (a) Surplus property may be conveyed to eligible organizations 
pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease 
or deed, at the applicant's discretion.
    (b) Transfers of surplus property for homeless assistance purposes 
are in exchange for the transferee's agreement to fully utilize the 
property for homeless assistance purposes in accordance with the terms 
specified in the transfer document.
    (c) A transfer of surplus property for homeless purposes is subject 
to the disapproval of GSA within 30 days after notice is given to GSA 
of the proposed transfer.
    (d) Surplus property transferred pursuant to this part will be 
disposed on an ``as is, where is,'' basis without warranty of any kind 
except as may be stated in the transfer document.
    (e) Unless excepted by GSA in its assignment, the disposal of 
property includes mineral rights associated with the surface estate.
    (f) Transfers of surplus property under this part will be made with 
the following general terms and conditions:
    (1) For the period provided in the transfer document, the 
transferee shall utilize all the surplus property it receives solely 
and continuously for an approved program and plan of use, in accordance 
with 42 U.S.C. 11411 and these regulations, except that:
    (i) The transferee has 12 months from the date of transfer to place 
the surplus property into use, if HHS did not approve in writing, 
construction of new facilities or major renovation of the property when 
it approved the final application;
    (ii) The transferee has 36 months from the date of transfer to 
place the surplus property into use, if the transferee proposes 
construction of new facilities or major renovation of the property and 
HHS approves it in writing at the time it approves the final 
application;
    (iii) If the applicable time limitation is not met, the transferee 
shall either commence payments in cash to the Federal government for 
each month thereafter during which the proposed use has not been 
implemented or take such other action as set forth at Sec.  581.18 as 
is deemed appropriate by HHS. Such monthly payments shall be computed 
on the basis of the current fair market value of the property, as 
conveyed, at the time of the first payment and dividing it by 360 
months. At HHS's discretion, the payment may be waived if the 
transferee makes a sufficient showing of continued progress to place 
the property into use or if an unforeseeable event occurs which 
prevents the property from being put into use within the applicable 
timeframe; and
    (iv) HHS may permit use of surplus property at any time during the 
period of restriction by an entity other than the transferee in 
accordance with Sec.  581.19.
    (2) The transferee will not be permitted to encumber, sell, lease 
or sublease, rent, mortgage, or otherwise dispose of the property, or 
any part thereof, without the prior written authorization of HHS. In 
the event the property is sold, leased or subleased, encumbered, 
disposed of, or is used for purposes other than those set forth in an 
approved plan without the consent of HHS, all revenues or the 
reasonable value of other benefits received by the transferee directly 
or indirectly from such use, as determined by HHS, will be considered 
to have been received and held in trust by the transferee for the 
account of the United States and will be subject to the direction and 
control of HHS. The provisions of this paragraph shall not impair or 
affect the rights reserved to the United States in paragraph (f)(8) of 
this section, or the right of HHS to impose conditions to its consent.
    (3) The transferee will file with HHS such reports on its 
maintenance and use of the transferred property and any other reports 
or information deemed necessary by HHS.
    (4) The transferee shall pay all administrative costs incidental to 
the transfer, including but not limited to--transfer taxes; surveys; 
appraisals; title searches; the transferee's legal fees; and 
recordation expenses. Transferee is solely responsible for such costs 
and may not seek reimbursement from the Federal government for any 
reason.
    (5) The transferee shall protect, preserve, maintain, and repair 
the property to ensure that the property remains in as good a condition 
as when received.
    (6) The transferee shall protect the residual financial interest of 
the United States in the surplus property by insurance or such other 
means as HHS directs. Where loss or damage to the transferred property 
occurs, all proceeds from insurance shall be promptly used by the 
transferee for the purpose of repairing and restoring the property to 
its former condition or replacing it with equivalent or more suitable 
facilities. If not so used, there shall be paid to the United States 
that part of the insurance proceeds that is attributable to the 
Government's residual interest in the property lost, damaged, or 
destroyed. Further, transferee shall neither take any action nor allow 
any action which diminishes the residual financial interest of the 
United States.
    (7) The transferee shall abide by all applicable Federal Civil 
Rights laws including those specified in the covenants and conditions 
contained in the transfer document, prohibiting the transferee from 
discriminating on the basis of, including but not limited to, race, 
color, national origin, religion, sex, familial status or disability in 
the use of the property.
    (8) In the event of substantial noncompliance with any conditions 
of the deed as determined by HHS, whether caused by the legal or other 
inability of the transferee, its successors and assigns, to perform any 
of the obligations of the transfer document, the Federal government has 
an immediate right of reentry thereon, and to cause all right, title, 
and interest in and to the property to revert to the United States, and 
the transferee shall forfeit all right, title, and interest in and to 
the property. In such event, transferee shall execute a quitclaim deed 
and take all other actions necessary to return the property to the 
United States within ninety (90) days of a written request from the 
Federal government, extended only at the discretion of the Federal 
government. Transferee shall cooperate with the United States in the 
event of a reversion and agrees that the United States need not seek 
judicial intervention before exercising its right to revert, reenter 
and reconvey the property.
    (9) In the event title is reverted to the United States for 
noncompliance or voluntarily reconveyed to the United States, the 
transferee shall, at the option of HHS, be required to: reimburse the 
United States for the decrease in value of the property not due to 
market conditions, reasonable wear and tear, acts of God, or approved 
alterations completed by the transferee to adapt the property to the 
homeless use for which the property was transferred; and reimburse the 
United States for any costs incurred in reverting title to or

[[Page 16850]]

possession of the property, including reasonable attorneys' fees.
    (10) With respect to leased property, in the event of substantial 
noncompliance with any of the conditions of the lease, as determined by 
HHS or the landholding agency, the right of occupancy and possession 
shall, at the option of HHS or the landholding agency, be terminated. 
In the event a leasehold is terminated by the United States for 
substantial noncompliance or is voluntarily surrendered, the lessee 
shall be required, at the option of HHS, to reimburse the United States 
for the decrease in value of the property not due to market conditions, 
reasonable wear and tear, acts of God, or approved alterations 
completed by the lessee to adapt the property to the homeless use for 
which the property was leased. With respect to any termination of 
leasehold resulting from noncompliance, the United States, shall, in 
addition thereto, be reimbursed for such costs as may be incurred in 
recovering possession of the property, including reasonable attorneys' 
fees.
    (11) Any other term or condition that HHS and GSA determine 
appropriate or necessary.
    (12) With respect to surplus property transferred by deed, the 
terms and conditions including those in paragraph (f) of this section, 
apply for a period of thirty (30) years of use in accordance with a 
program of use approved in writing by HHS. The thirty-year (30) period 
may, in HHS's sole discretion, be extended or restarted in the event 
the property is not fully utilized or is retransferred to a successor 
entity. Expiration of the foregoing terms and conditions does not 
release the transferee from continuing compliance, as appropriate, with 
any conditions that may run with the land, e.g., environmental 
conditions and/or historic preservation covenants. Such conditions will 
continue to be the responsibility of the transferee and successors.
    (13) With respect to surplus property transferred by lease, the 
terms and conditions including those in paragraph (f) of this section, 
extend for the entire initial lease and for any subsequent renewal 
periods, unless specifically excluded in writing by HHS.
    (g) Related personal property may be transferred or leased as a 
part of the realty and in accordance with real property procedures.
    (h) Completion of Transfer Term and Reversion of Title. Transferees 
will be responsible for the protection and maintenance of the property 
during the time that they possess the property. Upon termination of the 
lease term or reversion of title to the United States, the transferee 
will be responsible for removing improvements made to the property if 
directed to by the United States and, in such event, will be 
responsible for restoration of the property or the costs associated 
with restoring the property. If improvements made by the transferee are 
not voluntarily removed by the transferee and the United States 
consents, they will become the property of the United States. If the 
United States does not consent, the transferee shall reimburse the 
United States for reasonable costs of removal. GSA or the landholding 
agency, as appropriate, will assume responsibility for protection and 
maintenance of a property when the lease terminates or title reverts.
    (i) Transferees, by obtaining the consent of HHS, may abrogate the 
restrictions set forth in paragraph (f) of this section for all or any 
portion of the property in accordance with the provisions of Sec.  
581.20.
0
15. Add Sec.  581.15 to read as follows:


Sec.  581.15  Unsuitable properties.

    The landholding agency or GSA will defer action to dispose of 
properties determined unsuitable for homeless assistance for 20 days 
after the date that notice of a property is posted on the HUD website. 
HUD will inform landholding agencies or GSA if appeal of an 
unsuitability determination is filed by a representative of the 
homeless pursuant to Sec.  581.4(f). HUD will advise the agency to 
refrain from initiating disposal procedures until HUD has completed its 
reconsideration process regarding unsuitability. Thereafter, or if no 
appeal has been filed after 20 days, GSA or the appropriate landholding 
agency may proceed with disposal action in accordance with applicable 
law.
0
16. Add Sec.  581.16 to read as follows:


Sec.  581.16  Compliance with the National Environmental Policy Act of 
1969 and other related Acts (environmental impact).

    (a) HHS, prior to making a final decision to convey or lease, or to 
amend, reform, or grant an approval or release with respect to a 
previous conveyance or lease of, surplus property for homeless 
purposes, will act in accordance with applicable provisions of the 
National Environmental Policy Act of 1969, the National Historic 
Preservation Act of 1966, the National Archeological Data Preservation 
Act, and other related acts. No lease to use surplus property shall 
allow the lessee to make, or cause to be made, any irreversible change 
in the conditions of said property, and no lease shall be employed for 
the purpose of delaying or avoiding compliance with the requirements of 
these Acts, unless approved by the United States.
    (b) Applicants shall be required to provide such information as HHS 
deems necessary to make an assessment of the impact of the proposed 
Federal action on the human environment. Materials contained in the 
applicant's official request, responses to a standard questionnaire 
prescribed by HHS, as well as other relevant information, will be used 
by HHS in making said assessment.
    (c) If the assessment reveals:
    (1) that the proposed Federal action involved properties of 
historical significance which are listed, or eligible for listing, in 
the National Register of Historic Places; or
    (2) that a more than insignificant impact on the human environment 
is reasonably foreseeable as a result of the proposed action; or
    (3) that the proposed Federal action could result in irreparable 
loss or destruction of archeologically significant items or data, HHS 
will, except as provided for in paragraph (d) of this section, prepare 
and distribute, or cause to be prepared or distributed, such notices 
and statements and obtain such approvals as are required by the above 
cited Acts.
    (d) If a proposed action involves other Federal agencies in a 
sequence of actions, or a group of actions, directly related to each 
other because of their functional interdependence, HHS may enter into 
and support a lead agency agreement to designate a single lead agency 
which will assume primary responsibility for coordinating the 
assessment of environmental effects of proposed Federal actions, 
preparing and distributing such notices and statements, or obtaining 
such approvals, as are required by the above cited Acts. The procedures 
of the designated lead agency will be utilized in conducting the 
environmental assessment. In the event of disagreement between HHS and 
another Federal agency, HHS will reserve the right to abrogate the lead 
agency agreement with the other Federal agency.
0
17. Add Sec.  581.17 to read as follows:


Sec.  581.17  No applications approved.

    (a) At the end of the 30-day holding period described in Sec.  
581.10(a), HHS will notify GSA, or the landholding agency, as 
appropriate, if an expression of interest has been received for a 
certain property. Where there is no expression of interest, GSA or the 
landholding agency, as appropriate, will

[[Page 16851]]

proceed with disposal in accordance with applicable law.
    (b) Upon notice from HHS that all applications have been 
disapproved, or if no initial applications have been received within 75 
days after an expression of interest, or no final application has been 
received within 45 days after an approved initial application, disposal 
may proceed in accordance with applicable law.
0
18. Add Sec.  581.18 to read as follows:


Sec.  581.18  Utilization and Enforcement.

    (a) Sanctions. For instances of substantial noncompliance relating 
to surplus property transfers, HHS may impose, in its sole discretion, 
any or all of the following sanctions, as applicable:
    (1) Where property or any portion thereof was not used or is not 
being used for the purposes for which transferred, or is sold, leased 
or subleased, encumbered, disposed of, or used for purposes other than 
those in the approved program and plan of use, without the prior 
written consent of HHS, HHS may require the transferee to--
    (i) Place the property into immediate use for an approved purpose 
and extend the period of restriction in the transfer document for an 
additional term as determined by HHS;
    (ii) Hold in trust all revenues and the reasonable value of other 
benefits received by the transferee directly or indirectly from that 
use for the United States subject to the direction and control of HHS;
    (iii) Return title to such property to the United States or to 
relinquish any leasehold interest therein;
    (iv) Abrogate the conditions and restrictions of the transfer, as 
set forth in Sec.  581.20;
    (v) Make cash payments to the United States, as directed by HHS, 
equivalent to the current fair market rental value of the surplus 
property, as transferred, for each month during which the program and 
plan of use has not been implemented and continues to not be 
implemented; or
    (vi) Any other remedy that HHS determines appropriate or necessary.
    (2) Where the transferee desires to place the property into 
temporary use to assist the homeless other than that for which the 
property was transferred, written approval from HHS must be obtained, 
and will be conditioned upon HHS's authority to permit the use and such 
terms as HHS may impose.
    (3) If HHS or the landholding agency determines that a lessee or 
sublessee of a transferee is in substantial noncompliance with a term 
or condition of the lease, or if the lessee voluntarily surrenders the 
premises, HHS may require termination of the lease and impose sanctions 
described in paragraph (a)(1) of this section, as appropriate.
    (b) Reversion. When HHS recommends reversion of the property for 
noncompliance, HHS will seek GSA's concurrence. GSA will respond to 
HHS's concurrence request within 30 days of its receipt. If GSA 
concurs, HHS will work with GSA to complete the reversion of the 
property. If GSA does not concur to the reversion recommendation, GSA 
will issue, to HHS, a written determination: stating the reason(s) for 
the disapproval; and acknowledging that HHS has recommended reversion 
and, therefore, the property is no longer within HHS's Title V program. 
The Federal government will implement a response to the noncompliance 
that is in its best interests.
0
19. Add Sec.  581.19 to read as follows:


Sec.  581.19  Other Uses.

