[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2000 Edition]
[From the U.S. Government Printing Office]



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                    32


          Parts 630 to 699

                         Revised as of July 1, 2000

National Defense





          Containing a Codification of documents of general 
          applicability and future effect
          As of July 1, 2000
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

As a Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2000



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



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                            Table of Contents



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

  Title 32:
    Subtitle A--Department of Defense (Continued):
          Chapter V--Department of the Army (Continued)              5
  Finding Aids:
      Table of CFR Titles and Chapters........................     433
      Alphabetical List of Agencies Appearing in the CFR......     451
      List of CFR Sections Affected...........................     461



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

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  32 CFR 630.1 refers 
                       to title 32, part 630, 
                       section 1.

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

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                               EXPLANATION

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

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

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

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its 
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Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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citations for the regulations are referred to by volume number and page 
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inserted following the text.

OMB CONTROL NUMBERS

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

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Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
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    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
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ELECTRONIC SERVICES

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Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
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    The Office of the Federal Register also offers a free service on the 
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2000.



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                               THIS TITLE

    Title 32--National Defense is composed of six volumes. The parts in 
these volumes are arranged in the following order: parts 1-190, parts 
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to 
End. The contents of these volumes represent all current regulations 
codified under this title of the CFR as of July 1, 2000.

    The current regulations issued by the Department of Defense appear 
in the volumes containing parts 1-189 and parts 190-399; those issued by 
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear 
in the volume containing parts 700-799, and those issued by the 
Department of the Air Force, Defense Logistics Agency, Selective Service 
System, National Counterintelligence Center, Central Intelligence 
Agency, Information Security Oversight Office, National Security 
Council, Office of Science and Technology Policy, Office for Micronesian 
Status Negotiations, and Office of the Vice President of the United 
States appear in the volume containing parts 800 to end.

    For this volume, Bonnie J. Fritts was Chief Editor. The Code of 
Federal Regulations is published under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

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                       TITLE 32--NATIONAL DEFENSE




                  (This book contains parts 630 to 699)

  --------------------------------------------------------------------
                                                                    Part

             SUBTITLE A--Department of Defense (Continued):

chapter v--Department of the Army (Continued)...............         630


Cross References: American Battle Monuments Commission: See Parks, 
  Forests, and Public Property, 36 CFR, chapter IV.


  Department of Veterans Affairs: See Pensions, Bonuses, and Veterans' 
Relief, 38 CFR, chapter I.


  Federal Acquisition Regulations System, 48 CFR.

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                        Subtitle A--Department of

                           Defense (Continued)

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              CHAPTER V--DEPARTMENT OF THE ARMY (CONTINUED)




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

        SUBCHAPTER I--LAW ENFORCEMENT AND CRIMINAL INVESTIGATIONS
Part                                                                Page
630             Absentee Deserter Apprehension Program and 
                    surrender of military personnel to 
                    civilian law enforcement agencies.......           7
631             Armed Forces Disciplinary Control Boards and 
                    off-installation military enforcement 
                    services................................          20
632             Use of force by personnel engaged in law 
                    enforcement and security duties.........          31
633             Individual requests for access or amendment 
                    of CID reports of investigation.........          33
634             Motor vehicle traffic supervision...........          34
636             Motor vehicle traffic supervision (specific 
                    installations)..........................          71
                       SUBCHAPTER J--REAL PROPERTY
641-642         [Reserved]

643             Real estate.................................          87
644             Real estate handbook........................         102
645-649         [Reserved]

                   SUBCHAPTER K--ENVIRONMENTAL QUALITY
650             Environmental protection and enhancement (AR 
                    200-1)..................................         298
651             Environmental effects of Army actions (AR 
                    200-2)..................................         379
652-654         [Reserved]

655             Radiation sources on Army land..............         423
656             Installations, use of off-road vehicles on 
                    Army land...............................         424
657-667         [Reserved]

                     SUBCHAPTER L--ARMY CONTRACTING
668             Contractor manhour reporting requirement....         429
669-699         [Reserved]


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  Editorial Note: Other regulations issued by the Department of the Army 
appear in title 33, chapter II; and title 36, chapter III.


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

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        SUBCHAPTER I--LAW ENFORCEMENT AND CRIMINAL INVESTIGATIONS





PART 630--ABSENTEE DESERTER APPREHENSION PROGRAM AND SURRENDER OF MILITARY PERSONNEL TO CIVILIAN LAW ENFORCEMENT AGENCIES--Table of Contents




Sec.

                           Subpart A--Purpose

630.1  Purpose.
630.2  References.
630.3  Explanation of abbreviations and terms.
630.4  Responsibilities.

                     Subpart B--Absent Without Leave

630.5  Notification.
630.6  Surrender to unit commander.
630.7  Surrender or apprehension at other installations.

                          Subpart C--Desertion

630.8  Administrative report.
630.9  Processing deserter reports.
630.10  Special category absentees.
630.11  Escaped prisoner.
630.12  USADIP procedures.

                  Subpart D--Return to Military Control

630.13  AWOL/deserter apprehension efforts.
630.14  Use of escorts.
630.15  Verification of deserter status.
630.16  Surrender or apprehension on parent installation.
630.17  Surrender or apprehension at another installation.
630.18  Surrender or apprehension off an Army installation.
630.19  Deserters and defectors in foreign countries.
630.20  Escaped military prisoner.
633.21  Other armed services deserters.
633.22  Transportation.

         Subpart E--Civilian Correctional or Medical Facilities

630.23  Military detainer.
630.24  Action on return to military control.
630.25  Civilian detention facilities.
630.26  Costs of civilian detention facilities.

            Subpart F--Payment of Rewards and Reimbursements

630.27  Rewards.
630.28  Reimbursement payments.
630.29  Documentation.

  Subpart G--Surrender of Military Members to Civilian Law Enforcement 
                                Officials

630.30  Overview.
630.31  CONUS.
630.32  Responsibilities.

           Figure 630.1 of Part 630--Sample Military Detainer

Appendix A to Part 630--References
Appendix B to Part 630--Glossary

    Authority: 10 U.S.C. 801 through 940; Manual for courts-martial, 
U.S. 1995 revised addition as amended; sec 709, Pub L. 96-154, Defense 
Appropriation Act. 93 Stat. 1153.

    Source: 61 FR 39073, July 26, 1996, unless otherwise noted.



                           Subpart A--Purpose



Sec. 630.1  Purpose.

    This part provides policies and procedures for--
    (a) Reporting absentees and deserters.
    (b) Reporting special category absentees.
    (c) Reporting political defectors.
    (d) Use of automated law enforcement telecommunications.
    (e) Apprehension and processing of absentees and deserters.
    (f) Surrender of military personnel to civilian law enforcement 
authorities.



Sec. 630.2  References.

    Required and related publications and referenced forms are listed in 
appendix A to this part.



Sec. 630.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this regulation are 
explained in the glossary.



Sec. 630.4  Responsibilities.

    (a) The Deputy Chief of Staff for Operations and Plans (DCSOPS) is 
responsible for establishing law enforcement policy and procedures for 
the military absentee and deserter apprehension programs. The DCSOPS 
will--

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    (1) Exercise staff supervision over Army law enforcement activities.
    (2) Integrate operational control of the National Crime Information 
Center (NCIC) elements at the U.S. Army Deserter Information Point 
(USADIP).
    (3) Provide operational control of the NCIC elements at the USADIP.
    (4) Be the Department of the Army point of contact for the Federal 
Bureau of Investigation (FBI) on absentee and deserter apprehension 
policy matters.
    (b) The Deputy Chief of Staff for Personnel (DCSPER) is responsible 
for establishing personnel policy on absentees and deserters and will--
    (1) Exercise staff supervision over the USADIP.
    (2) Develop programs to assist commanders in deterring absenteeism.
    (3) Evaluate statistical profile data furnished by the Commanding 
General (CG), U.S. Total Army Personnel Command (PERSCOM) and CG, U.S. 
Army Personnel Information Systems Command (PERSINSCOM).
    (c) Commanders of major Army commands (MACOMs) will--
    (1) Supervise reporting and coordinate Army programs for the return 
to military control (RMC) of absentees, deserters, defectors, and 
special category absentees.
    (2) Ensure deserters returned to military control are reported IAW 
this part to end apprehension actions.
    (3) Provide military police support for the return of special 
category absentees and deserters from foreign countries to the 
Continental United States (CONUS) when required.
    (4) Assist in the return of soldiers to overseas commands under 
status of forces agreement.
    (5) Assure that recommended changes to Army Regulation 5-9 are 
proposed and coordinated with other MACOMs.
    (d) Commanding General, U.S. Army Criminal Investigation Command 
(USACIDC) is responsible for--
    (1) Entering and clearing subjects of USACIDC investigations and 
special category absentees reported by overseas commanders in the NCIC 
wanted person file.
    (2) Coordinating retrieval of records through the Director, U.S. 
Army Crime Records Center (USACRC) from the Defense Investigative 
Service (DIS) for special category absentees.
    (e) Commander, U.S. Army Enlisted Records and Evaluation Center 
(USAEREC) will--
    (1) Receive documentation and provide verification of reports of 
desertion and return to military control.
    (2) Maintain a centralized deserter data base for deserter 
statistical reporting requirements from the Automated Personnel 
Accounting System.
    (3) Maintain management data received on DD Form 616 (Report of 
Return of Absentee) to identify--
    (i) The number of deserters returned to military control monthly.
    (ii) The mode of return (surrender to or apprehended by military 
authorities, Department of Defense civilian police, civilian 
authorities, or FBI).
    (iii) Cases administratively closed (death, discharge, erroneous 
entry, and so forth). Date should be recorded in the processing month to 
hasten report compilation.
    (f) Chief, U.S. Army Deserter Information Point will--
    (1) Verify and document reports of desertion and return to military 
control.
    (2) Maintain a central deserter data base.
    (3) Provide data to DCSOPS, DCSPER, CG, PERSCOM and CG, PERSINSCOM, 
as required.
    (4) Complete cross checks against the Army Enlisted Master File 
(EMF), Joint Service Software, and other data systems to prevent false 
apprehension.
    (5) Query other Army automated personnel files to prevent mistaken 
reports of desertion.
    (6) Provide DD Form 553 (Deserter/Absentee Wanted by the Armed 
Forces) and DD Form 616 (Report of Return of Absentee) to military and 
civilian law enforcement authorities, to include the FBI when 
appropriate.
    (7) Advise U.S. Department of State, Deputy Assistant Secretary for 
Passport Services, of U.S. Army alien deserters who are known or 
suspected to have entered a foreign country, return to military control, 
or are discharged in absentia.
    (8) Enter wanted information into the NCIC.

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    (g) All Army installation commanders with active Army manpower 
assets have responsibilities for reporting and returning deserters to 
military control.
    (1) Coordinating installation commanders return of deserters to 
military control within their designated areas of responsibility.
    (2) Supporting installation commanders have responsibility for all 
locations within 50 miles of their respective installations. When 
efficiency and economy demand, these distances can be increased or 
diminished as determined between the coordinating installation and the 
supporting installation.
    (h) Installation provost marshals will endeavor or resolve 
procedural arrangements at the lowest command level IAW AR 5-9.



                     Subpart B--Absent Without Leave



Sec. 630.5  Notification.

    (a) The unit commander notifies the local provost marshal within 24 
hours after a soldier has been reported absent without leave (AWOL). 
Special category absentees are reported as deserters IAW Sec. 630.10 of 
this part.
    (b) On receipt of an AWOL report, the provost marshal initiates a DA 
Form 3975 (Military Police Report) and a corresponding blotter entry on 
DA Form 3997 (Military Police Desk Blotter).



Sec. 630.6  Surrender to unit commander.

    If an AWOL soldier surrenders to the parent unit the following 
procedures apply:
    (a) The unit commander immediately notifies the Provost Marshal that 
the soldier has returned.
    (b) The provost marshal finalizes the DA Form 3975 and makes a 
reference blotter entry. The provost marshal forwards DA Form 3975 and 
4833 (Commander's Report of Disciplinary or Administration Action) with 
an appropriate suspense date through the appropriate field grade 
commander to the unit commander for action.
    (c) The unit commander reports action taken to the provost marshal 
on DA Form 4833 not later than the assigned suspense date.



Sec. 630.7  Surrender or apprehension at other installations.

    (a) If an AWOL soldier surrenders to or is apprehended by a provost 
marshal other than the parent installation, the apprehending provost 
marshall
    (1) Issues DD Form 460 (Provisional Pass) IAW AR 190-45, paragraph 
5-2, and verbal orders to the solider to return to their proper station. 
The DD Form 460 and transportation requests are used instead of an 
escort if there is a reasonable expectation that the soldier will 
comply. Express mail may be used to forward the DD Form 460 to the 
absentee. DD Form 460 will not be required if the provost marshal elects 
to return the soldier through different means.
    (2) Prepares and forwards DA Forms 3975 and 4833, along with a copy 
of DD Form 460 to the parent installation provost marshal.
    (b) The parent installation provost marshal--
    (1) Completes a reference blotter entry reflecting the AWOL 
soldier's RMC.
    (2) Forwards DA Form 3975 and DA Form 4833, with an appropriate 
suspense, through the field grade commander to the unit commander.
    (3) On return of the completed DA Form 4833 from the unit commander, 
forwards the original and one copy of the form to the apprehending 
provost marshal. The parent installation Provost Marshal may retain a 
copy of DA Form 3975 and DA Form 4833 pertaining to the case.



                          Subpart C--Desertion



Sec. 630.8  Administrative report.

    (a) The unit commander administratively classifies an absentee as a 
deserter and completes DD Form 553 when one or more of the following 
applies:
    (1) The facts and circumstances of the absence, without regard to 
the length of absence, indicates that the soldier may have committed the 
offense of desertion, as defined in articles 85 and 86 of the Uniform 
Code of Military Justice (UCMJ).
    (2) The soldier has been AWOL for 30 consecutive days.

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    (3) The soldier, without authority, has gone to or remains in a 
foreign country and while in the foreign country has requested, applied 
for, or accepted any type of asylum or resident permit from the country, 
or any governmental agency.
    (4) The soldier has returned to military control and departs absent 
prior to completion of any administrative or judicial action for a 
previous absence.
    (5) The soldier escapes from confinement.
    (6) The soldier is a special category absentee.
    (b) The unit commander promptly reports deserters to the provost 
marshal via DD Form 553 per AR 630-10, chapter 3.



Sec. 630.9  Processing deserter reports.

    (a) On receipt of reports of desertion or defectors, the Provost 
Marshall completes a blotter entry per AR 190-45, paragraph 4-6b. This 
is an initial blotter entry if a previous absentee entry had not been 
made.
    (b) The Provost Marshal then--
    (1) Ensures that the unit commander has accurately completed DD Form 
553.
    (2) Screens installation and state vehicle registration and 
completes identification portions of the DD Form 553.
    (3) In the remarks section of DD Form 553 adds other known 
information about the soldier such as:
    (i) Confirmed or suspected drug abuse.
    (ii) History of violence.
    (iii) History of escapes or attempted escapes from custody.
    (iv) Suicidal tendencies.
    (v) Suspicion of involvement in violent crimes for which there is a 
record of an active military police investigation being prepared and 
forwarded.
    (vi) History of other unauthorized absence.
    (vii) Any other information in the apprehension process or to 
protect the deserter or apprehending authorities.
    (4) Initiates a DA Form 3975, if not previously completed as an AWOL 
report, and assigns a USACRC Crime Control Number to the case.
    (5) Returns the completed DD Form 553 to the unit commander within 
24 hours. The provost marshal retains a copy of the DD Form 553.
    (6) Follows the procedures in section 630.8 of this part for special 
category absentees.
    (c) Within 48 hours of the soldier being dropped from the rolls 
(DFR) of the unit, the unit commander forwards the DD Form 553, with 
associated documents, through the Personnel Service Battalion to 
Commander, U.S. Army Enlisted Records Center, ATTN: PCRE-RD, 
Indianapolis, Indiana 46249-5300.



Sec. 630.10  Special category absentees.

    Commanders of absent soldiers assigned to special mission units and 
soldiers who have had access to top secret information during the 12 
months preceding the absence immediately report the soldier as a 
deserter regardless of the length of absence. On receipt of a special 
category absentee the provost marshal--
    (a) Immediately completes the procedures in Sec. 630.6 of this part.
    (b) Queries the NCIC missing person, interstate identification, and 
unidentified person files for a possible match using the absentee's 
identifying information (Social Security Number, date and place of 
birth, and physical description) to determine if he or she has been 
previously entered into the NCIC.
    (c) Enters the soldier into the NCIC wanted file after determining 
the soldier has not been entered previously. Outside continental United 
States (OCONUS) Provost Marshal NCIC entries are completed by sending a 
copy of the DD Form 553 to the USACRC facsimile machine Defense System 
Network (DSN) 656-0395 or commercial (301) 806-0395. OCONUS Provost 
Marshals who do not have facsimile equipment express mail the DD Form 
553 to Director, USCRC, ATTN: CICR-ZA, 6010 6th Street, Fort Belvoir, VA 
22060-5585.
    (d) Requests the assistance of the Director, USACRC, in obtaining 
pertinent information from security records maintained by the DIS.
    (e) Requests assistance of the U.S. State Department, in identifying 
and suspending existing passports and pending applications pertaining to 
the deserter. This includes transmitting a copy of the DD Form 553 by 
facsimile or express mail to the U.S. State Department, Deputy Assistant 
Secretary for Passport Services, ATTN: CA-PPT-

[[Page 11]]

C, McPherson Building, 1425 K Street NW., Washington DC 20524. A point 
of contact in the provost marshal office must be provided for the U.S. 
State Department. The facsimile commercial telephone number is (202) 
326-6271.
    (f) Notifies USACIDC, local FBI office, and local and State law 
enforcement agencies of the soldier's absence to establish an 
investigative task force. The task force acts as the focal point in 
collecting and disseminating information obtained through investigative 
activity.
    (g) Requests assistance from the nearest Air Force Office of Special 
Investigation (OSI) to determine if the absentee has been granted 
passage on a Military Airlift Command (MAC) Flight. Notification is also 
made to Headquarters, MAC, to deny passage on a MAC, flight by calling 
Office of Special Investigations, Scott Air Force Base, Illinois, DSN 
576-5413 or commercial 618-256-5413.
    (h) Transmits an electronic alert through the National Law 
Enforcement Telecommunications Systems (NLETS) to broadcast within the 
State, a specific State, and or regional broadcast (contiguous five 
States). NLETS messages must include the deserter's complete name, 
social security number, date and place of birth, physical description, 
and a statement that an entry has been made into the NCIC.
    (i) Coordinates with the Office of the Staff Judge Advocate to 
obtain search warrants, court orders, or subpoenas for searches of the 
deserter's residence, financial, credit card, postal, telephone, 
insurance, housing utilities, civilian medical records, and access to 
commercial land, air and sea transportation records.
    (j) Cancels the NCIC entry when notified by Chief, USADIP that the 
deserter packet has been received and the Chief, USADIP, is prepared to 
assume responsibility as the point of contact for verification of 
deserters.



Sec. 630.11  Escaped prisoner.

    (a) An escaped prisoner whose discharge has not been executed is 
administratively classified as a deserter. The installation Provost 
Marshal--
    (1) Requests assistance from civilian law enforcement agencies 
including the FBI.
    (2) Forwards copies of DD Form 553 to Chief, USADIP, showing 
distribution with Item 10 marked ``N/A.''
    (3) Enters a temporary warrant into the NCIC.
    (b) An escaped military prisoner whose discharge has been executed 
and who is not under the custody of the U.S. Attorney General is 
reported as an escaped military prisoner, not a deserter. The custodian 
of an escaped military prisoner's personnel records prepares DD Form 553 
clearly stating in items 12 and 19 that the individual is an escaped 
military prisoner. The DD Form 553 is sent to the installation provost 
marshal. A temporary warrant is entered into the NCIC by the 
installation provost marshal.



Sec. 630.12  USADIP procedures.

    (a) The Chief, USADIP--
    (1) Verifies information on the DD Form 553 with permanent personal 
records at the USAEREC.
    (2) Enters the soldier's name into the NCIC.
    (3) Forwards a copy of the DD Form 553 to all Federal, State and 
local law enforcement agencies who may be involved in the apprehension 
process.
    (4) Forwards a copy of DD Form 553 to the provost marshall nearest 
the deserter's home of record.
    (5) Forwards a copy of the DD Form 553 to the USACRC, ensuring the 
USACRC control number is legible.
    (b) The Army entry into the NCIC wanted person file normally is 
generally sufficient to support civilian police apprehension assistance.



                  Subpart D--Return to Military Control



Sec. 630.13  AWOL/deserter apprehension efforts.

    The return of absentees to military control is a command 
responsibility. Military police will generally not be committed to 
proactive efforts to apprehend AWOL soldiers or deserters except when 
the provost marshal determines that such efforts are warranted by 
specific circumstances. Examples of

[[Page 12]]

instances when such effort is warranted include when the AWOL soldier or 
deserter is wanted as the subject of additional more serious charges or 
is a special category absentee as defined in Sec. 630.8 of this part.



Sec. 630.14  Use of escorts.

    (a) Commanders and provost marshals must ensure that the most 
economical and efficient means are used to return surrendered or 
captured absentees to their parent unit or personnel control facility as 
appropriate. For example, alternatives such as express mailing of DD 
Form 460 and a transportation request may be used instead of an escort 
if there is a reasonable expectation that the absentee will comply.
    (b) The use of escorts should be considered if--
    (1) There is not a reasonable expectation that the absentee will not 
comply.
    (2) The absentee is a special category absentee IAW Sec. 630.8 of 
this part.
    (3) The absentee is pending serious criminal charges.
    (4) The absentee is in the custody of a civilian law enforcement 
agency that is not willing to assist in processing the absentee by mail 
or similar means.
    (c) When escorts are deemed necessary, consideration should be given 
to using noncommissioned officers from the parent unit before committing 
military police manpower.



Sec. 630.15  Verification of deserter status.

    (a) When a person claims to be a deserter from the U.S. Army, the 
first receiving military authority must advise the person of his or her 
right per article 31 UCMJ and provide as much of the following data as 
possible to the provost marshal:
    (1) Name.
    (2) Social security number.
    (3) Date and place of birth.
    (4) Home of record.
    (5) Date and place of enlistment, date of alleged absence, and unit 
of assignment.
    (b) The provost marshal immediately completes a check of the NCIC 
and USADIP to confirm the deserter status. Deserter felon checks 
require:
    (1) The full name of the person.
    (2) Social security number.
    (3) Date of birth.
    (4) Place of birth.
    (5) Military service number if different from the social security 
number.
    (c) When necessary to establish identity at the request of the 
Chief, USADIP, the installation provost marshal forwards DD Form 369 
(Police Record Check) with a complete set of fingerprints to the 
Commander, U.S. Army Enlisted Records Center, ATTN: PCRE-RD, 
Indianapolis, IN 46249-5301. The fingerprints must also be accompanied 
by DD Form 616 in quadruplicate. In Item 9 of the DD Form 616 note: 
``For Information Only--Fingerprints attached.'' The Chief, USADIP 
forwards the fingerprint record to the FBI Identification Division, 
Washington, DC 20537-8700 for fingerprint comparison and identification.
    (d) In the event the status of the individual can not be immediately 
determined, the individual will not be detained. The Provost Marshal 
obtains information on how to contact the person once their status has 
been determined. On verification of status as absent or desertion, 
Chief, USADIP, provides instructions to the provost marshal returning 
the individual to military control.



Sec. 630.16  Surrender or apprehension on parent installation.

    (a) The parent installation provost marshal--
    (1) Verifies the deserter's military status IAW Sec. 630.13 of this 
part.
    (2) Coordinate between appropriate levels of command on RMC (time, 
date, and location).
    (3) Initiates a reference blotter entry changing the absentee's 
status from deserter to return to military control.
    (4) Prepares and submits DD Form 616 to Chief, USADIP. The USACRC 
control number assigned to the DD Form 553 is included in the remarks 
section of DD Form 616.
    (5) Prepares DA Form 3975, 2804 (Crime Records Data Reference) and 
4833. The USACRC control number assigned to the DD Form 553 is also used 
on these forms.
    (6) Forwards the original DA Form 3975 and 2804 to the Director, 
USACRC.
    (7) Forwards three copies of DA Form 4833, with an appropriate 
suspense

[[Page 13]]

date, and one copy of DA Form 3975 to the PCF commander or installation 
commander processing the deserter.
    (8) On receipt of the completed DA Form 4833 forwards the original 
to Director, USACRC.
    (b) Should the deserter surrender to the original unit of 
assignment, the unit commander immediately notifies the provost marshal 
of the deserter's return. The provost marshal completes the processing 
in paragraph (a) of this section.



Sec. 630.17  Surrender or apprehension at another installation.

    (a) The provost marshal follows the procedures in Sec. 630.17 and 
obtains the USACRC control number from Chief, USADIP for use in 
completing the DD Form 616 and DA Form 2804, 3975, and 4833.
    (b) The unit commander requesting return of the absentee completes 
arrangements for escorting the absentee, if required. Other absentees 
are sent to a PCF.



Sec. 630.18  Surrender or apprehension off an Army installation.

    Commanders located off an Army installation--
    (a) Notify the major Army command or coordinating installation 
provost marshal, within whose area of responsibility the activity is 
located.
    (b) Furnish the coordinating installation provost marshal all 
available information on the absentee or deserter.
    (c) Issue a DD Form 460 and direct the person to proceed to the 
nearest Army installation with facilities for processing deserters. If 
appropriate, express mailing of DD Form 460 and a transportation request 
may be used.
    (d) Forward a copy of the DD Form 460 to Commander, U.S. Army 
Enlisted Records and Evaluation Center, ATTN: PCRE-RD, 8899 East 56th 
Street, Indianapolis, IN 46249.
    (e) Follow up to ensure that all absentees and deserters are 
returned to military control.



Sec. 630.19  Deserters and defectors in foreign countries.

    (a) Army deserters and defectors in foreign countries are 
apprehended only in accordance with applicable Status of Forces or other 
station agreements, AR 27-50, U.S. and host country law, and the 
directives of the overseas command.
    (b) Direct coordination between all major overseas commanders, U.S. 
Air Force, U.S. Navy, U.S. Marine Corps and CONUS installations is 
conducted to coordinate information for return of deserters or defectors 
to military control. Defectors and special category absentees must be 
escorted from the time of their return to military control to the 
installation or PCF with area of responsibility for processing 
deserters. Deserters returned to military control are processed under 
procedures set by the major overseas commander.
    (c) When a deserter or defector is reported to have been returned to 
military control at another service installation, the Army area provost 
marshal arranges for return of the deserter to U.S. Army custody. 
Maximum use of the DD Form 460 should be made.
    (d) When absentees and deserters in foreign countries are scheduled 
to depart or are to be deported from foreign countries, the Military 
Assistance Advisory Group (MAAG) mission or attache notifies Chief, 
USADIP, and if known the appropriate major commander, ATTN: Provost 
Marshal. Notification should be completed in advance for coordination of 
operational military police actions. The notice includes the--
    (1) Name, grade, and social security number of the absentee.
    (2) Date, time (local), and place of departure from the foreign 
country.
    (3) Mode of transportation and designation of the carrier.
    (4) Date, time and place of arrival in CONUS or where U.S. 
Authorities have jurisdiction to apprehend the absentee or deserter.
    (5) Unit in which the individual is or was last assigned.
    (6) Length of time in foreign country.
    (7) Physical and mental condition and attitude of the absentee or 
deserter.
    (8) Charges by military or civil authorities.
    (9) Intelligence interest.

[[Page 14]]



Sec. 630.20  Escaped military prisoner.

    (a) When an escaped military prisoner is returned to military 
control, the provost marshal--
    (1) Notifies the commander of the confinement or correctional 
facility from which the prisoner escaped.
    (2) Completes and forwards DD Form 616 to Chief, USADIP.
    (b) Unless otherwise directed by HQDA (DAMO-ODL), or the Commander, 
U.S. Army Disciplinary Barracks (USDB), prisoners who escape from the 
USDB are returned to the USDB. The commander of the installation to 
which the prisoner is returned provides guards and transportation to the 
nearest supporting confinement facility to return the prisoner to the 
USDB.
    (c) Escapees from other U.S. Army correctional activities are 
returned to the confinement or correctional facility from which the 
prisoner escaped unless otherwise directed by HQDA (DAMO-ODL).
    (d) The chief, USADIP forwards DD Form 616 to recipients of DD Form 
553.



Sec. 630.21  Other armed services deserters.

    (a) Requests for status of alleged deserters from other Armed 
Services may be made through an inquiry in the NCIC. When the response 
from the NCIC is negative, the following appropriate Service may be 
contacted:
    (1) U.S. Air Force. Commander, U.S. Air Force Military Personnel 
Center, Randolph Air Force Base, TX 78150-6001, DSN 487-5118.
    (2) U.S. Navy. Commander, Naval Military Personnel Command, Code 
NMPC-843, Washington, DC. 20370-5643, DSN 224-2551 or commercial, toll 
free 1-800-336-4974.
    (3) U.S. Marine Corps. Commandant of the Marine Corps, Corrections 
Branch (MHC), Headquarters, U.S. Marine Corps, Building 2008, MCCDC, 
Quantico, VA 22130-5000, DSN 278-3976.
    (b) When Army absentees or deserters are received from civil 
authorities in CONUS, all military absentees, and deserters, regardless 
of the military service to which they belong, are transported at the 
same time.
    (c) Unless there are specific arrangements among the military 
services, the following applies when Army personnel take custody of 
absentees or deserters from civil authorities in CONUS:
    (1) Notify the other military authorities in advance that the 
individual will be taken into custody and delivered to the nearest 
military installation having facilities to process absentees or 
deserters.
    (2) When custody cannot be affected, notify the nearest installation 
of the service concerned that the person will remain in civilian 
custody.
    (d) Absentees and deserters from the other services and the Coast 
Guard may be received at any U.S. Army installation which has facilities 
for reception and custody. They are transferred immediately to the 
nearest appropriate installation of the Service. Commanders of troops on 
maneuvers or on the march are exempt from the responsibility for taking 
custody of absentees and deserters. They may, however, accept absentees 
or deserters if necessary and return them to the custody of their 
Service.



Sec. 630.22  Transportation.

    (a) If commercial transportation is necessary:
    (1) The responsible transportation office arranges for movement per 
AR 55-355.
    (2) Cost and speed of transportation are considered.
    (3) International and CONUS travel is arranged only on U.S. 
commercial air carriers flying regularly scheduled routes, certified 
route carriers, supplemental air carriers, or charter air taxi 
operations.
    (4) Military personnel escorting absentees or deserters must comply 
with commercial air carrier rules and with AR 190-47.
    (5) Expenses (transportation, reward payment, reimbursement to 
civilian law enforcement authorities) associated with the return of 
absentees or deserters to their proper station are chargeable to the 
Military Personnel, Army Appropriation. Commanders are authorized to 
make charges against these accounts for the transportation of escorts 
and the deserter and for payment of required or reimbursement

[[Page 15]]

when the returnee is delivered to an installation or detained for 
military authorities.
    (6) The approving authority reviews paid travel and per diem 
vouchers for efficiency, economy, and accuracy in statements of travel 
performed. When feasible, one-day return travel should be used to reduce 
costs.
    (b) Transportation expenses for use of guards to return absentees or 
deserters to their proper station or to military authorities are charged 
to the budget activity account ``Other Military Personnel Costs.''



         Subpart E--Civilian Correctional or Medical Facilities



Sec. 630.23  Military detainer.

    (a) Military detainer (see sample detainer at Figure 630.1 of this 
part) must be placed when a soldier is being held by civilian 
authorities and release of the soldier is not imminent. The installation 
commander or provost marshal may initiate a detainer. The purposes for 
filing a detainer are to--
    (1) Officially inform civilian authorities that any Army soldier is 
in their custody and military authorities want to assume custody at 
release.
    (2) Request military authorities be kept advised on the status of 
actions taken by civilian authorities.
    (3) Permit military authorities to monitor the person's military 
status while in civilian custody.
    (b) A detainer is canceled when the person is released to military 
custody.
    (c) If an AWOL or DFR individual is being detained by civilian 
authorities the military police
    (1) Notify the proper installation commander or coordination 
authority at once that the individual--
    (i) Is being detained by civilian authorities on civil or criminal 
charges.
    (ii) Is committed to a civilian medical facility.
    (2) Place a military detainer with the civilian law enforcement 
agency and inform the installation commander or coordinating authority 
of--
    (i) Changes or medical problems concerning the absentee.
    (ii) Probable length of detention by civilian authorities.



Sec. 630.24  Action on return to military control.

    (a) The military authority first receiving or apprehending the 
absentee or deserter, or receiving word of their detention by civilian 
authorities, immediately contacts the installation or area provost 
marshal and provides the following data.
    (1) Name, grade, and social security number of the absentee.
    (2) Date absence began and unit from which absent.
    (3) Absentee, deserter, or escaped prisoner status.
    (4) Date, place, and military unit or civilian agency where the 
person was apprehended, surrendered, or detained.
    (5) Unit to which the absentee or deserter will be assigned or 
attached on return.
    (b) When military law enforcement personnel are the first military 
authority receiving a report of an AWOL or DFR person's apprehension or 
surrender the following actions are also taken:
    (1) Initiate an inquiry with the NCIC. When the NCIC inquiry shows 
the individual is wanted by civilian law authorities for a criminal 
offense, immediately contact the civilian agency. Advise the civilian 
agency of the individual's location and where the return to military 
control will be made. Place the results in item 9 of DD Form 616 and 
send it to the commander receiving the returnee. All Army returnees 
wanted for a criminal offense other than AWOL or desertion are reported 
to Commander, U.S. Army Criminal Investigation Command, ATTN: CICR-ZA, 
6010 6th Street, Fort Belvoir, VA 22060-5585 to ensure that military law 
enforcement investigations or criminal charges are not pending.
    (2) When the individual is not wanted for a criminal offense, 
coordinate RMC with the appropriate military personnel office and take 
action in paragraph (c) of this section.
    (c) Absentees and deserters being held temporarily by civilian 
authorities are returned to military control as soon as possible. 
Military authorities should strive to return absentees or deserters to 
military control within 48 hours after being notified of their 
whereabouts and impending release.

