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

DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 387

[Docket No. R-157]

RIN No. 2133-AB18

Utilization and Disposal of Surplus Federal Real Property for

Development or Operation of a Port Facility

AGENCY: Maritime Administration, Department of Transportation.

ACTION: Final rule.

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SUMMARY: This rule provides guidance for implementation by the

Secretary of Transportation, acting by and through the Maritime

Administrator, Maritime Administration (Secretary), of controlling

regulations issued by the Administrator of General Services

(Administrator), as authorized by Public Law 103-160. This rule

prescribes the terms, reservations, restrictions, and conditions under

which the Secretary will convey surplus Federal real property and

related personal property to public entities for use in the development

or operation of a port facility.

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

FOR FURTHER INFORMATION CONTACT: James R. Carman, Acting Chief,

Division of Ports, Maritime Administration, MAR-830, Room 7201, 400

Seventh Street, SW., Washington, DC, 20590, (202) 366-4357.

SUPPLEMENTARY INFORMATION: Due to the downsizing of the United States

Government, surplus Federal real property and related personal property

is becoming available which may be suitable for the development or

operation of a port facility. Section 2927 of the National Defense

Authorization Act for Fiscal Year 1994, enacted November 30, 1993,

Public Law 103-160, amended Section 203 of the Federal Property and

Administrative Services Act of 1949 (40 U.S.C. 484) to provide that

under such regulations as the Administrator, after consultation with

the Secretary of Defense, may prescribe, the Administrator or the

Secretary of Defense, in the case of property located at a military

installation closed or realigned pursuant to a base closure law, may,

in his or her discretion, assign to the Secretary for disposal such

surplus real property, including buildings, fixtures, and equipment

situated thereon, as is recommended by the Secretary as being needed

for the development or operation of a port facility. The

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Secretary of Transportation delegated the authority to convey such real

and personal surplus Federal property to the Maritime Administrator (59

FR 36987, July 20, 1994). The Administrator has issued a final rule (60

FR 35706, July 11, 1995).

This rule establishes the terms, reservations, restrictions, and

conditions of the conveyance, as required by Public Law 103-160, which

are consistent with the controlling regulations at 41 CFR 101-47.308-

10. Most of the terms, reservations, restrictions, and conditions used

in this rule are found in other surplus Federal property conveyance

program regulations of Federal agencies. The port facility definition

is new and was developed by the Secretary to implement the conveyance

program.

Rulemaking Analyses and Notices

This rulemaking has been reviewed under Executive Order 12866 and

Department of Transportation Regulatory Policies and Procedures (44 FR

11034, February 26, 1979). It is not considered to be an economically

significant regulatory action under Section 3(f) of E.O. 12866, since

it has been determined that it is not likely to result in a rule that

may have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities. This rule would not significantly affect other Federal

agencies; would not materially alter budgetary impacts; does not raise

novel legal or policy issues arising out of legal mandates, the

President's priorities or the principles set forth in E.O. 12866, and

has been determined to be a nonsignificant rule under the Department

Regulatory Policies and Procedures. Accordingly, it is not considered

to be a significant regulatory action under E.O. 12866. Since this is a

matter relating to public property it is exempt from the notice

requirements of the Administrative Procedure Act (5 U.S.C. 553 (a)(2)).

Furthermore, it is necessary to finalize guidelines to facilitate and

expedite the selection of the recipients of properties and the actual

conveyance.

This rule has not been reviewed by the Office of Management and

Budget.

Federalism

The Secretary has analyzed this rulemaking in accordance with the

principles and criteria contained in Executive Order 12612 and has

determined that these regulations do not have sufficient federalism

implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

The Secretary certifies that this rulemaking will not have a

significant economic impact on a substantial number of small entities.