    (a) A transferee may permit the use of all or a portion of the 
surplus property by another eligible entity as described in Sec.  581.1 
for homeless assistance purposes, only upon those terms and conditions 
HHS determines appropriate, if:
    (1) The transferee submits a written request to HHS explaining the 
purpose of and need for another eligible entity's use of the property, 
program plan, and other relevant information requested by HHS;
    (2) HHS determines that the proposed use would not substantially 
limit the program and plan of use by the transferee and that the use 
will not unduly burden the Federal government;
    (3) HHS's written consent is obtained by the transferee in advance;
    (4) HHS approves the use instrument in advance and in writing; and
    (5) HHS advises GSA and there is no disapproval by GSA within 
thirty (30) days.
    (b) [Reserved].
0
20. Add Sec.  581.20 to read as follows:


Sec.  581.20  Abrogation.

    (a) HHS may abrogate the conditions and restrictions in the 
transfer document if:
    (1) The transferee submits to HHS a written request that HHS 
abrogate the conditions and restrictions in the transfer document as to 
all or any portion of the surplus property;
    (2) HHS determines the terms and conditions of the proposed 
abrogation and determines that the proposed abrogation is in the best 
interest of the United States; and
    (3) HHS transmits the abrogation request to GSA and there is no 
disapproval by GSA within 30 days after notice is given. If GSA 
disapproves, GSA will state, in writing, to HHS the reason(s) for the 
disapproval.
    (b) HHS abrogates the conditions and restrictions in the transfer 
document only upon receipt of the appropriate consideration, including 
cash payment, to the United States, as directed by HHS, which is based 
on the formula contained in the transfer document, and any other terms 
and conditions HHS deems appropriate to protect the interest of the 
United States.
0
21. Add Sec.  581.21 to read as follows:


Sec.  581.21  Compliance Inspections and Reports.

    Transferees are required to allow HHS to conduct compliance 
inspections and to submit such compliance reports and actions as are 
deemed necessary by HHS. At a minimum, the transferee will be required 
to submit an annual utilization report regarding the operation and 
maintenance of the property, including current images of the entire 
property and such information as HHS shall require.
0
22. Add Sec.  581.22 to read as follows:


Sec.  581.22  No Right of Administrative Review for Agency Decisions.

    There is no right to administrative review within HHS, including 
requests for reconsideration or appeal, of agency decisions on 
applications and other discretionary decisions.

General Services Administration

    Accordingly, for the reasons stated above, GSA proposes to amend 41 
CFR part 102-75 subpart H as follows:

PART 102-75--REAL PROPERTY DISPOSAL

0
23. The authority citation for 41 CFR part 102-75 subpart H continues 
to read as follows:

    Authority:  40 U.S.C. 121(c), 521-523, 541-559; E.O. 12512, 50 
FR 18453, 3 CFR, 1985 Comp., p. 340.

0
24. Revise part 102-75 subpart H to read as follows:

Subpart H--Use of Federal Real Property to Assist the Homeless

Sec.
Definitions
102-75.1160 What definitions apply to this subpart?
Applicability
102-75.1161 What is the applicability of this subpart?
Collecting the Information
102-75.1162 How will information be collected?

[[Page 16852]]

Suitability Determination
102-75.1163 Who issues the suitability determination?
Real Property Reported Excess to GSA
102-75.1164 For the purposes of this subpart, what is the policy 
concerning real property reported excess to GSA?
Suitability Criteria
102-75.1165 What are suitability criteria?
Determination of Availability
102-75.1166 What is the policy concerning determination of 
availability statements for suitable properties?
Public Notice of Determination
102-75.1167 What is the policy concerning making public the notice 
of determination?
General Policies of HHS
102-75.1168 What are the general policies of HHS regarding the 
transfer of properties to assist the homeless?
Expression of Interest Process
102-75.1169 How may eligible organizations express interest in 
properties to assist the homeless?
Application Process and Requirements
102-75.1170 How may eligible organizations apply for the use of 
properties to assist the homeless?
Action on Approved Applications
102-75.1171 What action must be taken on approved applications?
Surplus Federal Real Property Transfer Documents
102-75.1172 What documents are used for the transfer of surplus 
Federal real property for use to assist the homeless?
Unsuitable Properties
102-75.1173 What action must be taken on properties determined 
unsuitable for homeless assistance?
Compliance With the National Environmental Policy Act of 1969 and 
Other Related Acts (Environmental Impact)
102-75.1174 What are the requirements for compliance with the 
National Environmental Policy Act of 1969 and other related Acts 
(environmental impact) for the transfer of Federal real property for 
use to assist the homeless?
No Applications Approved
102-75.1175 What action must be taken if there is no expression of 
interest or approved application?
Utilization and Enforcement
102-75.1176 What are the utilization and enforcement requirements 
for property transferred for use to assist the homeless?
Other Uses
102-75.1177 What are the requirements for other uses of a 
transferred property?
Abrogation
102-75.1178 What are the conditions of abrogation for property 
transferred to assist the homeless?
Compliance Inspections and Reports
102-75.1179 What Compliance Inspections and Reports are Required?
No Right of Administrative Review for Agency Decisions
102-75.1180 Is there a right of administrative review for agency 
decisions within HHS?
Waivers
102-75.1181 May any requirement of this subpart be waived?
102-75.1182 through 102-75.1219 [Reserved]

Definitions


Sec.  102-75.1160  What definitions apply to this subpart?

    The following definitions are also pursuant to 24 CFR part 581.1 
and 45 CFR part 12a.1.
    Applicant means any eligible organization which has submitted an 
application to the Department of Health and Human Services to obtain 
use of a certain suitable property to assist the homeless.
    Checklist or property checklist means the form developed by HUD for 
use by landholding agencies to report the information to be used by HUD 
in making determinations of suitability.
    Classification means a property's designation as unutilized, 
underutilized, excess, or surplus.
    Day means one calendar day, including weekends and holidays.
    Eligible organization means a State or local government agency, or 
a private, non-profit organization that provides assistance to the 
homeless, and that is authorized by its charter or by State law to 
enter into an agreement with the Federal government for use of property 
for the purposes of this subpart. Eligible organizations that are 
private, non-profit organizations interested in applying for suitable 
property must be tax exempt under section 501(c)(3) of the Internal 
Revenue Code at the time of application and remain tax exempt 
throughout the time the Federal government retains a reversionary 
interest in the property.
    Excess property means any property under the control of a Federal 
Executive agency that the head of the agency determines is not required 
to meet the agency's needs or responsibilities, pursuant to 40 U.S.C. 
524.
    GSA means the General Services Administration.
    HHS means the Department of Health and Human Services.
    Homeless is defined in 42 U.S.C. 11302. This term is synonymous 
with ``Homeless Individual'' and ``Homeless Person.''
    HUD means the Department of Housing and Urban Development.
    HUD website means a website maintained by HUD providing information 
about HUD, including any successor websites or technologies that are 
equally accessible and available to the public.
    Landholding agency means the Federal department or agency with 
statutory authority to control property. For purposes of this subpart, 
the landholding agency is typically the Federal department or agency 
that had custody and accountability on behalf of the Federal 
government, of a certain piece of property at the time that such 
property was reported to HUD for a suitability determination pursuant 
to 42 U.S.C. 11411.
    Lease means an agreement in writing between either HHS for surplus 
property or landholding agencies for underutilized and unutilized 
properties and the applicant giving rise to the relationship of lessor 
and lessee for the use of Federal property for a term of at least one 
year under the conditions set forth in the lease document.
    Non-profit organization means an organization recognized as a non-
profit by the State in which the organization operates, no part of the 
net earnings of which inures to the benefit of any member, founder, 
contributor, or individual; that has a voluntary board; that has an 
accounting system or has designated an entity that will maintain a 
functioning accounting system for the organization in accordance with 
generally accepted accounting procedures; and that practices 
nondiscrimination in the provision of assistance.
    Permit means a license granted by a landholding agency to use 
unutilized or underutilized property for a specific amount of time, 
usually one year or less, under terms and conditions determined by the 
landholding agency. A permit does not grant to the recipient an estate 
in land or any interest in the property.
    Property means real property consisting of vacant land or 
buildings, or a portion thereof, that is excess, surplus, or designated 
as unutilized or underutilized in surveys by the heads of landholding 
agencies conducted pursuant to 40 U.S.C. 524.
    Related personal property means any personal property that is 
located on real property and is either an integral part of or useful in 
the operation of that property or is determined by GSA to be otherwise 
related to the property.
    Representative of the homeless means a State or local government 
agency, or private nonprofit organization that provides, or proposes to 
provide, services to the homeless.
    Screen means the process by which GSA surveys Federal Executive 
agencies to determine if they have an interest in using excess Federal 
property to carry out a particular agency mission, and then surveys 
State, local and non-profit entities, to determine if any such entity 
has an interest in using surplus Federal property to carry out a 
specific public use.

[[Page 16853]]

    State means a State of the United States, and includes the District 
of Columbia, the Commonwealth of Puerto Rico, and the Territories and 
possessions of the United States.
    Substantial noncompliance means failure to take corrective action 
as directed by HHS.
    Suitable property means that HUD has determined that a certain 
property satisfies the criteria listed in Sec.  102-75.1165.
    Surplus property means any excess property not required by any 
Federal landholding agency for its needs or the discharge of its 
responsibilities, as determined by GSA.
    Transfer document means a lease, deed, or permit transferring 
surplus, unutilized or underutilized property.
    Transferee means an eligible entity that acquires Federal property 
by lease, deed, or permit.
    Underutilized means an entire property or portion thereof, with or 
without improvements which is used only at irregular periods or 
intermittently by the accountable landholding agency for current 
program purposes of that agency, or which is used for current program 
purposes that can be satisfied with only a portion of the property.
    Unsuitable property means that HUD has determined that a particular 
property does not satisfy the criteria in Sec.  102-75.1165.
    Unutilized property means an entire property or portion thereof, 
with or without improvements, not occupied for current program purposes 
for the accountable executive agency or occupied in caretaker status 
only.

Applicability


Sec.  102-75.1161  What is the applicability of this subpart?

    (a) This subpart applies to Federal property that has been 
designated by Federal landholding agencies as unutilized, 
underutilized, excess or surplus and is therefore subject to the 
provisions of Title V of the McKinney Act, as amended (42 U.S.C. 
11411).
    (b) The following categories of properties are not subject to this 
subpart (regardless of whether they may be unutilized or 
underutilized):
    (1) Buildings and property at military installations that were 
approved for closure under the Defense Base Closure and Realignment Act 
of 1990 (part A of title XXIX of Pub. L. 101-510; 10 U.S.C. 2687 note) 
after October 25, 1994.
    (2) Machinery and equipment not determined to be related personal 
property by the landholding agency or GSA or determined to be related 
personal property that the landholding agency or GSA chooses to dispose 
of separate from real property.
    (3) Government-owned, contractor-operated machinery, equipment, 
land, and other facilities reported excess for sale only to the using 
contractor and subject to a continuing military requirement.
    (4) Properties subject to special legislation directing a 
particular action.
    (5) Properties subject to a court order that, for any reason, 
precludes transfer for use to assist the homeless under the authority 
of 42 U.S.C. 11411.
    (6) Property not subject to Federal Real Property Council reporting 
requirements in accordance with 40 U.S.C. 623(i).
    (7) Mineral rights interests independent of surface rights.
    (8) Air space interests independent of surface rights.
    (9) Indian Reservation land subject to 40 U.S.C. 523.
    (10) Property interests subject to reversion.
    (11) Easements.
    (12) Any building or fixture that is excess, or surplus, that is on 
land owned by a landholding agency, where the underlying land is not 
excess or surplus.
    (13) Property purchased in whole or in part with Federal funds if 
title to the property is not held by a Federal landholding agency as 
defined in this subpart.

Collecting the Information


Sec.  102-75.1162  How will information be collected?

