Home/Federal/Federal Register/2024-25722

Rule2024-25722

Use of Federal Real Property To Assist the Homeless

Primary source

Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.

Published

November 13, 2024

Effective

December 13, 2024

Issuing agencies

Housing and Urban Development DepartmentGeneral Services AdministrationHealth and Human Services Department

Abstract

The Department of Housing and Urban Development (HUD), the General Services Administration (GSA), and the Department of Health and Human Services (HHS) (the Agencies) administer the Title V program, which 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. This final rule incorporates required statutory changes and current practices; updates references and terminology that are now outdated; and revises procedures for more efficient program administration in the Agencies' regulations.

Full Text

<html>
<head>
<title>Federal Register, Volume 89 Issue 219 (Wednesday, November 13, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 219 (Wednesday, November 13, 2024)]
[Rules and Regulations]
[Pages 89870-89905]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25722]

[[Page 89869]]

Vol. 89

Wednesday,

No. 219

November 13, 2024

Part IV

Department of Housing and Urban Development

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

24 CFR Part 581

General Services Administration

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

41 CFR Part 102-75

Department of Health and Human Services

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

45 CFR Part 12a

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

Use of Federal Real Property To Assist the Homeless; Final Rule

Federal Register / Vol. 89, No. 219 / Wednesday, November 13, 2024 /
Rules and Regulations

[[Page 89870]]

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

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 581

[Docket No. FR 6119-F-02]
RIN 2506-AC49

GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-75

RIN 3090-AK46

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 12a

RIN 0991-AC14

Use of Federal Real Property To Assist the Homeless

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

ACTION: Final rule.

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

SUMMARY: The Department of Housing and Urban Development (HUD), the
General Services Administration (GSA), and the Department of Health and
Human Services (HHS) (the Agencies) administer the Title V program,
which 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. This final rule
incorporates required statutory changes and current practices; updates
references and terminology that are now outdated; and revises
procedures for more efficient program administration in the Agencies'
regulations.

DATES: Effective date: December 13, 2024.

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: <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
Department of Housing and Urban Development: Brian Fitzmaurice,
Senior Program Advisor, 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;
<a href="/cdn-cgi/l/email-protection#d3a7baa7bfb6e693bba6b7fdb4bca5">[email&#160;protected]</a>; telephone number 202-905-3869 (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 <a href="/cdn-cgi/l/email-protection#45262d372c366b262a2b20202b203c052236246b222a33">[email&#160;protected]</a>. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or GSA at <a href="/cdn-cgi/l/email-protection#c597a0a296a0a685a2b6a4eba2aab3">[email&#160;protected]</a>.
Department of Health and Human Services: Theresa M. Ritta, Program
Manager, Real Property Management Services; Telephone: (301) 443-2265;
Email: <a href="/cdn-cgi/l/email-protection#aad8dac8eadad9c984c2c2d984cdc5dc">[email&#160;protected]</a>.

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, 123 Stat. 1632, 1664-65), the
Federal Property Management Reform Act of 2016 (Pub. L. 114-318, 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, 1478 (codified at 42 U.S.C. 11411)).
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 including: by screening real properties
reported by a particular agency as excess to determine if they are
required for use by any other Federal agency; submitting properties
reported to GSA for disposal to HUD for a determination of suitability
for use to assist the homeless; and notifying HUD of whether there is a
continuing need for the property within the Federal Government after a
suitability determination has been made. 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. Further details about the
suitability determination process and transfer of the property can be
found in the proposed rule, ``Use of Federal Real Property to Assist
the Homeless: Revisions to Regulations,'' at 88 FR 16834.
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 the McKinney-Vento Act and agency regulations,
administration of the Title V Program is guided by Federal court
decisions, including the March 13, 2017, revised Order in National Law
Center on Homelessness & Poverty v. United

[[Page 89871]]

States Department of Veterans Affairs, 819 F. Supp. 69 (D.D.C. 1993).
Subsequent nationwide litigation, including Colorado Coalition for the
Homeless v. GSA, No. 18-cv-1008, 2019 WL 2723857 (D.CO. Colo. July, 1,
2019); United States v. Overcoming Love Ministries, Inc., No. 16-cv-
1853, 2018 WL 4054867 (E.D.N.Y. Aug. 24, 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 its
regulations. Taking into consideration the Agencies' experience
operating the Title V program over the past 30 years, this joint
regulation aims to harmonize the joint regulation with Title V, as
amended by FASTA and other legislation; 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. The Proposed Rule

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

On March 20, 2023, the Agencies published for public comment a
proposed rule titled ``Use of Federal Real Property to Assist the
Homeless: Revisions to Regulations.'' \1\ The Agencies proposed several
changes to establish procedures conforming to FASTA and incorporating
other legislative changes. They also sought to codify established
policies and processes used to govern the program. For greater
readability, in instances where requirements found in other sections of
the regulation were referenced by citation, the Agencies proposed to
instead incorporate those provisions in each agency's individual
regulations. The Agencies also proposed revised suitability criteria
for clarity and to address the Government Accountability Office's
recommendation in its 2014 report titled ``Federal Real Property: More
Useful Information to Providers Could Improve the Homeless Assistance
Programs.'' \2\ Throughout the proposed rule, the Agencies reorganized
and renumbered various existing sections of their respective
regulations.
---------------------------------------------------------------------------

\1\ 88 FR 16834.
\2\ <a href="https://www.gao.gov/assets/gao-14-739.pdf">https://www.gao.gov/assets/gao-14-739.pdf</a>.
---------------------------------------------------------------------------

1. Definitions
The proposed rule sought to remove definitions that were no longer
relevant, revise other definitions to conform to existing legislation,
incorporate new definitions, some of which were used but not defined in
the Title V regulation; and provide clarity and consistency for
potential Title V applicants regarding the Agencies' roles and
requirements. The Agencies proposed that the definitions of Applicant,
Eligible organization, Excess property, Homeless, Landholding agency,
Lease, Permit, Property, Screen, and Surplus property be amended to
provide consistent language across the Agencies' regulations, provide
more clarity, and conform with statutory changes. The proposed rule
sought to add definitions for HUD website, Transferee, Transfer
document, Substantial noncompliance, Related personal property, and
State for clarity and conformance with statutory requirements. The rule
proposed to remove the definitions of Regional Homeless Coordinator and
State Homeless Coordinator as they are no longer applicable. The rule
also proposed to remove the definition of ICH and instead reference the
term ``United States Interagency Council on Homelessness.''
2. Applicability
The Agencies proposed to expand the list of properties that are not
subject to the joint regulation by adding (1) properties that are not
subject to Federal Real Property Council reporting requirements; (2)
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; (3) machinery and equipment that is not related
personal property; (4) machinery and equipment that is related personal
property but that GSA or the landholding agency chose to dispose of
separate from the real property; and (5) excess or surplus buildings or
fixtures that sit on land under the control of a landholding agency
where the underlying land is not also excess or surplus. The Agencies
also proposed clarifying changes to this section, including adding a
citation where it previously did not exist; specifying that the
existing language referencing properties ``subject to a court order''
referred only to court orders that, for any reason, precluded transfer
for use to assist the homeless under Title V; and clarifying that the
existing exclusion of mineral and air space rights from Title V
processing referred to mineral and air space rights that are
independent of surface rights.
3. Collecting Information From Federal Agencies
The Agencies proposed several changes to the information collection
process under Title V. The proposed rule sought to codify HUD's
existing practice of accepting property information from landholding
agencies on an ongoing basis. The Agencies proposed that HUD's canvass
of landholding agencies 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. The Agencies proposed that HUD review properties with
a change in status for suitability and repost the property information
on the HUD website. The proposed rule sought to clarify that
landholding agencies should respond to HUD's information collecting
canvass in accordance with 40 U.S.C. 524 and that a completed property
checklist is the vehicle for submitting property information to HUD.
4. Suitability Determination
The Agencies proposed several changes to the suitability
determination process. The regulations did not provide a deadline for
the landholding agency to respond to HUD's request for additional
information in instances where HUD received an appeal request for
review of a property that was determined unsuitable for homeless
assistance use, and the regulations were also silent regarding the
determination process after HUD received or did not receive the
landholding agency's response. The Agencies proposed 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, the Agencies proposed that HUD proceed with the appeal
review using the property information provided in the survey it already
has and information submitted in the appeal request provided by the
representative of the homeless. The Agencies proposed that HUD act on
requests for review where the landholding agency or GSA has failed to
meet the deadline within 30 days of such deadline.
The Agencies also proposed to incorporate required statutory
changes under FASTA to allow HUD to post suitability determinations on
a HUD website or a successor technology that is equally accessible and
available to the public. The proposed rule sought to update processes
by removing the identified toll-free number and revising