[[Page 16]]



Sec. 630.25  Civilian detention facilities.

    (a) When necessary, civilian detention facilities may be used to 
temporarily detain absentees, deserters or escaped military prisoners. 
Contracts providing for payment of actual costs for detention may be 
made with state or county jails that have been approved by the Bureau of 
Prisons. U.S. Department of Justice information about approved 
facilities is available from the nearest U.S. Marshal's office.
    (b) Contracts must contain standards of treatment of military 
prisoners per AR 190-47. The Federal Acquisition Regulation (FAR), The 
Federal Acquisition Supplement (FAS), and the Army Procurement Procedure 
Supplement (APPS) govern these contracts.



Sec. 630.26  Costs of civilian detention facilities.

    (a) Civilian authorities may be reimbursed according to contracts 
for temporary detention after military authorities have assumed custody. 
It does authorize payment from the date further detention was requested. 
This does not authorize payment for subsistence and detention for the 
same period for which a reward was authorized. This does not preclude 
payment of reward or reimbursement for reasonable expenses for periods 
before delivery to military custody. Detained officers receiving basic 
allowance for substance (BAS) are charged the cost of substance.
    (b) Costs incurred by the Army for detention under an Army contract 
are paid to the civilian facility. Any payment to the Army by another 
Armed Service must be by prior agreement between the commanders 
concerned.



            Subpart F--Payment of Rewards and Reimbursements



Sec. 630.27  Rewards.

    (a) Receipt of an authorized communication, oral or written (for 
example DD Form 553 and entry into the NCIC) from a military or Federal 
law enforcement official or agency, requesting cooperation in the 
apprehension or delivery to military control of an absentee or deserter 
wanted by the Armed Forces constitutes the basis for a reward.
    (b) A reward can be paid to an eligible person or agency who 
apprehends and detains an absentee or deserter until military 
authorities assume control. The finance and accounting officer 
designated by the MACOM commander pays the claimant. If two or more 
eligible persons or agencies are entitled to a reward, the payee may 
divide the payment among the participants. Payment for an apprehension 
effected jointly by an eligible and ineligible person or agency may be 
claimed by the eligible person or agency. Ineligible persons may not 
share in payments.
    (c) Payment of a reward to persons or agencies is authorized as 
indicated below:
    (1) A reward for apprehension and detention of an absentee or 
deserter until military authorities assume custody.
    (2) A reward for apprehension of an absentee or deserter and 
subsequent delivery to a military installation with facilities to 
receive and process absentees and deserters.
    (d) The reward may not exceed the amount specified in the current 
defense appropriation account for--
    (1) The apprehension and detention of absentees or deserters until 
military authorities take custody.
    (2) The apprehension and delivery to military authorities of 
absentees or deserters.
    (e) A reward or reimbursement for expenses is not authorized for an 
Armed Service member. Federal government employees, a lawyer on whose 
advice an absentee or deserter surrenders, or when payment would violate 
public policy.



Sec. 630.28  Reimbursement payments.

    (a) Reimbursement payments to official agencies is authorized when--
    (1) A reward has been offered.
    (2) Reimbursement is requested in place of a reward.
    (b) Reimbursement for reasonable and actual expenses may be made to 
more than one eligible person or agency. However, total reimbursement 
for the return of an absentee or deserter may not exceed the amount 
authorized for reward.

[[Page 17]]

    (c) Dual payment (reward and reimbursement) relating to one absentee 
or deserter is prohibited.
    (d) Official transportation and personal services payment are not 
made for--
    (1) Transportation by official vehicle.
    (2) Personal services of the claimant.
    (3) Apprehension and detention not followed by return to military 
custody.



Sec. 630.29  Documentation.

    (a) Payment of reward or reimbursement for expenses is documented by 
processing Standard Form 1034 (Public Voucher for Purchase and Services 
Other Than Personal). The following information must be provided on SF 
1034 or supporting documents:
    (1) Name, social security number, and last duty station (DD Form 553 
or DD Form 616) of the absentee.
    (2) Date, place of arrest, and place of return to military custody 
(DD Form 616).
    (3) Signed statement by claimant that the agency qualifies for a 
reward under paragraph (a), (b), or (c) of this section.
    (4) Statement signed by military representative documenting either 
of the following:
    (i) Delivery to a military installation with facilities to receive 
and process absentees and deserters.
    (ii) Military custody assumed at a site other than a military 
installation or facility.
    (5) Army forms provided to claimants to support payment request.
    (b) When required, military pay vouchers are prepared for absentees 
and deserters per AR 37-104-3, paragraphs 80310, 80311, and 80313.



  Subpart G--Surrender of Military Members to Civilian Law Enforcement 
                                Officials



Sec. 630.30  Overview.

    (a) This chapter establishes provost marshal procedures and 
responsibilities for the surrender of soldiers to civilian law 
enforcement authorities. It is the policy of the Department of the Army 
to cooperate with civilian authorities unless the best interest of the 
Army will be prejudiced.
    (b) Provost marshals assist in the delivery of a soldier to civilian 
authorities per this regulation and applicable personnel management 
regulations. AR 630-10, Chapter 7, provides personnel management 
policies and procedures on the surrender of soldiers to civilian 
authorities.



Sec. 630.31  CONUS.

    (a) Generally, provost marshal activity is limited to ensuring that 
a military detainer is prepared and signed when surrendering a soldier 
to civilian law enforcement officials (see figure 630.1 of this part).
    (b) There is no statutory authority for a commander to deliver a 
soldier to a bail bondsman or surety. The surety must coordinate with 
the installation Staff Judge Advocate and the Commander of the soldier 
prior to attempting to apprehend the soldier. To preserve peace and 
order on the installation, military police will accompany the surety to 
observe the surety taking custody of the soldier.



Sec. 630.32  Responsibilities.

    (a) In foreign countries, the authority of U.S. military personnel 
to apprehend, detain and deliver U.S. personal to civil authorities of 
foreign countries is governed by the provisions of international 
agreements. AR 27-50, and the laws of the host nation. The extent of the 
authority in a particular country is determined from directives 
published by the OCONUS MACOM Commander.
    (b) Chief, DAMO-ODL--(1) Coordinates approved requests for surrender 
of the soldier with the civilian law enforcement agency or prosecuting 
attorney's office requesting surrender of the soldier. Transportation 
costs of the soldier from the point of debarkation are the 
responsibility of the requesting agency.
    (2) Coordinates surrender of the soldier with the felony warrant or 
extradition division of the civilian law enforcement agency or Federal 
law enforcement agency at the point of debarkation.
    (3) Contacts the CONUS installation provost marshal with area of 
responsibility for assistance in the surrender of the soldier.

[[Page 18]]

    (c) MACOM Provost Marshal--(1) If requested by the General Court-
Martial convening authority or designee, arranges escort of the soldier 
to the point of embarkation or debarkation in CONUS.
    (2) Notifies Chief, DAMO-ODL, of the departure date, time, flight 
number, and the name of the individual(s) who will escort the soldier, 
if applicable.
    (d) CONUS Provost Marshal with area of responsibility--(1) Prepares 
a military detainer for the soldier to be surrendered.
    (2) Meets the aircraft, assists in the surrender of the soldier, and 
presents the military detainer.
    (3) Provides a copy of the detainer and attachment order to the 
commander of the PCF or the unit to which the solider will be attached.

           Figure 630.1 of Part 630--Sample Military Detainer

    I, (name of civilian representative) an official agent representing 
(name and address of civilian jurisdiction), accept custody and control 
of (grade, name, social security number), a U.S. Soldier, for trail on a 
charge (state offense(s)), I agree, on behalf of the jurisdiction named 
above, to inform the Commander, (installation address), of results of 
the judicial process and to return the solider at no expense to the Army 
or the soldier to said Army installation unless a place nearer the 
civilian jurisdiction is designed by Department of the Army. The soldier 
will be returned immediately on dismissal or other disposition of 
charges facilitating return of the soldier. When disposition precludes 
immediate return of the soldier following litigation, I will furnish 
results of the judicial process and information concerning the earliest 
possible date the soldier might be returned to Army control. I will also 
advise the designated commander whenever the location of incarceration 
of the soldier changes or whether soldier is released on bail or bond. I 
understand the above commander will advise the civilian jurisdiction 
which I represent if the soldier's return to military custody is no 
longer desired. I was furnished a copy of this agreement on (date).

(signature)
(position)
(name of jurisdiction)
(Address of jurisdiction)

                   Appendix A to Part 630--References

    Publications and forms referenced in this part may be viewed at the 
Office of Provost Marshal at any Army installation. Department of 
Defense publications are also available from the National Technical 
Information Service, U.S. Department of Commerce, 5285 Port Royal Road, 
Springfield, VA 21161; telephone (703) 487-4684.

                          Required Publications

AR 5-9--Intraservice Support Installation Area Support Coordination 
          (cited in Sec. 630.4)
AR 27-50--Status of Forces Policies Procedures and Information (Cited in 
          Sec. 630.19 and Sec. 630.30)
AR 190-45--Military Police Law Enforcement Reporting (Cited in 
          Sec. 630.7 and Sec. 630.9)
AR 190-47--The United States Army Correctional System (Cited in 
          Sec. 630.22 and Sec. 630.25)
AR 630-10--Absence Without Leave, Desertion, and Administration of 
          Personnel involved in Civilian Court Proceedings (Cited in 
          Sec. 630.8 and Sec. 630.30)
Manual for Court-martial, United States (Cited in Sec. 630.8)

                          Related Publications

    A related publication is merely a source of additional information. 
The user does not have to read it to understand this publication.

AR 37-104-3--Military Pay and Allowance Procedures: Joint Uniform 
          Military Pay System Army (JUMPS-A1RR)
AR 55-355--Defense Traffic Management Regulation

                            Prescribed Forms

DD Form 616--Report of Return of Absentee (Prescribed in Sec. 630.4, 
          Sec. 630.14, Sec. 630.15, Sec. 630.16, Sec. 630.20, 
          Sec. 630.24 and Sec. 630.29)

                            Referenced Forms

DA Form 2804--Crime Records Data Reference
DA Form 3975--Military Police Report
DA Form 3997--Military Police Desk Reference
DA Form 4833--Commander's Report of Disciplinary or Administrative 
          Action
DA Form 369--Police Record Check
DA Form 460--Provisional Pass
DD Form 553--Deserter/Absentee Wanted by the Armed Forces
SF 1034--Public Voucher for Purchases and Services Other than Personal

                    Appendix B to Part 630--Glossary

                              Abbreviations

AAPS--Army Procurement Procedure Supplement
ARNG--Army National Guard
AWOL--absent without leave
BAS--basic allowance for substance
CG--commanding general

[[Page 19]]

CONUS--Continental United States
DCSPER--Deputy Chief of Staff for Personnel
DCSOPS--Deputy Chief of Staff for Operations and Plans
DFR--dropped from the rolls
DIS--Defense Investigative Service
DSN--Defense Systems Network
EMF--enlisted master file
FAR--Federal Acquisition Regulation
FAS--Federal Acquisition Supplement
FBI--Federal Bureau of Investigation
MAC--Military Airlift Command
MACOM--major Army command
NCIC--National Crime Information Center
NLETS--National Law Enforcement Telecommunication System
OCONUS--outside Continental United States
PCF--Personnel Control Facility
PERSCOM--U.S. Army Total Personnel Command
PERSINSCOM--U.S. Army Personnel Information Systems Command
RMC--return to military control
ROTC--Reserve Officer Training Course
TR--Transportation request
UCMJ--Uniform Code of Military Justice
USACIDC--U.S. Army Criminal Investigation Command
USACRC--U.S. Army Crime Records Center
USADIP--U.S. Army Deserter Information Point
USAEREC--U.S. Army Enlisted Records and Evaluation Center
USAR--U.S. Army Reserve

                                  Terms

    Coordinating agent--A person within a staff agency of CONUS command 
or CONUS installation who is responsible for coordinating and monitoring 
the absentee and deserter program.
    Desertion--A violation of Article 85, UCMJ. It applies to any member 
of the Armed Forces who commits any of the following:
    (a) Not used.
    (1) Without authority goes or remains absent from his or her unit, 
organization, or place of duty with intent to remain away therefrom 
permanently.
    (2) Quits his or her unit, organization, or place of duty with 
intent to remain away therefrom permanently.
    (3) Without being regularly separated from one of the Armed Forces 
enlists or accepts an appointment in the same or another one of the 
Armed Forces without fully disclosing the fact that he or she has not 
been regularly separated, or enters any foreign Armed Service except 
when authorized by the United States. (This provision has been held not 
to state a separate offense by the United States Court of Military 
Appeals in United States v. Huff, 7 U.S.C.M.A. 247.22 C.M.R. 37 (1956).
    (4) Any commissioned officer of the Armed Forces who, after tender 
of his or her resignation and before notice of its acceptance, quits his 
or her post or proper duties without leave and with intent to remain 
away therefrom permanently is guilty of desertion.
    (b) Deserters are classified as defectors when they commit any of 
the following:
    (1) Have escaped to another country and are outside the jurisdiction 
and control of the United States.
    (2) Are unwilling to return to the United States.
    (3) Are of special value to another country.
    (4) Have repudiated the United States when beyond its jurisdiction 
or control.
    Deserter control officer--A commissioned officer (normally a 
battalion or unit adjutant) appointed in desertion cases to ensure that 
documentation on deserters dropped from the rolls is provided in a 
timely manner.
    Detainer--A written notice to civil authorities that a person in 
their custody is an absentee of the Army or serving on active duty with 
the Army and that military authorities desire to take custody on 
release.
    Dropped from the rolls of a unit--An administrative action that 
drops an absentee from the strength accountability of a unit.
    Dropped from strength--A strength accounting procedure used to 
exclude personnel from the operating strength of the Army.
    National Crime Information Center--A computerized police information 
system established by the Federal Bureau of Investigation to serve 
participating law enforcement agencies.
    Personal Assistance Point--Agencies of the U.S. Army Total Personnel 
Command located at aerial ports of embarkation or debarkation to assist 
Army transient personnel enroute to or returning from overseas.
    Personnel Control Facility--An organization that processes absentees 
returned to military control from an unauthorized absence. These 
facilities ensure proper disposition of returnees.
    Special category absentee--A soldier reported AWOL who had access to 
top secret information during the last 12 months or is currently 
assigned to a special mission unit.
    Special mission unit--A unit assigned a mission of such 
extraordinary sensitivity as to require specific management, oversight, 
and employment consideration.
    Unavoidable absence--An unauthorized absence that happened through 
no fault of the absentee and no fault of the Government.
    Unit--An organization, agency, or activity.
    Unit commander--The commander of an absentee's or deserter's unit of 
assignment or attachment.
    U.S. Army Deserter Information Point--The focal point with the Army 
for controlling, verifying, accounting, and disseminating data on 
individuals administratively classified as deserters.

[[Page 20]]



PART 631--ARMED FORCES DISCIPLINARY CONTROL BOARDS AND OFF-INSTALLATION MILITARY ENFORCEMENT SERVICES--Table of Contents




                           Subpart A--General

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

           Subpart B--Armed Forces Disciplinary Control Boards

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

        Subpart C--Off-Installation Military Enforcement Services

631.12  Objectives.
631.13  Applicability.
631.14  Responsibilities.
631.15  Policy (for Army only).
631.16  Policy (for Navy only).
631.17  Policy (for Marine Corps only).
631.18  Policy (for Air Force only).
631.19  Operations.

 Subpart D--Joint Service Law Enforcement Operations (Not Applicable to 
                               U.S. Navy)

631.20  Organization.
631.21  Joint law enforcement operations.

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

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

    Source: 47 FR 8350, Feb. 26, 1982, unless otherwise noted.



                           Subpart A--General



Sec. 631.1  Purpose.

    This regulation prescribes uniform policies and procedures for the 
establishment, operation, and coordination of the following:
    (a) Armed Forces Disciplinary Control Boards (AFDCB).
    (b) Off-installation military enforcement activities.
    (c) Joint law enforcement operations.



Sec. 631.2  Applicability.

    This regulation applies to the following:
    (a) Active US Armed Forces personnel wherever they are stationed. 
Commanders in oversea areas are authorized to deviate from the policy in 
this regulation if required by local conditions, treaties, agreements, 
and other arrangements with foreign governments and allied forces. 
Subparts C and D are not applicable to the US Navy.
    (b) Reserve personnel only when they are performing Federal duties 
or engaging in any activity directly related to the performance of a 
Federal duty or function.
    (c) National Guard personnel only when called or ordered to active 
duty in Federal status.



Sec. 631.3  Supervision.

    (a) The following will jointly develop and have staff supervision 
over AFDCB policies and the conduct of off-installation military 
enforcement activities:
    (1) The Deputy Chief of Staff for Personnel, Headquarters, 
Department of the Army.
    (2) Chief of Naval Personnel (PERS-84).
    (3) Commandant of the Marine Corps.
    (4) Chief of Security Police, Air Force Office of Security Police, 
Department of the Air Force.
    (5) Commandant of the Coast Guard.
    (b) The above will also be responsible to standardize AFDCB policies 
and procedures as well as to coordinate and maintain liaison with 
interested staff agencies and other military and civil agencies.



Sec. 631.4  Exceptions.

    Requests for exceptions to policies contained in this regulation 
will be forwarded to HQDA(DAPE-HRE-PO), WASH, DC 20310.



           Subpart B--Armed Forces Disciplinary Control Boards



Sec. 631.5  General.

    (a) Armed Forces Disciplinary Control Boards (AFDCBs) may be 
established by installation, base, or station commanders. The mission of 
AFDCBs is as follows:

[[Page 21]]

    (1) Advise and make recommendations to commanders on matters 
concerning the elimination of crime or other conditions which may 
negatively affect the health, safety, morals, welfare, morale, or 
discipline of Armed Forces personnel.
    (2) Insure the establishment and maintenance of the highest degree 
of liaison and coordination between military commands and appropriate 
civil authorities.
    (b) Where installations of two or more military Services are located 
or which are frequented by personnel of two or more Services, there will 
be joint Service participation in any AFDCB. In such cases, the 
commander of the Service with the greatest number of troops will serve 
as the ``sponsoring commander'' of the board. When there is joint 
participation in AFDCBs, written agreements will be executed by the 
respective Service installation commanders. These agreements will 
designate the sponsoring commander and delineate the joint Service 
participation.



Sec. 631.6  Responsibilities.

    (a) Major Army commanders, Navy commanders, Marine Corps commanders, 
Air Force commanders, and Coast Guard commanders will--
    (1) Monitor the establishment of and participation in AFDCBs by 
subordinate commands.
    (2) Encourage subordinate commanders to participate in joint Service 
boards where appropriate.
    (3) Resolve differences among subordinate commanders in regard to 
board areas of responsibility and the designation of sponsoring 
commanders.
    (4) Evaluate board recommendations and actions from subordinate 
sponsoring commanders.
    (5) Forward to HQDA (DAPE-HRE), WASH, DC 20310, reports that require 
Service headquarters action to accomplish the following:
    (i) Correct situations which would adversely affect the health, 
safety, morals, welfare, morale, or discipline of Armed Forces 
personnel.
    (ii) Surface positive programs having widespread applicability.
    (6) Insure procedures are established to notify the responsible 
individuals to insure that off-limits restrictions are made known and 
applicable to all Armed Forces personnel who may frequent the area in 
question. These would be off-limits restrictions approved and so 
declared by subordinate sponsoring commanders.
    (7) Insure that subordinate commanders assess the availability of 
drug abuse paraphernalia in the vicinity of DOD installations through 
their AFDCBs in accordance with DOD Directive 1010.4, Alcohol and Drug 
Abuse by DOD Personnel. Drug abuse paraphernalia is defined as all 
equipment, products, and materials of any kind that are used, intended 
for use, or designed for use, in planting, propagating, cultivating, 
growing, harvesting, manufacturing, compounding, converting, producing, 
processing, preparing, testing, analyzing, packaging, repackaging, 
storing, containing, concealing, injecting, ingesting, inhaling, or 
otherwise introducing into the human body a controlled substance in 
violation of the Controlled Substances Act.
    (b) In each AFDCB area, the commander of the installation with the 
largest base population will be designated the AFDCB sponsoring 
commanders. Sponsoring commanders will provide administrative support, 
as shown below, for the AFDCB programs.
    (1) Promulgate implementing directives and call meetings of the 
board.
    (2) Provide a recorder for the board.
    (3) Provide copies of the minutes of the meetings of the board to--
    (i) Other Service commanders who provide board representatives.
    (ii) BUPERS (for Navy only).
    (iii) Other AFDCBs as appropriate.
    (4) Approve or disapprove the minutes and recommendations of the 
board and make appropriate distribution, as required.
    (5) Publish lists of ``off-limits'' establishments and areas.
    (6) Insure notification to the responsible individuals of any 
unfavorable actions being contemplated or taken regarding their 
establishments in accordance with appendix B.
    (7) Distribute all pertinent information to the following:
    (i) All units within their jurisdictional area.

[[Page 22]]

    (ii) Units stationed in other areas whose personnel frequently visit 
their jurisdictional area.
    (c) (For Army only). Commanders of Army installations depicted in 
Map 18, AR 5-9, are responsible for coordinating activities of AFDCB in 
their areas. They may serve as sponsoring commanders or participate as 
members of Joint Service Boards. They may approve the establishment of 
separate AFDCB for Army installations within their area when it is in 
the best interest of the Army to do so. Changes in AFDCB areas of 
responsibility may be approved by MACOMs of installations concerned.
    (d) (For Army only). The Commander, US Army Health Services Command 
will--
    (1) Assure that subordinate commanders provide one of the following 
to sit as a member of each established board--
    (i) A Medical Corps officer.
    (ii) A health and environment oriented Medical Service Corps (MSC) 
officer of the Army Medical Department (AMEDD).
    (2) Encourage subordinate commanders to--
    (i) Maintain liaison with other governmental and civilian health 
agencies to detect unsafe or unhealthy conditions within the geographic 
area of each supported board.
    (ii) Advise the board of conditions which adversely affect Armed 
Forces personnel.



Sec. 631.7  Composition of boards.

    (a) Each board shall, as a minimum, consist of representatives from 
the following functional areas:
    (1) Law enforcement.
    (2) Legal.
    (3) Health and environment.
    (4) Public affairs.
    (5) Equal opportunity.
    (6) Safety.
    (7) Chaplains.
    (8) Alcohol and drug abuse.
    (9) Personnel and community activities.
    (b) Sponsoring commanders will determine, by position, which board 
members will be designated as voting members. Such designations will be 
included in the written agreements establishing the boards.
    (c) Normally the sponsoring commander will designate a member of his 
staff as the board President.



Sec. 631.8  Civil agencies.

    (a) Civil agencies or individuals may be invited to board meetings 
as observers or witnesses in jurisdictions where they have knowledge of 
problems in the board's area of interest. These would be civil agencies 
or individuals concerned with law enforcement, public health, welfare, 
consumer affairs, and the safeguarding of morals.
    (b) Boards should be used to establish and maintain liaison between 
installations and civil agencies. A recommended method is to mail 
announcements and summaries of the results of board meetings to 
appropriate civil agencies. These agencies include, but are not limited 
to, those found in appendix A.



Sec. 631.9  Duties and functions of boards.

    The AFDCBs will--
    (a) Meet in session as prescribed by the AFDCB Procedures Guide in 
appendix B.
    (b) Receive and take appropriate action on reports of conditions in 
their jurisdictional areas relating to any of the following:
    (1) Lack of discipline.
    (2) Prostitution.
    (3) Venereal disease.
    (4) Liquor violations.
    (5) Racial and other discriminatory practices.
    (6) Alcohol and drug abuse.
    (7) Drug abuse paraphernalia.
    (8) Disorder.
    (9) Illicit gambling.
    (10) Unfair commercial or consumer practices.
    (11) Other undesirable conditions that may adversely affect members 
of the military or their families.
    (c) Report the following to all major commanders in the board's area 
of jurisdiction:
    (1) Any conditions cited in paragraph (b) of this section.
    (2) The board's recommended action as approved by the board's 
sponsoring commander.

[[Page 23]]

    (d) Conduct active liaison with appropriate civil authorities on 
problems or adverse conditions existing in the board's area of interest.
    (e) Make recommendations to commanders in the board's area of 
jurisdiction concerning off-installation procedures to prevent or 
control undesirable conditions.



Sec. 631.10  Administration.

    (a) Commanders are authorized to acquire, report, process, and store 
information concerning persons and organizations, whether or not 
affiliated with the Department of Defense (DOD) (AR 380-13), which:
    (1) Adversely affects the health, morals, welfare, morale, or 
discipline of Armed Forces personnel regardless of status.
    (2) Describes crime conducive conditions of which Armed Forces 
personnel may become victims.
    (b) Information described in paragraph (a) of this section may be 
filed by organization; however, it will not be retrievable on the basis 
of individual personal identification date, e.g., SSN, name, or address. 
The information should be retained only as long as the described 
conditions or threat to the welfare of Armed Forces personnel continues 
to exist.
    (c) Boards will function under the supervision of a president.
    (d) Certain expenses incurred by Service members in the course of an 
offical board investigation or inspection may be reimbursable. This 
would be done in accordance with appropriate Service finance regulations 
or instructions. These requests should be submitted to the sponsoring 
Service finance office and charged to the appropriate law enforcement 
account. (For the Army, this account is the T6 account.)
    (e) Records of board proceedings will be maintained as prescribed by 
records management policies and procedures for the Service of the 
sponsoring commander.



Sec. 631.11  Off-limits establishments and areas.

    (a) An off-limits area is defined as any vehicle, conveyance, place, 
structure, building, or area prohibited to military personnel to use, 
ride, visit, or enter during the period in which it may be declared off-
limits. As a matter of policy, the change in ownership, management, or 
name of any off-limits establishment does not, in and of itself, revoke 
the off-limits restriction.
    (b) The establishment of off-limits areas is a function of command. 
It may be used by commanders to help maintain good discipline and an 
appropriate level of good health, morale, safety, morals, and welfare of 
Armed Forces personnel. Off-limits action is also used to preclude Armed 
Forces personnel from being exposed to crime conducive conditions or 
from becoming the victims of crimes. Where sufficient cause exists, 
commanders retain substantial discretion to declare establishments or 
areas temporarily off-limits to personnel or their respective command in 
emergency situations. Temporary off-limits restrictions issued by 
commanders in an emergency situation will be acted upon by the AFDCB on 
a priority basis.
    (c) Armed Forces personnel are prohibited from entering 
establishments or areas declared off-limits in accordance with this 
regulation. Violations may subject the individual to disciplinary action 
under the Uniform Code of Military Justice (UCMJ). As general policy, 
these establishments will not be visited by military law enforcement 
personnel unless circumstances warrant.
    (d) Prior to initiating routine off-limits action, installation 
commanders will attempt to correct, through contact with local civilian 
leaders, any adverse condition or situation. If these actions are 
unsuccessful, commanders will submit reports, requesting off-limits 
action, to the AFDCB serving their area.
    (e) The AFDCB, prior to recommending off-limits restriction, will 
send written notice of the alleged adverse condition or situation, by 
certified mail with return receipt requested, to the individual or firm 
responsible for the alleged condition or situation. In this notice, the 
AFDCB will offer a reasonable time to correct the condition or situation 
and provide the individual or a designated representative with the 
opportunity to

[[Page 24]]

present any relevant information to the board. (See sample letter at 
annex A to App B.) If subsequent investigation reveals a failure by the 
responsible person to take corrective action, the board should recommend 
the imposition of the off-limits restriction.
    (f) A specified time limit will not be established when an off-
limits restriction is invoked. The adequacy of the corrective action 
taken by the proprietor of the establishment will be the determining 
factor in removing an off-limits restriction.
    (g) A person whose establishment or area has been declared off-
limits may, at any time, petition the president of the board for removal 
of the off-limits restriction. The petition will be in writing. It 
should state, in detail, the action taken to eliminate the adverse 
conditions or situations that caused the imposition of the restriction. 
In response to the petition, the President of the AFDCB may cause a 
thorough investigation to be made of the status of these adverse 
conditions or situations. A report of the results of the investigation 
would be presented to the board. The board then will either recommend 
removal or continuation of the off-limits restriction to the local 
sponsoring commander.
    (h) Off-limits procedures to be followed by the boards are in 
appendix B. In the United States, off-limits signs will not be posted on 
civilian establishments by US military authorities.



        Subpart C--Off-Installation Military Enforcement Services



Sec. 631.12  Objectives.

    The primary objectives of off-installation enforcement are to--
    (a) Render assistance and information to Armed Forces personnel.
    (b) Reduce the incidence of off-installation military offenses 
committed by Armed Forces personnel.
    (c) Enforce the UCMJ and other pertinent regulations, directives, 
and orders among persons subject to the UCMJ.
    (d) Maintain effective liaison and cooperation with civil law 
enforcement and judicial agencies.
    (e) Enhance apprehension efforts and return to military control 
absentees and deserters wanted by the Armed Forces.
    (f) Maintain good community relations.
    (g) Assist in the return of military members detained by civil 
authorities to military control.



Sec. 631.13  Applicability.

    This chapter applies to off-installation enforcement activities. It 
does not apply to the activities of AFDCBs which were discussed in 
subpart B. It is not applicable to the U.S. Navy.



Sec. 631.14  Responsibilities.

    (a) Commanders of military installations will recognize the 
responsibility of civil authorities for the maintenance of peace and 
order in those areas not under military jurisdiction or control. They 
should--
    (1) Conduct off-installation law enforcement in accordance with 
applicable Service policies and procedures.
    (2) Coordinate the liaison functions to accomplish the objectives 
outlined in paragraph 3-1.



Sec. 631.15  Policy (for Army only).

    (a) Within CONUS. (1) Normally, off-post patrols will not be 
established in CONUS. However, MACOM commanders may authorize military 
police to establish off-installation patrols if needed--
    (i) In conjunction with military operations.
    (ii) To safeguard the health and welfare of Army personnel.
    (iii) When the type of offenses or the number of military personnel 
frequenting an area is large enough to warrant such patrols.
    (2) In view of the important legal implications involved (see 18 
U.S.C. 1385, the Posse Comitatus Act), the advice of the local Staff 
Judge Advocate should be sought prior to the implementation of such an 
authorization. When possible, MACOM commanders will execute a mutually 
acceptable written agreement with the civil police authorities.
    (b) OCONUS. Off-post patrols will be kept at a minimum for mission 
accomplishment. Commanders of MACOMs may authorize off-post patrols as 
required by local conditions and customs

[[Page 25]]

as long as these patrols are in accordance with applicable treaties and 
Status of Forces Agreements.
    (c) Military police personnel selected for off-post patrols must be 
experienced in law enforcement and have mature judgment. They must be 
thoroughly familiar with all applicable agreements and implementing 
standard operating procedures. They must understand the implications of 
the Posse Comitatus Act as it pertains to military law enforcement 
personnel assisting local law enforcement agencies.
    (d) At a minimum, instructions to military police assigned to off-
post patrols will specifically state that if they accompany civil 
police, they will do so for the sole purpose of enforcing the UCMJ among 
persons subject to the code. Their instructions will also specifically 
state that they are under the command and directly responsible to their 
military superiors and that they exercise no authority over the civil 
police or the civil populace. Accordingly, military police should be 
instructed that they are not to exercise any authority in a case of 
misconduct or apparent law violation unless the person concerned has 
been identified as a member of the military service. However, military 
law enforcement personnel may come to the aid of civil police in order 
to prevent the commission of a felony or injury to a civilian police 
officer.



Sec. 631.16  Policy (for Navy only).

    (a) Off-base law enforcement activities by naval personnel (CONUS 
and Hawaii) shall be limited to liaison functions with civilian law 
enforcement agencies and courts and to the acceptance of ``courtesy 
turnovers.''
    (b) The court liaison function is limited to the provision of an 
official Navy point of contact for the courts, to the provision of 
advice for individuals and local commands, and to court appearance with 
individuals from deployed commands.
    (c) Courtesy turnovers will be limited to those persons whose 
behavior and attitude are acceptable and who desire to be returned to 
the custody of their parent command.
    (d) Courtesy turnovers will be accepted from jails, police stations, 
etc., but not directly from police officers on the scene of an incident.



Sec. 631.17  Policy (for Marine Corps only).