    (a) Canvass of landholding agencies. On a quarterly basis, HUD will 
canvass each landholding agency to collect information about property 
described as unutilized, underutilized, excess or surplus in accordance 
with 40 U.S.C. 524; however, HUD will accept property information 
between canvasses. Each canvass will collect information on properties 
not previously reported, and about property reported previously where 
the status or classification of the property has changed, or 
improvements have been made to the property. HUD will request 
descriptive information on properties sufficient to make a reasonable 
determination, under the criteria described below, of the suitability 
of a property for use to assist the homeless. Landholding agencies must 
report property information to HUD using the property checklist 
developed by HUD for that purpose. Property checklists submitted in 
response to a canvass must be submitted to HUD within 25 days of 
receipt of the canvass.
    (b) Agency annual suitable property report. By December 31 of each 
year, each landholding agency must notify HUD of the current 
availability status and classification of each property controlled by 
the agency that:
    (1) was included in a list of suitable properties published that 
year by HUD, and
    (2) remains available for application for use to assist the 
homeless or has become available for application during that year.
    (c) GSA inventory. HUD will collect information, in the same manner 
as described in paragraph (a) of this section, from GSA regarding 
property that is in GSA's current inventory of excess or surplus 
property.
    (d) Change in status. If the information provided on the property 
checklist changes subsequent to HUD's determination of suitability, 
including any improvements or other alterations to the physical 
condition of the land or the buildings on the property, and the 
property remains unutilized, underutilized, excess or surplus, the 
landholding agency must submit a revised property checklist in response 
to the next quarterly canvass. HUD will review for suitability and, if 
it differs from the previous determination, repost the property 
information on the HUD website. For example, property determined 
unsuitable due to extensive deterioration may have had improvements, or 
property determined suitable may subsequently be found to be 
extensively deteriorated.

Suitability Determination


Sec.  102-75.1163  Who issues the suitability determination?

    (a) Suitability determination. Within 30 days after the receipt of 
a completed property checklist from landholding agencies either in 
response to a quarterly canvass, or between canvasses, HUD will 
determine, using the criteria set forth in Sec.  581.6 whether a 
property is suitable for use to assist the homeless and report its 
determination to the landholding agency. Properties that are under 
lease, contract, license, or agreement by which a Federal agency 
retains a real property interest or which are scheduled to become 
unutilized or underutilized will be reviewed for suitability no earlier 
than six months prior to the expected date when the property will 
become unutilized or underutilized.
    (b) Scope of suitability. HUD will determine the suitability of a 
property for use to assist the homeless without regard to any 
particular use.
    (c) Environmental information. HUD will evaluate the environmental

[[Page 16854]]

information contained in property checklists forwarded to HUD by the 
landholding agencies solely for the purpose of determining suitability 
of properties under the criteria in Sec.  102-75.1166
    (d) Record of suitability determination. HUD will assign an 
identification number to each property reviewed for suitability. HUD 
will maintain a public record of the following:
    (1) The suitability determination for a particular piece of 
property, and the reasons for that determination; and
    (2) The landholding agency's response to the determination pursuant 
to the requirements of Sec.  102-75.1166(a).
    (e) Property determined unsuitable. Property that is reviewed by 
HUD under this section and that is determined unsuitable for use to 
assist the homeless may not be made available for any other purpose for 
20 days after publication of a notice of unsuitability on the HUD 
website.
    (f) Procedures for appealing unsuitability determinations.
    (1) To request review of a determination of unsuitability, a 
representative of the homeless must contact HUD, in writing, through 
the U.S. Mail, email, or the HUD website, or such other method as HUD 
may require, within 20 days of publication of notice of unsuitability.
    (2) Requests for review of a determination of unsuitability may be 
made only by representatives of the homeless.
    (3) The request for review must specify the grounds on which it is 
based, i.e., HUD has improperly applied the criteria or HUD has relied 
on incorrect or incomplete information in making the determination 
(e.g., that property is in a floodplain but not in a floodway).
    (4) Upon receipt of a request to review a determination of 
unsuitability, HUD will notify the landholding agency or GSA that such 
a request has been made. The landholding agency or GSA shall have 20 
days from receipt of the notice from HUD, or an extended period agreed 
to between HUD and the landholding agency or GSA, to provide any 
information pertinent to the review. The landholding agency or GSA must 
refrain from initiating disposal procedures until HUD has completed its 
reconsideration regarding unsuitability. If the landholding agency or 
GSA fails to meet the deadline, HUD will move forward with the appeal 
review with the property information it already has and information 
submitted in the appeal request provided by the representative of the 
homeless.
    (i) HUD will act on all requests for review within 30 days of 
receipt of the landholding agency's or GSA's response, or, if the 
landholding agency or GSA failed to meet the deadline, within 30 days 
of such deadline, and will notify the representative of the homeless 
and the landholding agency or GSA in writing of its decision.
    (ii) If a property is determined suitable as a result of the 
review, HUD will request the landholding agency's or GSA's 
determination of availability pursuant to Sec.  102-75.1166, upon 
receipt of which HUD will promptly publish the determination on the HUD 
website.

Real Property Reported Excess to GSA


Sec.  102-75.1164  For the purposes of this subpart, what is the policy 
concerning real property reported excess to GSA?

    (a) Each landholding agency must submit a report to GSA of 
properties it determines excess. Each landholding agency must also 
provide a copy of HUD's suitability determination, if any, including 
HUD's identification number for the property.
    (b) If a landholding agency reports an excess property to GSA that 
HUD has already determined to be suitable for use to assist the 
homeless, GSA will screen the property pursuant to paragraph (h) of 
this section and will advise HUD of the availability of the property 
for use by the homeless as provided in paragraph (e) of this section. 
In lieu of the above, GSA may submit a new checklist to HUD and follow 
the procedures in paragraphs (c) through (h) of this section.
    (c) If a landholding agency reports an excess property to GSA that 
has not been reviewed by HUD for homeless assistance suitability, GSA 
will complete a property checklist, based on information provided by 
the landholding agency, and will forward this checklist to HUD for a 
suitability determination. This checklist will reflect any change in 
classification, such as from unutilized or underutilized to excess or 
surplus.
    (d) Within 30 days after GSA's submission, HUD will advise GSA of 
the suitability determination.
    (e) When GSA receives notification from HUD listing suitable excess 
properties, GSA will transmit a response to HUD within 45 days. GSA's 
response will include the following for each identified property:
    (1) A statement that there is no other compelling Federal need for 
the property and, therefore, the property will be determined surplus; 
or
    (2) A statement that there is further and compelling Federal need 
for the property (including a full explanation of such need) and that, 
therefore, the property is not presently available for use to assist 
the homeless.
    (f) When GSA submits a checklist to HUD in accordance with 
paragraphs (b) and (c) of this section, the information regarding the 
availability of the property, as specified in paragraph (e)(1) and (2) 
of this section, may be included with the checklist if it is known at 
the time of submittal.
    (g) When a surplus property is determined as suitable, confirmed as 
available by GSA, and notice is published on the HUD website, GSA will 
concurrently notify HHS, State and local government units, and known 
homeless assistance providers that have expressed interest in the 
particular property, and other organizations, as appropriate, 
concerning suitable properties.
    (h) Upon submission of a Report of Excess to GSA, GSA may screen 
the property for Federal use. In addition, GSA may screen State and 
local governmental units and eligible non-profit organizations to 
determine interest in the property in accordance with current 
regulations. (See 41 CFR 102-75.1220, 102-75.255 and 102-75.350).
    (i) The landholding agency will retain custody and accountability 
and will protect and maintain any property that is reported excess to 
GSA as provided in 41 CFR 102-75.965.

Suitability Criteria


Sec.  102-75.1165  What are suitability criteria?

    (a) In general, properties will be determined suitable unless a 
property's characteristics include one or more of the following 
conditions:
    (1) Flammable or explosive hazards. Property located less than an 
acceptable separation distance (under the standards in 24 CFR part 51, 
subpart C and the HUD Guidebook, ``Siting of HUD-Assisted Projects Near 
Hazardous Facilities'' or successor guidebook) from any stationary 
aboveground container or facility which stores, handles, or processes 
hazardous substances of an explosive or fire prone nature (excluding 
containers and facilities that are not hazards as defined in 24 CFR 
51.201), unless HUD can determine during the review period based on 
information provided by the landholding agency that appropriate 
mitigating measures, as defined in 24 CFR 51.205, are already in place.
    (2) Coastal Barriers. Property located in a System Unit, as defined 
at 16 U.S.C. 3502(7), under the Coastal Barrier Resources Act, as 
amended (16 U.S.C. 3501 et seq.).

[[Page 16855]]

    (3) Site Safety Conditions. Property with a documented and 
extensive condition(s) that represents a clear threat to personal 
physical safety or health. Such conditions may include, but are not 
limited to, significant contamination from hazardous substances, as 
defined by 42 U.S.C. 9601, periodic flooding, sinkholes, or landslides.
    (b) In the cases below, properties will be determined unsuitable, 
unless the landholding agencies provide information to enable HUD to 
determine the property is suitable:
    (1) Inaccessible. Property that is inaccessible, meaning that the 
property is not accessible by road (including property on small 
offshore islands) or is landlocked (e.g., can be reached only by 
crossing private property and there is no established right or means of 
entry).
    (2) National Security. Property located in an area to which the 
general public is denied access in the interest of national security 
(e.g., where a special pass or security clearance is a condition of 
entry to the property), unless there is an alternative method to gain 
access without compromising national security.
    (3) Runway clear zones. Property located within a runway clear zone 
or a military airfield clear zone.
    (4) Floodway. Property located in a floodway, unless only an 
incidental portion of the property is in the floodway and that 
incidental portion does not affect the use of the remainder of the 
property to assist the homeless.

Determination of Availability


Sec.  102-75. 1166  What is the policy concerning determination of 
availability statements for suitable properties?

    (a) Within 45 days after receipt of notification from HUD pursuant 
to Sec.  102-75.1162(a) that a property has been determined to be 
suitable, each landholding agency or GSA must transmit to HUD a 
statement of one of the following:
    (1) In the case of unutilized or underutilized property--
    (i) An intention to declare the property excess;
    (ii) An intention to make the property available for use to assist 
the homeless; or
    (iii) The reasons why the property cannot be declared excess or 
made available for use to assist the homeless. The reasons given must 
be different from those listed as suitability criteria in Sec.  102-
75.1165.
    (2) In the case of excess property which has been reported to GSA--
    (i) A statement that there is no compelling Federal need for the 
property, and, therefore, the property will be determined surplus; or
    (ii) A statement that there is a further and compelling Federal 
need for the property (including a full explanation of such need) and 
therefore, the property is not presently available for use to assist 
the homeless.
    (b) [Reserved]

Public Notice of Determination


Sec.  102-75.1167  What is the policy concerning making public the 
notice of determination?

    (a) No later than 15 days after the most recent 45-day period has 
elapsed for receiving responses from the landholding agencies or GSA 
regarding availability, HUD will post on the HUD website a list of all 
properties reviewed, including a description of the property, its 
address, and classification. The following designations will be made:
    (1) Properties that are suitable and available.
    (2) Properties that are suitable and unavailable.
    (3) Properties that are suitable and to be declared excess.
    (4) Properties that are unsuitable.
    (b) HUD will establish and maintain a toll-free number for the 
public to obtain specific information about properties in paragraph (a) 
of this section.
    (c) No later than 15 days after the most recent 45-day period has 
elapsed for receiving responses from the landholding agencies or GSA 
regarding availability, HUD will transmit to the United States 
Interagency Council on Homelessness (USICH) a copy of the list of all 
properties in paragraph (a) of this section. The USICH will immediately 
distribute to all state and regional homeless coordinators area-
relevant portions of the list. The USICH will encourage the state and 
regional homeless coordinators to disseminate this information widely.
    (d) No later than February 15 of each year, HUD will publish in the 
Federal Register a list of all properties in the agency annual suitable 
property reports, reported to HUD pursuant to Sec.  102-75.1162(b).
    (e) HUD will publish an annual list of properties determined 
suitable, but which agencies reported unavailable including the reasons 
such properties are not available.

General Policies of HHS


Sec.  102-75.1168  What are the general policies of HHS regarding the 
transfer of properties to assist the homeless?

    (a) It is the policy of HHS to foster and assure maximum 
utilization of surplus property for homeless assistance purposes.
    (b) Transfers may be made only to eligible organizations.
    (c) Eligible organizations must be authorized, in the State in 
which the requested property is located, to carry out the activity for 
which it requests the property.
    (d) Property will be requested for assignment only when HUD has 
made a final determination that the property is suitable for use to 
assist the homeless, GSA has determined it is available, and HHS has 
determined it is needed for homeless assistance purposes. The amount of 
real and related personal property to be transferred shall not exceed 
normal operating requirements of the applicant. Such property will not 
be requested for assignment unless it is needed at the time of 
application for homeless assistance purposes or will be so needed 
within the immediate or foreseeable future.
    (e) Transfers by deed will be made only after the applicant's 
financial plan is approved and the applicant provides certification 
that the proposed program is permissible under all applicable State and 
local zoning restrictions, building codes, and similar limitations.

Expression of Interest Process


Sec.  102-75.1169  How may eligible organizations express interest in 
properties to assist the homeless?

    (a) Properties published by HUD as suitable and available pursuant 
to Sec.  102-75.1167, for application for use to assist the homeless 
shall not be available for any other purpose for a period of 30 days 
beginning on the date of publication. Any eligible organization 
interested in any underutilized, unutilized, excess, or surplus 
property for use to assist the homeless must send to HHS a written 
expression of interest in that property within 30 days after the 
property has been published on the HUD website.
    (b) Although a property may be determined suitable by HUD, HUD's 
determination does not mean a property is necessarily useable for the 
purpose(s) stated in the application, nor does it guarantee subsequent 
conveyance or transfer of a property.
    (c) If a written expression of interest to apply for suitable 
property for use to assist the homeless is received by HHS within the 
30-day holding period, such property may not be made available for any 
other purpose until the date HHS or the appropriate landholding agency 
has completed action on the application submitted pursuant to that 
expression of interest.