Environmental Assessment

The Secretary has considered the environmental impact of this

rulemaking and has concluded that the Secretary, as a sponsoring agency

under the port facility conveyance, is not required to prepare an

environmental assessment under the National Environmental Policy Act of

1969 (NEPA). The Secretary will insure that the reuse plan submitted by

an applicant complies with the provisions of NEPA as prepared by the

disposal agency.

Paperwork Reduction Act

This rulemaking contains a reporting requirement that is subject to

the Office of Management and Budget (OMB) approval under 5 CFR Part

1320, pursuant to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501

et seq.), as amended, and is being (or has been) submitted.

List of Subjects in 46 CFR Part 387

Government property management, Surplus Government property.

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

PART 387--UTILIZATION AND DISPOSAL OF SURPLUS FEDERAL REAL PROPERTY

FOR DEVELOPMENT OR OPERATION OF A PORT FACILITY

Sec.

12.1 Scope.

12.2 Definitions.

12.3 Notice of availability of surplus property.

12.4 Applications.

12.5 Surplus property assignment recommendation.

12.6 Terms, reservations, restrictions, and conditions of

conveyance.

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

Sec. 12.1 Scope.

This part is applicable to Surplus Property that is recommended by

the Secretary as being needed for the development or operation of a

Port Facility and is appropriate for being assigned to, or that has

been assigned to the Secretary for conveyance as provided for in Public

Law 103-160 and 40 U.S.C. 471 et seq.

Sec. 12.2 Definitions.

(a) Act means the Federal Property and Administrative Services Act

of 1949 as amended, 40 U.S.C. 471 et seq., and 41 CFR 101-47. Terms

defined in the Act and not defined in this section have the meanings

given to them in the Act.

(b) Applicant means any State, the District of Columbia, the

Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands,

the Trust Territory of the Pacific Islands, the Commonwealth of the

Northern Mariana Islands, or any political subdivision, municipality,

or instrumentality thereof, that has submitted an application to the

Secretary to obtain surplus Federal property.

(c) Disposal Agency means the executive agency of the Government

which has authority to assign property to the Secretary for conveyance

for development or operation of a port facility.

(d) Grantee means the Applicant to which surplus Federal property

is conveyed.

(e) Grantor means the Secretary.

(f) Port Facility means any structure and improved property,

including services connected therewith, whether located on the

waterfront or inland, which is used or intended for use in developing,

transferring, or assisting maritime commerce and water dependent

industries, including, but not limited to, piers, wharves, yards,

docks, berths, aprons, equipment used to load and discharge cargo and

passengers from vessels, dry and cold storage spaces, terminal and

warehouse buildings, bulk and liquid storage terminals, tank farms,

multimodal transfer terminals, transshipment and receiving stations,

marinas, foreign trade zones, shipyards, industrial property, fishing

and aquaculture structures, mixed use waterfront complexes, connecting

channels and port landside transportation access routes.

(g) Secretary means the Secretary of Transportation acting by and

through the Maritime Administrator, Maritime Administration by

delegation of authority.

(h) Surplus Property means Federal real and related personal

property duly determined to be unneeded by a Federal agency which may

be conveyed to an Applicant for use in the development or operation of

a port facility.

Sec. 12.3 Notice of availability of surplus property.

The Disposal Agency shall publish notices of availability of excess

and surplus Federal real and personal property. The Secretary will

advise eligible public port agencies, in an

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appropriate manner, of the availability of Surplus Property that is

deemed to have port facility potential. Potential Applicants shall

notify the Secretary, in writing, of a desire to acquire surplus

Federal property before the expiration of the notice period specified

in the Notice of Surplus Property--Government Property.

Sec. 12.4 Applications.

Application forms for conveyance of Surplus Property can be

obtained from the Maritime Administration, Division of Ports, 400

Seventh Street, SW, Washington, DC 20590. The applicant shall identify

on the application form the requested property, agree to the terms/

conditions of the conveyance and shall also submit a Port Facility

Redevelopment Plan (PFRP) which details the plan of use for the

property and the associated economic development plan.