    (a) Within CONUS. (1) Normally, off-installation patrols will not be 
established in CONUS. However, installation commanders may request 
authority from HQMC (Code MPH) to establish off-installation patrols if 
needed.
    (i) In conjunction with military operations.
    (ii) To safeguard the health and welfare of Marine personnel.
    (iii) When the type of offenses or the number of military personnel 
frequenting an area is large enough to warrant such patrols.
    (2) In view of the important legal implications involved (see 18 
U.S.C. 1382, the Posse Comitatus Act as made applicable to DoN) the 
advice of the local staff judge advocate/legal officer should be sought 
prior to the implementation of such an authorization. When possible, 
installation commanders will execute a mutually acceptable written 
agreement with the civil police authorities.
    (b) Overseas Areas. Off-installation patrols will be kept at minimum 
for mission accomplishment. Commanders of installations may authorize 
off-installation patrols as required by local conditions and customs as 
long as these patrols are in accordance with applicable treaties and 
Status of Forces Agreements.
    (c) Personnel selected for off-installation patrols must be 
experienced in law enforcement and have mature judgment. They must be 
thoroughly familiar with all applicable agreements and implementing 
standard operating procedures. They must understand the implications of 
the Posse Comitatus Act as it pertains to military law enforcement 
personnel assisting local law enforcement agencies.
    (d) At a minimum, instructions to military police assigned to off-
installation patrols will specifically state that if they accompany 
civil police, they will do so for the sole purpose of enforcing the UCMJ 
among persons subject to the code. Their instructions will also 
specifically state that they are

[[Page 26]]

under the command and directly responsible to their military superiors 
and that they exercise no authority over the civil police or the civil 
populace.

Accordingly, military police should be instructed that they are not to 
exercise any authority in a case of misconduct or apparent law violation 
unless the person concerned has been identified as a member of the 
military service. However, military law enforcement personnel may come 
to the aid of civil police in order to prevent the commission of a 
felony or injury to a civilian police officer.
    (e) Absentee and deserter collection units to accept active duty 
absentee or deserter military personnel from civilian authorities may be 
established.
    (f) Civil police and civil court liaison may be established.
    (g) Installation commanders are authorized to establish other 
activities deemed necessary, provided each activity is within the scope 
of military purpose and authority, i.e., apprehensions where authorized 
by UCMJ, courtesy patrols, etc.



Sec. 631.18  Policy (for Air Force only).

    See section B, AFR 125-19, for Air Force policy on off-installation 
patrols.



Sec. 631.19  Operations.

    (a) In CONUS, incidents occurring off-installation normally are 
investigated by civil law enforcement agencies. These include State, 
county, or municipal authorities or a Federal investigative agency. When 
an incident of substantial interest to the U.S. Army occurs off-
installation, the Armed Forces law enforcement organization exercising 
area responsibility will obtain copies of the civil law enforcement 
report. These are incidents that involve Army property or personnel. The 
civil law enforcement report would be processed according to applicable 
Service regulations.
    (b) In oversea areas, off-installation incidents will be 
investigated in accordance with Status of Forces agreements and other 
appropriate U.S.-host country agreements.
    (c) Off-installation enforcement operations may include the 
following activities:
    (1) Town patrol.
    (2) Town military police.
    (3) Air Force Security Police patrols and stations.
    (4) Civil police and civil court liaison.
    (5) Public carrier and civilian transportation terminal patrols.
    (6) Acceptance of active duty absentee or deserter military 
personnel turned over to Service police by civilian authorities.
    (7) Other activities deemed necessary, provided each activity is 
within the scope of military purpose and authority.
    (d) Activities in c above will be performed according to the Service 
policies in Secs. 631.15 through 631.17. They will be based on the need 
and the fiscal and manpower restraints imposed by each Service. If 
practical, mutual agreements between two or more Services may be made to 
facilitate the conduct of joint Service off-installation enforcement 
services and absentee apprehension functions.
    (e) Armed Forces law enforcement personnel will--
    (1) Act under the command of, and be responsible to, military 
superiors and will not be placed under the control of civil authorities.
    (2) Exercise authority over civil law enforcement agencies or 
persons not subject to the UCMJ only when they are on a military 
installation.
    (3) Be authorized to apprehend persons subject to the UCMJ when 
there exists a reasonable belief that an offense under the code has been 
committed and that the person to be apprehended committed the offense. 
Civilians committing offenses on US military installations may be 
detained for the appropriate Federal, State, or local law enforcement 
agency.
    (4) Return apprehended persons to representatives of their 
respective Services as soon as practicable.
    (5) Process all reports received from other law enforcement agencies 
concerning crimes committed by military personnel, involving military 
property, or in which DOD has an interest.

[[Page 27]]



 Subpart D--Joint Service Law Enforcement Operations (Not Applicable to 
                               U.S. Navy)



Sec. 631.20  Organization.

    In localities frequented by personnel of more than one Service, 
installation commanders may consider the establishment of joint law 
enforcement operations. Such operations may provide a more effective and 
economical accomplishment of off-installation law enforcement. When such 
operations are established, participating installation commanders will--
    (a) Execute written agreements concerning the operations.
    (b) Insure that each participating organization contributes its 
proportionate share of personnel, equipment, and supporting facilities.



Sec. 631.21  Joint law enforcement operations.

    The following procedures will apply when establishing joint law 
enforcement operations:
    (a) Personnel. Enlisted personnel selected for joint law enforcement 
duty should meet the following qualifications:
    (1) Be temperamentally suited for police duty and received training 
or have experience in law enforcement.
    (2) Be 19 years of age or older.
    (3) Have no record of court-martial convictions or civilian offenses 
other than minor traffic violations.
    (4) Be at least 5 feet 4 inches tall.
    (5) Meet General Classification Test (GCT) (or equivalent test) 
score requirements of the parent Service for assignment to police duty.
    (6) Possess a military motor vehicle operators license.
    (7) Have at least 12 months remaining on current enlistment.
    (b) Logistics. Personnel assigned to joint patrols will be equipped 
as prescribed by their respective Service regulations or directives to 
include the symbol of their law enforcement authority (badge or 
brassard).
    (c) Functions. Joint law enforcement operations will perform, at a 
minimum, the following functions:
    (1) Provide assistance to all Armed Forces personnel who are charged 
with civil violations.
    (2) Maintain liaison with civilian enforcement and judicial 
agencies.
    (3) Have the capability to receive military personnel apprehended by 
civilian authorities.
    (d) Duty assignments. Personnel assigned to perform joint operations 
may be further assigned to perform duties in any of the following 
functional areas:
    (1) Police station operation (desk sergeants, desk clerks, radio 
operators, etc.).
    (2) Motor patrols necessary to conduct police and court liaison and 
to transport military personnel from the local civilian police.
    (3) Operations.
    (4) Administration.

                 Appendix A to Part 631--Civil Agencies

    A-1. American Social Health Association.
    The American Social Health Association, upon request, provides 
information and consultation in the fields of venereal disease and drug 
abuse. Local AFDCBs desiring information should apply through one of the 
following regional offices of the association:

Eastern Regional Director, 86 Farmington Ave., Hartford, CT 06105
Middle America Regional Director, 110 North High Street, Gahanna, OH 
43230
Southern Regional Director, 173 Walton Street, NW., Atlanta, GA 30303
Western Regional Director, 785 Market Street, Rm. 1010, San Francisco, 
CA 94103

    A-2. United States Brewers Association.
    a. The United States Brewers Association is the trade and public 
relations agency of the organized brewing industry in the United States. 
Upon request, it will assist military authorities within CONUS to 
eliminate conditions detrimental to the health, morals, and welfare of 
members of the Armed Forces in the cities and communities adjacent to 
military installations.
    b. This association conducts an Armed Forces cooperation program to 
further ``self-regulation'' activities among beer dealers. It cooperates 
with State and local law enforcement officials in the promotion and 
maintenance of proper conditions in retail beer outlets throughout the 
country. Its services are available to AFDCBs for furthering joint 
action in the promotion of law observance and the maintenance of 
conditions of cleanliness and decency in retail beer outlets patronized 
by members of the Armed Forces.
    c. Local sponsoring commanders requesting the assistance of the 
Brewers Association may apply to the Director of Field Services,

[[Page 28]]

US Brewers Association, Inc., 1750 K Street NW., Washington DC 20006.
    A-3. The National Environmental Health Association.
    The National Environmental Health Association is a professional 
organization representing various sanitary and environmental control 
groups. It provides information and consultation on solid waste 
management, air and water pollution, and other environmental health 
matters. Military members of the association belong to the Uniform 
Services Association of Sanitarians. All requests for assistance should 
be directed to the military association at the national association 
headquarters, 1600 Pennsylvania Ave., Denver, Colorado 80293.
    A-4. The Federal Trade Commission.
    The Federal Trade Commission was established in 1914 and is the 
principal agency of the Government responsible for preventing deceptive 
acts and practices in commerce. The Commission strives to keep 
competition fair and free from deceptive advertisement of food, drugs, 
cosmetics, therapeutic devices, catalog sales, and credit card 
purchases. It strives to protect consumers against the circulation of 
inaccurate or obsolete credit reports. Consumer Protection Specialists 
are located at the national and regional offices to render assistance. 
Regional offices are located in major metropolitan areas and frequently 
conduct investigations of acts peculiar to local communities. Inquiries 
should be made to the regional offices.

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

    B-1. General. This guide prescribes procedures for the 
establishment, operation, and coordination of Armed Forces Disciplinary 
Control Boards (AFDCBs). It is intended to insure uniformity of 
operation. AFDCB proceedings are not considered to be adversary in 
nature.
    B-2. Meetings.
    a. Regular meetings will be held once each quarter or as designated 
by the president. The sponsoring commander may specify whether the 
meetings, as scheduled, will be open or closed. If not specified, the 
decision is within the discretion of the president of the board. 
Normally, proceedings are closed, but may be opened to the public when 
circumstances warrant.
    b. Special meetings may be called by the president of the board. 
Except by unanimous consent of members present, final action will be 
taken only on the business for which the meeting was called.
    B-3. AFDCB composition.
    a. Voting members will be selected according to paragraph 2-3 of 
this regulation.
    b. A majority of voting members constitutes a quorum for board 
proceedings.
    B-4. Attendance of observers or witnesses.
    a. Representatives of the agencies listed below may be invited to 
attend as observers or witnesses.
    (1) American Social Health Association.
    (2) United States Brewers Association.
    (3) Federal Bureau of Investigation.
    (4) United States Attorneys.
    (5) State and local police.
    (6) State and local departments of health.
    (7) State and local VD control officers.
    (8) State alcoholic beverage control authorities.
    (9) State and local prosecutors.
    (10) Consumer affairs personnel.
    (11) State and local narcotics investigative agencies.
    (12) Immigration and Naturalization Service.
    (13) Members of Judiciary directly concerned with law enforcement.
    (14) Drug Enforcement Administration.
    (15) Bureau of Alcohol, Tobacco, and Firearms.
    (16) US Customs Service.
    (17) Chamber of Commerce.
    (18) Better Business Bureau.
    (19) State license beverage association.
    (20) National Institute of Drug Abuse and National Institute on 
Alcohol Abuse and Alcoholism.
    (21) Adult probation department/social services.
    (22) Any other representation deemed appropriate by the sponsoring 
command, i.e., news media, union representatives, and so forth.
    b. Witnesses and observers will be listed in the minutes of the 
meeting if invited by the board to participate in that capacity.
    c. Board action may be recommended by a majority vote of the voting 
members present at a regular or special board meeting.
    B-5. Appropriate areas for board consideration.
    a. Boards will study and take appropriate action in connection with 
all conditions detrimental to the good discipline, health, morals, 
welfare, safety, and morale of Armed Forces personnel. This will 
include, but not be limited to, the following:
    (1) Crime and misconduct.
    (2) Narcotics, marihuana, dangerous drugs, and drug abuse 
paraphernalia.
    (3) Liquor violations.
    (4) Excessive number of unauthorized absences.
    (5) Gambling (when in violation of State or local law).
    (6) Military and civilian relationships that may be detrimental to 
service personnel.
    (7) Unsanitary and other adverse conditions in establishments 
frequented by Armed Forces personnel.
    (8) Off-installation/base safety problems.
    (9) Unethical or illegal business practices.
    (10) Prostitution and venereal disease.

[[Page 29]]

    (11) Discriminatory practices.
    (12) Other health hazards.
    b. The board will immediately forward to the local commander 
concerned the circumstances reported to the board involving 
discrimination based on race, color, sex, religion, age, or national 
origin.
    B-6. Off-limits procedures.
    a. Off-limits restrictions should be invoked only when there is 
substantive information indicating that an establishment or area 
frequented by Armed Forces personnel presents conditions which adversely 
affect the health, safety, welfare, morale, or morals of such personnel. 
It is essential that boards do not act arbitrarily; actions must not be 
of a punitive nature. Boards should work in close cooperation with local 
officials and proprietors of business establishments and seek to 
accomplish their mission through mutually cooperative efforts. Boards 
should encourage personal visits by local military and civilian 
enforcement or health officials to establishments considered below 
standard. AFDCBs should point out unhealthy conditions or undesirable 
practices to establishment owners or operators in order to produce the 
desired corrective action.
    b. Prior to initiating routine off-limits action, the local 
commander will attempt to correct any situation which adversely affects 
the welfare of Armed Forces personnel. This will be done through contact 
with community leaders.
    c. Unless emergency conditions exist which are extremely harmful to 
Armed Forces personnel, an establishment will not be recommended for 
off-limits action until the proprietor has been--
    (1) Notified in writing of the adverse condition/circumstances.
    (2) Given an opportunity to be heard and a reasonable time in which 
to correct deficiencies.
    d. If the board decides to attempt to investigate or inspect an 
establishment, the president or a designee will prepare and submit a 
report of findings and recommendations at the next meeting. This will 
insure complete and documented information concerning doubtful adverse 
conditions.
    e. When the board concludes that conditions adverse to Armed Forces 
personnel do exist, the owner or manager will be sent a letter of 
notification (annex A). This letter will advise him or her to raise 
standards and that, if such conditions or practices continue, off-limits 
proceedings will be initiated. In cases involving discrimination, the 
board should not rely solely on letters written by the Equal Opportunity 
Office and Military Affairs Committee or investigations of alleged 
racial discrimination. The AFDCB should send letters to the proprietor, 
informing him or her that off-limits action is being considered and 
inviting him or her to the next board meeting. Boards should send 
letters directly to the proprietors when any off-limits action is being 
considered. If a proprietor takes remedial action to correct undesirable 
conditions previously noted, the board should send a letter of 
appreciation (annex B). Any correspondence with the individuals 
responsible for adverse conditions leading to off-limits action will be 
by certified mail.
    f. If the undesirable conditions are not corrected, an invitation 
(annex C) will be written to the proprietor. This letter will invite the 
proprietor to appear before the board to explain why the establishment 
should not be placed off-limits. The proprietor may designate, in 
writing, individual(s) to represent him or her at the board.
    g. In cases where proprietors have been invited to appear before the 
board, the president of the board will perform the following actions:
    (1) Prior to calling the proprietor--
    (a) Review the findings and decision of the previous meeting.
    (b) Call for inspection reports.
    (c) Afford an opportunity to those present to ask questions and 
discuss the case.
    (2) When the proprietor and/or his or her counsel is called before 
the board--
    (a) Present the proprietor with a brief summary of the complaint 
concerning his or her establishment.
    (b) Afford the proprietor an opportunity to present matters in 
defense of the allegation.
    (c) Offer those present an opportunity to question the proprietor. 
After the questioning period, provide the proprietor a final opportunity 
to make an additional statement or to make commitments concerning his or 
her willingness to cooperate.
    (3) After excusing the proprietor from the meeting, the president 
and board will discuss suggestions and recommendations for disposition 
of the case in closed session.
    h. No member of a board shall reprimand or admonish in any degree a 
person appearing before a board. Board members do not have jurisdiction 
over such individuals. Off-limits actions are designed solely for the 
protection of Armed Forces personnel and are used as a last resort when 
all other means have failed.
    i. The board should recommend that the offending establishment be 
placed off-limits only after the following:
    (1) The letter of notification (annex A) has been sent.
    (2) An opportunity to appear before the board has been extended.
    (3) Further investigation indicates that improvements have not been 
made.
    j. The minutes will indicate a board's action in disposing of each 
case. When a recommendation is made that an establishment be placed off-
limits, the minutes will show the procedural steps followed in reaching 
the decision.

[[Page 30]]

    k. Recommendations of the board will be submitted to the sponsoring 
commander for consideration. The recommendations will then be forwarded 
to the other installation commanders who furnish board representation 
(annex D). If no objection to the recommendations is received within 10 
days, the sponsoring commander will either approve or disapprove the 
recommendations. He will then forward this decision to the board 
president.
    l. Upon approval of the board's recommendations, the president will 
dispatch a declaration that the off-limits restriction has been imposed 
(annex E).
    m. No definite time limit should be specified when an off-limits 
restriction is invoked. The adequacy of the corrective action taken by 
the proprietor of the establishment must be the determining factor in 
removing an off-limits restriction.
    n. Military commanders have no authority to post off-limits signs on 
private property. Appropriate civil officials may post private property 
when informed by military authorities that an establishment or area has 
been declared off-limits to Armed Forces personnel.
    o. Emergency off-limits action: In emergencies, commanders may 
temporarily declare establishments or areas off-limits to Armed Forces 
personnel subject to their jurisdiction. They must then report the 
circumstances immediately to the commander sponsoring the board. 
Detailed justification for this emergency action will be provided to the 
board for its use.
    B-7. Removal of off-limits restrictions.
    a. Removal of an off-limits restriction requires board action. 
Proprietors of establishments declared off-limits should be advised that 
they may appeal to the appropriate board at any time. In their appeal, 
they should submit the reason why, in their opinion, the restriction 
should be removed. A letter of notification of continuance of off-limits 
restriction should be sent to the proprietor if the board does not 
favorably consider removal of an off-limits restriction (annex F). If, 
after exhausting all appeals at the board/local sponsoring commander 
level, the proprietor is not satisfied with those decisions, his or her 
case will be forwarded to the next higher commander of the sponsoring 
commander for review and resolution. Boards should make at least 
quarterly inspections of off-limits establishments. A statement that an 
inspection has been made should be reflected in their minutes.
    b. When it has been determined that adequate corrective measures 
have been taken by the owner or manager of an establishment or area to 
meet the requirements for good discipline, health and welfare of Armed 
Forces personnel, the appropriate board will take the following actions:
    (1) Discuss the matter at the next meeting and make an appropriate 
recommendation.
    (2) Forward recommendation for removal of off-limits restriction to 
the sponsoring commander. If the recommendation is approved, dispatch a 
letter of removal of off-limits (annex G or H).
    (3) Record what action was taken in the minutes of the board 
meeting.
    B-8. Duties of the president of the board.
    The president of the board will--
    a. Schedule and preside at all meetings of the board and sign 
appropriate correspondence.
    b. Prepare an agenda prior to each regular meeting and insure its 
distribution to each voting member at least 7 days prior to the meeting.
    c. Be responsible for the preparation and distribution of the 
minutes of all meetings and for maintenance of appropriate records and 
files pertaining to AFDCB activities. (See para. 2-6e.)
    d. Inform members of any special meeting and its purpose as far in 
advance as possible.
    e. Prepare and distribute to major commands a copy of the minutes of 
each meeting.
    f. Supervise the recorder in performance of all administrative 
duties as required.
    B-9. Minutes.
    a. Annex I is a guide for the preparation of the minutes of board 
meetings. Minutes will be prepared in accordance with administrative 
formats for minutes of meetings prescribed by the Service of the 
sponsoring commander. The written minutes of board meetings will be 
deemed the official record of board meetings. Verbatim transcripts of 
board meetings are not required. The reasons for approving or removing 
an off-limits restriction, to include a complete address of the 
establishment or area involved, should be indicated in the order of 
business. In addition, the board's action will be shown in order of 
sequence, such as dispatch of letter of notification, appearance before 
board, recommendation to local sponsoring commander, or action taken by 
local sponsoring commander. Change in the name of an establishment or 
areas in an off-limits status will also be included.
    b. Distribution of the minutes of board meetings will be limited to 
the following:
    (1) Each voting member, sponsoring command and other commands, and 
installations represented on or serviced by the board.
    (2) Each civilian and military advisory member, if deemed 
appropriate.
    (3) Civilian and Government agencies, within the State in which 
member installations are located, having an interest in the functions of 
the board, if appropriate.
    c. The minutes of the board meeting, containing the board's 
recommendations, will be forwarded in writing to the sponsoring 
commander. The minutes will be accompanied by

[[Page 31]]

a request that the recommendations be approved for implementation. The 
sponsoring commander will, by written indorsement to the president of 
the board, approve or disapprove the minutes and recommendations.
    d. Board minutes are subject to the release and disclosure 
provisions of DOD Directive 5400.7 and implementing Service regulations.
    B-10. Installation commander and board relationship.
    Military installation commanders within a board's areas of 
responsibility must be thoroughly acquainted with the mission and 
services provided by AFDCBs. Board members should keep their respective 
commanders informed of command responsibility pertaining to board 
functions and actions.
    B-11. Public affairs.
    a. Because of the sensitive nature of subject matter discussed, no 
public announcement will be initiated in connection with board meetings. 
However, any board proceeding which is open to the public will also be 
open to representatives of the news media. Representatives of the news 
media will be considered as observers and will not participate in the 
discussion of matter considered by the board. Members of the news media 
may be invited to participate in an advisory status in coordination with 
the Public Affairs Officer.
    b. News media interviews and releases will be handled through the 
Public Affairs Offices in accordance with this regulation and AR 360-5.

                     Annex A--Letter of Notification

                              (Letterhead)

                           (Appropriate AFDCB)

Proprietor
--______________________________________________________________________
--______________________________________________________________________
--______________________________________________________________________
    Dear Sir: As President of the Armed Forces Disciplinary Control 
Board, it is my duty to inform you of certain undesirable conditions 
reported at your establishment which adversely affect the health and 
welfare of personnel in the Armed Forces. It has come to the attention 
of the board that (cite pertinent information). You are advised that it 
will be necessary for this board to initiate action to determine whether 
your establishment should be placed off-limits to personnel of the Armed 
Forces if the above cited undesirable condition(s) is (are) not 
eliminated. (Include if applicable). Within (cite period), a 
representative of this board will visit your establishment in order to 
determine if steps have been taken to correct the conditions outlined 
above.
        Sincerely,
    ------------,
    President, AFDCB.
    (Note: When sent by mail, send letter by CERTIFIED MAIL, RETURN 
RECEIPT REQUESTED.)

                     Annex B--Letter of Appreciation

                              (Letterhead)

                           (Appropriate AFDCB)

Proprietor
--______________________________________________________________________
--______________________________________________________________________
--______________________________________________________________________
    Dear Sir:
    Reference is made to my letter dated -------- concerning certain 
undesirable conditions reported at your establishment which adversely 
affect the health and welfare of personnel in the Armed Forces.
    The board appreciates your action in correcting the deficiencies 
previously noted. In view of this fact, the board contemplates no 
further action with respect to this matter at the present time.
    The board hopes that you will continue to operate your establishment 
in the manner which will benefit the health and welfare of Service 
personnel. Your continued cooperation is solicited.
        Sincerely,
    ------------,
    President, AFDCB.

                      Annex C--Letter of Invitation

                              (Letterhead)

                           (Appropriate AFDCB)

Proprietor
--______________________________________________________________________
--______________________________________________________________________
--______________________________________________________________________



PART 632--USE OF FORCE BY PERSONNEL ENGAGED IN LAW ENFORCEMENT AND SECURITY DUTIES--Table of Contents




Sec.
632.1  Purpose.
632.2  Applicability.
632.3  Policy.
632.4  Deadly force.
632.5  Use of firearms.
632.6  Administrative instructions.

    Authority: 10 U.S.C. 3012.

    Source: 48 FR 17074, Apr. 21, 1983, unless otherwise noted.



Sec. 632.1  Purpose.

    This regulation implements DOD Directive 5210.65. It sets uniform 
policy for use of force by DA law enforcement and security personnel.

[[Page 32]]



Sec. 632.2  Applicability.

    (a) This regulation applies to all DA including Army National Guard 
and Army Reserve and civilian personnel engaged in law enforcement or 
security duties, and those civilian contract guard personnel performing 
security duties. These duties include guarding U.S. Military prisoners 
and interior guard duties.
    (b) Except for personnel guarding U.S. military prisoners, this 
regulation does not apply to persons assigned to--
    (1) A wartime combat zone.
    (2) A non-wartime hostile fire area.
    (3) Duties with the U.S. Secret Service.
    (4) Civil disturbance control. (See para 4-12, FM 19-15.)



Sec. 632.3  Policy.

    (a) Law enforcement and security personnel will use force only when 
they cannot fulfill their duties without it. They will use the minimum 
force needed; only as a last resort will they use deadly force. (See 
Secs. 632.3(c), 632.4, and 632.5.)
    (b) Commanders are encouraged to substitute nonlethal devices (such 
as night sticks) for firearms when adequate for law enorcement and 
security personnel to safely fulfill their duties.
    (c) In evaluating the degree of force needed for specific law 
enforcement or security situations, consider these options:
    (1) Verbal persuasion.
    (2) Unarmed defense techniques.
    (3) Chemical aerosol irritant projectors (M36). (May be subject to 
host nation or local restrictions.)
    (4) MP club.
    (5) MP working dogs.
    (6) Deadly force. (Sec. 632.4)
    (d) Entrapment, i.e., inducing someone to commit an offense in order 
to prosecute that person, is not permitted in law enforcement or 
security duties.
    (e) Use MP working dogs in accordance with the provisions of AR 190-
12. Release dogs only if a lesser measure of force would not be 
effective.
    (1) Releasing a sentry dog to apprehend a suspect is a greater 
measure of force than releasing a patrol dog.
    (2) Before releasing a military dog for attack, give a challenge or 
order to halt.



Sec. 632.4  Deadly force.

    (a) Deadly force is destructive physical force directed against a 
person or persons (e.g., firing a lethal weapon). Use it only in extreme 
need, when all lesser means have failed or cannot reasonably be used. 
Use deadly force for one or more of the following reasons only:
    (1) In self-defense, when in imminent danger of death or serious 
injury.
    (2) To protect property related to national security, when 
reasonably necessary to prevent--
    (i) Threatened theft, damage, or espionage aimed at property or 
information specified by a commander or other competent authority as 
vital to national security. (See paragraph (b) of this section.)
    (ii) Actual theft, damage, or espionage aimed at property or 
information which, though not vital, is substantially important to 
national security. (See paragraph (b) of this section.)
    (iii) Escape of an individual whose unauthorized presence near 
property or information vital to national security is a reasonable 
threat of theft, sabotage, or espionage.
    (3) To prevent actual theft or sabotage of property (such as 
operable weapons or ammunition) which could cause deadly harm to others 
in the hands of an unauthorized person.
    (4) To prevent serious offenses against a person or persons (e.g., 
armed robbery, rape, or violent destruction of property by arson, 
bombing).
    (5) To apprehend a suspect believed to have committed any of the 
types of offenses named in paragraphs (a) (2), (3), and (4) of this 
section.
    (6) To prevent the escape of a prisoner (when authorized by a 
commander or other competent authority and reasonably necessary).
    (7) To obey lawful orders from higher authority governed by this 
regulation.
    (b) A commander or other competent authority will specify that 
property or information is--
    (1) Vital to national security only when its loss, damage, or 
compromise would seriously harm national security or an essential 
national defense mission.
    (2) Substantially important to national security based on the 
mission

[[Page 33]]

and the material or information required to perform it.
    (c) To comply with local law or international agreement or 
arrangements, a commander may impose further restrictions on using 
deadly force. (Restrictions should not unduly compromise U.S. security 
interests).
    (d) Security criteria and standards for protection of nuclear 
weapons (paragraph (c) of this section AR 50-5-1) and for chemical 
agents (paragraph (c) of this section AR 50-6-1) also apply.



Sec. 632.5  Use of firearms.

    (a) If it becomes necessary to use a firearm in any of the 
circumstances described in Sec. 632.4 of this part, observe the 
following precautions when possible:
    (1) Give an order to halt before firing.
    (2) Do not fire if shots are likely to harm innocent bystanders.
    (3) Since warning shots could harm innocent bystanders, avoid firing 
them. However, when lesser degrees of force have failed, the law 
enforcement or security person may judge that warning shots would help 
to control the situation without using deadly force. If able to avoid 
hazards to innocent persons in these cases, fire warning shots.
    (4) Aim to disable. At times it may be difficult to fire with enough 
precision to ensure disabling rather than killing. If the use of 
firearms are otherwise authorized by this regulation, such circumstances 
will not rule out their use.



Sec. 632.6  Administrative instructions.

    (a) Commanders will ensure that all persons assigned to law 
enforcement, security, or US military prisoners' guard duties will, 
before performing these duties--
    (1) Receive instructions on regulations regarding use of force.
    (2) Show knowledge and skill in the use of--
    (i) Unarmed defense techniques.
    (ii) MP club.
    (iii) Individual chemical aerosol irritant projectors.
    (iv) Their assigned firearms.
    (b) Commanders will also--
    (1) Provide periodic refresher training to ensure continued 
proficiency and updated knowledge in these skills. (Include applicable 
host nation requirements.)
    (2) Require MPs with law enforcement duties to qualify yearly with 
their assigned handguns.
    (3) Require interior guards to receive instructions regarding use of 
force. (Give periodic refresher training to ensure continued familiarity 
with regulations.)
    (c) Requirements concerning use of the MP club and chemical aerosol 
irritant projectors apply only when these weapons are issued items or 
are carried on duty.
    (d) FM 19-5 contains procedures and methods for using unarmed 
defense techniques and the MP club.



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




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

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

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



Sec. 633.11  Access to CID reports.

    All requests for access to CID reports made under the Privacy or 
Freedom of Information Acts will be processed in accordance with AR 340-
21 and AR 340-17, respectively.



Sec. 633.12  Amendment to CID reports.

    USACIDC reports of investigation (ROI) are exempt from the amendment 
provisions of the Privacy Act and AR 340-21. Requests for amendment will 
be considered only under the provisions of this regulation. Requests to 
amend USACIDC reports will be granted only if the individual submits 
new, relevant and material facts that are determined to warrant their 
inclusion in or revision of the ROI. The burden of proof is on the 
individual to substantiate the request. Requests to delete a person's 
name from the title block will be granted only if it is determined that 
there is not probable cause to believe

[[Page 34]]

that the individual committed the offense for which he or she is listed 
as a subject. It is emphasized that the decision to list a person's name 
in the title block of a USACIDC report of investigation is an 
investigative determination that is independent of whether or not 
subsequent judicial, nonjudicial or administrative action is taken 
against the individual. Within these parameters, any changes in the ROI 
rest within the sole discretion of the Commanding General. USACIDC, 
whose decision will constitute final action on behalf of the Secretary 
of the Army with respect to this regulation.



Sec. 633.13  Submission of requests.

    Requests for access to or amendment of USACIDC investigative reports 
will be forwarded to Commander, USACIDC, ATTN: CIJA-RI, 5611 Columbia 
Pike, Falls Church, VA 22041.



PART 634--MOTOR VEHICLE TRAFFIC SUPERVISION--Table of Contents




                         Subpart A--Introduction

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

                      Subpart B--Driving Privileges

634.6  Requirements for driving privileges.
634.7  Stopping and inspecting personnel or vehicles.
634.8  Implied consent to blood, breath, or urine tests.
634.9  Implied consent to impoundment.
634.10  Suspension or revocation of driving privileges.
634.11  Administrative due process for suspensions and revocations.
634.12  Army administrative actions against intoxicated drivers.
634.13  Remedial driver training programs.
634.14  Alcohol and drug abuse programs.
634.15  Restoration of driving privileges on acquittal.
634.16  Restricted driving privileges or probation.
634.17  Extensions of suspensions and revocations.
634.18  Reciprocal State-military action.

                  Subpart C--Motor Vehicle Registration

634.19  Registration policy.
634.20  Registration requirements.
634.21  Specifications for DD Form 2220.
634.22  Termination or denial of registration.
634.23  Specified consent to impoundment.

                     Subpart D--Traffic Supervision

                  Section I--Traffic Planning and Codes

634.24  Traffic planning.
634.25  Installation traffic codes.

                   Section II--Traffic Law Enforcement

634.26  Traffic law enforcement principles.
634.27  Speed-measuring devices.
634.28  Traffic accident investigation.
634.29  Traffic accident investigation reports.
634.30  Traffic accident investigation report data.
634.31  Parking.
634.32  Traffic violation reports.

   Section III--Standards and Procedures for Processing Drunk Drivers

634.33  Training of law enforcement personnel.
634.34  Blood alcohol concentration standards.
634.35  Chemical testing policies and procedures.
634.36  Detection, apprehension, and testing of intoxicated drivers.
634.37  Voluntary breath and bodily fluid testing based on implied 
          consent.
634.38  Involuntary extraction of bodily fluids in traffic cases.
634.39  Testing at the request of the apprehended person.
634.40  Preparation of sworn statement.

             Section IV--Off-Installation Traffic Activities

634.41  General.
634.42  Compliance with State laws.
634.43  Civil-military cooperative programs.

         Subpart E--Driving Records and the Traffic Point System

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

             Subpart F--Impounding Privately Owned Vehicles

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

[[Page 35]]


Appendix A to Part 634--References
Appendix B to Part 634--Notification of State Driver's License Agencies
Appendix C to Part 634--DOD Directive 5525.4, Enforcement of State Laws 
          on DOD Installations
Appendix D to Part 634--Glossary

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

    Source: 56 FR 3930, Jan. 31, 1991, unless otherwise noted.



                         Subpart A--Introduction



Sec. 634.1  Purpose.

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



Sec. 634.2  References.

    Required and related publications and prescribed and referenced 
forms are listed in appendix A.



Sec. 634.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this regulation are 
explained in appendix D.