[[Page 16856]]

    (d) The expression of interest should identify the specific 
property, briefly describe the proposed use, include the name of the 
organization, and indicate whether it is a public body or a private, 
non-profit organization. The expression of interest must be sent to HHS 
by email, [email protected], or by mail at the following address: 
Department of Health and Human Services, Program Manager, Federal Real 
Property Assistance Program, Real Estate Logistics and Operations, 5600 
Fishers Lane, Rockville, Maryland 20852.
    (1) HHS will notify the landholding agency (for unutilized and 
underutilized properties) or GSA (for excess and surplus properties) 
when an expression of interest has been received for a certain 
property.
    (e) An expression of interest may be sent to and accepted by HHS 
any time after the 30-day holding period has expired only if the 
property remains available as determined by GSA or the landholding 
agency for application to assist the homeless. In such a case, an 
application submitted pursuant to this expression of interest may be 
approved for use by the homeless if:
    (1) There are no pending applications or written expressions of 
interest made under any law for use of the property for any purpose; 
and
    (2) In the case of excess or surplus property, GSA has not received 
a bona fide offer to purchase that property or advertised for the sale 
of the property by public auction.

Application Process and Requirements


Sec.  102-75.1170  How may eligible organizations apply for the use of 
properties to assist the homeless?

    (a) Upon receipt of an expression of interest, HHS will send an 
application packet to the interested entity. The application packet 
requires the applicant to provide certain information, including the 
following--
    (1) Acquisition type. The applicant must state whether it is 
requesting acquisition of the property by lease, deed, or permit. A 
lease of one year, extendable at HHS's discretion, with the concurrence 
of GSA or the landholding agency, may be granted when the applicant's 
initial application is approved and the applicant's final application 
outlining the applicant's financial plan is found to be otherwise 
reasonable based on the criteria in paragraph (a)(7) of this section, 
but either a change in zoning is required or the financial plan 
proposes to utilize Low-Income Housing Tax Credits or other funding 
sources that typically take longer to process than other forms of 
financing.
    (2) Description of the applicant organization. The applicant must 
document that it satisfies the definition of an ``eligible 
organization'' as specified in Sec.  102-75.1160. The applicant must 
document its authority to hold property for the proposed program and 
plan of use by providing a copy of its Articles of Organization, 
Charter, Certification from State of Non-Profit Organization status, or 
other appropriate document or citation. Private, non-profit 
organizations applying for the acquisition of a certain property must 
document that they are tax exempt under section 501(c)(3) of the 
Internal Revenue Code.
    (3) Description of the property desired. The applicant must 
describe the listed property desired, including existing zoning. 
Applicants must certify that any modification(s) made to and use of the 
property will conform to all applicable building codes, and local use 
restrictions, or similar limitations. In accordance with GSA policy, 
determinations regarding parcelization are made prior to screening. 
Therefore, expressions of interest and applications for portions of 
listed properties will not be accepted.
    (4) Description of the proposed program. The applicant must fully 
describe the proposed program and plan of use, including implementation 
plans.
    (5) Demonstration of need. The applicant must demonstrate that the 
property is needed for homeless assistance purposes at the time of 
application and how the program will address the needs of the homeless 
population to be assisted. The applicant must demonstrate that it has 
an immediate need and ability to utilize all of the property for which 
it is applying.
    (6) Demonstrate that the property is suitable and adaptable for the 
proposed program and plan of use. The applicant must fully explain why 
the property is suitable and describe what, if any, modification(s) 
will be made to the property before the program becomes operational.
    (7) Ability to finance and operate the proposed program. If the 
applicant's initial application is approved, the applicant must set 
forth a reasonable plan to finance the approved program within 45 days 
of the initial approval. To be considered reasonable, the plan must, at 
a minimum:
    (i) specifically describe all anticipated costs and sources of 
funding for the proposed program, including any property modifications;
    (ii) be accompanied by supporting documentation which demonstrates 
that the proposed plan is likely to succeed;
    (iii) demonstrate that the applicant is ready, willing, able, and 
authorized to assume care, custody, and maintenance of the property;
    (iv) demonstrate that it has secured the necessary dedicated funds, 
or the ability to obtain such funds, to carry out the approved proposed 
program and plan of use for the property, including administrative 
expenses incident to the transfer by deed, lease, or permit;
    (v) not diminish the value of the government's interest in the 
property nor impair the government's ability to revert and immediately 
dispose of the property free of any and all liens, encumbrances, or 
anything else which renders the property unmarketable. Deed transfers 
will only be made after an applicant demonstrates its financial plan 
adequately protects the United States' interest in the property; and
    (vi) neither subject the Federal government's interest in the 
property to foreclosure nor impose obligations (e.g., extended use 
agreements) on the Federal government.
    (8) Compliance with non-discrimination requirements. Each applicant 
under this part must certify in writing that it will comply with all 
requirements of federal law and HHS policy, as amended, relating to 
non-discrimination, including the following: the Fair Housing Act (42 
U.S.C. 3601-3619) and implementing regulations; and, as applicable, 
Executive Order 11063 (Equal Opportunity in Housing) and implementing 
regulations; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 
to d-4) (Non-discrimination in Federally Assisted Programs) and 
implementing regulations; Section 1557 of the Affordable Care Act and 
implementing regulations; the prohibitions against discrimination on 
the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 
6101-6107) and implementing regulations; and the prohibitions against 
otherwise qualified individuals with disabilities under section 504 of 
the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing 
regulations. The applicant must maintain the required records to 
demonstrate compliance with all applicable Federal laws and HHS 
policies related to non-discrimination.
    (9) Insurance and Indemnification. The applicant must certify that 
it will insure the property against loss, damage, or destruction to 
protect the residual financial interest of the United States. The 
United States shall be named as an additional insured. Applicants must 
provide proof of insurance annually or upon request. Failure to 
maintain sufficient insurance may result in adverse action, including

[[Page 16857]]

reversion of the property, at the discretion of HHS. Applicants, and 
all affiliated parties utilizing the property, as approved by HHS, must 
indemnify the United States and hold the United States harmless for all 
actions involving use of the property.
    (10) Historic preservation. Where applicable, the applicant must 
provide information that will enable HHS to comply with Federal 
historic preservation requirements.
    (11) Environmental information. The applicant must provide 
sufficient information to allow HHS to analyze the potential impact of 
the applicant's proposal on the environment, in accordance with the 
instructions provided with the application packet. HHS will assist 
applicants in obtaining any pertinent environmental information in the 
possession of HUD, GSA, or the landholding agency. However, the burden 
is on the applicant to submit sufficient documentation for analysis by 
HHS.
    (12) Local government notification. The applicant must certify that 
it has notified the applicable unit of general local government 
responsible for sewer, water, police, and fire services, in writing, of 
its proposed program for the specific property and submit a copy of 
that written notification.
    (13) Zoning and Local Use Restrictions. An applicant requesting a 
deed must certify that it has consulted all State and local 
governmental entities that will have jurisdiction over the property and 
that the proposed use will comply with all applicable zoning and local 
use restrictions, including local building code requirements. An 
applicant that applies for a lease or permit is not required to comply 
with local zoning requirements, as long as the Federal government 
retains ownership of the property. Deed transfers will only be made 
after the applicant has provided acceptable written proof that the 
proposed program is not in conflict with State or local zoning laws and 
restrictions, building codes, or similar limitations.
    (b) Scope of evaluations. Due to the short time frame imposed by 
statute for evaluating applications, HHS's evaluation will, generally, 
be limited to the information contained in the application. It is 
therefore incumbent on applicants to provide thorough and complete 
applications.
    (c) Deadline for Initial Application. An initial application must 
be received by HHS, at the above email address or other address 
indicated by HHS, within 75 days after an expression of interest is 
received from a particular applicant for that property. Upon written 
request from the applicant, HHS may, in its discretion, grant 
extensions authorized by 42 U.S.C. 11411(e)(2)(A), provided that the 
appropriate landholding agency or GSA concurs with the extension.
    (d) Evaluation of initial application.
    (1) Upon receipt of an initial application, HHS will review it for 
completeness, and, if incomplete, may, in its discretion, return it or 
ask the applicant to furnish any missing or additional required 
information prior to final evaluation of the initial application.
    (2) HHS will evaluate each initial application within 10 days of 
receipt and will promptly advise the applicant of its decision. All 
initial applications will be reviewed on the basis of the following 
elements:
    (i) Services offered. The extent and range of proposed services, 
such as meals, shelter, job training, and counseling.
    (ii) Need. The demand for the program, the program's ability to 
satisfy unmet needs of the community, and the degree to which the 
available property will be fully utilized.
    (iii) Experience. Demonstrated ability to provide the services, 
such as prior success in operating similar programs and recommendations 
attesting to that fact by Federal, State, and local authorities.
    (e) Deadline and Evaluation of Final Application.
    (1) If HHS approves an initial application, HHS will notify the 
applicant and provide the applicant 45 days in which to provide a final 
application. The final application shall set forth a reasonable plan to 
finance, as specified in Sec.  102-75.1170(a)(6), the approved program 
as set forth in the initial application. Applicants may not modify the 
approved initial application within its final application proposal.
    (2) Upon receipt of the final application, HHS will make a 
determination within 15 days and notify the applicant.
    (3) Unlike with initial applications, requests for extensions are 
not authorized by 42 U.S.C. 11411 and thus will not be considered for 
final applications.
    (4) Applications are evaluated on a first-come, first-served basis. 
HHS will notify all organizations that have submitted expressions of 
interest for a particular property whether an earlier application 
received for that property has been approved.
    (f) Competing Applications. If HHS receives more than one final 
application simultaneously, HHS will evaluate all applications and make 
a determination based on each application's merit. HHS will rank 
approved applications based on the elements listed in paragraph (a) of 
this section, and notify the landholding agency, or GSA, as 
appropriate, of the approved applicant.

Action on Approved Applications


Sec.  102-75.1171  What action must be taken on approved applications?

    (a) Unutilized and underutilized properties.
    (1) When HHS approves an application, it will so notify the 
applicant and forward a copy of the application to the landholding 
agency. The landholding agency will execute the lease, or permit 
document, as appropriate, in consultation with the applicant.
    (2) The landholding agency maintains the discretion to decide the 
following:
    (i) The length of time the property will be available. (Leases and 
permits will be for a period of at least one year unless the applicant 
requests a shorter term.)
    (ii) The terms and conditions of the lease or permit document 
(except that a landholding agency may not charge any fees or impose any 
costs).
    (b) Excess and surplus properties.
    (1) When HHS approves an application, it will so notify the 
applicant and request that GSA assign the property to HHS for transfer. 
Requests to GSA for the assignment of surplus property to HHS for 
homeless assistance purposes will be based on the following conditions:
    (i) HHS has a fully approved application for the property;
    (ii) The applicant is able, willing, and authorized to assume 
immediate care, custody, and maintenance of the property;
    (iii) The applicant is able, willing and authorized to pay the 
administrative expenses incident to the transfer; and
    (iv) The applicant has secured the necessary funds, or had 
demonstrated the ability to obtain such funds, to carry out the 
approved program of use of the property.
    (2) Upon receipt of an acceptable assignment, HHS will execute the 
transfer document in accordance with the procedures and requirements 
set out in this subpart and any other terms and conditions HHS and GSA 
determines are appropriate or necessary. Custody and accountability of 
the property will remain throughout the lease term with the landholding 
agency (i.e., the agency which initially reported the property as 
excess) and throughout the deed term with the transferee.
    (3) Prior to assignment to HHS, GSA may consider other Federal uses 
and

[[Page 16858]]

other important national needs in deciding the disposition of surplus 
property. Priority of consideration will normally be given to uses to 
assist the homeless. However, both GSA and HHS may consider any 
competing request for the property made under 40 U.S.C. 550 that is so 
meritorious and compelling that it outweighs the needs of the homeless.
    (4) Whenever GSA or HHS decides in favor of a competing request 
over a request for property for homeless assistance, the agency making 
the decision will transmit to the appropriate committees of Congress an 
explanatory statement which details the need satisfied by conveyance of 
the surplus property, and the reasons for determining that such need 
was so meritorious and compelling as to outweigh the needs of the 
homeless.

Surplus Property Transfer Documents


Sec.  102-75.1172  What documents are used for the transfer of surplus 
Federal real property for use to assist the homeless?