Sec. 12.5 Surplus property assignment recommendation.

Before any assignment recommendation is submitted to the Disposal

Agency by the Secretary the following conditions shall be met:

(a) The Secretary has received and approved an application for the

property.

(b) The Applicant is able, willing, and authorized to assume

immediate possession of the property and pay administrative expenses

incidental to the conveyance (application preparation, documentation,

legal and land transfer costs).

(c) The Secretary, after consultation with the Secretary of Labor,

has determined that the property to be conveyed is located in an area

of serious economic disruption.

(d) The Secretary, after consultation with the Secretary of

Commerce, approves the PFRP as part of a necessary economic development

program.

(e) The Secretary determines that the application complies with the

provisions of the National Environmental Policy Act of 1969 as prepared

by the Disposal Agency.

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

conveyance.

(a) Conveyances of property shall be on forms approved by, and

available from the Secretary, and shall include such terms,

reservations, restrictions and conditions set forth in this part and

such other terms, reservations, restrictions and conditions as the

Secretary may deem appropriate or necessary.

(b) Property shall be conveyed by a quitclaim deed or deeds on an

``as is, where is'' basis without any warranty, expressed or implied.

(c) Property shall be used and maintained in perpetuity for the

purpose for which it was conveyed, and that if the property ceases to

be used or maintained for that purpose, all or any portion of the

property shall, in its then existing condition, at the option of the

Government, revert to the Government.

(d) The entire Port Facility, including all structures,

improvements, facilities and equipment in which the deed conveys any

interest shall be maintained at all times in safe and serviceable

condition, to assure its efficient operation and use, provided,

however, that such maintenance shall be required as to structures,

improvements, facilities and equipment only during the useful life

thereof, as determined by the Grantor.

(e) No property conveyed shall be mortgaged or otherwise disposed

of, or rights or interest granted by the Grantee without the prior

written consent of the Grantor. However, the Grantor will only review

leases of five years or more to determine the interest granted therein.

(f) Property conveyed for a Port Facility shall be used and

maintained for the use and benefit of the public on fair and reasonable

terms, without discrimination.

(g) The Grantee shall, insofar as it is within its powers and to

the extent reasonable, adequately protect the water and land access to

the Port Facility.

(h) The Grantee shall operate and maintain in a safe and

serviceable condition, as deemed reasonably necessary by Grantor, the

port and all facilities thereon and connected therewith which are

necessary to service the maritime users of the Port Facility and will

not permit any activity thereon which would interfere with its use as a

Port Facility.

(i) The Port Facility is subject to the provisions of Title 46 Code

of Federal Regulations (CFR) Part 340.

(j) The Grantee shall furnish the Grantor such financial,

operational and annual utilization reports as may be required.

(k) Where construction or major renovation is not required or

proposed, the Port Facility shall be placed into use within twelve (12)

months from the date of this conveyance. Where construction or major

renovation is contemplated at the time of conveyance, the property

shall be placed in service according to the redevelopment time table

approved by the Grantor in the PFRP.

(l) The Grantee shall not enter into any transaction which would

operate to deprive it of any of the rights and powers necessary to

perform or comply with any or all of the terms, reservations,

restrictions and conditions set forth in the application and the deed.

(m) The Grantee shall keep up to date at all times a Port Facility

layout map of the property described herein showing:

(1) the boundaries of the Port Facility and all proposed additions

thereto, and

(2) the location of all existing and proposed port facilities and

structures, including all proposed extensions and reductions of

existing port facilities.

(n) In the event that any of the terms, reservations, restrictions

and conditions are not met, observed, or complied with by the Grantee,

the title, right of possession and all other rights conveyed by the

deed to the Grantee, or any portion thereof, shall, at the option of

the Grantor revert to the Government, in its then existing condition

sixty (60) days following the date upon which demand to this effect is

made in writing by Grantor or its successor in function, unless within

said sixty (60) days such default or violation shall have been cured

and all such terms, reservations, restrictions and conditions shall

have been met, observed, or complied with, in which event said

reversion shall not occur.