[[Page 89872]]

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. The Agencies proposed that persons with
inquiries regarding property suitability and other Title V related
questions be instructed to submit questions through the HUD Title V
website, or such other method as HUD may require, and that 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
Under the regulations, landholding agencies were 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 were proposed to remain substantially the same but proposed
to be updated for clarity.
6. Suitability Criteria
The proposed rule sought to revise the criteria that HUD uses to
determine suitability to make the criteria clearer and more user-
friendly for both the Agencies and applicants by dividing the
suitability criteria into two categories: (1) properties deemed
suitable unless the properties have any of certain listed
characteristics, 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 the first category, the Agencies sought to 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, that
the property complies with the acceptable separation distance standards
or that appropriate mitigating measures, as defined in 24 CFR 51.205,
are already in place. The Agencies proposed to 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 in favor of utilizing the
more useful acceptable separation distance standards and excluding
containers and facilities that are not hazards, as defined in 24 CFR
51.201. Additionally, the Agencies sought to add coastal barriers as a
suitability criterion. The Agencies also proposed to rename the
documented deficiencies criterion as ``Site Safety Conditions'' and
focus that criterion solely on a property's physical characteristics.
The Agencies proposed to move the criteria regarding floodways,
national security concerns, runway clear zones, and inaccessible
property into the second category of criteria, as property presumed
unsuitable unless information to enable HUD to determine it suitable is
provided. The proposed rule also sought to remove the reference in the
regulations to floodways that have been ``contained or corrected''
since the meaning of ``corrected'' was 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 Agencies also included specific questions for public comment in
the proposed rule regarding suitability criteria. The Agencies noted
that they considered several changes to this section and did not expect
the proposed changes to affect the number of properties deemed
suitable.
7. General Policies of HHS
The Agencies proposed to add a section, General Policies of HHS, to
mirror 45 CFR 12.3 instead of adopting that regulation by reference.
The section highlights the minimum criteria for transfers of surplus
property.
8. Expressions of Interest Process
Pursuant to FASTA, the time for eligible organizations to submit an
expression of interest to HHS changed from 60 days to 30 days from the
date of HUD's publication of suitability. The Agencies proposed to
capture this change in the regulations along with HHS's proposal to
accept such expressions of interest by email and an update to HHS's
physical address. Additionally, the Agencies proposed to amend this
section 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
The Agencies proposed several changes to the application process
based on current practice and statutory mandates. FASTA changed the
time that an eligible organization must submit an initial application
from 90 days to 75 days after HHS's receipt of an expression of
interest, unless extended by HHS. Additionally, 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. The proposed rule sought to
incorporate this two-stage application process outlined in FASTA that
HHS currently follows.
FASTA also reduced the time for HHS to review an initial
application from 25 days to 10 days of its receipt. The proposed rule
sought to reflect this change. It also proposed revising the ranking
system and criteria HHS uses to assess applications by proposing that
an initial application be evaluated based on the three statutory
criteria: services offered; need; and experience and that all criteria
be of equal weight, with failure to meet any one criterion resulting in
the application being disapproved.
The Agencies also proposed revisions to make the application
requirements more clear, concise, and consistent with the instructions
accompanying the application packet, including describing the specific
document an applicant must submit with its application to demonstrate
its ability to hold title to property for the requested purpose(s). The
Agencies proposed 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 to ensure an applicant's proposed
program is capable of being developed and operated following transfer
without hindrances. The Agencies also proposed incorporating within the
regulation the existing practice of denying any request for lesser
portions of the listed real property. Additionally, the proposed rule
sought to advise applicants that the description of the proposed
program must also include how the applicant intends to implement the
program to assist HHS in rendering a determination on the adequacy and
timeliness of a proposed program and likelihood of operational success.
The Agencies also proposed additional updates to provide greater
clarity regarding the application process. These proposed updates
included (1) requiring that an applicant 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; (2) clarifying that an applicant is required to
provide details concerning modifications to the property that need to
be completed before the program can become operational; and (3)
requiring

[[Page 89873]]

that an applicant ``demonstrate'' its financial ability to finance and
operate the proposed program rather than merely ``indicate'' its
financial ability to do so. Additionally, the Agencies sought to
memorialize current practice that 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, enabling the approved applicant
to gain site control of the property that may be required for funding
and allowing additional time to provide HHS the requisite information
to ensure the Federal Government's interest in the property is
adequately protected. The proposed rule also sought to clarify property
insurance requirements and the purpose thereof, thereby allowing for
the omission of the reference to other provisions of the Agencies'
regulations. Additionally, it proposed requiring that an applicant
provide evidence that it has notified the local government of its
application rather than simply indicating in its application that it
has done so.
The Agencies also proposed revisions to clarify the requirements
regarding the transfer of surplus property and to comply with FASTA.
The Agencies proposed to incorporate HHS's current policy that
transfers by deed will only be made after 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.
10. Surplus Property Transfer Documents
The proposed rule sought to add an entirely new section regarding
transfer documents to conform to legislative changes, and for clarity
it proposed including relevant provisions of 41 CFR part 102-75 and 45
CFR part 12 pertaining to general terms and conditions of transfers.
This proposed change was to improve the readability of the regulation
and remove the need for additional cross-references. Additionally, the
proposed rule sought to omit the requirement for reversion or
abrogation of transferred property, at the discretion of HHS, should
the property not be placed into use within 8 years to allow for more
flexibility to resolve such issues on a case-by-case basis.
11. Compliance With the National Environmental Policy Act of 1969
(NEPA) and Other Related Acts (Environmental Impact)
The regulation already provided general application requirements as
they pertained to environmental information. The proposed rule sought
to expand these sections to clarify and to mirror mandates and policies
currently required by NEPA and other related Acts.
12. No Applications Approved
The Agencies proposed codifying changes made by FASTA within the
regulations. Under FASTA, Federal real properties can 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 Agencies captured these changes in the proposed rule.
13. Utilization and Enforcement
The Agencies proposed adding a new section 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 did not change but were included in the proposed
regulation to clarify program requirements to applicants and
transferees. This section also included the Federal Government's
requirements of transferees in the event of a reversion action.
14. Other Uses
The proposed rule sought to clarify 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.
15. Abrogation
The abrogation process was discussed in various sections of the
regulation, and the Agencies proposed to more clearly articulate the
instances in which HHS may abrogate the conditions and restrictions in
the transfer document. The proposed rule sought to address the
abrogation process in its own section for clarity and simplicity.
16. Compliance Inspections and Reports
For clarifying purposes, the Agencies proposed to add this section
to include provisions of 45 CFR 12.14 pertaining to compliance
inspections and reports. HHS's policies did not change but were
included in the proposed regulation to be clearer for the public and
remove the need for additional cross-references.
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
Agencies proposed 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
The proposed rule sought to make changes throughout HUD's and GSA's
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'' was proposed to
replace ``Federal Register'' as necessary, throughout HUD's and GSA's
regulations. In addition, the Agencies proposed 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
sought to clarify 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 were proposed to be included in
the regulations along with clarification 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. To reflect the transition
to publishing electronically, the proposed rule also sought to remove
the

[[Page 89874]]

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 were also proposed throughout the
regulations for clarity.