    (a) Surplus property may be conveyed to eligible organizations 
pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease 
or deed, at the applicant's discretion.
    (b) Transfers of surplus property for homeless assistance purposes 
are in exchange for the transferee's agreement to fully utilize the 
property for homeless assistance purposes in accordance with the terms 
specified in the transfer document.
    (c) A transfer of surplus property for homeless purposes is subject 
to the disapproval of GSA within 30 days after notice is given to GSA 
of the proposed transfer.
    (d) Surplus property transferred pursuant to this subpart will be 
disposed on an ``as is, where is,'' basis without warranty of any kind 
except as may be stated in the transfer document.
    (e) Unless excepted by GSA in its assignment, the disposal of 
property includes mineral rights associated with the surface estate.
    (f) Transfers of surplus property under this subpart will be made 
with the following general terms and conditions:
    (1) For the period provided in the transfer document, the 
transferee shall utilize all the surplus property it receives solely 
and continuously for an approved program and plan of use, in accordance 
with 42 U.S.C. 11411 and these regulations, except that:
    (i) The transferee has 12 months from the date of transfer to place 
the surplus property into use, if HHS did not approve in writing, 
construction of new facilities or major renovation of the property when 
it approved the final application;
    (ii) The transferee has 36 months from the date of transfer to 
place the surplus property into use, if the transferee proposes 
construction of new facilities or major renovation of the property and 
HHS approves it in writing at the time it approves the final 
application;
    (iii) If the applicable time limitation is not met, the transferee 
shall either commence payments in cash to the Federal government for 
each month thereafter during which the proposed use has not been 
implemented or take such other action as set forth at Sec.  102-75.1176 
as is deemed appropriate by HHS. Such monthly payments shall be 
computed on the basis of the current fair market value of the property, 
as conveyed, at the time of the first payment and dividing it by 360 
months. At HHS's discretion, the payment may be waived if the 
transferee makes a sufficient showing of continued progress to place 
the property into use or if an unforeseeable event occurs which 
prevents the property from being put into use within the applicable 
timeframe; and
    (iv) HHS may permit use of surplus property at any time during the 
period of restriction by an entity other than the transferee in 
accordance with Sec.  102-75.1177.
    (2) The transferee will not be permitted to encumber, sell, lease 
or sublease, rent, mortgage, or otherwise dispose of the property, or 
any part thereof, without the prior written authorization of HHS. In 
the event the property is sold, leased or subleased, encumbered, 
disposed of, or is used for purposes other than those set forth in an 
approved plan without the consent of HHS, all revenues or the 
reasonable value of other benefits received by the transferee directly 
or indirectly from such use, as determined by HHS, will be considered 
to have been received and held in trust by the transferee for the 
account of the United States and will be subject to the direction and 
control of HHS. The provisions of this paragraph shall not impair or 
affect the rights reserved to the United States in paragraph (f)(8) of 
this section, or the right of HHS to impose conditions to its consent.
    (3) The transferee will file with HHS such reports on its 
maintenance and use of the surplus property and any other reports or 
information deemed necessary by HHS.
    (4) The transferee shall pay all administrative costs incidental to 
the transfer, including but not limited to--transfer taxes; surveys; 
appraisals; title search; the transferee's legal fees; recordation 
expenses, etc. Transferee is solely responsible for such costs and may 
not seek reimbursement from the Federal government for any reason.
    (5) The transferee shall protect, preserve, maintain, and repair 
the property to ensure that the property remains in as good a condition 
as when received.
    (6) The transferee shall protect the residual financial interest of 
the United States in the surplus property by insurance or such other 
means as HHS directs. Where loss or damage to the transferred property 
occurs, all proceeds from insurance shall be promptly used by the 
transferee for the purpose of repairing and restoring the property to 
its former condition or replacing it with equivalent or more suitable 
facilities. If not so used, there shall be paid to the United States 
that part of the insurance proceeds that is attributable to the 
Government's residual interest in the property lost, damaged, or 
destroyed. Further, transferee shall neither take any action nor allow 
any action which diminishes the residual financial interest of the 
United States.
    (7) The transferee shall abide by all applicable Federal Civil 
Rights laws including those specified in the covenants and conditions 
contained in the transfer document, prohibiting the transferee from 
discriminating on the basis of, including but not limited to, race, 
color, national origin, religion, sex, familial status or disability in 
the use of the property.
    (8) In the event of substantial noncompliance with any conditions 
of the deed as determined by HHS, whether caused by the legal or other 
inability of the transferee, its successors and assigns, to perform any 
of the obligations of the transfer document, the Federal government has 
an immediate right of reentry thereon, and to cause all right, title, 
and interest in and to the property to revert to the United States, and 
the transferee shall forfeit all right, title, and interest in and to 
the property. In such event, transferee shall execute a quitclaim deed 
and take all other actions necessary to return the property to the 
United States within ninety (90) days of a written request from the 
Federal government, extended only at the discretion of the Federal 
government. Transferee shall cooperate with the United States in the 
event of a reversion and agrees that the United States need not seek 
judicial intervention before exercising its right to revert, reenter 
and reconvey the property.
    (9) In the event title is reverted to the United States for 
noncompliance or voluntarily reconveyed to the United

[[Page 16859]]

States, the transferee shall, at the option of HHS, be required to: 
reimburse the United States for the decrease in value of the property 
not due to market conditions, reasonable wear and tear, acts of God, or 
approved alterations completed by the transferee to adapt the property 
to the homeless use for which the property was transferred; and 
reimburse the United States for any costs incurred in reverting title 
to or possession of the property, including reasonable attorneys' fees.
    (10) With respect to leased property, in the event of substantial 
noncompliance with any of the conditions of the lease, as determined by 
HHS or the landholding agency, the right of occupancy and possession 
shall, at the option of HHS or the landholding agency, be terminated. 
In the event a leasehold is terminated by the United States for 
substantial noncompliance or is voluntarily surrendered, the lessee 
shall be required, at the option of HHS, to reimburse the United States 
for the decrease in value of the property not due to market conditions, 
reasonable wear and tear, acts of God, or approved alterations 
completed by the lessee to adapt the property to the homeless use for 
which the property was leased. With respect to any termination of 
leasehold resulting from noncompliance, the United States, shall, in 
addition thereto, be reimbursed for such costs as may be incurred in 
recovering possession of the property, including reasonable attorneys' 
fees.
    (11) Any other term or condition that HHS and GSA determine 
appropriate or necessary.
    (12) With respect to surplus property transferred by deed, the 
terms and conditions including those in paragraph (f) of this section, 
apply for a period of thirty (30) years of use in accordance with a 
program of use approved in writing by HHS. The thirty-year (30) period 
may, in HHS's sole discretion, be extended or restarted in the event 
the property is not fully utilized or is retransferred to a successor 
entity. Expiration of the foregoing terms and conditions does not 
release the transferee from continuing compliance, as appropriate, with 
any conditions that may run with the land, e.g., environmental 
conditions and/or historic preservation covenants. Such conditions will 
continue to be the responsibility of the transferee and successors.
    (13) With respect to surplus property transferred by lease, the 
terms and conditions including those in paragraph (f) of this section, 
extend for the entire initial lease and for any subsequent renewal 
periods, unless specifically excluded in writing by HHS.
    (g) Related personal property may be transferred or leased as a 
part of the realty and in accordance with real property procedures.
    (h) Completion of Transfer Term and Reversion of Title. Transferees 
will be responsible for the protection and maintenance of the property 
during the time that they possess the property. Upon termination of the 
lease term or reversion of title to the United States, the transferee 
will be responsible for removing improvements made to the property if 
directed to by the United States and, in such event, will be 
responsible for restoration of the property or the costs associated 
with restoring the property. If improvements made by the transferee are 
not voluntarily removed by the transferee and the United States 
consents, they will become the property of the United States. If the 
United States does not consent, the transferee shall reimburse the 
United States for reasonable costs of removal. GSA or the landholding 
agency, as appropriate, will assume responsibility for protection and 
maintenance of a property when the lease terminates or title reverts.
    (i) Transferees, by obtaining the consent of HHS, may abrogate the 
restrictions set forth in paragraph (f) of this section for all or any 
portion of the property in accordance with the provisions of Sec.  102-
75.1178.

Unsuitable Properties


Sec.  102-75.1173  What action must be taken on properties determined 
unsuitable for homeless assistance?

    The landholding agency or GSA will defer action to dispose of 
properties determined unsuitable for homeless assistance for 20 days 
after the date that notice of a property is posted on the HUD website. 
HUD will inform landholding agencies or GSA if appeal of an 
unsuitability determination is filed by a representative of the 
homeless pursuant to Sec.  102-75.1163(f). HUD will advise the agency 
to refrain from initiating disposal procedures until HUD has completed 
its reconsideration process regarding unsuitability. Thereafter, or if 
no appeal has been filed after 20 days, GSA or the appropriate 
landholding agency may proceed with disposal action in accordance with 
applicable law.

Compliance With the National Environmental Policy Act of 1969 and Other 
Related Acts (Environmental Impact)


Sec.  102-75.1174  What are the requirements for compliance with the 
National Environmental Policy Act of 1969 and other related Acts 
(environmental impact) for the transfer of Federal real property for 
use to assist the homeless?

    (a) HHS, prior to making a final decision to convey or lease, or to 
amend, reform, or grant an approval or release with respect to a 
previous conveyance or lease of, surplus property for homeless 
purposes, will act in accordance with applicable provisions of the 
National Environmental Policy Act of 1969, the National Historic 
Preservation Act of 1966, the National Archeological Data Preservation 
Act, and other related acts. No lease to use surplus property shall 
allow the lessee to make, or cause to be made, any irreversible change 
in the conditions of said property, and no lease shall be employed for 
the purpose of delaying or avoiding compliance with the requirements of 
these Acts, unless approved by the United States.
    (b) Applicants shall be required to provide such information as HHS 
deems necessary to make an assessment of the impact of the proposed 
Federal action on the human environment. Materials contained in the 
applicant's official request, responses to a standard questionnaire 
prescribed by HHS, as well as other relevant information, will be used 
by HHS in making said assessment.
    (c) If the assessment reveals:
    (1) that the proposed Federal action involved properties of 
historical significance which are listed, or eligible for listing, in 
the National Register of Historic Places; or
    (2) that a more than insignificant impact on the human environment 
is reasonably foreseeable as a result of the proposed action; or
    (3) that the proposed Federal action could result in irreparable 
loss or destruction of archeologically significant items or data, HHS 
will, except as provided for in paragraph (d) of this section, prepare 
and distribute, or cause to be prepared or distributed, such notices 
and statements and obtain such approvals as are required by the above 
cited Acts.
    (d) If a proposed action involves other Federal agencies in a 
sequence of actions, or a group of actions, directly related to each 
other because of their functional interdependence, HHS may enter into 
and support a lead agency agreement to designate a single lead

[[Page 16860]]

agency which will assume primary responsibility for coordinating the 
assessment of environmental effects of proposed Federal actions, 
preparing and distributing such notices and statements, or obtaining 
such approvals, as are required by the above cited Acts. The procedures 
of the designated lead agency will be utilized in conducting the 
environmental assessment. In the event of disagreement between HHS and 
another Federal agency, HHS will reserve the right to abrogate the lead 
agency agreement with the other Federal agency.

No Applications Approved


Sec.  102-75.1175  What action must be taken if there is no expression 
of interest or approved application?

    (a) At the end of the 30-day holding period described in Sec.  102-
75.1169(a), HHS will notify GSA, or the landholding agency, as 
appropriate, if an expression of interest has been received for a 
certain property. Where there is no expression of interest, GSA or the 
landholding agency, as appropriate, will proceed with disposal in 
accordance with applicable law.
    (b) Upon notice from HHS that all applications have been 
disapproved, or if no initial applications have been received within 75 
days after an expression of interest, or no final application has been 
received within 45 days after an approved initial application, disposal 
may proceed in accordance with applicable law.

Utilization and Enforcement


Sec.  102-75.1176  What are the utilization and enforcement 
requirements for property transferred for use to assist the homeless?

    (a) Sanctions. For instances of substantial noncompliance relating 
to surplus property transfers, HHS may impose, in its sole discretion, 
any or all of the following sanctions, as applicable:
    (1) Where property or any portion thereof was not used or is not 
being used for the purposes for which transferred, or is sold, leased 
or subleased, encumbered, disposed of, or used for purposes other than 
those in the approved program and plan of use, without the prior 
written consent of HHS, HHS may require the transferee to--
    (i) Place the property into immediate use for an approved purpose 
and extend the period of restriction in the transfer document for an 
additional term as determined by HHS;
    (ii) Hold in trust all revenues and the reasonable value of other 
benefits received by the transferee directly or indirectly from that 
use for the United States subject to the direction and control of HHS;
    (iii) Return title to such property to the United States or to 
relinquish any leasehold interest therein;
    (iv) Abrogate the conditions and restrictions of the transfer, as 
set forth in Sec.  102-75.1178;
    (v) Make cash payments to the United States, as directed by HHS, 
equivalent to the current fair market rental value of the surplus 
property, as transferred, for each month during which the program and 
plan of use has not been implemented and continues to not be 
implemented; or
    (vi) Any other remedy that HHS determines appropriate or necessary.
    (2) Where the transferee desires to place the property into 
temporary use to assist the homeless other than that for which the 
property was transferred, written approval from HHS must be obtained, 
and will be conditioned upon HHS's authority to permit the use and such 
terms as HHS may impose.
    (3) If HHS or the landholding agency determines that a lessee or 
sublessee of a transferee is in substantial noncompliance with a term 
or condition of the lease, or if the lessee voluntarily surrenders the 
premises, HHS may require termination of the lease and impose sanctions 
described in paragraph (a)(1) of this section, as appropriate.
    (b) Reversion. When HHS recommends reversion of the property for 
noncompliance, HHS will seek GSA's concurrence. GSA will respond to 
HHS's concurrence request within 30 days of its receipt. If GSA 
concurs, HHS will work with GSA to complete the reversion of the 
property. If GSA does not concur to the reversion recommendation, GSA 
will issue, to HHS, a written determination: stating the reason(s) for 
the disapproval; and acknowledging that HHS has recommended reversion 
and, therefore, the property is no longer within HHS's Title V program. 
The Federal government will implement a response to the noncompliance 
that is in its best interests.