(o) The deed will contain a severability clause dealing with the

terms, reservations, restrictions and conditions of conveyance.

(p) The Grantee shall remain at all times a State, the District of

Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the

Virgin Islands, the Trust Territory of the Pacific Islands, the

Commonwealth of the Northern Mariana Islands, or any political

subdivision, municipality, or instrumentality thereof.

(q) The Grantee shall comply at all times with all applicable

provisions of law, including, the Water Resources Development Act of

1990.

(r) The Grantee shall not modify, amend or otherwise change its

approved PFRP without the prior written consent of Grantor and shall

implement the PFRP as approved by the Grantor.

(s) The Government under Section 120 (h)(3) of the Comprehensive,

Environmental Response, Compensation and Liability Act of 1980, as

amended, warrants that:

(1) all remedial action necessary to protect human health and the

environment with respect to any hazardous substance on the property has

been taken before the date of the conveyance, and

(2) any additional remedial action found to be necessary after the

date of

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the conveyance shall be conducted by the Government.

(t) The Government reserves the right of access to any and all

portions of the property for purposes of environmental investigation,

remediation or other corrective action and compliance inspection

purposes.

(u) The Grantee shall agree that in the event, the Grantor

exercises its option to revert all right, title, and interest in and to

any portion of the property to the Government, or Grantee voluntarily

returns title to the property in lieu of a reverter, the Grantee shall

provide protection to, and maintenance of the property at all times

until such time as the title is actually reverted or returned to and

accepted by the Government. Such protection and maintenance shall, at a

minimum, conform to the standards prescribed in regulations

implementing the Act.

(v) The Grantor expressly reserves from the conveyance:

(1) oil, gas and mineral rights,

(2) improvements without land,

(3) military chapels, and

(4) property disposed of pursuant to 204 (c) of the Act.

(w) The Government reserves all right, title, and interest in and

to all property of whatsoever nature not specifically conveyed,

together with right of removal thereof from the Port Facility within

one (1) year from the date of the deed.

(x) The Grantee shall agree to maintain any portion of the property

identified as ``historical'' in accordance with recommended approaches

in the Secretary of Interior Standards for Historic Property at 16

U.S.C. 461-470w-6.

(y) Prior to the use of any property by children under seven (7)

years of age, the Grantee shall remove all lead-based paint hazards and

all potential lead-based paint hazards in accordance with applicable

lead-based paint laws and regulations.

(z) The Grantee agrees that any construction or alteration is

prohibited unless a determination of no hazard to air navigation is

issued by the Federal Aviation Administration.

(aa) The Grantee shall agree that in its use and occupancy of the

Port Facility it shall comply with all laws relating to asbestos.

(bb) All construction on any portion of the property identified as

``wetlands'' as determined by the appropriate District of the Army

Corps of Engineers shall comply with Department of the Army Wetland

Construction Restrictions contained in Title 33 CFR, Parts 320 through

330.

(cc) The Grantee shall agree to maintain, indemnify and hold

harmless the Grantor and the Government from any and all claims,

demands, costs or judgments for damages to persons or property that may

arise from the use of the property by the Grantee, guests, employees

and lessees.

(dd) The Grantor, on written request from the Grantee, may grant

release from any of the terms, reservations, restrictions and

conditions contained in the deed, or the Grantor may release the

Grantee from any terms, restrictions, reservations or conditions if the

Grantor determines that the property so conveyed no longer serves the

purpose for which it was conveyed.

(ee) The Grantor shall make reforms, corrections or amendments to

the deed if necessary to correct such deed or to conform such deed to

the requirements of applicable law.

Dated: August 10, 1995.

By order of the Maritime Administrator.

Joel C. Richard,

Secretary, Maritime Administrator.

[FR Doc. 95-20180 Filed 8-15-95; 8:45 am]

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