Sec. 634.4  Responsibilities.

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

[[Page 36]]

    (6) Establish awards and recognition programs to recognize 
successful installation efforts to eliminate intoxicated driving. Ensure 
that criteria for these awards are positive in nature and include more 
than just apprehensions for intoxicated driving.
    (7) Modify policies and procedures when required by host nation 
treaties or agreements.
    (c) Major Army commanders. Major Army commanders will ensure 
subordinate installations utilizing automated vehicle registration 
programs implement Vehicle Registration System-2 (VRS-2) when fielded.
    (d) Commanding General, U.S. Army Training and Doctrine Command (CG, 
TRADOC). The CG, TRADOC will ensure that VRS-2 technical training for 
functional users is incorporated into service school instructional 
programs.
    (e) Installation or activity commander. The installation or activity 
commander will--
    (1) Establish an effective traffic supervision program.
    (2) Cooperate with civil police agencies and other local government 
agencies or civil traffic organizations concerned with traffic 
supervision.
    (3) Ensure that traffic supervision is properly integrated in the 
overall installation traffic safety program.
    (4) Actively participate in Alcohol Safety Action Projects (ASAP) in 
neighboring communities.
    (f) Installation or activity law enforcement officer. The 
installation or activity law enforcement officer will--
    (1) Exercise overall staff responsibility for directing, regulating, 
and controlling traffic, and enforcing laws pertaining to traffic 
control.
    (2) Perform traffic engineering functions at installations by 
conducting traffic control studies designed to obtain information on 
traffic problems and usage patterns.
    (g) Safety officer. The safety officer will participate in and 
develop traffic accident prevention initiatives in support of the 
installation traffic safety program.
    (h) Facility engineer (public works officer at Navy installations). 
The facility engineer or engineer officer, will--
    (1) Perform that phase of engineering concerned with the planning, 
design, construction, and maintenance of streets, highways, and abutting 
lands.
    (2) Select, determine appropriate design, procure, construct, 
install, and maintain permanent traffic and parking control devices in 
coordination with the law enforcement officer and safety officer.
    (3) Ensure that traffic signs, signals, and pavement markings 
conform to the standards in the current Manual on Uniform Traffic 
Control Devices for Streets and Highways.
    (4) Ensure that planning, design, construction, and maintenance of 
streets and highways conform to the NHSPS as implemented by the 
Services.
    (i) Traffic engineer. The traffic engineer, in close coordination 
with the law enforcement officer, will--
    (1) Conduct formal traffic engineering studies.
    (2) Apply traffic engineering measures, including traffic control 
devices, to reduce the number and severity of traffic accidents. (If 
there is no installation traffic engineer, installation commanders may 
request these services through channels from the Commander, Military 
Traffic Management Command, 5611 Columbia Pike, Falls Church, VA 22041-
5050.)
    (j) Army Alcohol and Drug Control Officer (ADCO). The ADCO will 
provide treatment and education services to personnel with alcohol or 
drug abuse problems.
    (k) Navy Counseling and Assistance Center (CAAC) Directors. These 
directors will--
    (1) Supervise the alcohol/drug rehabilitation services to personnel 
with alcohol or drug abuse problems.
    (2) Provide remedial/motivational education for all persons 
identified as alcohol or drug abusers who are evaluated as not dependent 
on alcohol or drugs and who have been referred to Level One 
rehabilitation by their commands.
    (l) Marine Corps Substance Abuse Program Officer. This officer will 
provide alcohol/drug education, treatment, and rehabilitation services 
to personnel with alcohol/drug abuse problems.

[[Page 37]]

    (m) DLA Employee Assistance Program Officer. This officer will 
provide alcohol/drug counseling and referral services to identified 
personnel with alcohol/drug abuse problems in accordance with procedures 
prescribed by the Chief, Staffing, Labor, and Employee Relations 
Division, Office of Civilian Personnel, HQ DLA.



Sec. 634.5  Program objectives.

    The objectives of motor vehicle traffic supervision are to assure--
    (a) Safe and efficient movement of personnel and vehicles.
    (b) Reduction of traffic deaths, injuries, and property damage from 
traffic accidents. (Because most traffic accidents can be prevented, 
motor vehicle accidents should be examined in terms of the roadway 
conditions, environment, operator, vehicle, and the supervision and 
control measures involved.)
    (c) Integration of installation safety, engineering, legal, medical, 
and law enforcement resources into the installation traffic planning 
process.
    (d) Removal of intoxicated drivers from installation roadways 
followed by the expeditious application of appropriate sanctions.



                      Subpart B--Driving Privileges



Sec. 634.6  Requirements for driving privileges.

    (a) Driving a Government vehicle or POV on a military installation 
is a privilege granted by the installation commander. Persons who accept 
the privilege must--
    (1) Comply with laws and regulations governing motor vehicle 
operations on the installation.
    (2) Comply with installation registration requirements in subpart C 
if applicable.
    (3) Possess, while operating a motor vehicle and produce on demand 
to law enforcement personnel, the following:
    (i) Proof of vehicle ownership or State registration if required by 
the issuing State.
    (ii) A valid State, overseas command, host nation, or international 
driver's license and/or OF 346 (U.S. Government Motor Vehicle Operator's 
Identification Card), as applicable, supported by a DD Form 2A (U.S. 
Armed Forces Identification Card) or other identification for non-
Department of Defense (DOD) civilians.
    (iii) A valid record of motor vehicle safety inspection if required.
    (b) Operators of Government motor vehicles must have proof of 
authorization to operate the vehicle.



Sec. 634.7  Stopping and inspecting personnel or vehicles.

    (a) Military vehicles may be stopped by law enforcement personnel on 
military installations based on the installation commander's policy.
    (1) In overseas areas, military vehicles may be stopped on or off 
installations as determined by host nation agreement and command policy.
    (2) Stops and inspections of vehicles at installation gates or entry 
points and in restricted areas will be conducted according to separate 
Service policy.
    (3) Stops and inspections of POVs within the military installation, 
other than at restricted areas or at an installation gate, are 
authorized only when there is a reasonable basis to believe the stop/
inspection is necessary to enforce a traffic regulation or the stop is 
based on suspicion of criminal activity. (Army users, see AR 210-10. 
Marine Corps users, pending publication of a specific Marine Corps 
order, will be guided by Military Rules of evidence 311-316 and local 
command regulations. DLA users, see DLAR 5700.7.)
    (b) At the time of stop, the driver and occupants may be required to 
display all pertinent documents, including but not limited to--
    (1) DD Form 2A.
    (2) Documents that establish the identity and status of civilians; 
for example, DD Form 1173 (Uniformed Services Identification and 
Privilege Card), DA Form 1602 (Civilian Identification), AF Form 354 
(Civilian Identification Card), DLA Form 572 (Identification Card), DLA 
Form 1486 (Application for Identification Card), post pass, or national 
identity card.
    (3) Proper POV registration documents.
    (4) Host nation vehicle registration documents if applicable.
    (5) Authorization to operate a U.S. Government vehicle if 
applicable.

[[Page 38]]

    (6) Drivers license or OF 346 valid for the particular vehicle and 
area of operation.



Sec. 634.8  Implied consent to blood, breath, or urine tests.

    Persons accepting installation driving privileges shall be deemed to 
have given their consent to evidential tests for alcohol or other drug 
content of their blood, breath, and/or urine if lawfully stopped, 
apprehended, or cited for any offense allegedly committed while driving 
or in physical control of a motor vehicle on the installation while 
under the influence of intoxicants.



Sec. 634.9  Implied consent to impoundment.

    Any person granted the privilege of operating a motor vehicle on an 
installation shall be deemed to have given his or her consent for the 
removal and temporary impoundment of the POV when it is parked illegally 
for unreasonable periods, interfering with operations, creating a safety 
hazard, disabled by accident, left unattended in a restricted or 
controlled area, or abandoned. Such persons further agree to reimburse 
the United States for the cost of towing and storage should their motor 
vehicle be removed or impounded. Existence of the conditions described 
above will be determined by the installation commander or designee.



Sec. 634.10  Suspension or revocation of driving privileges.

    The installation commander (or designee not assigned primarily to 
law enforcement duties) may, for cause, administratively suspend or 
revoke driving privileges on the installation. The suspension or 
revocation of installation driving privileges or POV registrations, for 
lawful reasons unrelated to traffic violations or safe vehicle 
operation, is not limited or restricted by this regulation.
    (a) Suspension. (1) Driving privileges are usually suspended when 
other measures have failed to improve a driver's performance. Measures 
should include counseling, remedial driving training, and rehabilitation 
programs. Driving privileges may also be suspended for up to 6 months if 
a driver continually violates installation parking regulations. The 
commander will determine standards for suspension based on frequency of 
parking violations and publish those standards.
    (2) The installation commander has discretionary power to withdraw 
the authorization of active duty military personnel, DOD civilian 
employees, and nonappropriated fund (NAF) employees to operate U.S. 
Government vehicles.
    (3) Immediate suspension of installation or overseas command POV 
driving privileges pending resolution of an intoxicated driving incident 
is authorized for active duty military personnel, family members, 
retired members of the military services, DOD civilian personnel, and 
others with installation or overseas command driving privileges 
regardless of the geographic location of an intoxicated driving 
incident. Suspension is authorized for non-DOD affiliated civilians only 
with respect to incidents occurring on the installation or in areas 
subject to military traffic supervision. After a review of available 
evidence as specified in Sec. 634.11, installation driving privileges 
will be immediately suspended pending resolution of the intoxicated 
driving incident in the following circumstances;
    (i) Refusal to take or complete a lawfully requested chemical test 
to determine contents of blood for alcohol or other drugs.
    (ii) Operating a motor vehicle with a blood alcohol content (BAC) of 
0.10 percent by volume or higher or in violation of the law of the 
jurisdiction that is being assimilated on the military installation.
    (iii) Operating a motor vehicle with a BAC of at least 0.05 percent 
by volume but less than 0.10 percent blood alcohol by volume in 
violation of the law of the jurisdiction in which the vehicle is being 
operated if the jurisdiction imposes a suspension solely on the basis of 
the BAC level.
    (iv) On an arrest report or other official documentation of the 
circumstances of an apprehension for intoxicated driving.
    (b) Revocation. (1) The revocation of installation or overseas 
command POV driving privileges is a severe administrative measure to be 
exercised for serious moving violations or when other

[[Page 39]]

available corrective actions fail to produce the desired driver 
improvement. Revocation of the driving privilege will be for a specific 
period, but never less than 6 months, applies at all military 
installations, and remains in effect on reassignment.
    (2) Driving privileges are subject to revocation when an individual 
fails to comply with any of the conditions requisite to the granting of 
the privilege. (See Sec. 634.6.) Revocation of installation driving and 
registration privileges is authorized for military personnel, family 
members, civilian employees of DOD, and other individuals with 
installation driving privileges. For civilian guests, revocation is 
authorized only with respect to incidents occurring on the installation 
or in the areas subject to military traffic supervision.
    (3) Driving privileges will be revoked for a mandatory period of not 
less than 1 year in the following circumstances:
    (i) The installation commander or designee has determined that the 
person lawfully apprehended for intoxicated driving refused to submit to 
or complete a test to measure the alcohol content in the blood, or 
detect the presence of any other drug, as required by the law of the 
jurisdiction, installation traffic code, or by Service directive.
    (ii) A conviction, nonjudicial punishment, or a military or civilian 
administrative action resulted in the suspension or revocation of a 
driver's license for intoxicated driving. Appropriate official 
documentation of such conviction is required as the basis for 
revocation.
    (4) When temporary suspensions under Sec. 634.10(a)(3) are followed 
by revocations, the period of revocation is computed beginning from the 
date the original suspension was imposed, exclusive of any period during 
which full driving privileges may have been restored pending resolution 
of charges. (Example: privileges were initially suspended on 1 January 
1996 for a charge of intoxicated driving with a blood alcohol content of 
0.14 percent. A hearing was held, extreme family hardship was 
substantiated, and privileges were restored on 1 February pending 
resolution of the charge. On 10 March, the driver was convicted for 
intoxicated driving. The mandatory 1-year revocation period will consist 
of January 1996 plus March 1996 through January 1997, for a total of 12 
months with no installation driving privileges.)



Sec. 634.11  Administrative due process for suspensions and revocations.

    (a) Individual Services will promulgate separate regulations 
establishing administrative due process procedures for suspension or 
revocation of driving privileges. The procedures in paragraphs (b) and 
(c) of this section apply to actions taken by Army commanders with 
respect to Army military personnel and family members and to civilian 
personnel operating motor vehicles on Army installations. For Marine 
Corps users, the provisions of this paragraph apply pending publication 
of a Marine Corps order addressing administrative due process.
    (b) For offenses other than intoxicated driving, suspension or 
revocation of the installation driving privilege will not become 
effective until the installation commander or designee notifies the 
affected person and offers that person an administrative hearing. 
Suspension or revocation will take place 10 days after this written 
notice is received unless an application for a hearing is made by the 
affected person within this period. Such application will stay the 
pending suspension or revocation for a period of 10 days.
    (1) If, due to action by the Government, a hearing is not held 
within 10 days, the suspension will not take place until such time as 
the person is granted a hearing and is notified of the action of the 
installation commander or designee. However, if the affected person 
requests that the hearing be continued to a date beyond the 10-day 
period, the suspension or revocation will become effective immediately 
on receipt of notice that the request for continuance has been granted.
    (2) If it is determined as the result of a hearing to suspend or 
revoke the affected person's driving privilege, the suspension or 
revocation will become effective when the person receives the written 
notification of such action. In the event that written notification 
cannot be verified either through a returned receipt for mail or 
delivery

[[Page 40]]

through command channels, the hearing authority will determine the 
effective date on a case-by-case basis.
    (3) If the revocation or suspension is imposed after such hearing, 
the person whose driving privilege has been suspended or revoked will 
have the right to appeal or request reconsideration. Such requests must 
be forwarded through command channels to the installation commander 
within 10 days from the date the individual is notified of the 
suspension or revocation resulting from the administrative hearing. The 
suspension or revocation will remain in effect pending a final ruling on 
the request. Requests for restricted privileges will be considered per 
Sec. 634.16.
    (c) For drunk driving or driving while intoxicated offenses, 
reliable evidence readily available will be presented promptly to an 
individual designated by the installation commander for review and 
authorization for immediate suspension of installation driving 
privileges.
    (1) The reviewer should be any officer whose primary duties are not 
in the field of law enforcement.
    (2) Reliable evidence includes material such as witness statements, 
military or civilian police report of apprehension, chemical test 
results if completed, refusal to consent to complete chemical testing, 
video tapes, statements by the apprehended individual, field sobriety or 
preliminary breath test results, and other pertinent evidence.
    (3) Reviews normally will be accomplished within the first normal 
duty day following final assembly of evidence.
    (4) When detailed and reliable evidence is not available, immediate 
suspension should not be based on published lists of arrested persons, 
statements by parties not witnessing the apprehension, or telephone 
conversations or other information not supported by documented and 
reliable evidence.
    (5) Installation commanders may authorize the installation law 
enforcement officer to conduct reviews and authorize suspensions in 
cases where the designated reviewer is not reasonably available and, in 
the judgment of the installation law enforcement officer, such immediate 
action is warranted. Review by the designated officer will follow as 
soon as practicable in such cases. When a suspension notice is based on 
the law enforcement officer's review, there is no requirement for 
confirmation notice following subsequent review by the designated 
officer.
    (6) For active duty military personnel, written notice of suspension 
for intoxicated driving will be provided to the individual's chain of 
command for immediate presentation to the individual.
    (7) For civilian personnel, written notice of suspension for 
intoxicated driving normally will be provided without delay via 
certified mail. If the person is employed on the installation, such 
notice will be forwarded through the military or civilian supervisor. 
When the notice of suspension is forwarded through the supervisor, the 
person whose privileges are suspended will be required to provide 
written acknowledgment of receipt of the suspension notice.
    (8) Notices of suspension for intoxicated driving will include the 
following:
    (i) The fact that the suspension can be made a revocation under 
Sec. 634.10(b).
    (ii) The right to request, in writing, a hearing before the 
installation commander or designee to determine if post driving 
privileges will be restored pending resolution of the charge; and that 
such request must be made within 10 days of the notice of suspension.
    (iii) The right of military personnel to be represented by counsel 
at his or her own expense and to present evidence and witnesses at his 
or her own expense. Installation commanders will determine the 
availability of any local active duty representatives requested.
    (iv) The right of Department of the Army (DA) civilian employees to 
have a personal representative present at the administrative hearing in 
accordance with applicable laws and regulations.
    (v) Written acknowledgment of receipt to be signed by the individual 
whose privileges are to be suspended or revoked.
    (9) If a hearing is requested, it must take place within 10 days of 
receipt of

[[Page 41]]

the request. The suspension for intoxicated driving will remain in 
effect until a decision has been made by the installation commander or 
designee, but will not exceed 10 working days after the hearing while 
awaiting the decision. If no decision has been made by that time, full 
driving privileges will be restored until such time as the accused is 
notified of a decision to continue the suspension.
    (10) Hearing on suspension actions under Sec. 634.10(a) for 
intoxicated drivers pending resolution of charges will cover only the 
pertinent issues of whether--
    (i) The law enforcement official had reasonable grounds to believe 
the person was driving or in actual physical control of a motor vehicle 
while under the influence of alcohol or other drugs.
    (ii) The person was lawfully cited or apprehended for an intoxicated 
driving offense.
    (iii) The person was lawfully requested to submit to a test for 
alcohol or other drug content of blood, breath, or urine and was 
informed of the consequences of refusal to take or complete such test.
    (iv) The person refused to submit to the test for alcohol or other 
drug content of blood, breath, or urine; failed to complete the test; or 
submitted to the test and the result was 0.10 percent or higher blood 
alcohol content, or showed results indicating the presence of other 
drugs for an on-post apprehension or in violation of State laws for an 
off-post apprehension.
    (v) The testing methods used were valid and reliable, and the 
results accurately evaluated.
    (11) For revocation actions under Sec. 634.10(b)(3) for intoxicated 
driving, the revocation is mandatory on conviction or other findings 
that confirm the charge. (Pleas of nolo contendere are considered 
equivalent to guilty pleas.)
    (i) Revocations are effective as of the date of conviction or other 
findings that confirm the charges.
    (ii) The notice that revocation is automatic may be placed in the 
suspension letter. If it does not appear in the suspension letter, a 
separate letter must be sent and revocation is not effective until 
receipt of the written notice.
    (iii) Revocations cancel any full or restricted driving privileges 
that may have been restored during suspension and the resolution of the 
charges. Requests for restoration of full driving privileges are not 
authorized.



Sec. 634.12  Army administrative actions against intoxicated drivers.

    Army commanders will take appropriate action against intoxicated 
drivers. These actions will include the following:
    (a) A written general officer reprimand, administrative in nature, 
will be issued to active duty Army officers, commissioned and warrant, 
and noncommissioned officers, to include soldiers in the grade of E-4 
appointed on official orders to corporal, in the cases described below. 
This reprimand may be issued by an officer frocked to the grade of 
brigadier general. Subsequent filing of the reprimand will be in 
accordance with the provisions of AR 600-37.
    (1) Conviction of intoxicated driving or driving under the influence 
of alcohol or other drugs either on or off the installation.
    (2) Refusal to take or failure to complete a lawfully requested test 
to measure alcohol or drug content of the blood, breath, or urine, 
either on or off the installation, when there is reasonable belief of 
driving under the influence of alcohol or drugs.
    (3) Driving or being in physical control of a motor vehicle on post 
when the blood alcohol content is 0.10 percent or higher, irrespective 
of other charges, or off post when the blood alcohol content is in 
violation of State laws, irrespective of other charges.
    (4) Driving or being in physical control of a motor vehicle, either 
on or off the installation, when lawfully requested chemical tests 
reflect the presence of illegal drugs.
    (b) A written reprimand, administrative in nature, may be issued by 
a general officer or other appropriate official to active duty soldiers 
in the grade of E-4 (except corporals) and below in cases described in 
paragraph (a) of this section.
    (c) Review by commanders of the service records of active duty 
soldiers apprehended for offenses described in

[[Page 42]]

(a) above to determine if the individuals warrant--
    (1) Administrative reduction per AR 600-200.
    (2) Bar to reenlistment per AR 601-280.
    (3) Administrative discharge per AR 635-200.



Sec. 634.13  Remedial driver training programs.

    (a) Navy activities will comply with OPNAVINST 5100.12D, Air Force 
activities with AFR 30-2, and Marine Corps activities with MCO 5100.19C.
    (b) Installation commanders may establish a remedial driver training 
program to instruct and educate military personnel requiring additional 
training. Personnel will be chosen for the program on the basis of their 
individual driving records. The curriculum should provide instruction to 
improve driving performance and compliance with traffic laws.
    (c) Installation commanders may schedule periodic courses if courses 
on a continuing basis are not practical. If civil authorities conduct 
such courses, commanders may arrange for installation personnel to 
attend these courses in lieu of operating a course on or by the 
installation.
    (d) Civilian personnel employed on the installation, contractor 
employees, and family members of military personnel may voluntarily 
attend these or similar courses.



Sec. 634.14  Alcohol and drug abuse programs.

    (a) Commanders will refer military personnel suspected of drug or 
alcohol abuse for evaluation in the following circumstances:
    (1) Behavior is indicative of alcohol or drug abuse.
    (2) Continued inability to drive a motor vehicle safely because of 
alcohol or drug abuse.
    (b) The commander will ensure military personnel are referred to the 
installation alcohol and drug abuse program or other comparable 
facilities when they are convicted of, or receive an official 
administrative action for, any offense involving intoxicated driving. A 
first offender may be referred for treatment if more evidence of 
substance abuse exists than merely the offense of intoxicated driving. 
The provisions of this paragraph do not limit the commander's 
prerogatives concerning other actions that may be taken against 
offenders under separate Service policies. (Army, see AR 600-85; Marine 
Corps, see MCO P5300.12.)
    (c) Active duty Army personnel apprehended for drunk driving, on or 
off the installation, will be referred to the local Alcohol and Drug 
Abuse Prevention and Control Program (ADAPCP) for evaluation within 10 
days to determine if the person is dependent on alcohol or other drugs 
which will result in enrollment in Track I or other level of treatment 
in accordance with AR 600-85.
    (d) Active duty Navy personnel apprehended for drunk driving, on or 
off the installation, will be screened by the respective CAAC facility 
within 10 days to determine if the individual is dependent on alcohol or 
other drugs. Active duty Marines apprehended for intoxicated driving, on 
or off the installation, will be referred for interview by a Level II 
substance abuse counselor within 10 days for evaluation and 
determination of the appropriate level of treatment required subsequent 
to this evaluation, the Marine will be assigned to the appropriate 
treatment program as prescribed by MCO P5300.12.
    (e) The Services may develop preventive treatment and rehabilitative 
programs for civilian employees with alcohol-related problems section 
4561, title 42, U.S. Code (42 U.S.C. 4561).
    (f) Army supervisors of civilian employees apprehended for drunk 
driving will advise employees of ADAPCP services available. Army 
civilian employees apprehended for intoxicated driving while on duty 
will be referred to the ADAPCP for evaluation in accordance with AR 600-
85. Army commanders will ensure that sponsors encourage family members 
apprehended for drunk driving to seek ADAPCP evaluation and assistance.
    (g) Navy and DLA civilian personnel charged with intoxicated driving 
will be referred to the Civilian Employee Assistance Program for 
evaluation in accordance with FPM Supplement 792-2. Such referral does 
not exempt the

[[Page 43]]

employee from appropriate administrative or disciplinary actions under 
civilian personnel regulations.
    (h) Marine Corps civilian employees charged with intoxicated 
driving, on or off the installation, will be referred to the Employee 
Assistance Program as prescribed by MCO P5300.12. Marine dependents 
charged with intoxicated driving, on or off the installation, will be 
provided assistance as addressed in MCO P5300.12. Such referral and 
assistance does not exempt the individual from appropriate 
administrative or disciplinary action under current civilian personnel 
regulations or State laws.
    (i) For Army, DLA, and Marine Corps, installation driving privileges 
of any person who refuses to submit to or fails to complete chemical 
testing for blood-alcohol content when apprehended for intoxicated 
driving, or convicted of intoxicated driving, will not be reinstated 
unless the person successfully completes either an alcohol education and 
treatment program sponsored by the installation, State, county, or 
municipality, or a private program evaluated as acceptable by the 
installation commander.
    (j) For Navy, on-base driving privileges will not be reinstated for 
Navy personnel convicted of driving under the influence, on- or off-
base, unless the person completed the full 36-hour Navy Alcohol and Drug 
Safety Action Program (NADSAP). The condensed NADSAP supervisor course 
will not be used for this purpose.



Sec. 634.15  Restoration of driving privileges on acquittal.

    When an official report pertaining to drunk driving or driving while 
intoxicated indicates a finding of not guilty, that the charges have 
been dismissed or reduced to an offense not amounting to intoxicated 
driving, or that an equivalent determination has been made in a 
nonjudicial punishment proceeding or military or civilian administrative 
action, the suspension of driving privileges will be vacated except in 
cases in which:
    (a) The preliminary suspension was based on refusal to take a BAC 
test.
    (b) The preliminary suspension resulted from a BAC test (unless 
disposition of the charges was based on invalidity of the BAC test). 
When a valid BAC test is involved, the suspension will continue pending 
completion of a hearing. In such instances, the individual will be 
notified in writing of the continuation of the preliminary suspension 
and of the opportunity to request a hearing within 10 working days. At 
the hearing the arrest report, the commander's report of official 
disposition, information presented by the individual, and such other 
information as the hearing officer may deem appropriate will be 
considered. If the hearing officer determines by a preponderance of 
evidence that the individual was engaged in intoxicated driving, the 
revocation will be for 1 year from the date of the original preliminary 
suspension.
    (c) The person was driving or in physical control of a motor vehicle 
while under a preliminary suspension or revocation.
    (d) An administrative determination has been made by the State or 
host nation licensing authority to suspend or revoke driving privileges 
based on local law or pertinent regulations.
    (e) The individual has failed to complete a formally directed 
substance abuse or driver's training program.



Sec. 634.16  Restricted driving privileges or probation.

    (a) For the Navy, Air Force, Marine Corps, and DLA, the installation 
commander may modify a suspension or revocation of driving privileges in 
certain cases per paragraph (d) of this section.
    (b) Army requests for restricted driving privileges subsequent to 
suspension or revocation of installation driving privileges will be 
referred to the installation commander or designee for determination 
under criteria of (d) below, except for intoxicated driving cases, which 
must be referred to the General Court Martial Convening Authority. 
Withdrawal of restricted driving privileges is within the installation 
commander's discretion.
    (c) Probation or restricted driving privileges will not be granted 
to any person whose driver's license is under suspension or revocation 
by a State, Federal, or host nation licensing authority.

[[Page 44]]

    (d) Aside from any other provisions of this regulation, the 
installation commander or designee may grant restricted driving 
privileges or probation on a case-by-case basis to accommodate any of 
the following reasons, provided the person's State driver's license 
remains valid:
    (1) Mission requirements.
    (2) Unusual personal or family hardships.
    (3) Delays exceeding 90 days, not attributed to the person 
concerned, in the formal disposition of an apprehension or charges that 
are the basis for any type of suspension or revocation.
    (4) When there is no reasonably available alternate means of 
transportation to officially assigned duties. (In this instance, a 
limited exception can be granted for the sole purpose of driving 
directly to and from the place of duty.)
    (e) The limitations on a restricted driving privilege (for example, 
an authorization to drive to and from place of employment or duty, 
selected installation facilities such as hospital and commissary, or 
other facilities) will be specified in writing and provided to the 
individual concerned. Persons found to be in violation of the restricted 
privilege are subject to revocation action as prescribed in 
Sec. 634.10(b). For good cause, the appropriate authority may withdraw 
the restricted driving privilege and continue the suspension or 
revocation period (for example, driver at fault in a traffic accident, 
or driver cited for a moving traffic violation).
    (f) The conditions and terms of probation will be specified in 
writing and provided to the individual concerned. The original 
suspension or revocation term in its entirety may be activated to 
commence from the date of the violation of probation. In addition, 
separate action may be initiated based on the commission of any traffic, 
criminal, or military offense that constitutes a probation violation.
    (g) DOD employees of the Services or DLA, who can demonstrate that 
suspension or revocation of installation driving privileges would 
constructively remove them from employment, may be given a limited 
suspension/revocation that restricts driving on the installation or 
activity (or in the overseas command) to the most direct route to and 
from their respective work sites (5 U.S.C. 2303 (b)(10)). This is not to 
be construed as limiting the commander from suspension or revocation of 
on-duty driving privileges or seizure of OF 346, even if this action 
would constructively remove a person from employment, in those instances 
in which the person's duty requires driving from place to place on the 
installation.



Sec. 634.17  Extensions of suspensions and revocations.

    (a) Driving in violation of a suspension or revocation imposed under 
this regulation will result in the original period of suspension or 
revocation being increased by 2 years. In addition, administrative 
action may also be initiated based on the commission of any traffic, 
criminal, or military offense (for example, active duty military 
personnel driving on the installation in violation of an order not to do 
so).
    (b) For each subsequent determination within a 5-year period that 
revocation is authorized under Sec. 634.10(b), military personnel, DOD 
civilians, and NAF employees will be prohibited from obtaining or using 
an OF 346 for 6 months for each such incident. A determination whether 
DOD civilian personnel should be prohibited from obtaining or using an 
OF 346 will be made under FPM 930, and other laws and regulations 
applicable to civilian personnel. This does not preclude a commander 
from imposing such prohibition for a first offense, or for a longer 
period of time for a first or subsequent offense, or for such other 
reasons as may be authorized.
    (c) Commanders may extend a suspension or revocation of the 
installation driving privileges of military personnel until completion 
of an approved remedial driver training course or alcohol or drug 
counseling program.
    (d) Commanders may extend a suspension or revocation of the 
installation driving privileges of civilian personnel convicted of 
intoxicated driving on the installation until successful completion of a 
State or installation approved alcohol or drug rehabilitation program.

[[Page 45]]



Sec. 634.18  Reciprocal State-military action.

    The Services recognize the interests of the States in matters of POV 
administration and driver licensing. The following procedures will 
apply:
    (a) Statutory authority may exist within some host nations or States 
for reciprocal suspension and revocation of driving privileges. If so, 
the installation commander or designee will honor the reciprocal 
agreements with State or host nation driver licensing authorities. On 
receipt of written notice, the receiving party may suspend or revoke 
driving privileges as if the violations or incidents had occurred within 
its own jurisdiction.
    (b) If statutory authority does not exist within the State for 
formal military reciprocity, the procedures below will be used.
    (1) Where military reciprocity has not been established by State 
law, commanders will act on reports of suspensions or revocations 
received from state authorities where the installation is located. When 
any State authority suspends or revokes a person's driver's license, the 
installation's driving privilege will be automatically terminated. 
Administrative actions (suspension, revocation, or point assessment) for 
moving traffic violations off the installation reported by State 
authorities should not be less than that required for similar offenses 
on the installation. When notified by a State of a suspension or 
revocation, the installation commander may suspend or revoke the 
person's OF 346.
    (2) In CONUS, the appropriate State licensing authority will be 
notified when a person's installation driving privileges are revoked for 
a period of 1 year or more following final adjudication of an 
intoxicated driving offense or for refusal to submit to a BAC test. The 
notification will be sent to the licensing authority of the State where 
the individual is licensed. (See appendix B to part 634.) The 
notification will include the basis for the revocation and the blood 
alcohol concentration level.
    (c) Overseas installation commanders may be affected by provisions 
of the applicable status of forces agreement (SOFA) and the law of the 
host nation concerning reciprocal suspension and revocation. To the 
extent an agreement concerning reciprocity may be permitted at a 
particular overseas installation, the installation commander must have 
prior authorization to negotiate and conclude such an international 
agreement in accordance with applicable directives, DODD 5530.3, June 
1987 and individual Service instructions.



                  Subpart C--Motor Vehicle Registration



Sec. 634.19  Registration policy.

    (a) Motor vehicles will be registered according to guidance in this 
regulation and in policies of each Service and DLA. Unless otherwise 
specified by this regulation or other competent authority, a person who 
lives or works on a military installation or often uses the facilities 
will be required to register his or her vehicle. The person need not own 
the vehicle to register it, but must have a lease agreement, power of 
attorney, or notarized statement from the owner of the vehicle 
specifying the inclusive dates for which permission to use the vehicle 
has been granted.
    (b) Vehicles intended for construction and material handling or used 
solely off the road are not usually registered as motor vehicles. 
Installation commanders may require registration of off-road vehicles 
and bicycles under a separate local system.
    (c) Commanders can grant limited temporary registration for up to 45 
days, pending permanent registration, or in other circumstances for 
longer terms.
    (d) Except for reasons of security, all installations and activities 
of the Services and DLA within the United States and its territories 
will honor the DD Form 2220 (Department of Defense Registered Vehicle) 
issued by other installations or activities.
    (e) Visitor identification may be developed and issued locally. (Air 
Force, see AFR 125-15.)
    (f) Registration of POVs is not required at Army installations; 
however, the conditions in Sec. 634.20 must be met to gain the privilege 
of operating a POV on an Army installation.
    (1) For those installations not registering vehicles, failure to 
comply

[[Page 46]]

with conditions in Sec. 634.20 will be detected through traffic 
enforcement actions. Failure of an owner to comply with these conditions 
may result in administrative suspension or revocation of his or her 
installation driving privileges (Sec. 634.10).
    (2) Installation commanders are authorized to use the Vehicle 
Registration System (VRS) of the Military Police Management Information 
System (MPMIS). VRS is a Standard Army Management Information System 
(STAMIS). For installations using VRS, the maximum number of monthly 
computer runs will not exceed 15 in peacetime and 4 in wartime.
    (3) When fielded, VRS-2, a redesigned system, will be employed by 
all installations using an automated vehicle registration program.