Other Uses


Sec.  102-75.1177  What are the requirements for other uses of a 
transferred property?

    (a) A transferee may permit the use of all or a portion of the 
surplus property by another eligible entity as described in Sec.  102-
75.1160 for homeless assistance purposes, only upon those terms and 
conditions HHS determines appropriate, if:
    (1) The transferee submits a written request to HHS explaining the 
purpose of and need for another eligible entity's use of the property, 
program plan, and other relevant information requested by HHS;
    (2) HHS determines that the proposed use would not substantially 
limit the program and plan of use by the transferee and that the use 
will not unduly burden the Federal government;
    (3) HHS's written consent is obtained by the transferee in advance;
    (4) HHS approves the use instrument in advance and in writing; and
    (b) [Reserved].

Abrogation


Sec.  102-75.1178  What are the conditions of abrogation for property 
transferred to assist the homeless?

    (a) HHS may abrogate the conditions and restrictions in the 
transfer document if:
    (1) The transferee submits to HHS a written request that HHS 
abrogate the conditions and restrictions in the transfer document as to 
all or any portion of the surplus property;
    (2) HHS determines the terms and conditions of the proposed 
abrogation and determines that the proposed abrogation is in the best 
interest of the United States; and
    (3) HHS transmits the abrogation request to GSA and there is no 
disapproval by GSA within 30 days after notice is given. If GSA 
disapproves, GSA will state, in writing, to HHS the reason(s) for the 
disapproval.
    (b) HHS abrogates the conditions and restrictions in the transfer 
document only upon receipt of the appropriate consideration, including 
cash payment, to the United States, as directed by HHS, which is based 
on the formula contained in the transfer document, and any other terms 
and conditions HHS deems appropriate to protect the interest of the 
United States.

Compliance Inspections and Reports


Sec.  102-75.1179  What Compliance Inspections and Reports are 
Required?

    Transferees are required to allow HHS to conduct compliance 
inspections and to submit such compliance reports and actions as are 
deemed necessary by HHS. At a minimum, the transferee will be required 
to submit an annual utilization report regarding the operation and 
maintenance of the property, including current images of the entire 
property and such information as HHS shall require.

[[Page 16861]]

No Right of Administrative Review for Agency Decisions


Sec.  102-75.1180  Is there a right of administrative review for agency 
decisions within HHS?

    There is no right to administrative review within HHS, including 
requests for reconsideration or appeal, of agency decisions on 
applications and other discretionary decisions.

Waivers


Sec.  102-75.1181  May any requirement of this subpart be waived?

    The Secretary of HUD may waive any requirement of this subpart 
(over which the Secretary of HUD has jurisdiction) that is not required 
by law, whenever it is determined that undue hardship would result from 
applying the requirement, or where application of the requirement would 
adversely affect the purposes of the program. Each waiver will be in 
writing and will be supported by documentation of the pertinent facts 
and grounds. The Secretary periodically will publish notice of granted 
waivers on the HUD website.


Sec. Sec.  102-75.1182 through 102-75.1219  [Reserved]

DEPARTMENT OF HEALTH AND HUMAN SERVICES

    Accordingly, for the reasons stated above, HHS proposes to amend 45 
CFR part 12a as follows:
0
25. The authority citation for part 12a is revised to read as follows:

    Authority:  42 U.S.C. 11411; 40 U.S.C. 550.

0
26. Revise part 12a to read as follows:

PART 12a--USE OF FEDERAL REAL PROPERTY TO ASSIST THE HOMELESS

Sec.
12a.1 Definitions.
12a.2 Applicability
12a.3 General Policies
12a.4 Expression of Interest Process.
12a.5 Application Process and Requirements.
12a.6 Action on Approved Applications.
12a.7 Transfer Documents.
12a.8 Compliance with the National Environmental Policy Act of 1969 
and Other Related Acts (environmental impact).
12a.9 No Applications Approved.
12a.10 Utilization and Enforcement.
12a.11 Other Uses.
12a.12 Abrogation.
12a.13 Compliance Inspections and Reports
12a.14 No Right of Administrative Review for Agency Decisions.


Sec.  12a.1  Definitions.

    (a) Applicant means any eligible organization which has submitted 
an application to the Department of Health and Human Services to obtain 
use of a certain suitable property to assist the homeless.
    (b) Classification means a property's designation as unutilized, 
underutilized, excess, or surplus.
    (c) Day means one calendar day, including weekends and holidays.
    (d) Eligible organization means a State or local government agency, 
or a private, non-profit organization that provides assistance to the 
homeless, and that is authorized by its charter or by State law to 
enter into an agreement with the Federal government for use of property 
for the purposes of this part. Eligible organizations that are private, 
non-profit organizations interested in applying for suitable property 
must be tax exempt under section 501(c)(3) of the Internal Revenue Code 
at the time of application and remain tax exempt throughout the time 
the Federal government retains a reversionary interest in the property.
    (e) Excess property means any property under the control of a 
Federal Executive agency that the head of the agency determines is not 
required to meet the agency's needs or responsibilities, pursuant to 40 
U.S.C. 524.
    (f) GSA means the General Services Administration.
    (g) HHS means the Department of Health and Human Services.
    (h) Homeless is defined in 42 U.S.C. 11302. This term is synonymous 
with ``Homeless Individual'' and ``Homeless Person.''
    (i) HUD means the Department of Housing and Urban Development.
    (j) HUD website means a website maintained by HUD providing 
information about HUD, including any successor websites or technologies 
that are equally accessible and available to the public.
    (k) Landholding agency means the Federal department or agency with 
statutory authority to control property. For purposes of this part, the 
landholding agency is typically the Federal department or agency that 
had custody and accountability on behalf of the Federal government, of 
a certain piece of property at the time that such property was reported 
to HUD for a suitability determination pursuant to 42 U.S.C. 11411.
    (l) Lease means an agreement in writing between either HHS for 
surplus property or landholding agencies for underutilized and 
unutilized properties and the applicant giving rise to the relationship 
of lessor and lessee for the use of Federal property for a term of at 
least one year under the conditions set forth in the lease document.
    (m) Non-profit organization means an organization recognized as a 
non-profit by the State in which the organization operates, no part of 
the net earnings of which inures to the benefit of any member, founder, 
contributor, or individual; that has a voluntary board; that has an 
accounting system or has designated an entity that will maintain a 
functioning accounting system for the organization in accordance with 
generally accepted accounting procedures; and that practices 
nondiscrimination in the provision of assistance.
    (n) Permit means a license granted by a landholding agency to use 
unutilized or underutilized property for a specific amount of time, 
usually one year or less, under terms and conditions determined by the 
landholding agency. A permit does not grant to the recipient an estate 
in land or any interest in the property.
    (o) Property means real property consisting of vacant land or 
buildings, or a portion thereof, that is excess, surplus, or designated 
as unutilized or underutilized in surveys by the heads of landholding 
agencies conducted pursuant to 40 U.S.C. 524.
    (p) Related personal property means any personal property that is 
located on real property and is either an integral part of or useful in 
the operation of that property or is determined by GSA to be otherwise 
related to the property.
    (q) Representative of the homeless means a State or local 
government agency, or private nonprofit organization that provides, or 
proposes to provide, services to the homeless.
    (r) Screen means the process by which GSA surveys Federal Executive 
agencies to determine if they have an interest in using excess Federal 
property to carry out a particular agency mission, and then surveys 
State, local and non-profit entities, to determine if any such entity 
has an interest in using surplus Federal property to carry out a 
specific public use.
    (s) State means a State of the United States, and includes the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
Territories and possessions of the United States.
    (t) Substantial noncompliance means failure to take corrective 
action as directed by HHS.
    (u) Suitable property means that HUD has determined that a certain 
property satisfies the criteria listed in 24 CFR 581.6.
    (v) Surplus property means any excess property not required by any 
Federal landholding agency for its needs or the discharge of its 
responsibilities, as determined by GSA.

[[Page 16862]]

    (w) Transfer document means a lease, deed, or permit transferring 
surplus, unutilized or underutilized property.
    (x) Transferee means an eligible entity that acquires Federal 
property by lease, deed, or permit.
    (y) Underutilized means an entire property or portion thereof, with 
or without improvements which is used only at irregular periods or 
intermittently by the accountable landholding agency for current 
program purposes of that agency, or which is used for current program 
purposes that can be satisfied with only a portion of the property.
    (z) Unutilized property means an entire property or portion 
thereof, with or without improvements, not occupied for current program 
purposes for the accountable executive agency or occupied in caretaker 
status only.


Sec.  12a.2  Applicability.

    (a) This part applies to Federal property that has been designated 
by Federal landholding agencies as unutilized, underutilized, excess or 
surplus and is therefore subject to the provisions of Title V of the 
McKinney Act, as amended (42 U.S.C. 11411).
    (b) The following categories of properties are not subject to this 
part (regardless of whether they may be unutilized or underutilized):
    (1) Buildings and property at military installations that were 
approved for closure under the Defense Base Closure and Realignment Act 
of 1990 (part A of title XXIX of Public Law 101-510; 10 U.S.C. 2687 
note) after October 25, 1994.
    (2) Machinery and equipment not determined to be related personal 
property by the landholding agency or GSA or determined to be related 
personal property that the landholding agency or GSA chooses to dispose 
of separate from real property.
    (3) Government-owned, contractor-operated machinery, equipment, 
land, and other facilities reported excess for sale only to the using 
contractor and subject to a continuing military requirement.
    (4) Properties subject to special legislation directing a 
particular action.
    (5) Properties subject to a court order that, for any reason, 
precludes transfer for use to assist the homeless under the authority 
of 42 U.S.C. 11411.
    (6) Property not subject to Federal Real Property Council reporting 
requirements in accordance with 40 U.S.C. 623(i).
    (7) Mineral rights interests independent of surface rights.
    (8) Air space interests independent of surface rights.
    (9) Indian Reservation land subject to 40 U.S.C. 523.
    (10) Property interests subject to reversion.
    (11) Easements.
    (12) Any building or fixture that is excess, or surplus, that is on 
land owned by a landholding agency, where the underlying land is not 
excess or surplus.
    (13) Property purchased in whole or in part with Federal funds if 
title to the property is not held by a Federal landholding agency as 
defined in this part.


Sec.  12a.3  General Policies.

    (a) It is the policy of HHS to foster and assure maximum 
utilization of surplus property for homeless assistance purposes.
    (b) Transfers may be made only to eligible organizations.
    (c) Eligible organizations must be authorized, in the State in 
which the requested property is located, to carry out the activity for 
which it requests the property.
    (d) Property will be requested for assignment only when HUD has 
made a final determination that the property is suitable for use to 
assist the homeless, GSA has determined it is available, and HHS has 
determined it is needed for homeless assistance purposes. The amount of 
real and related personal property to be transferred shall not exceed 
normal operating requirements of the applicant. Such property will not 
be requested for assignment unless it is needed at the time of 
application for homeless assistance purposes or will be so needed 
within the immediate or foreseeable future.
    (e) Transfers by deed will be made only after the applicant's 
financial plan is approved and the applicant provides certification 
that the proposed program is permissible under all applicable State and 
local zoning restrictions, building codes, and similar limitations.


Sec.  12a.4  Expression of Interest Process.

    (a) Properties published by HUD as suitable and available pursuant 
to 24 CFR 581.8, for application for use to assist the homeless shall 
not be available for any other purpose for a period of 30 days 
beginning on the date of publication. Any eligible organization 
interested in any underutilized, unutilized, excess, or surplus 
property for use to assist the homeless must send to HHS a written 
expression of interest in that property within 30 days after the 
property has been published on the HUD website.
    (b) Although a property may be determined suitable by HUD, HUD's 
determination does not mean a property is necessarily useable for the 
purpose(s) stated in the application, nor does it guarantee subsequent 
conveyance or transfer of a property.
    (c) If a written expression of interest to apply for suitable 
property for use to assist the homeless is received by HHS within the 
30-day holding period, such property may not be made available for any 
other purpose until the date HHS or the appropriate landholding agency 
has completed action on the application submitted pursuant to that 
expression of interest.
    (d) The expression of interest should identify the specific 
property, briefly describe the proposed use, include the name of the 
organization, and indicate whether it is a public body or a private, 
non-profit organization. The expression of interest must be sent to HHS 
by email, [email protected], or by mail at the following address: 
Department of Health and Human Services, Program Manager, Federal Real 
Property Assistance Program, Real Estate Logistics and Operations, 5600 
Fishers Lane, Rockville, Maryland 20852.
    (1) HHS will notify the landholding agency (for unutilized and 
underutilized properties) or GSA (for excess and surplus properties) 
when an expression of interest has been received for a certain 
property.
    (e) An expression of interest may be sent to and accepted by HHS 
any time after the 30-day holding period has expired only if the 
property remains available as determined by GSA or the landholding 
agency for application to assist the homeless. In such a case, an 
application submitted pursuant to this expression of interest may be 
approved for use by the homeless if:
    (1) There are no pending applications or written expressions of 
interest made under any law for use of the property for any purpose; 
and
    (2) In the case of excess or surplus property, GSA has not received 
a bona fide offer to purchase that property or advertised for the sale 
of the property by public auction.


Sec.  12a.5  Application Process and Requirements.