B. Changes to HUD's Regulations

The proposed changes to regulations found at 24 CFR part 581
related to each agency's responsibilities under the McKinney-Vento Act
to provide the public with a comprehensive understanding of the Title V
process. HUD proposed that part 581 continue to contain HUD's
responsibilities under Title V while also publishing all changes
discussed above, including new sections explained above in sections
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 part 102-75, subpart H, 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
was published jointly with HUD and HHS, GSA proposed to update subpart
H to include all changes discussed above, including new sections
explained above in sections II.A.10, II.A.11, and II.A.13 through
II.A.16. GSA also proposed to 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, GSA proposed renumbering
sections in subpart H throughout the regulation as noted above.

D. Changes to HHS's Regulations

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

III. This Final Rule

In response to public comments and in further consideration of
issues addressed at the proposed rule stage, the Agencies are
publishing a final rule with limited changes, resulting in a final rule
that is similar to the proposed rule. The changes the final rule makes
are discussed in turn.

A. Changes Within the Applicability Section

In paragraph (b)(12) of the ``Applicability'' section found at 24
CFR 581.2, 41 CFR 102-75.1161, and 45 CFR 12a.2, the Agencies are
removing the proposed phrase ``owned by'' and replacing it with ``under
the control of'' for accuracy, as no landholding agency ``owns'' real
property because all real property is owned by the United States.

B. Changes Within the Definitions Section and Other Related References

In the ``Definitions'' section, the final rule also provides
clarity regarding its use of the word Encumbrance, defining it to mean
any non-approved use by a transferee or a third party that limits the
full utilization of the transferred property, regardless of time
period. The Agencies concluded that failure to include this definition
could have the unintended effect of both confusing transferees as to
what actions require HHS's official written approval, as well as
hindering HHS's statutorily authorized enforcement efforts. In
alignment with this addition to the regulation's definitions, the
Agencies also remove terms like ``sell'' or ``lease'' in the ``Transfer
documents'' section found at 24 CFR 581.14, 41 CFR 102-75.1172, and 45
CFR 12a.7 when found alongside the term ``encumbrance,'' as those terms
are now obsolete.
The definition of Eligible organization is also updated in this
final rule to centralize the discussions about the requirements of
eligible organizations found in other portions of the rule. In line
with this, the Agencies also omit proposed paragraph (c) of 24 CFR
581.9, 41 CFR 102-75.1168, and 45 CFR 12a.3 related to the requirements
of eligible organizations and proposed language in paragraph (a)(2) of
24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR 12a.5 related to the
application process and requirements, as the revision of the definition
rendered the restatements redundant and created the possibility of
causing confusion.
Lastly, the final rule text omits the proposed definition of
Substantial Noncompliance which was initially included in the proposed
rule to give applicants and their lenders assurance that property
generally does not get reverted based on technical violations of deed
language or regulatory requirements. After further consideration, the
Agencies have determined that inclusion of the term Substantial
noncompliance unduly limits HHS's ability to initiate compliance action
when warranted. As such, this final rule omits the proposed definition
of Substantial noncompliance from the proposed rule.

C. Changes Within the Application Process and Requirements Section and
Other Related Sections

Within paragraph (a)(1) of the ``Application process and
requirements'' section found at 24 CFR 581.11, 41 CFR 102-75.1170, and
45 CFR 12a.5, this final rule adds clarifying language to memorialize
existing policy intended to prevent disparate treatment of applicants
by deed as opposed to applicants who initially apply for a lease but
later wish to convert the lease to a deed. The Agencies determined that
failure to include this provision would allow applicants to be treated
differently and create ambiguity, which the Agencies aim to prevent.
Additionally, in response to public comments regarding the need for
site control to obtain financing, the final rule adds language to
indicate that should an applicant wish to convert a lease to a deed,
HHS will issue a letter of commitment to a lessee indicating that
provided its application meets all application criteria, including
securing all necessary financing that complies with Federal Government
requirements, HHS will issue a deed.
The Agencies received public comments that addressed financing and
expressed concern as to how the Title V program would be funded. As a
result, this final rule adopts clearer language regarding financing by
changing proposed references to funding requirements contained in
paragraph (a)(7)(iv) of the ``Application process and requirements''
section found at 24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR 12a.5
from an applicant showing an ``ability to obtain'' funds to showing
that it ``will obtain'' such funds. This revision clarifies applicant
requirements and clarifies that transferees are required to fund
property and program operations. The Agencies' experience administering
the Title V process has provided decades of examples showing that most
programs have failed for financial reasons; therefore, it is critical
that a solid financial plan is in place, and this clarification
supports that end goal.
This final rule also adds language to the property insurance
requirements in paragraph (a)(9) at 24 CFR 581.11, 41 CFR 102-75.1170,
and 45 CFR 12a.5 and omits unnecessary detail found in paragraph (f)(6)
of the ``Transfer documents'' section proposed at 24 CFR 581.14, 41 CFR
102-75.1172, and 45 CFR 12a.7. The added language in paragraph (a)(9)
addresses existing issues regarding insurance proceeds and

[[Page 89875]]

makes clear that, in the event of a covered loss, the transferee must
hold all proceeds in trust and obtain HHS's written concurrence before
disbursing funds. The Agencies reason that this change would ensure
that the property is returned to its previous or better condition, that
homeless services are resumed, and the Federal Government's residual
interest in the property is protected. The Agencies find this
clarification necessary as failure to include it may unnecessarily
hamper the Federal Government's efforts to both ensure that the
property is repaired and recover the funds if the property is not
repaired. Given this added clarification, the Agencies found the detail
in paragraph (f)(6) of the ``Transfer documents'' section within the
proposed rule to be extraneous and potentially confusing, and thus this
final rule omits the proposed language.
This final rule also provides additional detail about HHS's
discretion in paragraph (d)(1) of the ``Application process and
requirements'' section found at 24 CFR 581.11, 41 CFR 102-75.1170, and
45 CFR 12a.5, by including the phrase ``if time permits'' to accompany
the existing language regarding HHS's discretion to return an
application or ask an applicant to provide additional information. This
additional detail gives the applicant a greater understanding of the
conditions under which HHS will exercise this discretion.

D. Changes Within the Action on Approved Applications Section

This final rule omits language in paragraph (a)(2)(i) of the
``Action on approved applications'' section proposed at 24 CFR 581.12,
41 CFR 102-75.1171, and 45 CFR 12a.6 regarding leases for approved
unutilized and underutilized properties, as it conflicted with the
definition of Lease and maintained the landholding agency's ability to
determine the length of time that the property will be available.
Additionally, in the case of permits, the prior language was
inconsistent with the statutory definition thus the Agencies determined
these changes to be necessary.