Sec. 634.20  Registration requirements.

    Systems for registration of POVs on military installations within 
the United States or its territories and in overseas areas will include 
the requirements specified below (Registration in overseas commands may 
be modified in accordance with international agreements or military 
necessity.)
    (a) Possession of a valid State, overseas command, host nation, or 
international driver's license (as applicable), supported by DD Form 2 
(U.S. Armed Forces Retired Identification Card), or other appropriate 
identification for DOD civilians.
    (b) Possession of a certificate of State registration as required by 
the state in which the vehicle is registered.
    (c) Continuing compliance with the minimum requirements of the 
automobile insurance laws or regulations of the State or host nation. In 
overseas commands where host nation laws do not require minimum personal 
injury and property damage liability insurance, the major overseas 
commander may set reasonable liability insurance requirements for 
registration and operation of POVs within the confines of military 
installations and areas. Prior to implementation, insurance requirements 
in host nations should be formally coordinated with the appropriate host 
nation agency.
    (d) Satisfactory completion of safety and mechanical vehicle 
inspection by State or jurisdiction in which the vehicle is licensed or 
located. If neither State nor local jurisdiction requires a periodic 
safety inspection, installation commanders may require and conduct an 
annual POV safety inspection; however, inspection facilities must be 
reasonably accessible to those requiring use. Inspections will meet 
minimum standards established by the National Highway Traffic Safety 
Administration (NHTSA) in Secs. 570.1 through 570.10, part 570, chapter 
V, title 49, Code of Federal Regulations (CFR). Lights, turn signals, 
brake lights, horn, and wipers should be included in the inspection.
    (e) Vehicles with elevated rear ends are unsafe and will be denied 
registration on Army, DLA, and Marine Corps installations. The CFR 
(Sec. 570.8 (Suspension Systems), part 570, chapter V, title 49) states 
that springs should not be extended above the vehicle manufacturer's 
design height.



Sec. 634.21  Specifications for DD Form 2220.

    (a) Use. DD Form 2220 will be used to register POVs on Army, Navy, 
Air Force, Marine Corps, and DLA installations or facilities. The form 
is produced in single copy for placement on the front of the vehicle 
only.
    (1) Each Service and DLA will procure its own forms and installation 
and expiration tabs. For the Army, the basic decal may be ordered 
through publications channels. Army installations must procure their own 
installation and expiration tabs using installation funds.
    (2) DD Form 2220 and installation and expiration tabs will be 
removed from POVs when the registration expires or is terminated.
    (3) The normal expiration term for registration on Army 
installations will be 4 years.
    (b) Specifications. (1) DD Form 2220 will consist of international 
blue borders and printing on a white background. Printer information 
will include the following:
    (i) Form title (Department of Defense Registered Vehicle).
    (ii) Alphanumeric individual form identification number.
    (iii) DOD seal.

[[Page 47]]

    (2) Name of the installation will be specified on a separate tab 
abutting the decal. Each Service or DLA may choose optional color codes 
of the registrant. Army installations having vehicle registration 
programs will use the following standard color scheme for the 
installation tab:
    (i) Blue-officers.
    (ii) Red-enlisted.
    (iii) Green-DA civilian employees (including NAF employees).
    (iv) Black-Contractor personnel and other civilians employed on the 
installation.
    (3) An expiration tab identifying the month and year (``6-97'') or 
simply the year (``97'') will be abutted to the decal. For 
identification purposes, the date of expiration will be shown in bold 
block numbers on a lighter contrasting background such as traffic 
yellow, lime, or orange.
    (4) The decal, installation tab, and expiration tab will be theft 
resistant when applied to glass, metal, painted, or rubberized surfaces 
after full adhesion had developed and will be manufactured to ``tear'' 
or ``self destruct'' when any attempt to remove it is made with a sharp 
instrument or chemical.
    (5) On Army installations, a single decal with tabs will be 
prominently affixed to the front windshield or bumper of registered 
vehicles. Local policy will specify the exact placement. Some States 
prohibit or restrict placement of decals on windshields. In such cases, 
State law will be complied with.



Sec. 634.22  Termination or denial of registration.

    Installation commanders or their designated representatives will 
terminate POV registration or deny initial registration under the 
following conditions (decal and tabs will be removed from the vehicle 
when registration is terminated):
    (a) The owner fails to comply with the registration requirements. 
(See Sec. 634.20)
    (b) The owner sells or disposes of the POV, is released from active 
duty, is separated from the Service, is transferred to a new duty 
station, or terminates civilian employment with a military Service or 
DOD agency.
    (c) The owner is other than an active duty military or civilian 
employee and discontinues regular operation of the POV on the 
installation.
    (d) The owner's State, overseas command, or host nation driver's 
license has been suspended or revoked, or the installation driving 
privilege has been revoked. Where vehicle registration is terminated in 
conjunction with the revocation of installation driving privileges, the 
affected person must apply to re-register the POV after the revocation 
expires. Registration should not be terminated if other family members 
having installation driving privileges require use of the vehicle.



Sec. 634.23  Specified consent to impoundment.

    Personnel registering POVs on Service or DLA installations must 
consent to the impoundment policy. POV registration forms will contain 
or have appended to them a certificate with the following statement:

    I am aware that (insert number and title of separate Service or DLA 
directive) and the installation traffic code provide for the removal and 
temporary impoundment of privately owned motor vehicles that are either 
parked illegally for unreasonable periods, interfering with military 
operations, creating a safety hazard, disabled by incident, left 
unattended in a restricted or controlled area, or abandoned. I agree to 
reimburse the United States for the cost of towing and storage should my 
motor vehicle(s), because of such circumstances, be removed and 
impounded.



                     Subpart D--Traffic Supervision

                  Section I--Traffic Planning and Codes



Sec. 634.24  Traffic planning.

    (a) Safe and efficient movement of traffic on an installation 
requires traffic supervision. A traffic supervision program includes 
traffic circulation planning, supervision, and control of motor vehicle 
traffic; publication and enforcement of traffic laws and regulations; 
and investigation of motor vehicle accidents.
    (b) Installation commanders will develop traffic circulation plans 
that provide for the safest and most efficient use of primary and 
secondary roads.

[[Page 48]]

Circulation planning should be a major part of all long-range master 
planning at installations. The traffic circulation plan is developed by 
the installation law enforcement officer, engineer, safety officer, and 
other concerned staff agencies. Highway engineering representatives from 
adjacent civil communities must be consulted to ensure the installation 
plan is compatible with the current and future circulation plan of the 
community. The plan should include the following:
    (1) Normal and peak load routing based on traffic control studies.
    (2) Effective control of traffic using planned direction, including 
measures for special events and adverse road or weather conditions.
    (3) Point control at congested locations by law enforcement 
personnel or designated traffic directors or wardens, including trained 
school-crossing guards.
    (4) Use of traffic control signs and devices.
    (5) Efficient use of available parking facilities.
    (6) Efficient use of mass transportation.
    (c) Traffic control studies will provide factual data on existing 
roads, traffic density and flow patterns, and points of congestion. The 
installation law enforcement officer and traffic engineer usually 
conduct coordinated traffic control studies to obtain the data. Accurate 
data will help determine major and minor routes, location of traffic 
control devices, and conditions requiring engineering or enforcement 
services.
    (d) The Military Traffic Management Command Transportation 
Engineering Agency (MTMCTEA) will help installation commanders solve 
complex highway traffic engineering problems. MTMCTEA traffic 
engineering services include--
    (1) Traffic studies of limited areas and situations.
    (2) Complete studies of traffic operations of entire installations. 
(This can include long-range planning for future development of 
installation roads, public highways, and related facilities.)
    (3) Assistance in complying with established traffic engineering 
standards.
    (e) Installation commanders should submit requests for traffic 
engineering services in accordance with AR 55-80/OPNAVINST 11210.1B/AFR 
75-88/MCO 11210.2C/DLAR 4500.19.



Sec. 634.25  Installation traffic codes.

    (a) Installation or activity commanders will establish a traffic 
code for operation of motor vehicles on the installation. Commanders in 
overseas areas will establish a traffic code, under provisions of this 
regulation, to the extent military authority is empowered to regulate 
traffic on the installation under the applicable SOFA. Traffic codes 
will contain the rules of the road (parking violations, towing 
instructions, safety equipment, and other key provisions). These codes 
will, where possible, conform to the code of the State or host nation in 
which the installation is located. In addition, the development and 
publication of installation traffic codes will be based on the 
following:
    (1) Highway Safety Program Standards (23 CFR part 1230).
    (2) Applicable portions of the Uniform Vehicle Code and Model 
Traffic Ordinance published by the National Committee on Uniform Traffic 
Laws and Ordinances (23 CFR part 1204).
    (b) The installation traffic code will contain policy and procedures 
for the towing, searching, impounding, and inventorying of POVs. These 
provisions should be well publicized and contain the following:
    (1) Specific violations and conditions under which the POV will be 
impounded and towed.
    (2) Procedures to immediately notify the vehicle owner.
    (3) Procedures for towing and storing impounded vehicles.
    (4) Actions to dispose of the vehicle after lawful impoundment.
    (c) Installation traffic codes will also contain the provisions 
discussed below. (Army users, see AR 385-55.)
    (1) Motorcycles and mopeds. For motorcycles and other self-
propelled, open, two-wheel, three-wheel, and four-wheel vehicles powered 
by a motorcycle-type engine, the following traffic rules apply:
    (i) Headlights will be on at all times when in operation.

[[Page 49]]

    (ii) A rear view mirror will be attached to each side of the handle 
bars.
    (iii) Approved protective helmets, eye protection, and highly 
reflective clothing or vests will be worn by operators and passengers 
when in operation.
    (2) Restraint systems.
    (i) Restraint systems (seat belts) will be worn by all operators and 
passengers of U.S. Government vehicles on or off the installation.
    (ii) Restraint systems will be worn by all civilian personnel 
(family members, guests, and visitors) driving or riding in a POV on the 
installation.
    (iii) Restraint systems will be worn by all military service members 
and Reserve Component members on active Federal service driving or 
riding in a POV whether on or off the installation.
    (iv) Infant/child restraint devices (car seats) will be required in 
POVs for children 4 years old or under and not exceeding 45 pounds in 
weight.
    (iv) Restraint systems are required only in cars manufactured after 
model year 1966.
    (3) Headphones and earphones. The wearing of headphones or earphones 
is prohibited while driving a U.S. Government vehicle, POV, motorcycle, 
or other self-propelled two-wheel, three-wheel, and four-wheel vehicles 
powered by a motorcycle-type engine. This does not negate the 
requirement for wearing hearing protection when conditions or good 
judgment dictate use of such protection.
    (d) Only administrative actions (reprimand, assessment of points, 
loss of on-post driving privileges, or other actions) will be initiated 
against service members for off-post violations of the installation 
traffic code.
    (e) In States where traffic law violations are State criminal 
offenses, such laws are made applicable under the provisions of 18 
U.S.C. 13 to military installations having concurrent or exclusive 
Federal jurisdiction.
    (f) In those States where violations of traffic law are not 
considered criminal offenses and cannot be assimilated under 18 USC, 
DODD 5525.4, in appendix C to part 634 expressly adopts the vehicular 
and pedestrian traffic laws of such States and makes these laws 
applicable to military installations having concurrent or exclusive 
Federal jurisdiction. It also delegates authority to installation 
commanders to establish additional vehicular and pedestrian traffic 
rules and regulations for their installations. Persons found quilty of 
violating the vehicular and pedestrian traffic laws made applicable on 
the installation under provisions of that directive are subject to a 
fine of not more than $50.00 or imprisonment for not more than 30 days, 
or both, for each violation (40 U.S.C. 318c). In those States where 
traffic laws cannot be assimilated, an extract copy of this paragraph 
and a copy of DODD 5525.4 in Appendix C, will be posted in a prominent 
place accessible to persons assigned, living, or working on the 
installation.
    (g) In those States where violations of traffic laws cannot be 
assimilated because the Federal Government's jurisdictional authority on 
the installation or parts of the installation is only proprietary, 
neither 18 U.S.C. 13 nor the delegation in appendix C to part 634 will 
permit enforcement of the State's traffic laws in Federal courts. Law 
enforcement authorities on those military installations must rely on 
either administrative sanctions related to the installation driving 
privilege or enforcement of traffic laws by State law enforcement 
authorities.

                   Section II--Traffic Law Enforcement



Sec. 634.26  Traffic law enforcement principles.

    (a) Traffic law enforcement should motivate drivers to operate 
vehicles safely within traffic laws and regulations and maintain an 
effective and efficient flow of traffic. Effective enforcement should 
emphasize voluntary compliance by drivers and can be achieved by the 
following actions:
    (1) Publishing a realistic traffic code well known by all personnel.
    (2) Adopting standard signs, markings, and signals in accordance 
with NHSPS and the Manual on Uniform Traffic Control Devices for Streets 
and Highways.
    (3) Ensuring enforcement personnel establish courteous, personal 
contact with drivers and act promptly when driving behavior is improper 
or a defective vehicle is observed in operation.

[[Page 50]]

    (4) Maintaining an aggressive program to detect and apprehend 
persons who drive while privileges are suspended or revoked.
    (5) Using sound discretion and judgment in deciding when to 
apprehend, issue citations, or warn the offender.
    (b) Selective enforcement will be used when practical. Selective 
enforcement deters traffic violations and reduces accidents by the 
presence or suggested presence of law enforcement personnel at places 
where violations, congestion, or accidents frequently occur. Selective 
enforcement applies proper enforcement measures to traffic congestion 
and focuses on selected time periods, conditions, and violations that 
cause accidents. The military services use selective enforcement because 
that practice is the most effective use of resources.
    (c) Enforcement activities against intoxicated driving will 
include--
    (1) Detecting, apprehending, and testing persons suspected of 
driving under the influence of alcohol or drugs.
    (2) Training law enforcement personnel in special enforcement 
techniques.
    (3) Enforcing blood-alcohol concentration standards. (See 
Sec. 634.34.)
    (4) Denying installation driving privileges to persons whose use of 
alcohol or other drugs prevents safe operation of a motor vehicle.
    (d) Installation officials will formally evaluate traffic 
enforcement at least once a year. That evaluation will examine 
procedures to determine if the following elements of the program are 
effective in reducing traffic accidents and deaths:
    (1) Selective enforcement measures.
    (2) Suspension and revocation actions.
    (3) Chemical breath-testing programs.



Sec. 634.27  Speed-measuring devices.

    Speed-measuring devices will be used in traffic control studies and 
enforcement programs. Signs may be posted to indicate speed-measuring 
devices are being used.
    (a) Equipment purchases. Installations located in States having a 
formal training and certification program will purchase the same brand 
and model of equipment used by the State and will ensure operators 
attend an appropriate training program. Otherwise, equipment in 
appropriate Service or DLA tables of allowances will be used.
    (b) Training and certification standards. (1) The commander of each 
installation using traffic radar will ensure that personnel selected as 
operators of such devices meet training and certification requirements 
prescribed by the States in which the installation is located. Specific 
information on course dates, costs, and prerequisites for attending may 
be obtained by contacting the State agency responsible for police 
traffic radar training.
    (2) Installation commanders located in States or overseas areas 
where no formal training program exists, or where the military personnel 
are unable or ineligible to participate in police traffic radar training 
programs, may implement their own training program or use a selected 
civilian institution or manufacturer's course.
    (3) The objective of the civilian or manufacturer-sponsored course 
is to improve the effectiveness of speed enforcement through the proper 
and efficient use of speed-measurement radar. On successful completion, 
the course graduate must be able to--
    (i) Describe the association between excessive speed and accidents, 
deaths, and injuries, and describe the traffic safety benefits of 
effective speed control.
    (ii) Describe the basic principles of radar speed measurement.
    (iii) Identify and describe the Service's policy and procedures 
affecting radar speed measurement and speed enforcement.
    (iv) Identify the specific radar instrument used and describe the 
instrument's major components and functions.
    (v) Demonstrate basic skills in calibrating and operating the 
specific radar instrument(s).
    (vi) Demonstrate basic skills in preparing and presenting records 
and courtroom testimony relating to radar speed measurement and 
enforcement.
    (c) Recertification. Recertification of operators will occur every 3 
years.

[[Page 51]]



Sec. 634.28  Traffic accident investigation.

    Installation law enforcement personnel must make detailed 
investigations of accidents described below:
    (a) Accidents involving Government vehicles or Government property 
on the installation involving a fatality, personal injury, or estimated 
property damage in the amount established by separate Service/DLA 
policy. (Minimum damage limits are: Army and Air Force, $1,000; Navy and 
Marine Corps, $500.) The installation motor pool will provide current 
estimates of the cost of repairs. Investigations of off-installation 
accidents involving Government vehicles will be made in cooperation with 
the civilian law enforcement agency.
    (b) POV accidents on the installation involving a fatality, personal 
injury, or estimated property damage to a POV in excess of $1,000 or the 
amount established by Service/DLA policy.



Sec. 634.29  Traffic accident investigation reports.

    (a) Accidents requiring immediate reports. The driver or owner of 
any vehicle involved in an accident, as described in Sec. 634.28, on the 
installation, must immediately notify the installation law enforcement 
office. The operator of any Government vehicle involved in a similar 
accident off the installation must immediately notify the local civilian 
law enforcement agency having jurisdiction, as well as law enforcement 
personnel of the nearest military installation.
    (b) Investigation records. Installation law enforcement officials 
will record traffic accident investigations on Service/DLA forms. 
Information will be released according to Service/DLA policy, the 
Privacy Act, and the Freedom of Information Act.
    (c) Army law enforcement officers. These officers provide the local 
Safety Office copies of traffic accident investigation reports 
pertaining to accidents investigated by military police that resulted in 
a fatality, personal injury, or estimated damage to Government vehicles 
or property in excess of $1,000.
    (d) POV accidents not addressed in Sec. 638.28. Guidance for 
reporting these cases is provided below:
    (1) Drivers or owners of POVs will be required to submit a written 
report to the installation law enforcement office within 72 hours of an 
accident in the following cases:
    (i) The accident occurs on the installation.
    (ii) The accident involves no personal injury.
    (iii) The accident involves only minor damage to the POV and the 
vehicle can be safely and normally driven from the scene.
    (2) Information in the written report cannot be used in criminal 
proceedings against the person submitting it. Within the United States, 
the installation law enforcement official may require such reporting on 
Service forms or forms of the State jurisdiction.
    (3) Reports required in paragraph (d)(1) of this section will 
include the following about the accident:
    (i) Location, date, and time.
    (ii) Identification of all drivers, pedestrians, and passengers 
involved.
    (iii) Identification of vehicles involved.
    (iv) Speed and direction of travel of each vehicle involved, 
including a sketch of the collision and roadway with street names and 
north arrow.
    (v) Property damage involved.
    (vi) Environmental conditions at the time of the incident (weather, 
visibility, road surface condition, and other factors).
    (vii) Narrative description of the events and circumstances 
concerning the accident.



Sec. 634.30  Traffic accident investigation report data.

    (a) Data derived from traffic accident investigation reports and 
from vehicle owner accident reports will be analyzed to determine 
probable causes of accidents. When frequent accidents occur at a 
location, the conditions at the location and the types of accidents 
(collision diagram) will be examined.
    (b) Law enforcement personnel and others who prepare traffic 
accident investigation reports will indicate whether or not seat 
restraint devices were being used at the time of the accident.
    (c) When accidents warrant, an installation commander may establisah 
a

[[Page 52]]

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



Sec. 634.31  Parking.

    (a) The most efficient use of existing on- and off-street parking 
space would be stressed on a nonreserved (first-come, first-served) 
basis.
    (b) Reserved parking facilities should be designated as parking by 
permit or numerically by category of eligible parkers. Designation of 
parking spaces by name, grade, rank, or title should be avoided.
    (c) Illegal parking contributes to congestion and slows traffic flow 
on an installation. Strong enforcement of parking restrictions results 
in better use of available parking facilities and eliminates conditions 
causing traffic accidents.
    (d) The ``Denver boot'' device is authorized for use as a technique 
to assist in the enforcement of parking violations where immobilization 
of the POV is necessary for safety. Under no circumstances should the 
device be used to punish or ``teach a lesson'' to violators. Booting 
should not be used if other reasonably effective but less restrictive 
means of enforcement (such as warnings, ticketing, reprimands, 
revocations, or suspensions of on-post driving privileges) are 
available. Procedures for booting must be developed as listed below.
    (1) Local standing operating procedures (SOPs) must be developed to 
control the discretion of enforcers and limit booting to specific 
offenses. SOPs should focus on specific reasons for booting, such as 
immobilization of unsafe, uninspected, or unregistered vehicles or 
compelling the presence of repeat offenders. All parking violations must 
be clearly outlined in the installation traffic code.
    (2) Drivers should be placed on notice that particular violations or 
multiple violations may result in booting. Also, drivers must be 
provided with a prompt hearing and an opportunity to obtain the release 
of their property.
    (3) To limit liability, drivers must be warned when a boot is 
attached to their vehicle and instructed how to have the boot removed 
without damaging the vehicle.



Sec. 634.32  Traffic violation reports.

    (a) Most traffic violations occurring on DOD installations (within 
the UNITED STATES or its territories) should be referred to the proper 
U.S. Magistrate. (Army, see AR 190-29; DLA,

[[Page 53]]

see DLAR 5720.4; and Air Force, see AFR 110-15.) However, violations are 
not referred when--
    (1) The operator is driving a Government vehicle at the time of the 
violation.
    (2) A Federal Magistrate is either not available or lacks 
jurisdiction to hear the matter because the violation occurred in an 
area where the Federal Government has only proprietary legislative 
jurisdiction.
    (3) Mission requirements make referral of offenders impractical.
    (4) A U.S. Magistrate is available but the accused refuses to 
consent to the jurisdiction of the court and the U.S. Attorney refuses 
to process the case before a U.S. District Court.
    (b) Installation commanders will establish administrative procedures 
for processing traffic violations.
    (1) All traffic violators on military installations will be issued 
either a DD Form 1408 (Armed Forces Traffic Ticket) or a DD Form 1805 
(United States District Court Violation Notice), as appropriate. Unless 
specified otherwise by separate Service/DLA policy, only on-duty law 
enforcement personnel (including game wardens) designated by the 
installation law enforcement officer may issue these forms.
    (2) A copy of all violation reports on military personnel and DOD 
civilian employees apprehended for intoxicated driving will be forwarded 
to the installation alcohol and drug abuse facility.
    (c) Installation commanders will establish procedures used for 
disposing of traffic violation cases through administrative or judicial 
action consistent with the Uniform Code of Military Justice (UCMJ) and 
Federal law.
    (d) DD Form 1805 will be used to refer violations of State traffic 
laws made applicable to the installation (Assimilative Crimes Act (18 
U.S.C. 13) and app C and other violations of Federal law) to the U.S. 
Magistrate. (Army users, see AR 190-29.)
    (1) A copy of DD Form 1805 and any traffic violation reports on 
military personnel and DOD civilian employees will be forwarded to the 
commander or supervisor of the violator.
    (2) Detailed instructions for properly completing DD Form 1805 and 
contained in separate Service policy directives.
    (3) The assimilation of State traffic laws as Federal offenses 
should be identified by a specific State code reference in the CODE 
SECTION block of the DD Form 1805 (or in a complaint filed with the U.S. 
Magistrate).
    (4) The Statement of Probable Cause on the DD Form 1805 will be used 
according to local staff judge advocate and U.S. Magistrate court 
policy. The Statement of Probable Cause is required by the Federal 
misdemeanor rules to support the issuance of a summons or arrest 
warrant.
    (5) For cases referred to U.S. Magistrates, normal distribution of 
DD Form 1805 will be as follows:
    (i) The installation law enforcement official will forward copy 1 
(white) and copy 2 (yellow) to the U.S. District Court (Central 
Violation Bureau).
    (ii) The installation law enforcement office will file copy 3 
(pink).
    (iii) Law enforcement personnel will provide copy 4 (envelope) to 
the violator.
    (e) When DD Form 1408 is used, one copy (including written warnings) 
will be forwarded through command channels to the service members's 
commander, to the commander of the military family member's sponsor, or 
to the civilian's supervisor or employer as the installation commander 
may establish.
    (1) Previous traffic violations committed by the offender and points 
assessed may be shown.
    (2) For violations that require a report of action taken, the DD 
Form 1408 will be returned to the office of record through the reviewing 
authority as the installation commander may establish.
    (3) When the report is received by the office of record, that office 
will enter the action on the violator's driving record.

   Section III--Standards and Procedures for Processing Drunk Drivers



Sec. 634.33  Training of law enforcement personnel.

    (a) As a minimum, installation law enforcement personnel will be 
trained to do the following:

[[Page 54]]

    (1) Recognize signs of alcohol and other drug impairment in persons 
operating motor vehicles.
    (2) Prepare DD Form 1920 (Alcohol Influence Report).
    (3) Perform the three field tests of the improved sobriety testing 
techniques (Sec. 634.36(b).)
    (4) Determine when a person appears intoxicated but is actually 
physically or mentally ill and requires prompt medical attention.
    (5) Understand the operation of breath-testing devices.
    (b) Each installation using breath-testing devices will ensure that 
operators of these devices--
    (1) Are chosen for integrity, maturity, and sound judgment.
    (2) Meet certification requirements of the State where the 
installation is located.
    (c) Breath-testing devices must be listed on the approved NHTSA 
conforming products list published in the Federal Register. All tests 
must be administered by trained personnel as specified in Sec. 634.36 
and must adhere to the procedures described in Secs. 634.37 and 634.38 
relating to voluntary and involuntary testing.
    (d) Installations located in States or overseas areas having a 
formal breath-testing and certification program should ensure operators 
attend that training.
    (e) Installations located in States or overseas areas with no formal 
training program will train personnel at courses offered by selected 
civilian institutions or manufacturers of the equipment.
    (f) Operators must maintain proficiency through refresher training 
every 18 months or as required by the State.



Sec. 634.34  Blood alcohol concentration standards.

    (a) Administrative revocation of driving privileges and other 
enforcement measures will be applied uniformly to offenders driving 
under the influence of alcohol or drugs. When a person is tested per 
Sec. 634.8, the results of the test will be evaluated as follows:
    (1) If the percentage of alcohol in the person's blood is less than 
0.05 percent, presume the person is not under the influence of alcohol.
    (2) If the percentage is 0.05 but less than 0.10, presume the person 
is impaired. This standard may be considered with other competent 
evidence in determining whether the person was under the influence of 
alcohol.
    (3) If the percentage is 0.10 or more, or if tests reflect the 
presence of illegal drugs, the person was driving while intoxicated.
    (b) Percentages in paragraph (a) of this section, are percent of 
weight by volume of alcohol in the blood based on grams of alcohol per 
100 milliliters of blood.
    (c) The standards in paragraph (a) of this section, may be modified 
locally to agree with those established by the State or host nation.
    (d) These presumptions will be considered with other evidence in 
determining intoxication.



Sec. 634.35  Chemical testing policies and procedures.

    (a) Validity of chemical testing. Results of chemical testing are 
valid under this regulation only under the following circumstances:
    (1) Blood, urine, or other bodily substances are tested using 
generally accepted scientific and medical methods and standards.
    (2) Breath tests are administered by qualified personnel 
(Sec. 634.33(c)).
    (3) A non-portable breath-testing device approved by the State or 
host nation is used. For Army and Marine Corps, the device must also be 
listed on the NHTSA conforming products list published in the Federal 
Register. (See Sec. 634.33.)
    (4) Procedures established by the State or host nation or as 
prescribed in paragraph (b) of this section are followed.
    (b) Breath-testing device operational procedures. If the State or 
host nation has not established procedures for use of breath-testing 
devices, the following procedures will apply:
    (1) Portable breath-testing devices will be used--
    (i) During the initial traffic stop as a field sobriety testing 
technique, along with other field sobriety testing techniques, to 
determine if further testing is needed on a non-portable evidentiary 
breath-testing device.

[[Page 55]]

    (ii) According to manufacturer operating instructions. (For Army and 
Marine Corps, the portable breath-testing device must also be listed on 
the NHTSA conforming products list published in the Federal Register.)
    (2) Non-portable evidentiary breath-testing devices will be used as 
follows:
    (i) Observe the person to be tested for at least 15 minutes before 
collecting the breath specimen. During this time, the person must not 
drink alcoholic beverages or other fluids, eat, smoke, chew tobacco, or 
ingest any substance.
    (ii) Verify calibration and proper operation of the instrument by 
using a control sample immediately before the test.
    (iii) Comply with operational procedures in the manufacturer's 
current instruction manual.
    (iv) Perform preventive maintenance as required by the instruction 
manual.
    (c) Chemical tests of personnel involved in fatal accidents.
    (1) Installation medical authorities will immediately notify the 
installation law enforcement officer of--
    (i) The death of any person involved in a motor vehicle accident.
    (ii) The circumstances surrounding such an accident, based on 
information available at the time of admission or receipt of the body of 
the victim.
    (2) Medical authorities will examine the bodies of those persons 
killed in a motor vehicle accident to include drivers, passengers, and 
pedestrians subject to military jurisdiction, and other pedestrians (16 
years or older with sponsor's consent only). Tests for the presence and 
concentration of alcohol or other drugs in the person's blood, bodily 
fluids, or tissues will be made as soon as possible and where practical 
within 8 hours of death. The test results will be included in the 
medical reports.
    (3) As provided by law and medical conditions permitting, a blood or 
breath sample will be obtained from any surviving operator whose vehicle 
is involved in a fatal accident.



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

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



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

    (a) Implied consent policy is explained in Sec. 634.8.
    (b) Tests may be administered only if the following conditions are 
met:
    (1) The person was lawfully stopped while driving, operating, or in 
actual physical control of a motor vehicle on the installation.
    (2) Reasonable suspicion exists to believe that the person was 
driving under the influence of alcohol or drugs.
    (3) A request was made to the person to consent to the tests 
combined with a warning that failure to voluntarily submit to or 
complete a chemical test of bodily fluids or breath will result in the 
revocation of driving privileges.
    (c) As stated in paragraphs (a) and (b) of this section, the law 
enforcement official relying on implied consent will warn the person 
that driving privileges will be revoked if the person fails to 
voluntarily submit to or complete a requested chemical test. The person 
does not have the right to have an attorney present before stating 
whether he or she will submit to a test, or during the actual test. 
Installation commanders will prescribe the type or types of chemical 
tests to be used. Testing will follow policies and procedures in 
Sec. 634.35. The results of chemical tests conducted under the implied 
consent provisions of this regulation may be used as evidence in courts-
martial, nonjudicial proceedings under Article

[[Page 56]]

15 of the UCMJ, administrative actions, and civilian courts.
    (d) Special rules exist for persons who have hemophilia, other 
blood-clotting disorders, or any medical or surgical disorder being 
treated with an anticoagulant. These persons--
    (1) May refuse a blood extraction test without penalty.
    (2) Will not be administered a blood extraction test to determine 
alcohol or other drug concentration or presence under this regulation.
    (3) May be given breath or urine tests, or both.
    (e) If a person suspected of intoxicated driving refuses to submit 
to a chemical test, a test will not be administered except as specified 
in Sec. 634.38.