    (a) Upon receipt of an expression of interest, HHS will send an 
application packet to the interested entity. The application packet 
requires the applicant to provide certain information, including the 
following--
    (1) Acquisition type. The applicant must state whether it is 
requesting acquisition of the property by lease, deed, or permit. A 
lease of one year, extendable at HHS's discretion, with the concurrence 
of GSA or the landholding agency, may be granted when the applicant's 
initial application is

[[Page 16863]]

approved and the applicant's final application outlining the 
applicant's financial plan is found to be otherwise reasonable based on 
the criteria in paragraph (a)(7) of this section, but either a change 
in zoning is required or the financial plan proposes to utilize Low-
Income Housing Tax Credits or other funding sources that typically take 
longer to process than other forms of financing.
    (2) Description of the applicant organization. The applicant must 
document that it satisfies the definition of an ``eligible 
organization'' as specified in Sec.  12a.1. The applicant must document 
its authority to hold property for the proposed program and plan of use 
by providing a copy of its Articles of Organization, Charter, 
Certification from State of Non-Profit Organization status, or other 
appropriate document or citation. Private, non-profit organizations 
applying for the acquisition of a certain property must document that 
they are tax exempt under section 501(c)(3) of the Internal Revenue 
Code.
    (3) Description of the property desired. The applicant must 
describe the listed property desired, including existing zoning. 
Applicants must certify that any modification(s) made to and use of the 
property will conform to all applicable building codes, and local use 
restrictions, or similar limitations. In accordance with GSA policy, 
determinations regarding parcelization are made prior to screening. 
Therefore, expressions of interest and applications for portions of 
listed properties will not be accepted.
    (4) Description of the proposed program. The applicant must fully 
describe the proposed program and plan of use, including implementation 
plans.
    (5) Demonstration of need. The applicant must demonstrate that the 
property is needed for homeless assistance purposes at the time of 
application and how the program will address the needs of the homeless 
population to be assisted. The applicant must demonstrate that it has 
an immediate need and ability to utilize all of the property for which 
it is applying.
    (6) Demonstrate that the property is suitable and adaptable for the 
proposed program and plan of use. The applicant must fully explain why 
the property is suitable and describe what, if any, modification(s) 
will be made to the property before the program becomes operational.
    (7) Ability to finance and operate the proposed program. If the 
applicant's initial application is approved, the applicant must set 
forth a reasonable plan to finance the approved program within 45 days 
of the initial approval. To be considered reasonable, the plan must, at 
a minimum:
    (i) specifically describe all anticipated costs and sources of 
funding for the proposed program, including any property modifications;
    (ii) be accompanied by supporting documentation which demonstrates 
that the proposed plan is likely to succeed;
    (iii) demonstrate that the applicant is ready, willing, able, and 
authorized to assume care, custody, and maintenance of the property;
    (iv) demonstrate that it has secured the necessary dedicated funds, 
or the ability to obtain such funds, to carry out the approved proposed 
program and plan of use for the property, including administrative 
expenses incident to the transfer by deed, lease, or permit;
    (v) not diminish the value of the government's interest in the 
property nor impair the government's ability to revert and immediately 
dispose of the property free of any and all liens, encumbrances, or 
anything else which renders the property unmarketable. Deed transfers 
will only be made after an applicant demonstrates its financial plan 
adequately protects the United States' interest in the property; and
    (vi) neither subject the Federal government's interest in the 
property to foreclosure nor impose obligations (e.g., extended use 
agreements) on the Federal government.
    (8) Compliance with non-discrimination requirements. Each applicant 
under this part must certify in writing that it will comply with all 
requirements of federal law and HHS policy, as amended, relating to 
non-discrimination, including the following: the Fair Housing Act (42 
U.S.C. 3601-3619) and implementing regulations; and, as applicable, 
Executive Order 11063 (Equal Opportunity in Housing) and implementing 
regulations; Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d 
to d-4) (Non-discrimination in Federally Assisted Programs) and 
implementing regulations; Section 1557 of the Affordable Care Act and 
implementing regulations; the prohibitions against discrimination on 
the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 
6101-6107) and implementing regulations; and the prohibitions against 
otherwise qualified individuals with disabilities under section 504 of 
the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing 
regulations. The applicant must maintain the required records to 
demonstrate compliance with all applicable Federal laws and HHS 
policies related to non-discrimination.
    (9) Insurance and Indemnification. The applicant must certify that 
it will insure the property against loss, damage, or destruction to 
protect the residual financial interest of the United States. The 
United States shall be named as an additional insured. Applicants must 
provide proof of insurance annually or upon request. Failure to 
maintain sufficient insurance may result in adverse action, including 
reversion of the property, at the discretion of HHS. Applicants, and 
all affiliated parties utilizing the property, as approved by HHS, must 
indemnify the United States and hold the United States harmless for all 
actions involving use of the property.
    (10) Historic preservation. Where applicable, the applicant must 
provide information that will enable HHS to comply with Federal 
historic preservation requirements.
    (11) Environmental information. The applicant must provide 
sufficient information to allow HHS to analyze the potential impact of 
the applicant's proposal on the environment, in accordance with the 
instructions provided with the application packet. HHS will assist 
applicants in obtaining any pertinent environmental information in the 
possession of HUD, GSA, or the landholding agency. However, the burden 
is on the applicant to submit sufficient documentation for analysis by 
HHS.
    (12) Local government notification. The applicant must certify that 
it has notified the applicable unit of general local government 
responsible for sewer, water, police, and fire services, in writing, of 
its proposed program for the specific property and submit a copy of 
that written notification.
    (13) Zoning and Local Use Restrictions. An applicant requesting a 
deed must certify that it has consulted all State and local 
governmental entities that will have jurisdiction over the property and 
that the proposed use will comply with all applicable zoning and local 
use restrictions, including local building code requirements. An 
applicant that applies for a lease or permit is not required to comply 
with local zoning requirements, as long as the Federal government 
retains ownership of the property. Deed transfers will only be made 
after the applicant has provided acceptable written proof that the 
proposed program is not in conflict with State or local zoning laws and 
restrictions, building codes, or similar limitations.
    (b) Scope of evaluations. Due to the short time frame imposed by 
statute for evaluating applications, HHS's evaluation will, generally, 
be limited to

[[Page 16864]]

the information contained in the application. It is therefore incumbent 
on applicants to provide thorough and complete applications.
    (c) Deadline for Initial Application. An initial application must 
be received by HHS, at the above email address or other address 
indicated by HHS, within 75 days after an expression of interest is 
received from a particular applicant for that property. Upon written 
request from the applicant, HHS may, in its discretion, grant 
extensions authorized by 42 U.S.C. 11411(e)(2)(A), provided that the 
appropriate landholding agency or GSA concurs with the extension.
    (d) Evaluation of initial application.
    (1) Upon receipt of an initial application, HHS will review it for 
completeness, and, if incomplete, may, in its discretion, return it or 
ask the applicant to furnish any missing or additional required 
information prior to final evaluation of the initial application.
    (2) HHS will evaluate each initial application within 10 days of 
receipt and will promptly advise the applicant of its decision. All 
initial applications will be reviewed on the basis of the following 
elements:
    (i) Services offered. The extent and range of proposed services, 
such as meals, shelter, job training, and counseling.
    (ii) Need. The demand for the program, the program's ability to 
satisfy unmet needs of the community, and the degree to which the 
available property will be fully utilized.
    (iii) Experience. Demonstrated ability to provide the services, 
such as prior success in operating similar programs and recommendations 
attesting to that fact by Federal, State, and local authorities.
    (e) Deadline and Evaluation of Final Application.
    (1) If HHS approves an initial application, HHS will notify the 
applicant and provide the applicant 45 days in which to provide a final 
application. The final application shall set forth a reasonable plan to 
finance, as specified in Sec.  12a.5(a)(7), the approved program as set 
forth in the initial application. Applicants may not modify the 
approved initial application within its final application proposal.
    (2) Upon receipt of the final application, HHS will make a 
determination within 15 days and notify the applicant.
    (3) Unlike with initial applications, requests for extensions are 
not authorized by 42 U.S.C. 11411 and thus will not be considered for 
final applications.
    (4) Applications are evaluated on a first-come, first-served basis. 
HHS will notify all organizations that have submitted expressions of 
interest for a particular property whether an earlier application 
received for that property has been approved.
    (f) Competing Applications. If HHS receives more than one final 
application simultaneously, HHS will evaluate all applications and make 
a determination based on each application's merit. HHS will rank 
approved applications based on the elements listed in paragraph (a) of 
this section, and notify the landholding agency, or GSA, as 
appropriate, of the approved applicant.


Sec.  12a.6  Action on Approved Applications.

    (a) Unutilized and underutilized properties.
    (1) When HHS approves an application, it will so notify the 
applicant and forward a copy of the application to the landholding 
agency. The landholding agency will execute the lease, or permit 
document, as appropriate, in consultation with the applicant.
    (2) The landholding agency maintains the discretion to decide the 
following:
    (i) The length of time the property will be available. (Leases and 
permits will be for a period of at least one year unless the applicant 
requests a shorter term.)
    (ii) The terms and conditions of the lease or permit document 
(except that a landholding agency may not charge any fees or impose any 
costs).
    (b) Excess and surplus properties.
    (1) When HHS approves an application, it will so notify the 
applicant and request that GSA assign the property to HHS for transfer. 
Requests to GSA for the assignment of surplus property to HHS for 
homeless assistance purposes will be based on the following conditions:
    (i) HHS has a fully approved application for the property;
    (ii) The applicant is able, willing, and authorized to assume 
immediate care, custody, and maintenance of the property;
    (iii) The applicant is able, willing and authorized to pay the 
administrative expenses incident to the transfer; and
    (iv) The applicant has secured the necessary funds, or had 
demonstrated the ability to obtain such funds, to carry out the 
approved program of use of the property.
    (2) Upon receipt of an acceptable assignment, HHS will execute the 
transfer document in accordance with the procedures and requirements 
set out in this part and any other terms and conditions HHS and GSA 
determine are appropriate or necessary. Custody and accountability of 
the property will remain throughout the lease term with the landholding 
agency (i.e., the agency which initially reported the property as 
excess) and throughout the deed term with the transferee.
    (3) Prior to assignment to HHS, GSA may consider other Federal uses 
and other important national needs in deciding the disposition of 
surplus property. Priority of consideration will normally be given to 
uses to assist the homeless. However, both GSA and HHS may consider any 
competing request for the property made under 40 U.S.C. 550 that is so 
meritorious and compelling that it outweighs the needs of the homeless.
    (4) Whenever GSA or HHS decides in favor of a competing request 
over a request for property for homeless assistance, the agency making 
the decision will transmit to the appropriate committees of Congress an 
explanatory statement which details the need satisfied by conveyance of 
the surplus property, and the reasons for determining that such need 
was so meritorious and compelling as to outweigh the needs of the 
homeless.


Sec.  12a.7  Transfer Documents.

    (a) Surplus property may be conveyed to eligible organizations 
pursuant to 40 U.S.C. 550(d) and 42 U.S.C. 11411, as amended, by lease 
or deed, at the applicant's discretion.
    (b) Transfers of surplus property for homeless assistance purposes 
are in exchange for the transferee's agreement to fully utilize the 
property for homeless assistance purposes in accordance with the terms 
specified in the transfer document.
    (c) A transfer of surplus property for homeless purposes is subject 
to the disapproval of GSA within 30 days after notice is given to GSA 
of the proposed transfer.
    (d) Surplus property transferred pursuant to this part will be 
disposed on an ``as is, where is,'' basis without warranty of any kind 
except as may be stated in the transfer document.
    (e) Unless excepted by GSA in its assignment, the disposal of 
property includes mineral rights associated with the surface estate.
    (f) Transfers of surplus property under this part will be made with 
the following general terms and conditions:
    (1) For the period provided in the transfer document, the 
transferee shall utilize all the surplus property it receives solely 
and continuously for an approved program and plan of use, in accordance 
with 42 U.S.C. 11411 and these regulations, except that:

[[Page 16865]]