E. Changes Within the Transfer Documents Section

For accuracy, the Agencies provide changes in paragraph (f)(12) of
the ``Transfer documents'' section found at 24 CFR 581.14, 41 CFR 102-
75.1172, and 45 CFR 12a.7 regarding the time period of 30 years for
which the terms and conditions apply for a property. The revision
clarifies that public benefit is measured in months rather than years
(a 360-month period rather than a 30-year period) and improves
consistency because abrogation procedures also use months. This ensures
that a transferred property is utilized for a full 360-month period,
not simply during the course of a 30-year period, particularly in
instances of noncompliance. As such, the change reflects the fact that
the period of restriction may be amended to account for lack of use or
change in program. Using years in most cases would be cumbersome and
inaccurate.
In paragraphs (i) and (f)(2) at 24 CFR 581.14, 41 CFR 102-75.1172,
and 45 CFR 12a.7, this rule clarifies HHS's existing policy of
requiring ``written'' consent by clearly stating that written consent
must be obtained for abrogation approvals and will be required for any
encumbrances of the property for any purposes other than those set
forth in an approved plan. The Agencies determined that the
clarification and consistency for applications was necessary to avoid
confusion in the administration of the program. Additionally, the
Agencies received public comments suggesting that the proposed rule
does not provide applicants sufficient time to renovate surplus
property for use in homelessness assistance programs, particularly
affordable permanent housing development projects. As a result, the
Agencies revised paragraph (f)(1)(ii), to provide a transferee an
additional 12 months (or up to a total of 48 months from the date of
transfer) to place the property into use.
Additionally, as explained above in section III.C., which discusses
changes within the Application Process and Requirements section, this
final rule also revises paragraph (f)(6) of the ``Transfer documents''
section within the proposed rule in relation to property insurance
requirements.

F. Changes to Other Sections of the Rule

In the ``Other uses'' section found at 24 CFR 581.19, 41 CFR 102-
75.1177, and 45 CFR 12a.11, the Agencies add a requirement that the
transferee lengthen the time of restrictions in applicable situations
to mirror existing HHS policy and clarify that a grantee may not
benefit from its non-use of the property or noncompliance with the
approved program of use. The Agencies also provided greater clarify for
transferees regarding the consequences of failure to abide by the
requirements outlined for other uses of the property.
Additionally, throughout the regulation, the Agencies provide minor
adjustments to word choice, such as changing ``United States'' to
``Federal Government'' in the ``Application process and requirements''
section proposed at 24 CFR 581.11, 41 CFR 102-75.1170, and 45 CFR 12a.5
or ``useable'' to ``fit for use'' in the ``Expression of interest
process'' section proposed at 24 CFR 581.10, 41 CFR 102-75.1169, and 45
CFR 12a.4. These changes are made to provide greater clarity for the
public.
Additionally, the Agencies incorporated provisions of severability
proposed at 45 CFR 12a.15, 24 CFR 581.23, and 41 CFR 102-75.1182 to
clarify that the rule's provisions are intended to be severable from
one another. Because the various components of this rule have functions
that can operate independently from other portions of the rule, should
a court find any of these revisions invalid, the Agencies believe that
severability is both proper and practical. Furthermore, the Agencies'
roles in the Title V process are distinct and separate, requiring
independent judgement and action by each agency. The Agencies agree
that successful legal challenges to provisions of the rule that affect
one agency should not impair other provisions of the rule that are
related to another agency. For these reasons, this rule adds a
severability clause to each agency's portion of the rule.

IV. Public Comments

The public comment period for the proposed rule closed on May 19,
2023. The Agencies received a total of 23 comments regarding the
proposed rule. HUD received 11 comments and HHS received 12 comments
related to the rule. These comments were received from individuals,
non-profit housing organizations, and nonprofit legal service
providers. The Agencies have provided collective responses to the
comments received.

A. Support for the Proposed Rule

Commenters expressed general support for the proposed rule.
Commenters stated that they believed the proposed rule would provide
needed services and homes to persons experiencing homelessness,
including women, children, and older people, which would improve access
to shelter and healthcare and noted a need for housing and services for
persons experiencing homelessness. One commenter noted a disruption
created by laws against encampments and stated that there is a need for
persons experiencing homelessness to have access to proper shelter.
Another commenter noted an increase in the population of homeless
individuals. One commenter stated that the proposed rule would provide
suitable properties

[[Page 89876]]

for persons experiencing homelessness while not hindering the Federal
Government.
Commenters also expressed support for updating the terminology in
the Title V program. Commenters stated that updating the terminology
used by the Agencies will clarify the meaning of words such as
``applicants,'' ``homelessness,'' and other terms. Commenters also
noted that the proposed rule would clarify which properties are
affected by the Title V program. One commenter stated that updating the
terminology will also aid policymakers and citizens in understanding
the target population affected by the proposed rule.
Commenters also noted the impact of the rule on specific groups.
One commenter stated that the proposed rule would revise current
terminology to include survivors of intimate partner violence in the
definition of ``homeless.'' This commenter stated that a lack of
housing resources and financial assistance remains a significant reason
why survivors of intimate partner violence are less likely to leave
abusers. Several commenters stated that veterans also constitute a
significant portion of the homeless population. One commenter stated
that the rule will benefit veterans experiencing homelessness.
Commenters also supported provisions in the proposed rule that
would change the program requirements from having an applicant
``indicate'' ability to finance and operate a proposed program to
having them demonstrate their ability to do so. Commenters were
supportive of the change, stating that it would allow applicants to
more easily apply to the Title V program to receive available Federal
properties.
Commenters noted that the proposed rule would have positive
implications for healthcare on the Federal level. One commenter stated
that the proposed rule would help the Federal Government provide better
assistance to those in need of housing and would improve Federal
supervision over facilities to prevent or punish violations of Federal
regulations. Another commenter stated that Federal properties having
facilities to connect with mental health treatment, regular primary
care, and substance use disorder treatment can help to reduce the
number of illnesses and increase the possibility of people seeking
medical care. One commenter also stated that the proposed rule provided
greater clarity regarding the location of hazardous items close to safe
items.
The Agencies' Response: The Agencies appreciate the support for the
proposed rule. The Agencies agree there is a need for housing and
services for persons experiencing homelessness in their communities.
The Title V program recognizes the needs of homeless individuals by
facilitating the transfer of suitable and available excess, surplus,
unutilized, and underutilized Federal properties for homeless
assistance. The Agencies also agree that updating terminology used by
the Agencies will help clarify the processes in the Title V program and
assist the Agencies in implementing the Title V program.
The Agencies also support revising the definition of ``homeless''
in the rule to the statutory definition of ``homeless'' at 42 U.S.C.
11302, as Public Law 117-103 recently amended the part of the
definition of ``homeless individual'' in subsection (b) of 42 U.S.C.
11302 to further address those who are experiencing trauma or lack of
safety related to, or fleeing or attempting to flee, domestic violence,
dating violence, sexual assault, stalking, and other dangerous,
traumatic, or life-threatening conditions relating to the violence
against the individual or a family member in the individual's or
family's current housing situation, including where the health and
safety of children are jeopardized; has no other safe residence; and
lacks the resources to obtain other safe permanent housing.
The Agencies acknowledge and share the commenters' concerns
regarding veterans experiencing homelessness. The Agencies intend the
revisions to the Title V program in the rule to facilitate the transfer
of suitable and available excess, surplus, unutilized, and
underutilized Federal properties for homeless assistance, including
veterans experiencing homelessness. Lastly, the Agencies agree that the
rule makes the suitability criteria clearer for both the Agencies and
applicants in the Title V program.