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

    (a) General. The procedures outlined herein pertain only to the 
investigation of individuals stopped, apprehended, or cited on a 
military installation for any offense related to driving a motor vehicle 
and for whom probable cause exists to believe that such individual is 
intoxicated. Extractions of body fluids in furtherance of other kinds of 
investigations are governed by Rule 312(d), Military Rules of Evidence, 
and regulatory rules concerning requesting and granting authorizations 
for searches.
    (1) Air Force policy on nonconsensual extraction of blood samples is 
addressed in AFR 160-12.
    (2) Marine Corps personnel should not undertake the nonconsensual 
extraction of body fluids for reasons other than a valid medical purpose 
without first obtaining the advice and concurrence of the installation 
staff judge advocate or his or her designee.
    (3) DLA policy on nonconsensual taking of blood samples is contained 
in DLAR 5700.7.
    (b) Rule. Involuntary bodily fluid extraction is based on valid 
search and seizure authorization. An individual subject to the UCMJ who 
does not consent to chemical testing, as described above, may 
nonetheless be subjected to an involuntary extraction of bodily fluids, 
including blood and urine, only in accordance with the following 
procedures:
    (1) An individual subject to the UCMJ who was driving a motor 
vehicle involved in an accident resulting in death, personal injury, or 
serious property damage may be subjected to a nonconsensual bodily fluid 
extraction to test for the presence of intoxicants only when there is a 
probable cause to believe that such an individual was driving or in 
control of a vehicle while under the influence of an intoxicant.
    (i) A search authorization by an appropriate commander or military 
magistrate obtained pursuant to Rule 315, Military Rules of Evidence 
(Manual for Courts-Martial, chapter XXVII), is required prior to such 
nonconsensual extraction.
    (ii) A search authorization is not required under such circumstances 
when there is a clear indication that evidence of intoxication will be 
found and there is reason to believe that the delay necessary to obtain 
a search authorization would result in the loss or destruction of the 
evidence sought.
    (iii) Because warrantless searches are subject to close scrutiny by 
the courts, obtaining an authorization is highly preferable. Warrantless 
searches generally should be conducted only after coordination with the 
servicing staff judge advocate or legal officer, and attempts to obtain 
authorization from an appropriate official prove unsuccessful due to the 
unavailability of a commander or military magistrate.
    (2) If authorization from the military magistrate or commander 
proves unsuccessful due to the unavailability of such officials, the 
commander of a medical facility is empowered by Rule 315(d), Military 
Rules of Evidence, to authorize such extraction from an individual 
located in the facility at the time the authorization is sought.
    (i) Before authorizing the involuntary extraction, the commander of 
the medical facility should, if circumstances permit, coordinate with 
the servicing staff judge advocate or legal officer.
    (ii) The medical facility commander authorizing the extraction under 
Rule 315(d) need not be on duty as the attending physician at the 
facility where the extraction is to be performed and

[[Page 57]]

the actual extraction may be accomplished by other qualified medical 
personnel.
    (iii) The authorizing official may consider his or her own 
observations of the individual in determining probable cause.
    (c) Role of medical personnel. Authorization for the nonconsensual 
extraction of blood samples for evidentiary purposes by qualified 
medical personnel is independent of, and not limited by, provisions 
defining medical care, such as the provision for nonconsensual medical 
care pursuant to AR 600-20, section IV.
    (1) Extraction of blood will be accomplished by qualified medical 
personnel. (See Military Rules of Evidence 312(g).)
    (i) In performing this duty, medical personnel are expected to use 
only that amount of force that is reasonable and necessary to administer 
the extraction.
    (ii) Any force necessary to overcome an individual's resistance to 
the extraction normally will be provided by law enforcement personnel or 
by personnel acting under orders from the member's unit commander.
    (iii) Life endangering force will not be used in an attempt to 
effect nonconsensual extractions.
    (iv) All law enforcement and medical personnel will keep in mind the 
possibility that the individual may require medical attention for 
possible disease or injury.
    (2) Nonconsensual extractions of blood will be done in a manner that 
will not interfere with or delay proper medical attention. Medical 
personnel will determine the priority to be given involuntary blood 
extractions when other medical treatment is required.



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

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



Sec. 634.40  Preparation of sworn statement.

    For an example of a property prepared sworn statement on an 
intoxicated driver, see Army Form 2823.

             Section IV--Off-Installation Traffic Activities



Sec. 634.41  General.

    In areas not under military control, civil authorities enforce 
traffic laws. Law enforcement authorities will establish a system to 
exchange information with civil authorities. Off-installation traffic 
activities in overseas areas are governed by formal agreements with the 
host nation government. Procedures should be established to process 
reports received from civil authorities on serious traffic violations, 
accidents, and intoxicated driving incidents involving persons subject 
to this regulation.



Sec. 634.42  Compliance with State laws.

    (a) Installation commanders will inform service members and DOD 
civilian employees to comply with State and local traffic laws when 
operating military motor vehicles.
    (b) Commanders will coordinate with the proper civil law enforcement 
agency before moving Government vehicles that exceed legal limits or 
regulations or that may subject highway users to unusual hazards. (See 
AR-162/OPNAVINST 4600.11D/AFR 75-24/MCO 4643.5C/DLAR 4580.8.)
    (c) Installation commanders will maintain liaison with civil 
enforcement agencies and encourage the following:
    (1) Release of a Government vehicle operator to military authorities 
unless one of the conditions below exists.
    (i) The offense warrants detention.

[[Page 58]]

    (ii) The person's condition is such that further operation of a 
motor vehicle could result in injury to the person or others.
    (2) Prompt notice to military authorities when military personnel or 
drivers of Government motor vehicles have--
    (i) Committed serious violations of civil traffic laws.
    (ii) Been involved in traffic accidents.
    (3) Prompt notice of actions by a State or host nation to suspend, 
revoke, or restrict the State or host nation driver's license (vehicle 
operation privilege) of persons who--
    (i) Operate Government motor vehicles.
    (ii) Regularly operate a POV on the installation. (See also 
Sec. 634.18.)



Sec. 634.43  Civil-military cooperative programs.

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



         Subpart E--Driving Records and the Traffic Point System



Sec. 634.44  Driving records.

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

 Table 634.44--Suspension/Revocation of Driving Privileges (See Notes 1 
                                 and 2.)

Assessment 1: Two-year revocation is mandatory on determination of facts 
by installation commander. (For Army, 5-year revocation is mandatory.)
Violation: Driving while driver's license or installation driving 
privileges are under suspension or revocation.
Assessment 2: One-year revocation is mandatory on determination of facts 
by installation commander.
Violation: Refusal to submit to or failure to complete chemical tests 
(implied consent).
Assessment 3: One-year revocation is mandatory on conviction.
Violation: Manslaughter (or negligent homicide by vehicle) resulting 
from the operation of a motor vehicle.

    Driving or being in actual physical control of a motor vehicle while 
under the influence of intoxicating liquor (0.10% or greater on DOD 
installations; violation of civil law off post).
    Driving a motor vehicle while under the influence of any narcotic, 
or while under the influence of any other drug (including alcohol) to 
the degree rendered incapable of safe vehicle operation.
    Use of a motor vehicle in the commission of a felony. Fleeing the 
scene of an accident involving death or personal injury (hit and run).
    Perjury or making a false statement or affidavit under oath to 
responsible officials relating to the ownership or operation of motor 
vehicles.
    Unauthorized use of a motor vehicle belonging to another, when the 
act does not amount to a felony.

Assessment 4: Suspension for a period of 6 months or less or revocation 
for a period not to exceed 1 year is discretionary.
Violation: Mental or physical impairment (not including alcohol or other 
drug use) to the degree rendered incompetent to drive.

    Commission of an offense in another State which, if committed on the 
installation, would be grounds for suspension or revocation.
    Permitting an unlawful or fraudulent use of an official driver's 
license.
    Conviction of fleeing, or attempting to elude, a police officer.
    Conviction of racing on the highway.

[[Page 59]]

Assessment 5: Loss of OF 46 for minimum of 6 months is discretionary.
Violation: Receiving a second 1-year suspension or revocation of driving 
privileges within 5 years.

                                 Notes:

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



Sec. 634.45  The traffic point system.

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



Sec. 634.46  Point system application.

    (a) The Services and DLA are required to use the point system and 
procedures prescribed herein without change.
    (b) The point system in table 634.46 applies to all operators of 
U.S. Government motor vehicles, on or off Federal property. The system 
also applies to violators reported to installation officials in 
accordance with Sec. 634.32.
    (c) Points will be assessed when the person is found to have 
committed a violation and the finding is by either the unit commander, 
civilian supervisor, a military or civilian court (including a U.S. 
Magistrate), or by payment of fine, forfeiture of pay of allowances, or 
posted a bond, or collateral.

 Table 634.46--Point Assessment for Moving Traffic Violations (See Note 
                                   1.)

Violation: Reckless driving (willful and wanton disregard for the safety 
of persons or property).
Points assessed: 6
Violation: Owner knowingly and willfully permitting a physically 
impaired person to operate the owner's motor vehicle.
Points assessed: 6
Violation: Fleeing the scene (hit and run)-property damage only.
Points assessed: 6
Violation: Driving vehicle while impaired (blood-alcohol content more 
than 0.05 percent and less than 0.10 percent).
Points assessed: 6
Violation: Speed contests.
Points assessed: 6
Violation: Speed too fast for conditions.
Points assessed: 2
Violation: Speed too slow, causing potential safety hazard.
Points assessed: 2
Violation: Failure of operator or occupants to use available restraint 
system devices while moving (operator assessed points).
Points assessed: 2
Violation: Failure to property restrain children in a child restraint 
system while moving (when child is 4 years of age or younger or the 
weight of child does not exceed 45 pounds).
Points assessed: 2
Violation: One to 10 miles per hour over posted speed limit.
Points assessed: 3
Violation: Over 10 but not more than 15 miles per hour above posted 
speed limit.
Points assessed: 4
Violation: Over 15 but not more than 20 miles per hour above posted 
speed limit.
Points assessed: 5
Violation: Over 20 miles per hour above posted speed limit.
Points assessed: 6
Violation: Following too close.
Points assessed: 4
Violation: Failure to yield right of way to emergency vehicle.
Points assessed: 4
Violation: Failure to stop for school bus or school-crossing signals.
Points assessed: 4
Violation: Failure to obey traffic signals or traffic instructions of an 
enforcement officer or traffic warden; or any official regulatory 
traffic sign or device requiring a full stop or yield of right of way; 
denying entry; or requiring direction of traffic.
Points assessed: 4

[[Page 60]]

Violation: Improper passing.
Points assessed: 4
Violation: Failure to yield (no official sign involved).
Points assessed: 4
Violation: Improper turning movements (no official sign involved).
Points assessed: 3
Violation: Wearing of headphones/earphones while driving motor vehicles 
(two or more wheels).
Points assessed: 3
Violation: Failure to wear an approved helmet and/or reflectorized vest 
while operating or riding on a motorcycle, MOPED, or a three or four-
wheel vehicle powered by a motorcycle-like engine.
Points assessed: 3
Violation: Improper overtaking.
Points assessed: 3
Violation: Other moving violations (involving driver behavior only).
Points assessed: 3
Violation: Operating an unsafe vehicle. (See Note 2.)
Points assessed: 2
Violation: Driver involved in accident is deemed responsible (only added 
to points assessed for specific offenses).
Points assessed: 1

                                 Notes:

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



Sec. 634.47  Point system procedures.

    (a) Reports of moving traffic violations recorded on DD From 1408 or 
DD From 1805 will serve as a basis for determining point assessment. For 
DD Form 1408, return endorsements will be required from commanders or 
supervisors.
    (b) On receipt of DD Form 1408 or other military law enforcement 
report of a moving violation, the unit commander, designated supervisor, 
or person otherwise designated by the installation commander will 
conduct an inquiry. The commander will take or recommend proper 
disciplinary or administrative action. If a case involves judicial or 
nonjudicial actions, the final report of action taken will not be 
forwarded until final adjudication.
    (c) On receipt of the report of action taken (including action by a 
U.S. Magistrate Court on DD Form 1805), the installation law enforcement 
officer will assess the number of points appropriate or the offense, and 
record the traffic points or the suspension or revocation of driving 
privileges on the person's driving record. Except as specified otherwise 
in this and other vice/DLA regulations, points will not be assessed or 
driving privileges suspended or revoked when the report of action taken 
indicates that neither disciplinary nor administrative action was taken.
    (d) Installation commanders may require the following driver 
improvement measures as appropriate:
    (1) Advisory letter through the unit commander or supervisor to any 
person who has acquired six traffic points within a 6-month period.
    (2) Counseling or driver improvement interview, by the unit 
commander, of any person who has acquired more than six but less than 12 
traffic points within a 6-month period. This counseling or interview 
should produce recommendations to improve driver performance.
    (3) Referral for medical evaluation when a driver, based on 
reasonable belief, appears to have mental or physical limits that have 
had or may have an adverse affect on driving performance.
    (4) Attendance at remedial driver training to improve driving 
performance.
    (5) Referral to an alcohol or drug treatment or rehabilitation 
facility for evaluation, counseling, or treatment. This action is 
required for active military personnel in all cases in which alcohol or 
other drugs are a contributing factor to a traffic citation, incident, 
or accident.
    (e) An individual's driving privileges may be suspended or revoked 
as provided by this regulation regardless of whether these improvement 
measures are accomplished.
    (f) Persons whose driving privileges are suspended or revoked (for 
one violation or an accumulation of 12 traffic points within 12 
consecutive months, or 18 traffic points within 24 consecutive months) 
will be notified in writing through official channels (Sec. 634.11). 
Except for the mandatory minimum or

[[Page 61]]

maximum suspension or revocation periods prescribed by table 634.44, the 
installation commander will establish periods of suspension or 
revocation. Any revocation based on traffic points must be no less than 
6 months. A longer period may be imposed on the basis of a person's 
overall driving record considering the frequency, flagrancy, severity of 
moving violations, and the response to previous driver improvement 
measures. In all cases, military members must successfully complete a 
prescribed course in remedial driver training before driving privileges 
are reinstated.
    (g) Points assessed against a person will remain in effect for point 
accumulation purposes for 24 consecutive months. The review of driver 
records to delete traffic points should be done routinely during records 
update while recording new offenses and forwarding records to new duty 
stations. Completion of a revocation based on points requires removal 
from the driver record of all points assessed before the revocation.
    (h) Removal of points does not authorize removal of driving record 
entries for moving violations, chargeable accidents, suspensions, or 
revocations. Record entries will remain posted on individual driving 
records for the period of time indicated below.
    (1) Chargeable nonfatal traffic accidents or moving violations--3 
years.
    (2) Nonmandatory suspensions or revocations--5 years.
    (3) Mandatory revocations--7 years.



Sec. 634.48  Disposition of driving records.

    Procedures will be established to ensure prompt notice to the 
installation law enforcement officer when a person assigned to or 
employed on the installation is being transferred to another 
installation, being released from military service, or ending 
employment.
    (a) If persons being transferred to a new installation have valid 
points or other entries on the driving records, the law enforcement 
officer will forward the records to the law enforcement officer of the 
gaining installation. Gaining installation law enforcement officers must 
coordinate with applicable commanders and continue any existing 
suspension or revocation based on intoxicated driving or accumulation of 
traffic points. Traffic points for persons being transferred will 
continue to accumulate as specified in Sec. 634.47(g).
    (b) Driving records of military personnel being discharged or 
released from active duty will be retained on file for 2 years and then 
destroyed. In cases of immediate reenlistment, change of officer 
component or military or civilian retirement when vehicle registration 
is continued, the record will remain active.
    (c) Driving records of civilian personnel terminating employment 
will be retained on file for 2 years and then destroyed.
    (d) Driving records of military family members containing point 
assessments or other entries will be forwarded to the sponsor's gaining 
installation in the same manner as for service members. At the new 
installation, records will be analyzed and made available temporarily to 
the sponsor's unit commander or supervisor for review.
    (e) Driving records of retirees electing to retain installation 
driving privileges will be retained. Points accumulated or entries on 
the driver record regarding suspensions, revocations, moving violations, 
or chargeable accidents will not be deleted from driver records except 
per Sec. 634.47 (g) and (h).
    (f) Army users will comply with Sec. 634.47 (g) and (h) by mailing 
the individual's DA Form 3626 to the gaining installation provost 
marshal.



             Subpart F--Impounding Privately Owned Vehicles



Sec. 634.49  General.

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

[[Page 62]]



Sec. 634.50  Standards for impoundment.

    (a) POVs should not be impounded unless the vehicles clearly 
interfere with ongoing operations or movement of traffic, threaten 
public safety or convenience, are involved in criminal activity, contain 
evidence of criminal activity, or are stolen or abandoned.
    (b) The impoundment of a POV would be inappropriate when reasonable 
alternatives to impoundment exist.
    (1) Attempts should be made to locate the owner of the POV and have 
the vehicle removed.
    (2) The vehicle may be moved a short distance to a legal parking 
area and temporarily secured until the owner is found.
    (3) Another responsible person may be allowed to drive or tow the 
POV with permission from the owner, operator, or person empowered to 
control the vehicle. In this case, the owner, operator, or person 
empowered to control the vehicle will be informed that law enforcement 
personnel are not responsible for safeguarding the POV.
    (c) Impounding of POVs is justified when any of the following 
conditions exist:
    (1) The POV is illegally parked--
    (i) On a street or bridge, in a tunnel, or is double parked, and 
interferes with the orderly flow of traffic.
    (ii) On a sidewalk, within an intersection, on a cross-walk, on a 
railroad track, in a fire lane, or is blocking a driveway, so that the 
vehicle interferes with operations or creates a safety hazard to other 
roadway users or the general public. An example would be a vehicle 
parked within 15 feet of a fire hydrant or blocking a properly marked 
driveway of a fire station or aircraft-alert crew facility.
    (iii) When blocking an emergency exit door or any public place 
(installation theater, club, dining hall, hospital, and other facility).
    (iv) In a ``tow-away'' zone that is so marked with proper signs.
    (2) The POV interferes with--
    (i) Street cleaning or snow removal operations and attempts to 
contact the owner have been unsuccessful.
    (ii) Emergency operations during a natural disaster or fire or must 
be removed from the disaster area during cleanup operations.
    (3) The POV has been used in a crime or contains evidence of 
criminal activity.
    (4) The owner or person in charge has been apprehended and is unable 
or unwilling to arrange for custody or removal.
    (5) The POV is mechanically defective and is a menace to others 
using the public roadways.
    (6) The POV is disabled by a traffic incident and the operator is 
either unavailable or physically incapable of having the vehicle towed 
to a place of safety for storage or safekeeping.
    (7) Law enforcement personnel reasonably believe the vehicle is 
abandoned.



Sec. 634.51  Towing and storage.

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



Sec. 634.52  Procedures for impoundment.

    (a) Unattended POVs. (1) DD Form 2504 (Abandoned Vehicle Notice) 
will be conspicuously placed on POVs considered unattended. This action 
will be documented by an entry in the installation law enforcement desk 
journal.
    (2) The owner will be allowed 3 days from the date the POV is tagged 
to remove the vehicle before impoundment action is initiated. If the 
vehicle has not been removed after 3 days, it will

[[Page 63]]

be removed by the installation towing service or the contracted wrecker 
service. If a contracted wrecker service is used, a DD Form 2505 
(Abandoned Vehicle Removal Authorization) will be completed and issued 
to the contractor by the installation law enforcement office.
    (3) After the vehicle has been removed, the installation law 
enforcement officer or the contractor will complete DD Form 2506 
(Vehicle Impoundment Report) as a record of the actions taken.
    (i) An inventory listing personal property will be done to protect 
the owner, law enforcement personnel, the contractor, and the commander.
    (ii) The contents of a closed container such as a suitcase inside 
the vehicle need not be inventoried. Such articles should be opened only 
if necessary to identify the owner of the vehicle or if the container 
might contain explosives or otherwise present a danger to the public. 
Merely listing the container and sealing it with security tape will 
suffice.
    (iii) Personal property must be placed in a secure area for 
safekeeping.
    (4) DD Form 2507 (Notice of Vehicle Impoundment) will be forwarded 
by certified mail to the address of the last known owner of the vehicle 
to advise the owner of the impoundment action, and request information 
concerning the owner's intentions pertaining to the disposition of the 
vehicle.
    (b) Stolen POVs or vehicles involved in criminal activity. (1) When 
the POV is to be held for evidentiary purposes, the vehicle should 
remain in the custody of the applicable Service or DLA until law 
enforcement purposes are served.
    (2) Recovered stolen POVs will be released to the registered owner, 
unless held for evidentiary purposes, or to the law enforcement agency 
reporting the vehicle stolen, as appropriate.
    (3) A POV held on request of other authorities will be retained in 
the custody of the applicable Service or DLA until the vehicle can be 
released to such authorities.



Sec. 634.53  Search incident to impoundment based on criminal activity.

    Search of a POV in conjunction with impoundment based on criminal 
activity will likely occur in one of the following general situations:
    (a) The owner or operator is not present. This situation could arise 
during traffic and crime-related impoundments and abandoned vehicle 
seizures. A property search related to an investigation of criminal 
activity should not be conducted without search authority unless the 
item to be seized is in plain view or is readily discernible on the 
outside as evidence of criminal activity. When in doubt, proper search 
authority should be obtained before searching.
    (b) The owner or operator is present. This situation can occur 
during either a traffic or criminal incident, or if the operator is 
apprehended for a crime or serious traffic violation and sufficient 
probable cause exists to seize the vehicle. This situation could also 
arise during cases of intoxicated driving or traffic accidents in which 
the operator is present but incapacitated or otherwise unable to make 
adequate arrangements to safeguard the vehicle. If danger exists to the 
police or public or if there is risk of loss or destruction of evidence, 
an investigative type search of the vehicle may be conducted without 
search authority. (Army, see AR 190-22; and Air Force, see AFP 125-2.)



Sec. 634.54  Disposition of vehicles after impoundment.

    (a) If a POV is impounded for evidentiary purposes, the vehicle can 
be held for as long as the evidentiary or law enforcement purpose 
exists. The vehicle must then be returned to the owner without delay 
unless directed otherwise by competent authority.
    (b) If the vehicle is unclaimed after 120 days from the date 
notification was mailed to the last known owner or the owner released 
the vehicle by properly completing DD Form 2505, the vehicle will be 
disposed of by one of the following procedures:
    (1) Release to the lienholder, if known.
    (2) Processed as abandoned property in accordance with DOD 4160.21-
M.

                   Appendix A to Part 634--References

    Publications and forms referenced in this part may be viewed at the 
Office of Provost

[[Page 64]]

Marshal at any Army installation. Department of Defense publications are 
also available from the National Technical Information Service, U.S. 
Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161; 
telephone (703) 487-4684.

                                Section I

                          Required Publications

AFP 125-2. Technical Guide for Police Traffic Operations. (Cited in 
Sec. 634.53.)
AFR 30-2. Social Action Program. (Cited in Sec. 634.13.)
AFR 75-24/AR 55-162/DLAR 4580.8/MCO 4643.5C/OPNAVINST 4600.11D. Permits 
for Oversize, Overweight, or Other Special Military Movements on Public 
Highways in the U.S. (Cited in Sec. 634.42.)
AFR 75-88/AR 55-80/DLAR 4500.19/MCO 11210.2C/OPNAVINST 11210.1B. 
Highways for National Defense. (Cited in Sec. 634.32.)
AFR 110-15. Use of U.S. Magistrates for Trial of Misdemeanors Committed 
by Civilians. (Cited in Sec. 634.32.)
AFR 125-15. Motor Vehicle Registration and Related Requirements. (Cited 
in Sec. 634.19.)
AFR 160-12. Professional Policies and Procedures. (Cited in 
Sec. 634.38.)
AR 190-22. Searches, Seizures, and Disposition of Property. (Cited in 
Sec. 634.53.)
AR 190-29. Minor Offenses and Uniform Violation Notices Referred to U.S. 
District Courts. (Cited in Sec. 634.32.)
AR 210-10. Administration. (Cited in Sec. 634.7.)
AR-385-40. Accident Reporting and Records. (Cited in Sec. 634.30.)
AR 385-55. Prevention of Motor Vehicle Accidents. (Cited in 
Sec. 634.25.)
AR 600-20. Army Command Policies and Procedures. (Cited in Sec. 634.38.)
AR 600-85. Alcohol and Drug Abuse Prevention and Control Program. (Cited 
in Sec. 634.14.)
AR 601-280. Total Army Retention Program. (Cited in Sec. 634.12.)
DLAR 5700.7. Search and Seizure. (Cited in Secs. 634.7 and 634.38.)
DLAR 5720.4. Preparing and Processing Minor Offenses and Violation 
Notices Referred to U.S. District Court. (Cited in Sec. 634.32.)
DOD 4160.21-M, September 1982. Defense Disposal Manual. (Cited in 
Sec. 634.54.)
DODD 5530.3, June 1987. International Arguments. (Cited in Sec. 634.18.)
FPM Supp 792-2. Alcohol and Drug Abuse Programs. (Cited in Sec. 634.14.)
MCO 5100.19C. Marine Corps Traffic Safety Program. (Cited in 
Sec. 634.13.)
MCO P5300.12. USMC Substance Abuse Program. (Cited in Secs. 634.13 and 
634.30.)
OPNAVINST 5100-12D. Navy Traffic Safety Program. (Cited in Secs. 634.13 
and 634.30.)

                               Section II

                          Related Publications

    A related publication is merely a source of additional information. 
The user does not have to read it to understand this regulation.
AR 600-37. Unfavorable Information.
AR 600-200. Enlisted Personnel Management System.
AR 635-20. Enlisted Personnel.

                               Section III

                            Prescribed Forms

DA Form 3626. Vehicle Registration/Driver Record. (Prescribed in 
Sec. 634.44.)
DD Form 1920. Alcohol Influence Report. (Prescribed in Sec. 634.33.)
DD Form 2220. DOD Registered Vehicle. (Prescribed in Sec. 634.19.)
DD Form 2504. Abandoned Vehicle Notice. (Prescribed in Sec. 634.52.)
DD Form 2505. Abandoned Vehicle Removal Authorization. (Prescribed in 
Sec. 634.52.)
DD Form 2506. Vehicle Impoundment Report. (Prescribed in Sec. 634.52.)
DD Form 2507. Notice of Vehicle Impoundment. (Prescribed in 
Sec. 634.52.)

 Appendix B to Part 634--Notification of State Driver's License Agencies

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

                                 Alabama

Motor Vehicle Division, 2721 Gunter Park Drive, Montgomery, AL 36101, 
(205) 271-3250

                                 Alaska

Motor Vehicle Division, P.O. Box 100960, Anchorage, AK 99510, (907) 269-
5572

                                 Arizona

Motor Vehicle Division, 1801 West Jefferson Street, Phoenix, AZ 85007, 
(602) 255-7295

                                Arkansas

Motor Vehicle Division, Joel & Ledbetter Bldg., 7th and Wolfe Streets, 
Little Rock, AR 72203, (501) 371-1886

[[Page 65]]

                               California

Department of Motor Vehicles, P.O. Box 932340, Sacramento, CA 94232, 
(916) 445-0898

                                Colorado

Motor Vehicle Division, 140 West Sixth Avenue, Denver, CO 80204, (303) 
866-3158

                               Connecticut

Department of Motor Vehicles, 60 State Street, Wethersfield, CT 06109, 
(203) 566-5904

                                Delaware

Motor Vehicle Director, State Highway Administration Bldg., P.O. Box 
698, Dover, DE 19903, (302) 736-4421

                          District of Columbia

Department of Transportation, Bureau of Motor Vehicles, 301 C Street, 
NW., Washington, DC 20001, (202) 727-5409

                                 Florida

Division of Motor Vehicles, Neil Kirkman Building, Tallahassee, FL 
32301, (904) 488-6921

                                 Georgia

Motor Vehicle Division, Trinity-Washington Bldg., Room 114, Atlanta, GA 
30334, (404) 656-4149

                                 Hawaii

Division of Motor Vehicle and Licensing, 1455 S. Benetania Street, 
Honolulu, HI 96814, (808) 943-3221

                                  Idaho

Transportation Department, 3311 State Street, P.O. Box 34, Boise, ID 
83731, (208) 334-3650

                                Illinois

Secretary of State, Centennial Building, Springfield, IL 62756, (217) 
782-4815

                                 Indiana

Bureau of Motor Vehicles, State Office Building, Room 901, Indianapolis, 
IN 46204, (317) 232-2701

                                  Iowa

Department of Transportation, Office of Operating Authority, Lucas 
Office Bldg., Des Moines, IA 50319, (515) 281-5664

                                 Kansas

Department of Revenue, Division of Vehicles, Interstate Registration 
Bureau, State Office Bldg. Topeka, KS 66612, (913) 296-3681

                                Kentucky

Department of Transportation, New State Office Building, Frankfort, KY 
40622, (502) 564-4540

                                Louisiana

Motor Vehicle Administrator, S. Foster Drive, Baton Rouge, LA 70800, 
(504) 925-6304

                                  Maine

Department of State, Motor Vehicle Division, Augusta, ME 04333, (207) 
289-5440

                                Maryland

Motor Vehicle Administration, 6601 Ritchie Highway, NE., Glen Burnie, MD 
21062, (301) 768-7000

                              Massachusetts

Registry of Motor Vehicles, 100 Nashua Street, Boston, MA 02114, (617) 
727-3780

                                Michigan

Department of State, Division of Driver Licenses and Vehicle Records, 
Lansing, MI 48918, (517) 322-1486

                                Minnesota

Department of Public Safety, 108 Transportation Building, St. Paul, MN 
55155, (612) 296-2138

                               Mississippi

Office of State Tax Commission, Woolfolk Building, Jackson, MS 39205, 
(601) 982-1248

                                Missouri

Department of Revenue, Motor Vehicles Bureau, Harry S Truman Bldg., 301 
W. High Street, Jefferson City, MO 65105, (314) 751-3234

                                 Montana

Highway Commission, Box 4639, Helena, MT 59604, (406) 449-2476

                                Nebraska

Department of Motor Vehicles, P.O. Box 94789, Lincoln, NE 68509, (402) 
471-3891

                                 Nevada

Department of Motor Vehicles, Carson City, NV 89711, (702) 885-5370

                              New Hampshire

Department of Safety, Division of Motor Vehicles, James H. Haynes Bldg., 
Concord, NH 03305, (603) 271-2764

                               New Jersey

Motor Vehicle Division, 25 S. Montgomery Street, Trenton, NJ 08666, 
(609) 292-2368

[[Page 66]]

                               New Mexico

Motor Transportation Division, Joseph M. Montoya Building, Santa Fe, NM 
87503, (505) 827-0392

                                New York

Division of Motor Vehicles, Empire State Plaza, Albany, NY 12228, (518) 
474-2121

                             North Carolina

Division of Motor Vehicles, Motor Vehicles Bldg., Raleigh, NC 27697, 
(919) 733-2403

                              North Dakota

Motor Vehicle Department, Capitol Grounds, Bismarck, ND 58505, (701) 
224-2619

                                  Ohio

Bureau of Motor Vehicles, P.O. Box 16520, Columbus, OH 43216, (614) 466-
4095

                                Oklahoma

Oklahoma Tax Commission, Motor Vehicle Division, 2501 Lincoln Boulevard, 
Oklahoma City, OK 73194, (405) 521-3036

                                 Oregon

Motor Vehicles Division, 1905 Lana Avenue, NE., Salem, OR 97314, (503) 
378-6903

                              Pennsylvania

Department of Transportation, Bureau of Motor Vehicles, Transportation 
and Safety Bldg., Harrisburg, PA 17122, (717) 787-3130

                              Rhode Island

Department of Motor Vehicles, State Office Building, Providence, RI 
02903, (401) 277-6900

                             South Carolina

Motor Vehicle Division, P.O. Drawer 1498, Columbia, SC 29216, (803) 758-
5821

                              South Dakota

Division of Motor Vehicles, 118 W. Capitol, Pierre, SD 57501, (605) 773-
3501

                                Tennessee

Department of Revenue, Motor Vehicle Division, 500 Deaderick Street, 
Nashville, TN 37242, (615) 741-1786

                                  Texas

Department of Highways and Public Transportation, Motor Vehicle 
Division, 40th and Jackson Avenue, Austin, TX 78779, (512) 475-7686

                                  Utah

Motor Vehicle Division, State Fairgrounds, 1095 Motor Avenue, Salt Lake 
City, UT 84116, (801) 533-5311

                                 Vermont

Department of Motor Vehicles, State Street, Montpelier, VT 05603, (802) 
828-2014

                                Virginia

Department of Motor Vehicles, 2300 W. Broad Street, Richmond, VA 23220, 
(804) 257-1855

                               Washington

Department of Licensing, Highways-Licenses Building, Olympia, WA 98504, 
(206) 753-6975

                              West Virginia

Department of Motor Vehicles, 1800 Washington Street, East, Charleston, 
WV 25317, (304) 348-2719

                                Wisconsin

Department of Transportation, Reciprocity and Permits, P.O Box 7908, 
Madison, WI 53707, (608) 266-2585

                                 Wyoming

Department of Revenue, Policy Division, 122 W. 25th Street, Cheyenne, WY 
82002, (307) 777-5273

                                  Guam

Deputy Director, Revenue and Taxation, Government of Guam, Agana, Guam 
96910, (no phone number available)

                               Puerto Rico

Department of Transportation and Public Works, Bureau of Motor Vehicles, 
P.O. Box 41243, Minillas Station, Santurce, PR 00940, (809) 722-2823

      Figure B-1--Sample Letter to State Driver's License Authority

                         Department of the Army

        39th Infantry Division, Fort Collins, Colorado 81079-9906

Office of the Provost Marshal,
Motor Vehicle Division, 140 West Sixth Avenue, Denver, Colorado 80204.

    This letter is your notification that on 15 May 1996, ROE, Richard 
L., PFC 000-00-0000, a member of the U.S. Army, 39th Infantry Division, 
Fort Collins, Colorado was found guilty of intoxicated driving in a 
trial by court-martial.
    He holds a Colorado driver's license, number X94U28, issued 1 June 
1995, and expiring on 1 June 1999. He was arrested on 15 May 1996 at 
Fort Collins, Colorado by Military Police while driving a 1989 Chevrolet 
Nova, blue in color, bearing Colorado license plate number 359-143.
    PFC Roe refused to submit to a chemical test to determine his blood 
alcohol content after being advised of the implied consent

[[Page 67]]

provisions of the Fort Collins installation traffic code.
    Based on the above information, PFC Roe's installation driving 
privileges have been revoked for one year.
    PFC Roe's current address is 1511 Mountain View Road, Denver, 
Colorado 80206.
        Sincerely,

Max R. Smith,
CPT, MPC, AR 19 Administrative Officer.

Appendix C to Part 634--DOD Directive 5525.4, Enforcement of State Laws 
                          on DOD Installations

                     Department of Defense Directive

                            November 2, 1981

                       Number 5525.4, ASD (MRA&L)

    Subject: Enforcement of State Traffic Laws on DoD Installations.
    References: (a) DoD Instruction 6055.4, ``Department of Defense 
Traffic Safety Program,'' November 7, 1978.
    (b) Delegation of Authority to the Secretary of Defense by the 
Administrator, General Services Administration, March 20, 1981 
(enclosure 1).
    (c) Title 18, United States Code, section 13.
    (d) Title 40, United States Code, section 318c.