    (i) The transferee has 12 months from the date of transfer to place 
the surplus property into use, if HHS did not approve in writing, 
construction of new facilities or major renovation of the property when 
it approved the final application;
    (ii) The transferee has 36 months from the date of transfer to 
place the surplus property into use, if the transferee proposes 
construction of new facilities or major renovation of the property and 
HHS approves it in writing at the time it approves the final 
application;
    (iii) If the applicable time limitation is not met, the transferee 
shall either commence payments in cash to the Federal government for 
each month thereafter during which the proposed use has not been 
implemented or take such other action as set forth at Sec.  12a.10 as 
is deemed appropriate by HHS. Such monthly payments shall be computed 
on the basis of the current fair market value of the property, as 
conveyed, at the time of the first payment and dividing it by 360 
months. At HHS's discretion, the payment may be waived if the 
transferee makes a sufficient showing of continued progress to place 
the property into use or if an unforeseeable event occurs which 
prevents the property from being put into use within the applicable 
timeframe; and
    (iv) HHS may permit use of surplus property at any time during the 
period of restriction by an entity other than the transferee in 
accordance with Sec.  12a.11.
    (2) The transferee will not be permitted to encumber, sell, lease 
or sublease, rent, mortgage, or otherwise dispose of the property, or 
any part thereof, without the prior written authorization of HHS. In 
the event the property is sold, leased or subleased, encumbered, 
disposed of, or is used for purposes other than those set forth in an 
approved plan without the consent of HHS, all revenues or the 
reasonable value of other benefits received by the transferee directly 
or indirectly from such use, as determined by HHS, will be considered 
to have been received and held in trust by the transferee for the 
account of the United States and will be subject to the direction and 
control of HHS. The provisions of this paragraph shall not impair or 
affect the rights reserved to the United States in paragraph (f)(8) of 
this section, or the right of HHS to impose conditions to its consent.
    (3) The transferee will file with HHS such reports on its 
maintenance and use of the transferred property and any other reports 
or information deemed necessary by HHS.
    (4) The transferee shall pay all administrative costs incidental to 
the transfer, including but not limited to--transfer taxes; surveys; 
appraisals; title searches; the transferee's legal fees; and 
recordation expenses. Transferee is solely responsible for such costs 
and may not seek reimbursement from the Federal government for any 
reason.
    (5) The transferee shall protect, preserve, maintain, and repair 
the property to ensure that the property remains in as good a condition 
as when received.
    (6) The transferee shall protect the residual financial interest of 
the United States in the surplus property by insurance or such other 
means as HHS directs. Where loss or damage to the transferred property 
occurs, all proceeds from insurance shall be promptly used by the 
transferee for the purpose of repairing and restoring the property to 
its former condition or replacing it with equivalent or more suitable 
facilities. If not so used, there shall be paid to the United States 
that part of the insurance proceeds that is attributable to the 
Government's residual interest in the property lost, damaged, or 
destroyed. Further, transferee shall neither take any action nor allow 
any action which diminishes the residual financial interest of the 
United States.
    (7) The transferee shall abide by all applicable Federal Civil 
Rights laws including those specified in the covenants and conditions 
contained in the transfer document, prohibiting the transferee from 
discriminating on the basis of, including but not limited to, race, 
color, national origin, religion, sex, familial status or disability in 
the use of the property.
    (8) In the event of substantial noncompliance with any conditions 
of the deed as determined by HHS, whether caused by the legal or other 
inability of the transferee, its successors and assigns, to perform any 
of the obligations of the transfer document, the Federal government has 
an immediate right of reentry thereon, and to cause all right, title, 
and interest in and to the property to revert to the United States, and 
the transferee shall forfeit all right, title, and interest in and to 
the property. In such event, transferee shall execute a quitclaim deed 
and take all other actions necessary to return the property to the 
United States within ninety (90) days of a written request from the 
Federal government, extended only at the discretion of the Federal 
government. Transferee shall cooperate with the United States in the 
event of a reversion and agrees that the United States need not seek 
judicial intervention before exercising its right to revert, reenter 
and reconvey the property.
    (9) In the event title is reverted to the United States for 
noncompliance or voluntarily reconveyed to the United States, the 
transferee shall, at the option of HHS, be required to: reimburse the 
United States for the decrease in value of the property not due to 
market conditions, reasonable wear and tear, acts of God, or approved 
alterations completed by the transferee to adapt the property to the 
homeless use for which the property was transferred; and reimburse the 
United States for any costs incurred in reverting title to or 
possession of the property, including reasonable attorneys' fees.
    (10) With respect to leased property, in the event of substantial 
noncompliance with any of the conditions of the lease, as determined by 
HHS or the landholding agency, the right of occupancy and possession 
shall, at the option of HHS or the landholding agency, be terminated. 
In the event a leasehold is terminated by the United States for 
substantial noncompliance or is voluntarily surrendered, the lessee 
shall be required, at the option of HHS, to reimburse the United States 
for the decrease in value of the property not due to market conditions, 
reasonable wear and tear, acts of God, or approved alterations 
completed by the lessee to adapt the property to the homeless use for 
which the property was leased. With respect to any termination of 
leasehold resulting from noncompliance, the United States, shall, in 
addition thereto, be reimbursed for such costs as may be incurred in 
recovering possession of the property, including reasonable attorneys' 
fees.
    (11) Any other term or condition that HHS and GSA determine 
appropriate or necessary.
    (12) With respect to surplus property transferred by deed, the 
terms and conditions including those in paragraph (f) of this section, 
apply for a period of thirty (30) years of use in accordance with a 
program of use approved in writing by HHS. The thirty-year (30) period 
may, in HHS's sole discretion, be extended or restarted in the event 
the property is not fully utilized or is retransferred to a successor 
entity. Expiration of the foregoing terms and conditions does not 
release the transferee from continuing compliance, as appropriate, with 
any conditions that may run with the land, e.g., environmental 
conditions and/or historic preservation covenants. Such conditions will 
continue to be the responsibility of the transferee and successors.

[[Page 16866]]

    (13) With respect to surplus property transferred by lease, the 
terms and conditions including those in paragraph (f) of this section, 
extend for the entire initial lease and for any subsequent renewal 
periods, unless specifically excluded in writing by HHS.
    (g) Related personal property may be transferred or leased as a 
part of the realty and in accordance with real property procedures.
    (h) Completion of Transfer Term and Reversion of Title. Transferees 
will be responsible for the protection and maintenance of the property 
during the time that they possess the property. Upon termination of the 
lease term or reversion of title to the United States, the transferee 
will be responsible for removing improvements made to the property if 
directed to by the United States and, in such event, will be 
responsible for restoration of the property or the costs associated 
with restoring the property. If improvements made by the transferee are 
not voluntarily removed by the transferee and the United States 
consents, they will become the property of the United States. If the 
United States does not consent, the transferee shall reimburse the 
United States for reasonable costs of removal. GSA or the landholding 
agency, as appropriate, will assume responsibility for protection and 
maintenance of a property when the lease terminates or title reverts.
    (i) Transferees, by obtaining the consent of HHS, may abrogate the 
restrictions set forth in paragraph (f) of this section for all or any 
portion of the property in accordance with the provisions of Sec.  
12a.12.


Sec.  12a.8  Compliance With the National Environmental Policy Act of 
1969 and Other Related Acts (environmental impact).

    (a) HHS, prior to making a final decision to convey or lease, or to 
amend, reform, or grant an approval or release with respect to a 
previous conveyance or lease of, surplus property for homeless 
purposes, will act in accordance with applicable provisions of the 
National Environmental Policy Act of 1969, the National Historic 
Preservation Act of 1966, the National Archeological Data Preservation 
Act, and other related acts. No lease to use surplus property shall 
allow the lessee to make, or cause to be made, any irreversible change 
in the conditions of said property, and no lease shall be employed for 
the purpose of delaying or avoiding compliance with the requirements of 
these Acts, unless approved by the United States.
    (b) Applicants shall be required to provide such information as HHS 
deems necessary to make an assessment of the impact of the proposed 
Federal action on the human environment. Materials contained in the 
applicant's official request, responses to a standard questionnaire 
prescribed by HHS, as well as other relevant information, will be used 
by HHS in making said assessment.
    (c) If the assessment reveals:
    (1) that the proposed Federal action involved properties of 
historical significance which are listed, or eligible for listing, in 
the National Register of Historic Places; or
    (2) that a more than insignificant impact on the human environment 
is reasonably foreseeable as a result of the proposed action; or
    (3) that the proposed Federal action could result in irreparable 
loss or destruction of archeologically significant items or data, HHS 
will, except as provided for in paragraph (d) of this section, prepare 
and distribute, or cause to be prepared or distributed, such notices 
and statements and obtain such approvals as are required by the above 
cited Acts.
    (d) If a proposed action involves other Federal agencies in a 
sequence of actions, or a group of actions, directly related to each 
other because of their functional interdependence, HHS may enter into 
and support a lead agency agreement to designate a single lead agency 
which will assume primary responsibility for coordinating the 
assessment of environmental effects of proposed Federal actions, 
preparing and distributing such notices and statements, or obtaining 
such approvals, as are required by the above cited Acts. The procedures 
of the designated lead agency will be utilized in conducting the 
environmental assessment. In the event of disagreement between HHS and 
another Federal agency, HHS will reserve the right to abrogate the lead 
agency agreement with the other Federal agency.


Sec.  12a.9  No Applications Approved.

    (a) At the end of the 30-day holding period described in Sec.  
12a.4(a), HHS will notify GSA, or the landholding agency, as 
appropriate, if an expression of interest has been received for a 
certain property. Where there is no expression of interest, GSA or the 
landholding agency, as appropriate, will proceed with disposal in 
accordance with applicable law.
    (b) Upon notice from HHS that all applications have been 
disapproved, or if no initial applications have been received within 75 
days after an expression of interest, or no final application has been 
received within 45 days after an approved initial application, disposal 
may proceed in accordance with applicable law.


Sec.  12a.10  Utilization and Enforcement.

    (a) Sanctions. For instances of substantial noncompliance relating 
to surplus property transfers, HHS may impose, in its sole discretion, 
any or all of the following sanctions, as applicable:
    (1) Where property or any portion thereof was not used or is not 
being used for the purposes for which transferred, or is sold, leased 
or subleased, encumbered, disposed of, or used for purposes other than 
those in the approved program and plan of use, without the prior 
written consent of HHS, HHS may require the transferee to--
    (i) Place the property into immediate use for an approved purpose 
and extend the period of restriction in the transfer document for an 
additional term as determined by HHS;
    (ii) Hold in trust all revenues and the reasonable value of other 
benefits received by the transferee directly or indirectly from that 
use for the United States subject to the direction and control of HHS;
    (iii) Return title to such property to the United States or to 
relinquish any leasehold interest therein;
    (iv) Abrogate the conditions and restrictions of the transfer, as 
set forth in Sec.  12a.12;
    (v) Make cash payments to the United States, as directed by HHS, 
equivalent to the current fair market rental value of the surplus 
property, as transferred, for each month during which the program and 
plan of use has not been implemented and continues to not be 
implemented; or
    (vi) Any other remedy that HHS determines appropriate or necessary.
    (2) Where the transferee desires to place the property into 
temporary use to assist the homeless other than that for which the 
property was transferred, written approval from HHS must be obtained, 
and will be conditioned upon HHS's authority to permit the use and such 
terms as HHS may impose.
    (3) If HHS or the landholding agency determines that a lessee or 
sublessee of a transferee is in substantial noncompliance with a term 
or condition of the lease, or if the lessee voluntarily surrenders the 
premises, HHS may require termination of the lease and impose sanctions 
described in paragraph (a)(1) of this section, as appropriate.
    (b) Reversion. When HHS recommends reversion of the property for 
noncompliance, HHS will seek

[[Page 16867]]

GSA's concurrence. GSA will respond to HHS's concurrence request within 
30 days of its receipt. If GSA concurs, HHS will work with GSA to 
complete the reversion of the property. If GSA does not concur to the 
reversion recommendation, GSA will issue, to HHS, a written 
determination: stating the reason(s) for the disapproval; and 
acknowledging that HHS has recommended reversion and, therefore, the 
property is no longer within HHS's Title V program. The Federal 
government will implement a response to the noncompliance that is in 
its best interests.


Sec.  12a.11  Other Uses.

    A transferee may permit the use of all or a portion of the surplus 
property by another eligible entity as described in Sec.  12a.1(d) for 
homeless assistance purposes, only upon those terms and conditions HHS 
determines appropriate, if:
    (a) The transferee submits a written request to HHS explaining the 
purpose of and need for another eligible entity's use of the property, 
program plan, and other relevant information requested by HHS;
    (b) HHS determines that the proposed use would not substantially 
limit the program and plan of use by the transferee and that the use 
will not unduly burden the Federal government;
    (c) HHS's written consent is obtained by the transferee in advance;
    (d) HHS approves the use instrument in advance and in writing; and
    (e) HHS advises GSA and there is no disapproval by GSA within 
thirty (30) days.


Sec.  12a.12  Abrogation.

    (a) HHS may abrogate the conditions and restrictions in the 
transfer document if:
    (1) The transferee submits to HHS a written request that HHS 
abrogate the conditions and restrictions in the transfer document as to 
all or any portion of the surplus property;
    (2) HHS determines the terms and conditions of the proposed 
abrogation and determines that the proposed abrogation is in the best 
interest of the United States; and
    (3) HHS transmits the abrogation request to GSA and there is no 
disapproval by GSA within 30 days after notice is given. If GSA 
disapproves, GSA will state, in writing, to HHS the reason(s) for the 
disapproval.
    (b) HHS abrogates the conditions and restrictions in the transfer 
document only upon receipt of the appropriate consideration, including 
cash payment, to the United States, as directed by HHS, which is based 
on the formula contained in the transfer document, and any other terms 
and conditions HHS deems appropriate to protect the interest of the 
United States.


Sec.  12a.13  Compliance Inspections and Reports.

    Transferees are required to allow HHS to conduct compliance 
inspections and to submit such compliance reports and actions as are 
deemed necessary by HHS. At a minimum, the transferee will be required 
to submit an annual utilization report regarding the operation and 
maintenance of the property, including current images of the entire 
property and such information as HHS shall require.


Sec.  12a.14  No Right of Administrative Review for Agency Decisions.

    There is no right to administrative review within HHS, including 
requests for reconsideration or appeal, of agency decisions on 
applications and other discretionary decisions.

Marcia L. Fudge,
Secretary, HUD.

Robin Carnahan,
Administrator, GSA.

Xavier Becerra,
Secretary, HHS.
[FR Doc. 2023-04353 Filed 3-17-23; 8:45 am]
BILLING CODE 4210-67-P; 6820-14-P; 4150-24-P