B. Concerns Regarding Underuse of Title V and Impact on Underserved
Communities

Commenters stated that the program created under Title V of the
McKinney-Vento Act has been underused. One commenter stated that,
despite improvements in the rate of applications and approvals as a
result of the Federal Assets Sale and Transfer Act of 2016 (FASTA),
Title V's overall approval rates have remained low. The commenter also
stated that Executive Order 13985, ``Advancing Racial Equity and
Support for Underserved Communities Through the Federal Government,''
requires executive agencies to recognize and work to redress inequities
in their policies and programs that serve as barrier to equal
opportunity. This commenter stated that due to past racially
discriminatory housing policies, Black, multiracial, American Indian/
Alaskan Natives, and Native Hawaiians and Pacific Islanders
disproportionately experience homelessness.
The Agencies' Response: Regarding underutilization of the Title V
program, the Agencies note that the number, condition, and location of
properties are not solely under the Agencies' purview, but instead are
solely based on determinations made by all Federal Landholding Agencies
as to what properties are no longer needed to fulfill their agency
mission. Additionally, HHS is required to disapprove any application
where an applicant fails to meet any one of the statutory and
regulatory application review criteria. While HHS supports more Title V
transfers, HHS also has no control over the number of and quality of
applications it receives.
With regard to the commenter's note on advancing racial equity, the
Agencies acknowledge the disproportionality in the homelessness system
and is continuing efforts to address inequities and barriers in
obtaining housing facing Black, multiracial, Native American, Native
Alaskan, Native Hawaiians and Pacific Islanders.

C. Concerns Related to Practical and Procedural Issues

Commenters provided concerns related to both practical and
procedural issues. Commenters noted a lack of clarity regarding where
available properties can be accessed to inquire for use for an
emergency shelter. Additionally, providing a procedural suggestion, one
commenter stated that the proposed rule was a necessary update that
should be completed at least every five years, which would allow the
Agencies to stay up to date with changes in the Agencies' practices and
procedures as well as outdated information. One commenter stated they
agree with utilizing Federal surplus real property to house the
homeless by giving possession of the property to State and local
governments, but the commenter also stated that the proposed rule would
``be giving more `power' to the government and taking it away from the
citizens.'' Additionally, a commenter stated that as the Title V
program is tax exempt, the Federal Government will have to ``come up
with ways on how to fund this program in order to make it successful,''
which may include use of certain grants. The

[[Page 89877]]

commenter further stated that the Federal Government budgeting system
will be affected since the Federal Government will need to propose a
way to invest in this program. The commenter also said that the program
will put ``more pressure on the Federal government to have to develop
certain organizations and vouchers that will assist this program.''
The Agencies' Response: In reference to the comments about lack of
clarity regarding where available properties can be accessed to inquire
about use for an emergency shelter, HUD posts properties determined to
be suitable to assist the homeless on its website (<a href="https://www.hud.gov/program_offices/comm_planning/titlev/weekly">https://www.hud.gov/program_offices/comm_planning/titlev/weekly</a>). The toll-free Title V
Information Number is (800) 927-7588. HUD also transmits to the United
States Interagency Council on Homelessness (USICH) a copy of the list
of all suitable properties and, no later than February 15 of each year,
publishes a list of all properties in the annual suitable property
reports, reported to HUD in the Federal Register. Please note that HUD
would only determine that properties are suitable to assist the
homeless in accordance with the requirements and specific criteria
described in the proposed rule and not that property would be
appropriate for a particular use such as an emergency shelter.
In response to the suggestion that the Agencies update procedures
every five years, the Agencies note that rulemakings under Title V of
the McKinney-Vento Act are conducted under the Administrative Procedure
Act (APA) (5 U.S.C. 551-559). Rulemaking, in compliance with the APA,
is a process with many requirements that may, depending on the
complexity of the proposed rule and other factors, take years to
complete. In addition, it takes time for landholding agencies and
representatives of the homeless to update their processes and
procedures to follow any changes in a revised final rule. It is
generally not necessary or feasible to complete rulemaking every five
years and such an artificial timeline would be unduly burdensome on the
Agencies and divert resources from the efficient operation of the Title
V program.
The Agencies are not clear what the commenter means when stating
that the proposed rule will take power away from the citizens and give
it to the government. The commenter does not explain further what more
power the government would have and the Agencies believe that the
commenter could be referencing the continued government possession of
the property if transferred to a state or local government. Title V
authorizes the transfer of excess, surplus, unutilized, and
underutilized Federal properties that are determined to be suitable and
available for use to assist the homeless to representatives of the
homeless. A representative of the homeless means a State or local
government agency, or private nonprofit organization which provides, or
proposes to provide, services to the homeless. To the extent the Title
V program takes anything away from citizens, the Agencies assume the
commenter meant that, had the property been sold instead of placed into
the Title V program, citizens could lobby for the sale proceeds to be
allocated elsewhere.
Lastly, in regards to the commenter's concerns about budgeting and
funding, a recipient of Federal surplus real property (which is
transferred at no-cost) has the responsibility of financing all aspects
of the transferred property and program operations. HHS appropriations
are limited to the administration of the Title V program and no other
funds are available to HHS for the program. While Federal grants may be
a source of financing, transferees are not entitled to Federal grants
and Federal grants are not the only available source of funding.
Transferees utilize various methods to fund projects including State
and local grants, loans, fundraising, etc. Additionally, when a
property is transferred, the Federal Government no longer has custody
and accountability of the property saving the Federal Government from
those expenses.

D. Concern Regarding HHS's Interpretation of Current Regulations

One commenter characterized HHS's interpretation of the current
regulations and the proposed rule as preventing homeless service
providers from using Federal tax credits, including Low Income Housing
Tax Credits (LIHTCs) to fund surplus property acquisition. This
commenter stated that it believed HHS's interpretation of the
regulations governing Title V is that applicants must show they have
full funding for a project and that this interpretation is without
statutory or regulatory basis. The commenter stated that HHS denies
applicants who cannot demonstrate they have attained complete funding
at the time of their application, even if the applicant has a history
of successfully funding and implementing projects. The commenter said
that many affordable housing developments use sources of funding that
cannot be committed to in advance, including allocations from city
budgets and LIHTCs. The commenter stated that HHS's actions to deny
applicants who cannot demonstrate that they have obtained complete
funding in fact create an obstacle for applicants as it requires Title
V applicants to secure funding before receiving a property while many
funders require the applicants to secure property before providing
funding. The commenter noted that while the proposed rule shows
intention to help applicants by providing for a one-year lease to
enable site control required for funding, the proposed rule does not
meet the site control requirements of the LIHTC programs. The commenter
stated that homeless service providers cannot obtain evidence of Title
V site control without documentation of LIHTCs but cannot obtain LIHTCs
without documentation of Title V site control. The commenter also
referenced examples of organizations that it noted had been impacted by
HHS's interpretation of the regulations to require that financing for a
development project be secured at the time of application, as evidenced
by HHS's denial of their applications.
The Agencies' Response: The Agencies appreciate the commenter's
perspective. The Agencies would note that the proposed rule was written
to clarify the minimum requirements for a financial plan to be
considered reasonable. In so doing, the requirements for homeless
service providers to obtain financing and for the Federal Government to
protect its residual interest in the property were considered when
drafting the rule. As the commenter stated, the rule provides for a
one-year lease to enable site control by stating ``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 the Application Process
and Requirements section of this rule], 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.'' While the commenter states
Title V applicants cannot obtain LIHTCs without documentation of site
control, the Agencies have approved multiple transferees that have
acquired property via an initial lease and those transferees
successfully obtained financing, including with LIHTCs. The Agencies

[[Page 89878]]

appreciate the commenter's concerns but believe there is evidence of
prior successful applicants that provide evidence directly counter to
the commenter's concerns and demonstrate that past projects have
demonstrated that a lease is sufficient site control for purposes of
obtaining financing.
Lastly, it is inappropriate to speak with particularity regarding
any denial of a specific individual applicant's application through
this final rule. Generally speaking, each application and applicant are
different, and financing that may be acceptable for one applicant's
proposed project may not work for another applicant's proposal.
Additionally, HHS reviews all applications based on the same statutory
and regulatory application criteria and holds applicants to the same
standards. While HHS supports efforts to increase housing and
supportive services to people experiencing homelessness, HHS is also
required to protect the interests of the Federal Government and
taxpayers in the property by ensuring that an applicant has the means
to develop and operate a program.