                               A. Purpose

    This Directive establishes policies pursuant to the requirements of 
reference (a) and to authority delegated to the Secretary of Defense 
under reference (b) for the enforcement, on DoD military installations, 
of those state vehicular and pedestrian traffic laws that cannot be 
assimilated under reference (c).

                       B. Applicability and Scope

    1. The provisions of this Directive apply to the Office of the 
Secretary of Defense, the Military Departments, the Organization of the 
Joint Chiefs of Staff, the Unified and Specified Commands, and the 
Defense Agencies.
    2. The provisions encompass all persons who operate or control a 
motor vehicle or otherwise use the streets of a military installation 
over which the United States exercises exclusive or concurrent 
legislative jurisdiction.
    3. The provisions govern only vehicular and traffic offenses or 
infractions that cannot be assimilated under reference (c), thereby 
precluding application of state laws to traffic offenses committed on 
military installations.

                                C. Policy

    1. It is the policy of the Department of Defense that an effective, 
comprehensive traffic safety program be established and maintained at 
all military installations as prescribed in reference (a).
    2. State vehicular and pedestrian traffic laws that are now or may 
hereafter be in effect shall be expressly adopted and made applicable on 
military installations to the extent provided by this Directive. All 
persons on a military installation shall comply with the vehicular and 
pedestrian traffic laws of the state in which the installation is 
located.
    3. Pursuant to the authority established in enclosure 1, 
installation commanders of all DoD installations in the United States 
and over which the United States has exclusive or concurrent legislative 
jurisdiction are delegated the authority to establish additional 
vehicular and pedestrian traffic rules and regulations for their 
installations. All persons on a military installation shall comply with 
locally established vehicular and pedestrian traffic rules and 
regulations. (Amendment 1, Ch 1 (10/31/86))
    4. A person found guilty of violating, on a military installation, 
any state vehicular or pedestrian traffic law or local installation 
vehicular or pedestrian traffic rule or regulation made applicable to 
the installation under the provisions of this Directive is subject to a 
fine of not more than $50 or imprisonment for not more than 30 days, or 
both, for each violation (40 U.S.C. 318c (reference (d)). (Amendment 1, 
Ch 1 (10/31/86))
    5. This Directive does not limit the application of any Federal law 
or regulation or, under 18 U.S.C. 13 (reference (c)), any state law made 
applicable to offenses committed on military installations.
    6. A copy of this Directive shall be posted in an appropriate place 
on the DOD installation concerned.

                           D. Responsibilities

    1. The Assistant Secretary of Defense (Force Management and 
Personnel) (ASD(FM&P)) shall modify this Directive, as appropriate.
    2. Secretaries of the Military Departments shall comply with this 
Directive.

                  E. Effective Date and Implementation

    This Directive is effective immediately. Forward two copies of 
implementing documents to the Assistant Secretary of Defense (Force 
Management and Personnel) within 120 days.

William H. Taft, IV,
Deputy Secretary of Defense.
    Enclosure--1
    1. Delegation of Authority: Nov 2, 81, 5525.4 (Encl 1).

                   Enclosure 1-Delegation of Authority

                     GENERAL SERVICES ADMINISTRATION

(D-81-____            6820-22

[[Page 68]]

           Delegation of Authority to the Secretary of Defense

    1. Purpose. This delegation authorizes the Secretary of Defense to 
assist in controlling vehicular and pedestrian traffic on military 
installations in the United States.
    2. Effective date. This delegation became effective on March 20, 
1961.
    3. Delegation.
    a. Pursuant to the authority vested in me by the Federal Property 
and Administrative Services Act of 1949 (63 Stat. 377), as amended, and 
the Act of June 1, 1948 (62 Stat. 281), as amended, authority is hereby 
delegated to the Secretary of Defense to make all needful rules and 
regulations, and to attach to these rules and regulations such 
reasonable penalties, not to exceed those prescribed in 40 U.S.C. 318c, 
as will ensure their enforcement for governing vehicular and pedestrian 
traffic on military installations of the Department of Defense, as 
defined in 40 U.S.C. 612, in the United States and over which the United 
States has exclusive or concurrent legislative jurisdiction.
    b. The Secretary of Defense may redelegate this authority to any 
officer, official, or employee of the Department of Defense.
    c. This authority shall be exercised in accordance with the 
limitations and requirements of the above-cited acts, and the policies, 
procedures, and controls prescribed by the General Services 
Administration.
    4. Effect on other directives. FPMR Temporary Regulation D-28 is 
revoked.

    Dated: June 24, 1981.

(Signed) Gerald P. Carmen,
Administrator.

                    Appendix D to Part 634--Glossary

                                Section I

                              Abbreviations

ADAPCP
Alcohol and Drug Abuse Prevention and Control Program
ADCO
Alcohol and Drug Control Officer
ASAP
Alcohol Safety Action Projects
BAC
blood alcohol content
CAAC
Counseling and Assistance Center
CAIG
centralized accident investigation, ground
CFR
Code of Federal Regulations
CG
commanding general
CONUS
continental United States
DA
Department of the Army
DLA
Defense Logistics Agency
DOD
Department of Defense
DOT
Department of Transportation
HQDA
Headquarters, Department of the Army
MPMIS
Miliatry Police Management Information System
MTMCTEA
Military Traffic Management Command Transportation Engineering
Agency
NADSAP
Navy Alcohol and Drug Safety Action Program
NAF
nonappropriated fund
NHSPS
National Highway Safety Program Standards
NHTSA
National Highway Traffic Safety Administration
POV
privately owned vehicle
SOFA
status of forces agreement
SOP
standing operating procedure
STAMIS
Standard Army Management Information System
TRADOC
U.S. Army Training and Doctrine Command
UCMJ
Uniform Code of Military Justice
USAF
United States Air Force
USC
United States Code
USMC
United States Marine Corps
USN
United States Navy

                               Section II

                                  Terms

                          Active Duty Personnel

    Military personnel, whether Active Army, U.S. Army Reserve, or Army 
National Guard of the United States, who are on active duty under Title 
10, United States Code.

                  Alcohol Safety Action Program (ASAP)

    A program sponsored by a State, in cooperation with the NHTSA, to 
reduce highway deaths, injuries, and property damage resulting from 
traffic accidents in which alcohol is a major contributing factor.

[[Page 69]]

      Army Drug and Alcohol Prevention and Control Program (ADAPCP)

    An Army program that provides for alcohol and drug problems 
(appropriate education or treatment).

                     Chemical Breath-testing Device

    An instrument using photoelectric or other physical or chemical 
means to quantitatively determine blood-alcohol concentrations.

                            Collision Diagram

    A plan of an intersection or section of roadway on which reported 
accidents are diagrammed by means of arrows showing manner of collision.

                            Condition Diagram

    A scale drawing of an intersection or section of roadway that shows 
all objects and physical conditions that bear on traffic movement and 
safety.

                               Conviction

    A final adjudication that may include one or more of the following:
    a. An unvacated forfeiture of bail or collateral deposited to secure 
a defendant's appearance-in-court.
    b. Pleas of nolo contendere accepted by a court.
    c. Payment of a fine.
    d. Pleas of guilty or finding of guilty on a charge of violating.
    State, Federal, or host nation civil law; or the UCMJ.
    e. Judicial or nonjudicial punishment imposed under the UCMJ.

                                 Driver

    Any person who drives or is in physical control of a motor vehicle. 
A driver is in physical control when in position to control the motor 
vehicle, whether to regulate or restrain its operation or movement. For 
example, sitting in a parked car behind the steering wheel, keeping it 
in restraint or in a position to control its movement. The word 
``driver'' is interchangeable with the word ``operator.''

                            Driver's License

    A license to operate a motor vehicle under the laws of a State, the 
District of Columbia, a U.S. territory or possession, a host country, or 
under international agreements (international driver's license). Also, a 
vehicle operator's permit issued by an agency of the U.S. Government, or 
an overseas command.

                            Driving Privilege

    The privilege extended by an installation commander to a person 
permitting the operation of a motor vehicle within the limits of the 
installation.

                             General Officer

    A term used to describe officers in the military grade of 0-7 or 
above, including officers frocked to the grade of, in the Army, Air 
Force, Marine Corps, or Navy.

                   General Officer Letter of Reprimand

    A memorandum or letter of reprimand, administrative in nature, 
prepared in accordance with AR 600-37 and signed by any officer serving 
in the grade of 0-7 or above in the Army, Air Force, Marine Corps, or 
Navy.

                        Government Motor Vehicle

    A motor vehicle owned, rented, or leased by DOD. This includes 
vehicles owned, rented, or leased by NAF activities of the military 
departments and DOD.

                    High Accident Frequency Location

    A location, intersection, or length of roadway, normally not more 
than one-half mile in length, where an unusually high number of 
accidents have occurred.

                               Host Nation

    Any foreign country or possession in which an installation is 
located.

                   Installation or Activity Commander

    A term applied equally to CONUS installation commanders and overseas 
community commanders.

                           Intoxicated Driving

    Includes one or more of the following:
    a. Driving, operating, or being in actual physical control of a 
motor vehicle under any intoxication caused by alcohol or drugs in 
violation of Article 111 of the UCMJ or a similar law of the 
jurisdiction in which the vehicle is being operated.
    b. Driving, operating, or being in actual physical control of a 
motor vehicle with a BAC of 0.10 or higher on a military installation or 
in an area where traffic operations are under military supervision.
    c. Driving, operating, or being in actual physical control of a 
motor vehicle with a BAC of 0.10 or higher in violation of the law of 
the jurisdiction in which the vehicle is being operated.
    d. Driving, operating, or being in actual physical control of a 
motor vehicle with a BAC of 0.05 but less than 0.10 in violation of the 
law of the jurisdiction in which the vehicle is being operated if the 
jurisdiction imposes a suspension or revocation solely on the basis of 
the BAC level.

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                  Law Enforcement Personnel (Officials)

    Persons under supervision of the installation law enforcement 
officer who are authorized to direct, regulate, and control traffic, and 
to apprehend or arrest violators of laws or regulations. They are 
usually identified as military police, security police, civilian guards, 
or DOD police.

                     Major Command/Major Commanders

    The level of command between the base, installation, or community 
commander and the Service headquarters.

                                  Moped

    Any two or three-wheel device having operative capability by--
    a. Human propulsion power (or no pedals if powered solely by 
electrical energy).
    b. An automatic transmission.
    c. A motor that produces less than two gross brake horsepower, and--
    (1) Propels the device at a maximum speed of not more than 30 miles 
per hour on level ground.
    (2) Has a maximum engine size of 50 cubic centimeters.

                               Motorcycle

    Every motor vehicle that has a seat or saddle for use of the rider 
and is designed to travel on not more than three wheels in contact with 
the ground. Tractors and Mopeds are excluded.

                              Motor Vehicle

    Any vehicle driven or drawn by mechanical power, and manufactured 
primarily for use on public streets, roads, and highways.
    (Vehicles operated only on a rail or rails are excluded.)

                       Motor Vehicle Registration

    The process of issuing registration certificate and registration 
plates for a motor vehicle under the law of a State (State 
registration). The term also applies to the registration form and 
identification media issued by a host nation or overseas command, or per 
this regulation for a motor vehicle authorized to operate on a military 
installation in the United States or its territories.

                     Motor Vehicle Traffic Accident

    An unintended event causing injury or damage, and involving one or 
more motor vehicles on a highway, road, or street that is publicly 
maintained and open for public vehicular travel. Motor vehicle traffic 
accident classification. The classification of traffic accidents 
according to severity of injuries or property damage sustained. Major 
classifications include the following:
    a. Severity of injury.
    (1) Fatal accident. A motor vehicle accident that results in fatal 
injuries to one or more personnel. A fatal injury is one that results in 
death within 12 months of the accident causing the injury.
    (2) Incapacitating injury. An injury, other than fatal, that 
prevents the injured person from walking, driving, or normally 
continuing the activities that he or she was capable of performing 
before the accident. Examples are severe lacerations, broken or 
distorted limb, skull fracture, crushed chest, internal injury, 
unconsciousness when taken from the accident scene, or inability to 
leave the accident scene without help.
    (3) Nonincapacitating evident injury. An injury, other than fatal 
and incapacitating, that is evident to any person at the scene of the 
accident. Examples are lump on head, abrasions, or minor lacerations.
    (4) Possible injury. An injury reported or claimed that is not a 
fatal, incapacitating, or nonincapacitating evident injury. Examples are 
momentary unconsciousness, claim of injuries that are not evident, 
limping, or complaint of pain, nausea, or hysteria.
    b. Severity of vehicle damage.
    (1) Disabling damage. Any damage to a vehicle such that it cannot be 
driven (or towed in the case of trailers) from the scene of the accident 
in the usual manner by daylight after simple repairs, and without 
further damage or hazard to itself, other traffic elements, or the 
roadway.
    (2) Functional damage. Any nondisabling damage to a vehicle that 
affects operation of the vehicle or its parts. Examples are doors, 
windows, hood, and trunk lids that will not operate properly; broken 
glass that obscures vision; or any damage that could prevent the motor 
vehicle from passing an official motor vehicle inspection.
    (3) Other motor vehicle damage. Any damage to a vehicle that is 
neither disabling nor functional damage. Such damage usually affects 
only the load on the vehicle or the appearance of the motor vehicle. 
Examples are damage to hubcaps, trim, or grill; glass cracks that do not 
interfere with vision; dents; scratches; body punctures; or damage to 
load.

                            Moving Violation

    A violation of any traffic law, ordinance, or regulation while 
operating a vehicle. Moving violations typically involve one or both of 
the following:
    a. Unsafe act. An act or omission in traffic that is hazardous.
    b. Unsafe condition. Causing or permitting an illegal and possibly 
hazardous condition of--
    (1) Highways, roads, or streets used by traffic.
    (2) Vehicles used in traffic.
    (3) A pedestrian or driver in traffic.

[[Page 71]]

          Navy Alcohol and Drug Safety Action Program (NADSAP)

    A Navy program that provides a means to identify Navy personnel 
involved in alcohol-related situations, within the legal and medical 
systems, at the earliest indication of alcohol misuse or alcoholism.

                                Pedicycle

    A vehicle operated solely by pedals and propelled by human power.

                               Pedestrian

    Any person not in or on a motor vehicle or other road vehicle.

                               Reciprocity

    Reciprocal action between State or host nation and military 
authorities to suspend or revoke a person's OF 46, installation driving 
privilege, or State, host nation, or overseas command driver's license 
based on action initiated by either authority.

                     Revocation of Driver's License

    The termination by formal action of State, host nation, or overseas 
command authority of a person's license or privilege to operate a motor 
vehicle on the public roadways. This termination is not subject to 
renewal or restoration except that application may be presented and 
acted on by the State, host nation, or overseas command authority after 
the expiration of the period set by State or host nation law or overseas 
command regulation.

                    Revocation of Driving Privileges

    Action taken by an installation commander to terminate a privilege 
to operate a motor vehicle on a military installation. State One of the 
U.S. States, the District of Columbia, the Commonwealth of Puerto Rico, 
and the territory of Guam.

                     Suspension of Driver's License

    The temporary withdrawal by formal action of State, host nation, or 
overseas command authority of a person's license or privilege to operate 
a motor vehicle on the public highways.

                    Suspension of Driving Privileges

    The temporary withdrawal by an installation commander of a person's 
privilege to operate a motor vehicle on a military installation for up 
to 12 months. Privileges normally are automatically restored on the day 
after the date the suspension ends.

                                 Traffic

    Pedestrians, ridden or herded animals, vehicles, street cars, and 
other conveyances, either singly or together, using any roadway.

                         Traffic Control Devices

    Signs, signals, markings, lights, and devices placed by a proper 
official to regulate, warn, or guide traffic.

                           Traffic Engineering

    Planning and geometric design of streets, highways, and abutting 
lands, and matters concerned with traffic operations on them related to 
the safe, convenient, and economical transportation of persons and 
goods.

                              Traffic Laws

    All laws, ordinances, and regulations concerning roadway traffic, 
including regulations on weight, size, and type of vehicles and vehicle 
cargo.



PART 636--MOTOR VEHICLE TRAFFIC SUPERVISION (SPECIFIC INSTALLATIONS)--Table of Contents




Sec.
636.0  Scope of this part.

                    Subpart A--Fort Stewart, Georgia

636.1  Responsibilities.
636.2  Program objectives.
636.3  Suspension or revocation of driving privileges.
636.4  Administrative due process for suspensions and revocations.
636.5  Army administrative actions against intoxicated drivers.
636.6  Remedial driver training program.
636.7  Extensions of suspensions and revocations.
636.8  Registration policy.
636.9  Registration requirement.
636.10  Hunter Army Airfield vehicle registration.
636.11  Installation traffic codes.
636.12  Traffic accident investigation.
636.13  Traffic accident investigation reports.
636.14  Parking.
636.15  Traffic violation reports.
636.16  Detection, apprehension, and testing of intoxicated drivers.
636.17  Compliance with State laws.
636.18  Driving records.
636.19  Point system application.
636.20  Point system procedures.
636.21  Obedience to official traffic control devices.
636.22  Speed regulations.
636.23  Turning movements.
636.24  Driving on right side of roadway; use of roadway.
636.25  Right-of-way.
636.26  Pedestrian's rights and duties.
636.27  Regulations for bicycles.
636.28  Special rules for motorcycles/mopeds.

[[Page 72]]

636.29  Go-carts, minibikes, and All Terrain Vehicles (ATV's).
636.30  Stopping, standing and parking.
636.31  Abandoned vehicles.
636.32  Miscellaneous instructions.
636.33  Vehicle safety inspection criteria.
636.34  Restraint systems.
636.35  Headphones and earphones.
636.36  Alcoholic beverages.
636.37  Use of ``Denver Boot'' device.
636.38  Impounding privately owned vehicles (POVs).

Appendix A to Part 636-References
Appendixes B-C to Part 636 [Reserved]
Appendix D to Part 636-Glossary

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

    Source: 56 FR 28077, June 19, 1991, unless otherwise noted.



Sec. 636.0  Scope of this part.

    This part contains regulations which are in addition to the motor 
vehicle supervision regulations contained in 32 CFR part 634. Each 
subpart in this part contains additional regulations specific to the 
named installation.



                    Subpart A--Fort Stewart, Georgia



Sec. 636.1  Responsibilities.

    In addition to the responsibilities described in Sec. 634.4 of this 
subchapter, Unit Commanders will:
    (a) Monitor and control parking of military and privately owned 
vehicles within the unit's area, to include motor pools and assigned 
training areas.
    (b) Establish a program in accordance with 24th Infantry Division 
(Mechanized) and Fort Stewart Regulation 755-2 to identify abandoned 
privately owned vehicles in the unit's area and coordinate with the 
Military Police for impoundment.
    (c) In coordination with the Military Police, identify problem 
drivers in the unit and take appropriate action to improve their driving 
habits.
    (d) Ensure that the contents of this part are explained to all newly 
assigned personnel, including personnel on temporary duty with their 
unit for 10 days or more.
    (e) Identify unit member's vehicles which have obvious safety 
defects (see Sec. 636.33) and take appropriate action to have the defect 
corrected. Commanders who cause a vehicle to be removed from the 
installation without the consent of the owner could be found liable for 
subsequent damage done to the vehicle provided that the damage was the 
result of negligence on the part of the government personnel.
    (f) Identify those individuals required to attend the Defensive 
Driving Course (DDC) or Motorcycle Defensive Driving Course (MDDC) and 
ensure their attendance at the course.



Sec. 636.2  Program objectives.

    In addition to the requirements of Sec. 634.5 of this subchapter:
    (a) The entry of motor vehicles on the Fort Stewart/Hunter Army 
Airfield reservation is permitted by the Commanding General under the 
conditions prescribed by this part. Upon entering the military 
reservation, the driver subjects himself and his vehicle to reasonable 
search. The authority to search vehicles on post is subject to the 
provisions of AR 190-22 and AR 210-10. This part is not applicable to 
vehicle safety inspections and spot checks conducted primarily for 
purposes of safety.
    (b) The Military Police may:
    (1) Inspect any vehicle operated on the reservation for mechanical 
condition.
    (2) Impound, exclude, or remove from the reservation any vehicle 
used as an instrument in a crime, suspected of being stolen, abandoned, 
inoperable, unregistered, or being operated by a person under the 
influence of intoxicants or drugs. No vehicle will be impounded unless 
the impoundment meets the requirements of AR 190-5, paragraph 6-2 (32 
CFR 634.50) and Sec. 636.38 of this subpart. In the event a vehicle is 
impounded as an instrument of crime (particularly in the transport of 
illegal drugs or weapons), coordination will be made with the 
appropriate civilian law enforcement agencies.
    (3) Subsequent to a lawful apprehension, seize for administrative 
forfeiture proceedings all conveyances which are used, or are intended 
to be used to transport, sell or receive, process or conceal illegal 
drugs or drug paraphernalia, or in any way facilitate the foregoing. A 
conveyance is defined as

[[Page 73]]

any mobile object capable of transporting objects or people (e.g., 
automobile, truck, motorcycle, boat, airplane, etc.).
    (c) The Commander or other persons designated authority by the 
Commander may suspend or revoke the installation driving privileges of 
any person as authorized by part 634 of this subchapter and this 
section.
    (d) Unit commanders may request temporary suspension of an assigned 
member's installation driving privilege for cause (e.g., continued minor 
driving infractions, numerous parking violations, etc.). Such requests 
will be submitted in writing to the Commander, 24th Infantry Division 
(Mechanized) and Fort Stewart, ATTN: AFZP-PM, Fort Stewart, Georgia 
31314-5000. Reasons for such requests will be explained. Unit commanders 
retain the authority to suspend a soldier's military vehicle driving 
privileges in accordance with AR 385-55.



Sec. 636.3  Suspension or revocation of driving privileges.

    In addition to the requirements of Sec. 634.10 of this subchapter:
    (a) Administrative suspension or revocation of installation driving 
privileges applies to the operation of a motor vehicle on Fort Stewart/
Hunter Army Airfield.
    (b) Installation driving privileges will be suspended for up to 6 
months for drivers who accumulate 12 traffic points within 12 
consecutive months, or 18 traffic points within 24 consecutive months.
    (c) The Garrison Commander and Deputy Garrison Commander are 
designated as suspension/revocation authorities for:
    (1) Suspension of driving privileges should the evidence indicate 
that a charge of driving under the influence is warranted or;
    (2) The suspension/revocation for accumulation of 12 traffic points 
within 12 months or 18 points within 24 consecutive months.



Sec. 636.4  Administrative due process for suspensions and revocations.

    In addition to the requirements of Sec. 634.11(a) of this 
subchapter:
    (a) The Provost Marshal or his designee will provide the written 
notice of pending action and offer of an administrative hearing using 
AFZP Form Letter 316, Suspension of Installation Driving Privileges.
    (b) The Garrison Commander and Deputy Garrison Commander are 
designated as reviewing authorities to conduct administrative hearings.
    (c) Individuals who desire an administrative hearing to review a 
decision to impose immediate suspension, or to appeal the decision of 
the administrative hearing officer, will adhere to the following 
procedures. A request for an administrative hearing will be forwarded 
through their supervisory chain of command. Requests from family members 
or non-employee civilians can be forwarded to the Provost Marshal's 
Administrative Section at Fort Stewart or Hunter Army Airfield and can 
either be delivered or post marked within ten days of notification of 
the suspension action.
    (d) Individuals who were initially charged with driving under the 
influence (DUI) based in part on a blood alcohol content (BAC) test 
which has not subsequently been invalidated and who are found not guilty 
of DUI may request a hearing to determine if their driving privileges 
should be restored. Such requests shall be forwarded through their chain 
of command to arrive at the Provost Marshal's Office (AFZP-PMA for Fort 
Stewart or AFZP-PM-H for Hunter Army Airfield) not later than ten 
working days after the date of court action.



Sec. 636.5  Army administrative actions against intoxicated drivers.

    For this installation, in violation of State law referenced in 
Sec. 634.12(a)(3) of this subchapter, means a blood alcohol content of 
0.10 percent or higher as set forth in Official Code of Georgia 
Annotated 40-6-392(b)(3).



Sec. 636.6  Remedial driver training program.

    For this installation remedial driving training program referenced 
in Sec. 634.12(b) of this subchapter is operated by the Installation 
Safety Office. Driving privileges may be withheld beyond expiration of 
the sanction to complete

[[Page 74]]

remedial driving or alcohol and drug rehabilitation programs in 
accordance with AR 190-5, paragraphs 2-12c and d, and 5-4f (32 CFR 
634.17(c) and (d) and 634.17(f)).



Sec. 636.7  Extensions of suspensions and revocations.

    In addition to the requirements in Sec. 634.17(a) of this 
subchapter, for each subsequent violation of the suspension period, an 
additional five years will be added to the suspension period for this 
installation (see Table 634.46 in Sec. 634.46 of this subchapter).



Sec. 636.8  Registration policy.

    In addition to the requirements of Sec. 634.19(a) of this 
subchapter, motor vehicles which are owned and/or operated by a person 
who resides, performs duty, is employed on, or ``frequently uses'' the 
facilities of Hunter Army Airfield will be registered in accordance with 
the requirements of Sec. 634.20 of this subchapter. Frequent users 
include but are not limited to family members, retirees, and civilians 
whose normal route of travel between home and work takes them through 
the installation.



Sec. 636.9  Registration requirement.

    In addition to the requirements of Sec. 634.20 of this subchapter:
    (a) The Military Police will cite violators on DD Form 1408 (Warning 
Citation) for observed safety defects. On a periodic basis, Military 
Police will conduct vehicle safety inspection operations using the 
criteria in Sec. 636.33.
    (b) An individual possessing a valid USAREUR privately owned vehicle 
(POV) license may operate a motor vehicle in the State of Georgia for a 
period not to exceed 30 days. After the 30 day period the individual 
must obtain a valid license from the State of Georgia or another state 
to operate a motor vehicle in the State of Georgia.
    (c) An individual returning a vehicle to Continental United States 
(CONUS) has 30 days from date of entry or 10 days after reporting for 
military duty to register that vehicle in the State of Georgia or 
another state. A temporary pass will be issued until this requirement 
has been met.
    (d) Liability and no-fault insurance requirements. (1) All personnel 
operating vehicles on Fort Stewart/Hunter Army Airfield will obtain and 
maintain, at least, the minimum amount of liability and no-fault 
insurance required by the State of Georgia. The amounts are as follows:
    (i) Liability:
    (A) $15,000.00 per person per accident for bodily injury.
    (B) $30,000.00 per incident for bodily injury.
    (C) $10,000.00 per accident for property damage.
    (ii) No-Fault--$5,000.00.
    (2) Proof of this insurance will be required at the time of 
registration.
    (e) Vehicle safety inspections are not required in the State of 
Georgia, however, vehicles operated on Fort Stewart/Hunter Army Airfield 
must be in safe operating condition and be able to pass spot vehicle 
safety equipment checks conducted by the Military Police. Safety 
criteria is set forth in Sec. 636.33 of this subpart.



Sec. 636.10  Hunter Army Airfield vehicle registration.

    Personnel assigned or employed at Hunter Army Airfield are required 
to register their privately owned vehicles within five days after 
arrival to the installation. Requirements for registration are listed in 
AR 190-5 and this part.
    (a) Temporary passes may be issued to personnel not assigned to the 
installation but requiring temporary access to the installation. These 
include personnel employed by construction and material handling 
vehicles requiring on post access. Personnel requesting temporary passes 
must meet the same requirements as do personnel requiring decals.
    (1) Temporary passes will not exceed 45 days. Renewal of temporary 
passes is prohibited except upon approval of the Installation Commander 
or his/her designee.
    (2) Temporary passes will be conspicuously placed on the left side 
of the vehicle dashboard between the dashboard and the front windshield. 
Nothing will be placed so as to obscure the view of the temporary pass 
from the exterior of the vehicle. The pass will

[[Page 75]]

remain in this position during the entire time the vehicle is on the 
installation. Failure to conspicuously display the temporary pass could 
result in the vehicle being removed from the installation.
    (3) Temporary passes will remain with the vehicle for which they 
were issued and not be transferred to other vehicles.
    (4) Each person driving a vehicle on the installation must 
individually meet the drivers license requirement of the installation as 
well as sign the temporary pass.
    (5) Temporary passes will be returned to the Vehicle Registration 
section when they have expired or area no longer needed.
    (b) Decals are to be issued to all military and civilian employees 
of Hunter Army Airfield, military retirees, and contractors/vendors 
doing extended business on the installations. Requirements outlined in 
AR 190-5 (32 CFR part 634) and this part must be met before decals are 
issued.
    (c) Personnel requiring permanent decals, who do not meet the 
requirements outlined in AR 190-5 (32 CFR part 634) and this part, will 
be issued temporary passes not to exceed 45 days. Registration 
requirements will be met as soon as possible after issuance of the 
temporary pass. A decal may then be issued.
    (d) DOD decals (DD Form 2220) will be utilized for vehicle 
registration. Additional installation name and expiration month and year 
decals will be utilized with sizes and coloration as prescribed in AR 
190-5 (32 CFR part 634).
    (e) Decals will be permanently affixed to the vehicles for which 
they are registered in one of two places:
    (1) Exterior, front windshield lower left corner.
    (2) Front, left bumper of the vehicle, conspicuously displayed. 
Decals will not be affixed to the front spoilers or any other area which 
obscures the viewing of the decal.
    (3) Installation decals will be placed directly beneath and centered 
on the DOD decal. Expiration decals will be placed on each side and 
level with the DOD decal with the month on the left and the year on the 
right.
    (4) Decals will not be affixed to any other portion of the vehicle 
other than listed in Sec. 636.10(e) (1) through (3).



Sec. 636.11  Installation traffic codes

    In addition to the requirements in Sec. 634.25(d) of this 
subchapter, on-post violations offenders will be cited under the 
appropriate Georgia Traffic Code as assimilated by 18 U.S.C. 13 (for 
civilians) and Art 134c, Uniform Code of Military Justice (UCMJ) (for 
military). If no Georgia Code is appropriate for a specific offense, 
civilians will be cited under 40 U.S.C. 318a and military personnel will 
be cited under Art 92, UCMJ. The Fort Stewart/Hunter Army Airfield 
installation traffic code conforms to the State of Georgia Traffic Law.



Sec. 636.12  Traffic accident investigation.

    In addition to the requirements in Sec. 634.28 of this subchapter, 
Military Police at Fort Stewart/Hunter Army Airfield installation will 
investigate reportable motor vehicle accidents involving government 
owned or privately owned vehicles.



Sec. 636.13  Traffic accident investigation reports.

    In addition to the requirements in Sec. 634.29 of this subchapter:
    (a) Military Police at Fort Stewart/Hunter Army Airfield 
installations will record traffic accident investigations on DA Form 
3946 (Military Police Traffic Accident Report) and DA Form 3975 
(Military Police Report).
    (b) All privately owned motor vehicle accidents on Fort Stewart or 
Hunter Army Airfield will be immediately reported to the Military Police 
for investigation. Unless an emergency situation exists, vehicle(s) 
involved in an accident will only be moved on order of the Military 
Police.



Sec. 636.14  Parking.

    In addition to the requirements in Sec. 634.31 of this subchapter:
    (a) Military Police will enforce parking in handicapped and 
Commanding General reserved parking spaces at Fort Stewart/Hunter Army 
Airfield soldier service facilities and assess points in accordance with 
Table 634.46 in Sec. 634.46 of this subchapter and Table

[[Page 76]]

636.19 in Sec. 636.19. Vehicles may be towed for such violations as 
parking in handicapped parking spaces and parking on a yellow curb among 
others.
    (b) Reserved parking spaces in areas under the control of units or 
staff sections may be designated by the commander or staff section chief 
who is also responsible to control the use of these spaces.
    (c) Parking spaces for tactical vehicles at the Main Exchange/
Commissary area will be designated at the end of rows, farthest from the 
facilities. Only those vehicles properly authorized by unit commanders 
will be parked at the Main Exchange/Commissary area.



Sec. 636.15  Traffic violation reports.

    In addition to the requirements in Sec. 634.32 of this subchapter:
    (a) The Provost Marshal in coordination with the Staff Judge 
Advocate will determine what traffic offenses will be referred to the 
U.S. Magistrate Court by means of DD Form 1805.
    (b) Of the four available actions on the back of the DD Form 1408, 
supervisors of civilian employees may take one of the following two 
actions.
    (c) No action taken: A finding of not guilty. There must be an 
explanation of the reason for no action taken.
    (d) Administration: A finding of guilty. This includes, but is not 
limited to, such actions as a written warning, letter of reprimand, or 
suspension. Supervisors should coordinate with CPO, MER branch before 
taking adverse action.
    (e) Reports of Commander's action taken will be forwarded to the 
Provost Marshal Office through the appropriate major subordinate 
commander.



Sec. 636.16  Detection, apprehension, and testing of intoxicated drivers.

    In addition to the requirements in Sec. 634.36 of this subchapter, 
the standard field sobriety test used by the Military Police may include 
the following tests:
    (a) Horizontal gaze nystagmus.
    (b) Walk and turn.
    (c) One leg stand.



Sec. 636.17  Compliance with State laws.

    In addition to the requirements of Sec. 634.42 of this subchapter, 
the Provost Marshal will conduct necessary coordination with civil 
enforcement agencies to ensure receipt of information and assistance as 
required. The Directorate of Logistics will secure any necessary permits 
for military movement on public roads and highways.



Sec. 636.18  Driving records.

    In addition to the requirements in Sec. 634.44 of this subchapter, 
the Provost Marshal Office will maintain driver records.