E. Concern Regarding Allowed Time To Renovate Surplus Property

Commenters stated that neither the Title V regulations nor the
proposed rule provided applicants sufficient time to renovate surplus
property for use in homelessness assistance programs. A commenter
stated that the requirement that an applicant begin operation of a
property within 12 to 36 months is impossible to meet for many programs
because affordable housing developments will usually take 4 to 7 years
from acquisition to be brought into use. The commenter stated that the
amount of time transferees have to put Federal property into use should
be increased, which would greatly expand the number and types of
affordable housing development available through Title V. Commenters
recommended revisions to the language of the proposed rule under 24 CFR
581.14(f)(1)(ii), 45 CFR 12a.7(f)(1)(ii), and 41 CFR.102-
75.1172(f)(1)(ii) to strike language requiring that the property be
placed into use within 12 months or 36 months from the date of transfer
and add language that required operation within eight years of the date
of the deed or lease or, for multi-phase projects, the date of
completion of the first phase of the project.
The Agencies' Response: The Agencies appreciate the commenter's
perspective. In the Agencies' experience administering the Title V
program over the past 30 years, the majority of programs satisfactorily
meet the timing requirement. In only rare instances and under unusual
circumstances is the requirement not met. When the time period is not
met, a transferee is required to make a nonuse payment until such time
as the property is placed into full use. However, the Agencies
acknowledge that this timing requirement may have precluded certain
projects from being pursued. This final rule now provides HHS the
discretion to waive the nonuse payment 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. That ability for
HHS to waive the nonuse payment should address the concern raised by
commenters should unique circumstances arise and allow for HHS to
consider those circumstances without disrupting program operations with
a standard that has been generally met over the past 30 years. In
response to commenters' concerns, the final rule also provides the
transferee with a period of 48 months from the date of transfer to
place the surplus property into use, allowing additional time for the
transferee to conduct any appropriate updates to the property that may
include additional construction of facilities or other major
renovation.

F. Concern About Sanctions for Noncompliance

One commenter stated that Title V's current regulations do not
provide recipients of Federal property sufficient time to cure
potential issues before sanctions are enforced. This commenter stated
that the proposed rule also does not provide transferees with a hearing
or appeals process or clarification of HHS's protocols, including what
constitutes various types of noncompliance. The commenter said that HHS
has significantly unlimited discretion to have the property reverted
back to the Federal Government, even in circumstances outside of the
transferee's control. Commenters stated that, due to this lack of
clarity from HHS, transferees who received Federal property through the
Title V program face a significant risk of reversion back to the
Federal Government, which deters potential project managers and
partners from projects. A commenter also stated that the risk of
reversion is also problematic for financing projects with tax credit
investors and lenders.
A commenter recommended adding new language to the rule to create
the opportunity for transferees to cure ``inadvertent noncompliance''
as well as for investors and lenders to participate in the process,
encouraging further investment in Title V properties. The commenter
stated that reversion is an unnecessary sanction in the Title V program
as other methods may be used for enforcement.
The Agencies' Response: The Agencies appreciate the commenters'
perspectives. Potential applicants are made aware of noncompliance
sanctions at 45 CFR 12a.10, which notes sanctions that HHS may impose
should a transferee breach one or more of the transfer terms. Any risk
of reversion or other sanction would then also be known for partners
for financing projects when potential applicants are made aware of the
terms of their award. These sanctions are necessary to preserve the
integrity of the program and ensure that transferred property is being
properly utilized to serve homeless communities and for no other
purpose. HHS takes into consideration the circumstances of the
noncompliance for each action when determining the appropriate
enforcement action tailored to the type of noncompliance. For example,
reversion could be a remedial measure for noncompliance, but HHS makes
every attempt to work with the transferee to resolve a matter of
noncompliance prior to initiating a reversion action. In situations of
administrative or technical noncompliance where paperwork may have been
entered or submitted in error, HHS may direct corrective action within
an appropriate time period prior to indicating any potential for
reversion of the property. During a cure period, HHS may request
additional information, or the party may provide additional materials
for HHS's consideration when determining what sanctions for
noncompliance may be issued. If ultimately HHS determines that
reversion is the appropriate sanction, both GSA and the Department of
Justice must concur in HHS's decision to revert property before a court
action can be initiated.

G. Suggestion To Repurpose Properties

One commenter stated that to create more affordable housing, more
properties should be repurposed under the Title V: Federal Surplus
Program for use by the homeless services system. This commenter noted
that the U.S. Interagency Council on Homelessness recommended
increasing the number of properties that are repurposed for use by the
homeless services system in the Title V: Federal Surplus Property
Program to expand affordable housing.
The Agencies' Response: The Agencies appreciate this commenter's
perspective. Through process

[[Page 89879]]

improvements implemented by HUD in this final rule, along with more
focused outreach to homeless service providers, the intent is to
highlight the most usable properties and increase as much as possible
the use of properties transferred through the Title V process.

H. Suggested Changes to the Proposed Rule

One commenter suggested that language be added to the rule to allow
applicants to submit letters of intent and financing commitments in
order to show their ability to obtain funding. This commenter stated
that this change would be consistent with the Agencies' underlying
statutory authority and allow the agencies to approve more applications
for surplus Federal property to fulfill the underlying purpose of the
Title V program: to affirmatively further fair housing.
Another commenter noted support for the proposed rule's requirement
for transferees to allow HHS to conduct compliance inspections but
suggested adding a mandatory bi-annual inspection requirement to the
proposed rule. The commenter stated that these inspections will set a
standard for all persons who are considering using the facility for
needs. Additionally, commenters stated that adding a bi-annual
inspection requirement would demonstrate care on the part of the
Agencies for the sustainability of the building as well as that
proactive and preventative maintenance among real estate companies.
Another commenter suggested the proposed rule account for persons
with disabilities in addition to persons experiencing homelessness and
that the rule include giving property to individuals with disabilities
and individuals experiencing homelessness to create homesteads.
One commenter noted the stigmatization of homeless individuals, the
potential causes and effects of homelessness, and the role of the
Federal Government in addressing homelessness. The commenter stated
that the government should allocate funding to building group homes for
homeless individuals in different zip codes.
One commenter stated that they recommend using high-end hotels at
billionaires' expense to house disadvantaged people.
The Agencies' Response: The Agencies appreciate the commenter's
suggestion to allow for letters of intent and financing commitment. The
Agencies have concerns about the practical application of this, as what
may be acceptable in one situation may be unacceptable in another.
HHS's review of a financial plan focuses on individual proposals in
light of specific project and program plans, the applicant's experience
and resources, and conditions of the requested property. It is an
applicant's responsibility to ensure its application presents all
information requested to set forth a reasonable financial plan as
defined at 45 CFR 12a.5(a)(7), evidencing the adequacy and certainty of
funding to carry forth the proposed program. A reasonable financial
plan cannot be fully satisfied merely by letters of intent, as letters
of intent are not contractual or binding. Applicants are not prohibited
from submitting letters, but as indicated above, HHS would assess them
in its evaluation of the entire financial plan to understand whether
any letter or submitted information is relevant to HHS's determination
that the financial plan is satisfactory.
Due to the short 15-day timeframe imposed on HHS, by statute, to
review an applicant's financial plan, HHS's evaluation is limited to
the content within the application. If the applicant does not present
evidence in its financial plan that the government's interest is
protected, HHS may deny an application or approve an application for
lease acquisition with an opportunity to acquire the property by deed
once an applicant satisfies HHS's requirements to ensure that the
Federal Government's interest in the property is adequately protected.
A lease to a property has proven to be acceptable site control for
purposes of obtaining financing.
Regarding the suggestion to add a mandatory bi-annual inspection
into the rule's compliance requirement, the Agencies would note that
the proposed rule at 45 CFR 12a.13 requires that transferees allow HHS
to conduct compliance inspections and submit, at a minimum, annual
utilization reports regarding the operation and maintenance of the
property. As written, HHS has the discretion to conduct compliance
inspections and request property reports at any time a transferee is
under the period of use restrictions, which is useful, particularly in
instances of noncompliance. HHS determines when and how often to
conduct inspections based on various circumstances, including but not
limited to, open compliance cases, issues reported by adjacent property
owners, length of time since last inspection, etc. HHS takes compliance
action to ensure transferred property is both properly maintained and
operated to provide services to the homeless.
In reference to one commenter's suggestion that the Agencies create
homesteads for individuals with disabilities and those experiencing
homelessness, Title V authorizes the transfer of excess, surplus,
unutilized, and underutilized Federal properties that are determined to
be suitable and available for use to assist the homeless. While many
persons who meet the definition of homeless may also have a disability,
Title V does not permit properties under Title V to be transferred to
assist persons with a disability who do not meet the definition of
homeless.
Lastly, in reference to the suggestion to use hotels or build group
homes for homeless individuals, the commenter's proposal is not within
the scope of the program. Title V of the McKinney-Vento Act only
applies to excess, surplus, unutilized, and underutilized Federally-
owned properties and does not apply to privately owned properties such
as hotels. Additionally, the Title V program does not provide funds to
construct or rehab housing for the homeless.

V. Findings and Certifications

Regulatory Review--Executive Orders 12866, 13563, and 14094

Under Executive Order 12866 (Regulatory Planning and Review), as
amended by Executive Order 14094, 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. 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. Executive Order 14094 amends section 3(f) of Executive Order
12866, among other things.
This final rule was determined to be a significant regulatory
action under section 3(f) of Executive Order 12866, as amended by
Executive Order 14094 (although not a significant regulatory action
under section 3(f)(1) the order). The Agencies prepared an initial
Regulatory Impact Analysis (RIA) that

[[Page 89880]]

addresses the costs and benefits of the rule and is part of the docket
file for this rule.

Environmental Review

Actions resulting from this rule amendment may constitute ``major
Federal actions significantly affecting the quality of the human
environment.'' 42 U.S.C. 4332(2)(C). A detailed statement under the
National Environmental Policy Act of 1969 (NEPA) is not specifically
required for purposes of the rule amendment. Actions involving specific
property transactions may require further NEPA analysis, however, 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 proposed transaction, in keeping with applicable
provisions of NEPA.
The Environmental Assessment and Finding of No Significant Impact
(FONSI) issued when the proposed rule was published remain applicable
to this final rule. The FONSI is available for public inspection on
<a href="http://www.regulations.gov">www.regulations.gov</a>.

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 final 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 final rule imposes no additional requirements on a substantial
number of small entities as defined by the 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. This rule also provides for HUD's suitability
determinations to be published electronically rather than in the
Federal Register. Accordingly, the undersigned certifies that this 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 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.

Congressional Review Act

Pursuant to 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, the Office of Information and
Regulatory Affairs in OMB has determined that this rule does not meet
the criteria set forth in 5 U.S.C. 804(2).

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

Grant programs--health, Grant programs--housing and community
development, Government property, Homeless, Housing, Public assistance
programs, Surplus Government property.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Accordingly, for the reasons stated above, HUD amends 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 as follows:
0
a. Revise the definitions of Applicant and Eligible organization;
0
b. Add the definition of Encumbrance in alphabetical order;
0
c. Revise the definitions of Excess property and Homeless;
0
d. Add the definition of HUD website in alphabetical order;
0
e. Remove the definition of ICH;
0
f. Revise the definitions of Landholding agency, Lease, Non-profit
organization, Permit, and Property;
0
g. Add the definition of Related personal property in alphabetical
order;
0
h. Remove the definition of Regional homeless coordinator;
0
i. Revise the definition of Screen;
0
j. Add the definition of State in alphabetical order;
0
k. Remove the definition of State homeless coordinator;
0
l. Revise the definitions of Suitable property and Surplus property;
and
0
m. Add the definitions of Transfer document and Transferee in
alphabetical order.
The revisions and additions read as follows:

Sec. 581.1 Definitions.

Applicant means any eligible organization that 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 under the State law in which the
property is located to carry out the activity for which it requests
property and enter into an agreement with the

[[Page 89881]]

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.
Encumbrance means any non-approved use by a transferee or a third
party that limits the full utilization of the transferred property,
regardless of time period, and includes liens, easements, restrictive
covenants, licenses, leases, mortgages, informal agreements, and
unaddressed trespass.
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 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.
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. Sec. 581.2 through 581.12 to read as follows:

Sec.
* * * * *
581.2 Applicability.
581.3 Collecting the information.
581.4 Suitability determination.
581.5 Real property reported excess to GSA.
581.6 Suitability criteria.
581.7 Determination of availability for suitable properties.
581.8 Public notice of determination.
581.9 General policies of HHS.
581.10 Expression of interest process.
581.11 Application process and requirements.
581.12 Action on approved applications.
* * * * *

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 is binding on the
Federal Government and, 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 under the control of 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.

[[Page 89882]]

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 in this section, 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.

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 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
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. 581.6.
(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 the 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.

Sec. 581.5 Real property reported excess to GSA.

[[Page 89883]]

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
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 41 CFR part 102-
75. (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.

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 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 in paragraphs (b)(1) through (4) of this section,
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.

Sec. 581.7 Determination of availability for suitable properties.

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:
(a) In the case of unutilized or underutilized property--
(1) An intention to declare the property excess;
(2) An intention to make the property available for use to assist
the homeless; or
(3) 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.
(b) In the case of excess property which has been reported to GSA--
(1) A statement that there is no compelling Federal need for the
property, and, therefore, the property will be determined surplus; or
(2) 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.

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

[[Page 89884]]

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.

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) 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.
(d) 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.
(e) In instances of noncompliance, transferees are provided an
opportunity to cure the noncompliance pursuant to 45 CFR 12a.10.

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 the list of properties is published on the HUD
website. Any eligible organization interested in any underutilized,
unutilized, excess, or surplus property for use to assist the homeless
must send 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 fit for use 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)(1) 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, <a href="/cdn-cgi/l/email-protection#88faf8eac8f8fbeba6e0e0fba6efe7fe">[email&#160;protected]</a>, 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.
(2) 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. 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. Applicants that initially apply for transfer by lease or
permit and subsequently request transfer by deed will follow the same
bifurcated application process, including deadlines, contained in 42
U.S.C. 11411. Should an applicant wish to transition from acquisition
by lease to acquisition by deed, HHS will issue a letter of commitment
to a lessee indicating that, provided its application meets all
application criteria, including securing of all necessary financing
that complies with Federal Government requirements, HHS will issue a
deed.
(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.
(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

[[Page 89885]]

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 will 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 Federal Government's interest in
the property nor impair the Federal 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 Federal Government's 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 at 24 CFR part 100; and,
as applicable, Executive Order 11063 (Equal Opportunity in Housing) and
implementing regulations at 24 CFR part 107; 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 at 24 CFR
part 1; section 1557 of the Affordable Care Act and implementing
regulations at 45 CFR part 92; 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 at 24 CFR part 146; and 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 at 24 CFR part
8; and Titles II or III of the Americans with Disabilities Act and
implementing regulations at 28 CFR part 35 or 36, 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. In the event of a
covered loss, the transferee must hold all insurance proceeds in trust
and obtain written concurrence from HHS before disbursing the funds.
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 email address in Sec. 581.10(d)(1) 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 and time permits, 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

[[Page 89886]]

specified in paragraph (a)(7) of this section, 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. 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.
(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.

0
4. Add Sec. Sec. 581.14 through 581.23 to read as follows:

Sec.
* * * * *
581.14 Surplus property transfer documents.
581.15 Unsuitable properties.
581.16 Compliance with the National Environmental Policy Act of 1969
and other related Acts (environmental impact).
581.17 No applications approved.
581.18 Utilization and enforcement.
581.19 Other uses.
581.20 Abrogation.
581.21 Compliance inspections and reports.
581.22 No right of administrative review for agency decisions.
581.23 Severability.
* * * * *

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 assistance 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 the approved program and plan of use, in
accordance with 42 U.S.C. 11411 and this part, 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 48 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.

[[Page 89887]]

(2) The transferee will not be permitted to encumber, or dispose of
the property, or impair full utilization thereof, without the prior
written authorization of HHS. In the event the property is encumbered,
sold, or disposed of, or is used for any purposes other than those set
forth in an approved plan without the written 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
(f)(2) 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.
(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 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 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 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 this paragraph (f), apply for a
period of three hundred sixty (360) months of use in accordance with a
program of use approved in writing by HHS. The three hundred sixty
months (360) 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 terms and
conditions in this paragraph (f) 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 this paragraph (f), 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) 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 written 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.

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 an 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.

[[Page 89888]]

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.

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 Acts
cited in paragraph (a) of this section.
(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 Acts cited in paragraph (a) of
this section. 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. 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 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. 581.18 Utilization and enforcement.

(a) Sanctions. For instances of noncompliance relating to surplus
property transfers, HHS may impose, after providing an opportunity to
cure to the transferee, any or all of the following sanctions in its
sole discretion, 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 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, GSA will work with HHS 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. 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;

[[Page 89889]]

(3) HHS's written consent is obtained by the transferee in advance;
(4) HHS approves the use instrument in advance and in writing;
(5) The transferee agrees to lengthen the period of restrictions as
determined by HHS; and
(6) HHS advises GSA and there is no disapproval by GSA within
thirty (30) days.
(b) A transferee that does not follow paragraph (a) of this section
will be deemed to be not in compliance with the terms and conditions of
the Title V program and subject to enforcement action, including
reversion of the property.

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.

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.

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.

Sec. 581.23 Severability.

Any provision of this part held to be invalid or unenforceable with
respect to certain parties or circumstances shall be construed so as to
continue to give the maximum effect to the provision permitted by law
unless such holding is that the provision of this part is invalid and
unenforceable in all circumstances, in which event the provision shall
be severable from the remainder of this part and shall not affect the
remainder thereof.

GENERAL SERVICES ADMINISTRATION

Accordingly, for the reasons stated above, GSA amends 41 CFR part
102-75 as follows:

PART 102-75--REAL PROPERTY DISPOSAL

0
5. The authority citation for part 102-75 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
6. Revise 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?

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?

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 Property Transfer Documents

102-75.1172 What documents are used for the transfer of surplus
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?

Severability

102-75.1182 Are the provisions of this subpart severable?
102-75.1183-102-75.1219 [Reserved]

[[Page 89890]]

Definitions

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

Applicant means any eligible organization that 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 under the State law in which the
property is located to carry out the activity for which it requests
property and 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.
Encumbrance means any non-approved use by a transferee or a third
party that limits the full utilization of the transferred property,
regardless of time period, and includes liens, easements, restrictive
covenants, licenses, leases, mortgages, informal agreements, and
unaddressed trespass.
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.
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.
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

[[Page 89891]]

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 is binding on the
Federal Government and, 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 under the control of 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?

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 24 CFR 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
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 the 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

[[Page 89892]]

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 preceding sentence, 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 this part. (See
Sec. Sec. 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 Sec. 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.).
(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 in paragraphs (b)(1) through (4) of this section,
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?

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:
(a) In the case of unutilized or underutilized property--
(1) An intention to declare the property excess;
(2) An intention to make the property available for use to assist
the homeless; or
(3) 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.

[[Page 89893]]

(b) In the case of excess property which has been reported to GSA--
(1) A statement that there is no compelling Federal need for the
property, and, therefore, the property will be determined surplus; or
(2) 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.

Public Notice of Determination

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

General Policies of HHS

Sec. 102-75.1168 What are the general policies of HHS?

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 the list of properties is published on the HUD
website. Any eligible organization interested in any underutilized,
unutilized, excess, or surplus property for use to assist the homeless
must send 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 fit for use 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)(1) 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, <a href="/cdn-cgi/l/email-protection#f2808290b2828191dc9a9a81dc959d84">[email&#160;protected]</a>, 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.
(2) 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?

[[Page 89894]]

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.
Applicants that initially apply for transfer by lease or permit and
subsequently request transfer by deed will follow the same bifurcated
application process, including deadlines, contained in 42 U.S.C. 11411.
Should an applicant wish to transition from acquisition by lease to
acquisition by deed, HHS will issue a letter of commitment to a lessee
indicating that, provided its application meets all application
criteria, including securing of all necessary financing that complies
with Federal Government requirements, HHS will issue a deed.
(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.
(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 will 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 Federal Government's interest in
the property nor impair the Federal 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 Federal Government's 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 at 24 CFR part 100; and,
as applicable, Executive Order 11063 (Equal Opportunity in Housing) and
implementing regulations at 24 CFR part 107; 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 at 24 CFR
part 1 and 45 CFR part 80; section 1557 of the Affordable Care Act and
implementing regulations at 45 CFR part 92; 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 at 24 CFR part
146 and 44 CFR part 91; and 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 at 24 CFR part 8 and 45 CFR part 84. 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. In the event of a
covered loss, the transferee must hold all insurance proceeds in trust
and obtain written concurrence from HHS before disbursing the funds.
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

[[Page 89895]]

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 email address in Sec. 102-75.1169(d)(1) 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 and time permits, 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 paragraph (a)(6) of this section, 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.
(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 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
property for use to assist the homeless?

[[Page 89896]]

(1) For the period provided in the transfer document, the
transferee shall utilize all the surplus property it receives solely
and continuously for the approved program and plan of use, in
accordance with 42 U.S.C. 11411 and this subpart, 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 48 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, or dispose of
the property, or impair full utilization thereof, without the prior
written authorization of HHS. In the event the property is encumbered,
sold, or disposed of, or is used for any purposes other than those set
forth in an approved plan without the written 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
(f)(2) 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.
(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 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 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 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 this paragraph (f), apply for a
period of three hundred sixty (360) months of use in accordance with a
program of use approved in writing by HHS. The three hundred sixty
months (360) 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 terms and
conditions in this paragraph (f) 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 this paragraph (f), 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

[[Page 89897]]

realty and in accordance with real property procedures.
(h) 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

[…truncated; see source link]

View on FederalRegister.gov →Plain-text source

Indexed from Federal Register on November 13, 2024.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.