Sec. 636.19  Point system application.

                              Table 636.19
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Violation: Parking in a handicap zone
Points assessed: 3
Violation: Parking against a yellow curb
Points assessed: 3
Violation: Parking within 10 feet of a fire hydrant
Points assessed: 3
Violation: Impeding the flow of traffic
Points assessed: 3
Violation: Other parking violations
Points assessed: 2
------------------------------------------------------------------------



Sec. 636.20  Point system procedures.

    In addition to the requirements of Sec. 634.47 of this subchapter:
    (a) Reports of parking violations recorded on DD Form 1408 or DD 
Form 1805 will serve as a basis for determining point assessment.
    (b) The instructions in paragraph (a) of this section also apply to 
the receipt of a DD Form 1408 (Armed Forces Traffic Ticket) for a 
parking violation.



Sec. 636.21  Obedience to official traffic control devices.

    (a) All drivers will obey the instructions of official signs, unless 
directed to do otherwise by the Military Police.
    (b) Official traffic control devices, such as traffic cones or 
barricades, are presumed to have been placed by proper authority.



Sec. 636.22  Speed regulations.

    (a) Georgia state speed limits apply unless otherwise specified by 
this part.
    (b) Drivers will operate their vehicles at a reasonable and prudent 
speed based on traffic and road conditions, regardless of posted speed 
limits.
    (c) The speed limit on the installation is 30 miles per hour unless 
otherwise posted or if it falls within one of

[[Page 77]]

the special speed limit situations (see paragraph (d) of this section).
    (d) The following special speed limits apply:
    (1) When passing troop formations, 10 miles per hour.
    (2) The authorized speed limit in the school zones is 15 miles per 
hour when any of the following conditions are present:
    (i) A school crossing attendant is present.
    (ii) Children are present in the area.
    (iii) The flashing, yellow, caution lights are in operation.
    (3) Fort Stewart housing areas, 20 miles per hour. Hunter Army 
Airfield housing areas, 15 miles per hour.
    (4) Tactical vehicle drivers will obey posted speed limits; however, 
drivers will not exceed 40 miles per hour on paved roads and 25 miles 
per hour on unpaved roads and tank trails. Commercial Utility Cargo 
Vehicles (CUCV's) are tactical vehicles and will obey the following off-
road driving speeds:

Day Driving:
  Trails, 16 MPH
  Cross County, 6 MPH
Night Driving:
  Trails, 5 MPH (with headlights)
  Cross Country, 5 MPH
Night Driving:
  Trails, 4 MPH (Black-out Drive)
  Cross County, 2.5 MPH
 

    (5) Parking lots, 10 miles per hour.
    (6) The authorized maximum speed limit for rough terrain forklifts 
when operated on hard surface roads will not exceed 15 miles per hour. 
These vehicles will also bear the Triangular Symbol to alert trailing 
vehicles as required by the Occupational Safety and Health 
Administration (OSHA) (29 CFR 1910.145).



Sec. 636.23  Turning movements.

    (a) U-turns are prohibited on all streets in the cantonment area.
    (b) Right-turns will be made from a position as close to the right 
edge or right curb of the roadway as possible.
    (c) Left-turns will be made from a position as close to the center 
line as possible or from a left turn lane, if available.
    (d) All turns will be signaled continuously beginning not less than 
100 feet prior to the turn.



Sec. 636.24  Driving on right side of roadway; use of roadway.

    (a) All drivers will use the right side of roadways, except:
    (1) When passing a vehicle proceeding in the same direction.
    (2) When an obstruction is blocking all or part of the right lane of 
the roadway.
    (3) When driving on a one-way street.
    (b) Drivers proceeding in opposite directions will pass to the 
right, each using one-half of the roadway.
    (c) Drivers passing another vehicle traveling in the same direction 
will exercise the utmost caution and safety and will abide by all 
applicable traffic laws.
    (d) Drivers of vehicles being passed will give way to the right and 
not increase their vehicle's speed.
    (e) Drivers will allow a sufficient distance between their vehicle 
and the vehicle in front to allow a safe stop under all conditions.



Sec. 636.25  Right-of-way.

    (a) When two vehicles enter an intersection from different highways 
at the same time, the driver of the vehicle on the left will yield 
right-of-way. When entering an intersection without traffic control 
devices from a highway which terminates at the intersection, that driver 
will yield right-of-way.
    (b) Drivers turning left within an intersection will yield right-of-
way to vehicles approaching from the opposite direction.
    (c) Drivers approaching a stop sign will stop at the marked stop 
line, if present, or before entering the crosswalk, if present, or at a 
point nearest the intersecting roadway where the driver will yield the 
right-of-way, if required.
    (d) Drivers approaching yield signs will slow down to a speed not 
exceeding 10 miles per hour and yield the right-of-way to any 
approaching vehicles, coming to a stop if necessary.
    (e) Drivers entering or crossing a roadway from any place other than 
another roadway will yield the right-of-way to vehicles on the roadway.
    (f) Upon the immediate approach of an authorized emergency vehicle 
identified as such, all drivers will yield the right-of-way to the 
emergency vehicle.

[[Page 78]]



Sec. 636.26  Pedestrian's rights and duties.

    (a) Pedestrians will obey all traffic control devices and 
regulations, unless directed to do otherwise by the Military Police.
    (b) When traffic-control signals are not in place or not in 
operation, the driver of a vehicle will yield the right of way, by 
slowing down or stopping, when a pedestrian is in a crosswalk on the 
same side of the road as the driver's vehicle, or when the pedestrian is 
approaching so closely from the opposite half of the roadway as to be in 
danger.
    (c) Pedestrians will not suddenly leave a curb or other place of 
safety and walk or run into the path of a vehicle which is so close to 
the crosswalk that it is impractical for the driver to stop.
    (d) Pedestrians crossing a roadway, at a point other than a 
crosswalk, will yield the right-of-way.
    (e) Pedestrians will not cross any intersection diagonally unless 
clearly authorized to do so.
    (f) Every driver will exercise due care to avoid colliding with any 
pedestrian upon any roadway and will exercise proper precaution upon 
observing any child or any obviously confused, incapacitated, or 
intoxicated person.
    (g) A person who is under the influence of intoxicating liquor or 
any drug to a degree which renders himself a hazard will not walk upon 
any roadway.
    (h) Pedestrians will use sidewalks, where provided, rather than 
walking upon the roadway. When sidewalks are not provided, pedestrians 
will walk the shoulder of the roadway as far from the edge of the 
roadway as possible. When neither sidewalks nor a shoulder are 
available, pedestrians will walk on the extreme edge of the roadway, 
facing traffic, and will yield to all oncoming traffic.
    (i) Individuals will not stand in or beside the roadway to solicit 
rides (hitch-hike).
    (j) Individuals will not stand in or beside the roadway to solicit 
business, employment, or contributions from the occupant of any vehicle.
    (k) Pedestrians will yield to all authorized emergency vehicles 
using an audible signal and/or a visual signal.
    (l) The wearing of headphones or earphones by pedestrians or joggers 
while walking or jogging on roadways or on the shoulders of roadways is 
prohibited.



Sec. 636.27  Regulations for bicycles.

    (a) Parents will not knowingly allow their children to violate any 
of the provisions of this section.
    (b) Traffic laws and regulations in this part apply to persons 
riding bicycles. Bicycle riders are granted all the rights and are 
subject to all duties of motorized vehicle operators, except those which 
logically do not apply.
    (c) Bicycles will be parked against the curb or in a rack, provided 
for that purpose, and will be secured.
    (d) Bicycle riders will not attach the bicycle or themselves to any 
motorized vehicle operating upon the roadway.
    (e) Bicycles will be ridden upon the roadway in single-file.
    (f) Bicycles operated between dusk and dawn will utilize a headlight 
visible for a minimum of 300 feet and a rear reflector or red light 
visible for 300 feet to the rear.
    (g) Bicycles will not be ridden without an operable brake system.
    (h) Bicycles will not be ridden if the pedal, in its lowermost 
position, is more than 12 inches above the ground.
    (i) If a bicycle/pedestrian path or sidewalk is present, bicyclists 
will use the patch or sidewalk instead of the roadway.
    (j) Certain roadways have been designated and marked as being off-
limits to bicyclists. Bicyclists will use an alternate roadway or a 
bicycle path rather than those roadways.



Sec. 636.28  Special rules for motorcycles/mopeds.

    (a) Traffic laws and regulations in this part apply to persons 
riding motorcycles/mopeds. Motorcyle/moped operators are granted all the 
rights and are subject to all duties of motor vehicle operators, except 
those which logically do not apply.
    (b) Motorcycles/moped operators will ride only while seated facing 
forward with one leg on either side of the vehicle on the permanent and 
regular seat of the vehicle. Passengers will not be carried unless the 
vehicle is designed

[[Page 79]]

to carry a passenger. Passengers will only be carried in a manner which 
neither interferes with the operation of the vehicle nor obstructs the 
operator's view. Operators will keep both hands on the vehicle's 
handlebars.
    (c) Motorcycle/moped operators are entitled to the use of a full 
lane of traffic. Motorcycle/moped operators will not pass another 
vehicle using the same lane as the overtaken vehicle. Motorcycles/mopeds 
will not be operated between lanes of traffic or between adjacent lines 
or rows of vehicles.
    (d) Motorcycles/moped headlights and tail lights will be illuminated 
at anytime the vehicle is being operated.
    (e) Motorcycle/moped operators will not attach their vehicle or 
themselves to any other motorized vehicle operating upon the roadway.
    (f) Footrests will be provided for passengers. Motorcycles/mopeds 
will not be operated with handlebars more than 15 inches above the seat 
which the operator occupies. No back rest attached to the motorcycle/
moped will have a sharp point at its apex.
    (g) All motorcycle/moped operators/passengers will comply with the 
following safety requirements:
    (1) Wear the following protective equipment:
    (i) Properly fastened (under the chin) DOT approved helmet.
    (ii) Eye protection (clear goggles or a face shield attached to the 
helmet).
    (iii) Full-fingered gloves.
    (iv) Long trousers.
    (v) Long-sleeved shirt or jacket (with sleeves rolled down).
    (vi) Leather boots or over-the-ankle shoes.
    (vii) High-visibility garments (bright color for day and retro-
reflective for night).
    (2) Motorcycle/moped headlights will be turned on at all times.
    (3) Motorcycle/moped must have two rear-view mirrors (one mirror on 
each side of the handlebars).
    (4) Use of headphones or earphones while driving is prohibited.
    (h) Military personnel, civilian employees, and family member 
drivers of a privately or government-owned motorcycle/moped (two or 
three wheeled motor driven vehicles) are required to attend and complete 
an approved Motorcycle Defense Driving Course (MDDC) prior to operation 
of the motorcycle/moped on the installation. Upon completion of the 
course, personnel will be provided with a MDDC card. Personnel are 
authorized to operate their motorcycle/moped on the installation for the 
purpose of attending the motorcycle safety course. Attendance may be 
verified by contacting the Installation Safety Office.



Sec. 636.29  Go-carts, minibikes, and all terrain vehicles (ATV's).

    (a) Operators of ``go-carts,'' ``minibikes,'' and ATV's 16 years of 
age or older, must comply with applicable Georgia State Law and Fort 
Stewart traffic laws and regulations contained in this part.
    (b) ``Go-carts,'' ``minibikes,'' and ATV's operated on installation 
roadways are required to meet the requirements of this part and the 
Georgia Traffic Code.
    (c) Off-road vehicles will only be operated in areas specified by 
the DPCA. The DPCA will specify conditions for off-road operation.
    (d) ``Go-carts,'' ``minibikes,'' and ATV's will only be operated 
during daylight hours and will not be operated during periods of 
inclement weather or reduced visibility.
    (e) Operators and passengers of ``go-carts,'' ``minibikes,'' and 
ATV's must wear approved protective helmets, eye protection, and 
footwear (open-toed footwear is prohibited).
    (f) Soldiers or sponsors of persons operating ``go-carts,'' 
``minibikes,'' and ATV's are responsible for the safe operation of the 
vehicle.



Sec. 636.30  Stopping, standing and parking.

    (a) Drivers will not stop, park, or leave standing their vehicle, 
whether attended or unattended, upon the roadway when it is possible to 
stop, park or leave their vehicle off the roadway. In any case, parking 
or standing the vehicle upon the roadway will only be done in an 
emergency.
    (b) Vehicles, not clearly identified as operated by a handicapped 
individual, will not be parked in a handicapped parking space.

[[Page 80]]

    (c) Whenever Military Police find a vehicle parked or stopped in 
violation of this section, they may immediately move, or cause to be 
moved, the vehicle off the roadway. At the direction of the Provost 
Marshall, or his designee, vehicles parked in restricted or reserved 
parking spaces, may be moved.
    (d) The Military Police may remove or cause to be removed, to a safe 
place, any unattended vehicle illegally left standing upon any highway 
or bridge or within 10 feet of any railroad track on the installation.
    (e) As a crime prevention measure, the Military Police may pick up 
keys left in vehicles, secure the vehicle in place, and post a notice 
directing the owner to proceed to the MP station to claim his/her keys. 
The program will be adequately publicized and will only be invoked after 
a conscientious attempt to locate the owner.
    (f) No driver will stop, stand, or park a vehicle:
    (1) On the roadway side of any vehicle stopped or parked at the edge 
of a curb or a street.
    (2) On a sidewalk.
    (3) Within an intersection.
    (4) On a crosswalk.
    (5) Alongside or opposite any street excavation or obstruction when 
traffic would be obstructed.
    (6) Upon a bridge or other elevated structure.
    (7) On any railroad tracks or within 10 feet of any rail road track.
    (8) On any controlled-access highway.
    (9) Where prohibited by official signs.
    (10) Alongside any roadway in any manner which obstructs traffic.
    (g) No driver will stand or park a vehicle, whether occupied or not, 
except momentarily to pick up or discharge a passenger or passengers:
    (1) In front of a public or private driveway.
    (2) Within 10 feet of a fire hydrant.
    (3) Within 20 feet of a crosswalk at an intersection.
    (4) Within 20 feet upon the approach to any flashing signal, a stop 
sign, yield sign, or traffic control signal located at the side of a 
roadway.
    (5) Within 20 feet of a driveway entrance to any fire station and on 
the side of a street opposite the entrance to any fire station within 75 
feet of said entrance (when properly sign posted).
    (6) At any place where official signs prohibit standing.
    (7) Adjacent to any curb painted yellow or identified, by signs, as 
a ``No Parking'' area.
    (8) Along a roadway against the flow of traffic.
    (9) Within 20 feet of any building in what would reasonably be 
considered a ``fire-lane'' unless specified as a parking space.
    (10) Parallel parking along the curb is authorized in housing areas 
unless otherwise posted.
    (11) Parking is prohibited upon lawns or grassed (seeded) areas, 
unless specifically authorized by the Provost Marshal. This prohibition 
is not intended, however, to extend to those locations designated as 
bivouac sites, range areas, etc.
    (12) No dual-wheeled or tandem-wheeled recreational vehicles and 
trailers will be stored at government quarters. All other recreational 
vehicles, to include campers, trailers, boats, pop-up campers, and 
camper shells may be parked in the driveway area or under the carport of 
individual quarters. To prevent injury to children playing on and around 
trailers, one tire on each side of the trailer will be chocked in front 
and back. Trailer tongues, without installed supports, will either be 
left on the ground or supported in such a manner as to preclude the 
support tipping over and allowing the trailer tongue to fall. If the 
vehicle creates a safety hazard or is an eyesore, personnel are 
encouraged to use the storage facilities available at the Outdoor 
Recreation Center, Holbrook Pond, Fort Stewart, or at the Private 
Vehicle Storage area at Hunter Army Airfield. House trailers are not 
authorized to be parked in the quarters area. Campers, camper trailers, 
and tents will not be approved for occupancy in the quarters area. 
Parking of recreational vehicles on the street will be limited to 24 
hours for owners to load and unload the vehicle at the owner's quarters.
    (h) No driver will use a parking lot, sidewalk, fire lane, or vacant 
property to drive on in order to avoid a traffic control device or alter 
the traffic flow plan unless authorized to do so by the

[[Page 81]]

Military Police or a traffic control device.



Sec. 636.31  Abandoned vehicles.

    (a) Any MP or DOD police officer who finds or has knowledge of a 
motor vehicle which has been left unattended or abandoned on a street, 
road, highway, parking lot, or any other real property of the 
installation for a period of at least 72 hours may be authorized by the 
Provost Marshal or his designee to cause said motor vehicle to be moved 
to an impoundment lot for storage.
    (b) Any MP or DOD police officer who, under the provisions of this 
section, causes any motor vehicle to be moved to an impoundment lot or 
other temporary place of safety is acting with proper authority and 
within the scope of that officer's employment, except that any wanton or 
intentional damage done to any motor vehicle by any MP or DOD police 
officer should not be within the scope of either that officer's 
authority or employment.
    (c) Unit commanders, with knowledge of an abandoned vehicle in their 
unit area, should attempt to identify the owner and have them remove the 
vehicle. When owners cannot be identified or are no longer assigned to 
this command, unit commanders will notify the MP's to initiate 
impoundment procedures.
    (d) Civilian vehicles left abandoned on the reservation will be 
towed to an impoundment lot for further disposition.
    (e) Personnel experiencing motor vehicle trouble may authorize the 
MP desk to obtain the assistance of a civilian wrecker, but in doing so, 
the government assumes no liability of payment for such services or 
possible resulting damage.



Sec. 636.32  Miscellaneous instructions.

    (a) All unattended motor vehicles will have the engine stopped and 
the ignition locked.
    (b) Vehicles will not be operated when so loaded with passengers 
and/or goods that the driver's view is blocked or control over the 
driving mechanism is interfered with.
    (c) Drivers, other than on official business, will not follow any 
emergency vehicle, operating under emergency conditions, closer than 500 
feet or park closer than 500 feet to any emergency vehicle stopped for 
an emergency.
    (d) No vehicle will be driven over a fire hose unless directed to do 
so by a fire official, or the Military Police.
    (e) Ground guides will be posted, during backing, at the left rear 
of any \3/4\ ton or larger vehicle.
    (f) All vehicles carrying a load will have the load secured and/or 
covered to prevent the load from blowing or bouncing off the vehicle.
    (g) A red flag or red light, visible for at least 100 feet from the 
rear will be attached to any load protruding beyond the rear of any 
vehicle.
    (h) Troop marches, physical training runs, etc., will not be 
conducted in a manner that will interfere with motor vehicle traffic on 
the Fort Stewart/Hunter Army Airfield reservation.
    (1) Units participating in parades and related practices, road 
marches, etc., will not conduct such marches upon any hard surface road 
or traffic way unless coordination has been made with the Provost 
Marshal Office.
    (2) Physical training runs, exercises, or tests will not be 
conducted upon any hard surface road or traffic way unless such is 
specifically allowed in 24th Infantry Division (Mechanized) and Fort 
Stewart Regulation 350-1.
    (i) Congested housing areas on the installation require special 
precaution on the part of drivers and persons living in those areas.
    (1) Parents can assist drivers in this regard by reminding their 
children that housing area streets are extremely dangerous and that 
playing in the street is prohibited.
    (2) Bus stops are sites particularly prone to large numbers of 
children playing immediately adjacent to or actually in the roadway 
while awaiting arrival of the school bus.
    (3) Complaints received by the MP desk, concerning children playing 
in the streets, must be investigated in the interest of safety. Repeated 
violations could result in further action by the chain of command.
    (j) Vehicles and/or trailers will not be towed with a chain or rope 
(vehicles may be towed by another privately

[[Page 82]]

owned vehicle by use of a rigid tow bar).
    (k) At entrances to Fort Stewart/Hunter Army Airfield where a gate 
guard is positioned, drivers are required to obey his/her instructions. 
During hours of darkness, headlights will be switched to parking lights 
upon approach to the gate.
    (l) Motorists will drive with headlights illuminated at any time 
from a half hour after sunset to a half hour before sunrise and at any 
time when it is raining in the driving zone and at any other time when 
there is not sufficient visibility to render clearly discernible persons 
and vehicles on the highway at a distance of 500 feet ahead.
    (m) Motor vehicles will not be operated if visibility to the front, 
rear, or side is rendered unsafe and improper from fogged or iced-over 
windows.
    (n) Aircraft runways, taxiways, and aprons at Hunter Army Airfield 
and Wright Army Airfield and ``OFF-LIMITS'' to all privately owned 
vehicles.
    (o) Extensive repairs to automobiles will not be undertaken in 
housing areas, parking lots, or other similar areas. Repairs extending 
over a 24 hour period will be considered extensive.
    (p) Tactical vehicles will not be driven in housing areas. Post 
police or vehicles on similar details may drive in the housing areas as 
required.
    (q) Active duty personnel residing on post are encouraged to have 
their privately owned bicycles, ``go-carts,'' and ``minibikes'' 
registered with the Provost Marshal's Office (Registration Branch) in 
conjunction with the Installation Crime Prevention Program.
    (r) All personnel operating a vehicle on Fort Stewart/Hunter Army 
Airfield will have proof of insurance for the vehicle, in the vehicle at 
all times.



Sec. 636.33  Vehicle safety inspection criteria.

    (a) The vehicle safety inspection criteria listed in this paragraph 
(a) are general in nature; specific evaluation techniques for these 
criteria are contained in Georgia Traffic Law.
    (1) Headlights--every vehicle, except motorcycles, will have at 
least two headlights, one on each side of the front of the vehicle, 
capable of illuminating 500 feet to the front. Motorcycles will have one 
headlight.
    (2) Tail Lamps--every vehicle will have at least one red, self-
illuminating lamp, on the rear of the vehicle, visible from 500 feet to 
the rear.
    (3) Registration Plate Lamp--every vehicle will have a lamp designed 
to illuminate the registration plate with white light making the plate 
legible from a distance of 50 feet.
    (4) Rear Reflectors--every vehicle, except motorcycles, will have 
two red reflectors on the rear. Motorcycles will have one red reflector.
    (5) Stop Lamp--every vehicle will have at least one red or yellow 
stop lamp on the rear which will be actuated upon application of the 
foot brake.
    (6) Turn Signals--every vehicle will be equipped with electrical or 
mechanical turn signals capable of indicating any intention to turn 
either to the right or to the left, and visible from the front and rear. 
This requirement does not apply to any motorcycle or motor-driven cycle 
manufactured prior to 1 January 1972.
    (7) Brakes--every vehicle will be equipped with brakes adequate to 
control the movement of and to stop and hold such vehicle.
    (8) Horn--every vehicle will be equipped with an operable horn, 
capable of emitting sound audible for at least 200 feet.
    (9) Muffler--every vehicle will have a muffler in good working order 
and in constant operation.
    (10) Mirror--every vehicle, from which the driver's view is 
obstructed, will be equipped with a mirror reflecting a view of the 
highway for a distance of at least 200 feet to the rear.
    (11) Windows--the view through vehicle windows will not be 
obstructed by any sign, poster, or other nontransparent material. 
Windshields and rear windows will not have starburst or spider webbing 
effect greater than 3 inches by 3 inches. No opaque or solid material 
including, but not limited to cardboard, plastic, or taped glass will be 
employed in lieu of glass.
    (12) Windshield Wipers--every vehicle, except motorcycles, will be 
equipped with operable windshield wipers.

[[Page 83]]

    (13) Tires--every vehicle will be equipped with serviceable rubber 
tires which will have a tread depth of at least two thirty-seconds of an 
inch.
    (14) Suspension Systems--no vehicle will have its rear end elevated 
above the vehicle manufacturer's designated height (49 CFR 570.8).
    (b) The criteria listed in paragraph (a) of this section are not 
necessarily an inclusive list. A vehicle may be deemed unsafe to operate 
when any part of the vehicle is defective and renders the vehicle 
dangerous to others.



Sec. 636.34  Restraint systems.

    (a) Restraint systems (seat belts) will be worn by all operators and 
passengers of U.S. Government vehicles on or off the installations.
    (b) Restraint systems will be worn by all civilian personnel (family 
members, guests, and visitors) driving or riding in a private owned 
vehicle on the Fort Stewart/Hunter Army Airfield installations.
    (c) Restraint systems will be worn by all soldiers and Reserve 
Component members on active Federal service driving or riding in a 
private owned vehicle whether on or off the installations.
    (d) Infant/child restraint devices (car seats) are required in 
private owned vehicles for children 4 years old or under and not 
exceeding 45 pounds in weight.
    (e) Restraint systems are required only in cars manufactured after 
model year 1966.
    (f) The operator of a vehicle is responsible for ensuring the use of 
seat belts, shoulder restraints, and child restraining systems when 
applicable and may be cited for failure to comply (40 U.S.C. 318a).
    (g) Passengers (over the age of 16) are responsible for ensuring 
that their seat belts/shoulder restraints are used when applicable and 
may be cited for failure to comply (40 U.S.C. 318a).



Sec. 636.35  Headphones and earphones.

    The wearing of headphones or earphones is prohibited while driving a 
U.S. Government vehicle, POV, motorcycle, or other self-propelled two-
wheel, three-wheel, or four-wheel vehicle powered by a motorcycle type 
engine. This does not negate the requirement for wearing hearing 
protection when conditions or good judgment dictate use of such 
protection.



Sec. 636.36  Alcoholic beverages.

    (a) Consuming alcoholic beverages as an operator or passenger in or 
on U.S. Government or privately owned vehicles is prohibited.
    (b) Consuming alcoholic beverages on any roadway, parking lot, or 
where otherwise posted is prohibited.
    (c) Having open containers of alcoholic beverages in vehicles or 
areas not designated for the consumption of alcohol is prohibited.



Sec. 636.37  Use of ``Denver Boot'' device.

    The ``Denver Boot'' device will be used by Military Police as an 
additional technique to assist in the enforcement of parking violations 
when other reasonably effective but less restrictive means of 
enforcement (such as warnings, ticketing, reprimands, suspensions, or 
revocations of on-post driving privileges) have failed, or 
immobilization of the private owned vehicle is necessary for safety.
    (a) The use of booting devices will be limited to application by the 
Military Police under the following conditions:
    (1) Immobilization of unsafe, uninspected, or unregistered vehicles.
    (2) Immobilization of vehicles involved in criminal activity.
    (3) For repeat offenders of the parking violations outlined in this 
supplement. Three or more parking violations within 6 months constitutes 
grounds to boot the vehicle.
    (4) At the discretion of the Provost Marshal or his designee, on a 
case-by-case basis.
    (b) Booted vehicle will be marked, for driver notification, by 
placing an orange in color notice on the vehicle windshield. The notice 
will contain information on why the vehicle was booted and instructions 
on how to have the booting device properly removed by the Military 
Police (see figure 636.37).

[[Page 84]]



               FIGURE 636.37. DRIVER BOOTING DEVICE NOTICE
1. Your vehicle is illegally parked and has been secured in place by the
 Military Police with a vehicle restraining device. Do not move this
 vehicle until the restraining device is properly removed by the
 Military Police.
2. Any movement, or attempted movement, of this vehicle could result in
 damage to the device and the vehicle. You will be responsible for any
 such damage to the vehicle and/or the restraining device.
3. Any removal, or attempted removal, of the device could result in you
 being charged with a criminal offense.
4. To have this device properly removed by the Military Police, contact
 the following:
 
                   Mon-Fri, 7: a.m.-5: p.m., Bldg 292,
 
                           Phone 767-2848/8659
 
                Non-Duty Hours, Bldg 285, Phone 767-2822
 
                                 Notice
 



Sec. 636.38  Impounding privately owned vehicles (POVs).

    This section provides the standards and procedures for towing, 
inventorying, searching, impounding, and disposing of private owned 
vehicles.
    (a) Implied consent to vehicle impoundment. Any person granted the 
privilege of operating a motor vehicle on the Fort Stewart/Hunter Army 
Airfield installations shall be deemed to have given his or her consent 
for the removal and temporary impoundment of the privately owned vehicle 
when it is parked illegally for unreasonable periods, interfering with 
operations, creating a safety hazard, disabled by accident, left 
unattended in a restricted or controlled area, or abandoned. Such 
vehicles will be towed by a contracted civilian wrecker service and 
placed in that service's storage lot. Such persons further agree to 
reimburse the civilian wrecker service for the cost of towing and 
storage should their vehicle be removed or impounded.
    (b) Standards of impoundment. (1) Privately owned vehicles will not 
be impounded unless they clearly interfere with ongoing operations or 
movement of traffic, threaten public safety or convenience, are involved 
in criminal activity, contain evidence of criminal activity, or are 
stolen or abandoned.
    (2) The impoundment of a privately owned vehicle is inappropriate 
when reasonable alternatives to impoundment exist.
    (i) An attempt will be made to locate the owner of the privately 
owned vehicle and have the vehicle removed.
    (ii) The vehicle may be moved a short distance to a legal parking 
area and temporarily secured until the owner is located.
    (iii) Another responsible person may be allowed to drive or tow the 
privately owned vehicle with permission from the owner, operator, or 
person empowered to control the vehicle. In this case, the owner, 
operator, or person empowered to control the vehicle will be informed 
that the Military Police are not responsible for safeguarding the 
privately owned vehicle.
    (3) Impounding of privately owned vehicle is justified when any of 
the following conditions exist:
    (i) The privately owned vehicle is illegally parked--
    (A) On a street or bridge, or is double parking and interferes with 
the orderly flow of traffic.
    (B) On a sidewalk, within an intersection, or a cross-walk, on a 
railroad track, in a fire lane, or is blocking a driveway, so that the 
vehicle interferes with the operations or creates a safety hazard to 
other roadway users or the general public. An example would be a vehicle 
parked within 15 feet of a fire hydrant or blocking a properly marked 
driveway of a fire station or aircraft-alert crew facility.
    (C) When blocking an emergency exit door of any public place 
(installation theater, club, dining facility, hospital, or other 
facility).
    (D) In a ``tow-away'' zone that is so marked with proper signs.
    (ii) The privately owned vehicle interferes with--
    (A) Street cleaning operations and attempts to contact the owner 
have been unsuccessful.
    (B) Emergency operations during a natural disaster or fire or must 
be removed from the disaster area during cleanup operations.
    (iii) The privately owned vehicle has been used in a crime or 
contains evidence of criminal activity.

[[Page 85]]

    (iv) The owner or person in charge has been apprehended and is 
unable or unwilling to arrange for custody or removal.
    (v) The privately owned vehicle is mechanically defective and is a 
menace to others using the public roadways.
    (vi) The privately owned vehicle is disabled by a traffic incident 
and the operator is either unavailable or physically incapable of having 
the vehicle towed to a place of safety for storage or safekeeping.
    (vii) Military Police reasonably believe the vehicle is abandoned.
    (c) Towing and storage. (1) Impounded privately owned vehicles will 
be towed and stored by a contracted wrecker service.
    (2) An approved impoundment area belonging to the contracted worker 
service will be used for the storage of impounded vehicles. This area 
will assure adequate accountability and security of towed vehicles. One 
set of keys to the enclosed area will be maintained by the Military 
Police.
    (3) Temporary impoundment and towing of privately owned vehicles for 
violations of this supplement or involvement in criminal activities will 
be accomplished under the direct supervision of the Military Police.
    (d) Procedure for impoundment. (1) Unattended privately owned 
vehicles.
    (i) DD Form 2504 (Abandoned Vehicle Notice) will be conspicuously 
placed on privately owned vehicles considered unattended. This action 
will be documented by an entry in the Military Police desk journal.
    (ii) The owner will be allowed three days from the date the 
privately owned vehicle is tagged to remove the vehicle before 
impoundment action is initiated. If the vehicle has not been removed 
after three days, it will be removed by a contracted civilian wrecker 
service. A DD Form 2505 (Abandoned Vehicle Removal Authorization) will 
be completed and issued to the contractor by the Military Police.
    (iii) After the vehicle has been removed, the Military Police will 
complete DD Form 2506 (Vehicle Impoundment Report) as a record of the 
actions taken.
    (A) An inventory listing personal property will be done to protect 
the owner, Military Police, the Contractor, and the Commander.
    (B) The contents of a closed container such as a suitcase inside the 
vehicle need not be inventoried. Such articles should be opened only if 
necessary to identify the owner of the vehicle or if the container might 
contain explosives or otherwise present a danger to the public. Merely 
listing the container and sealing it with security tape will suffice.
    (C) Personal property will be placed in the Military Police found 
property room for safe keeping.
    (iv) DD Form 2507 (Notice of Vehicle Impoundment) will be forwarded 
by certified mail to the address of the last known owner of the vehicle 
to advise the owner of the impoundment action, and request information 
concerning the owner's intentions pertaining to the disposition of the 
vehicle.
    (2) Stolen privately owned vehicles or vehicles involved in criminal 
activity. (i) When the privately owned vehicle is to be held for 
evidentiary purposes, the vehicle will remain in the custody of the 
Military Police or CID until law enforcement purposes are served.
    (ii) Recovered stolen privately owned vehicles will be released to 
the registered owner, unless held for evidentiary purposes, or to the 
law enforcement agency reporting the vehicle stolen.
    (iii) A privately owned vehicle held on request of other authorities 
will be retained in the custody of the Military Police or CID until the 
vehicle can be released to such authorities.
    (e) Search incident to impoundment based on criminal activity. 
Search of a privately owned vehicle in conjunction with impoundment 
based on criminal activity will likely occur in one of the following 
general situations:
    (1) The owner or operator is not present. This situation could arise 
during traffic and crime-related impoundments and abandoned vehicle 
seizures. A property search related to an investigation of criminal 
activity should not be conducted without search authority unless the 
item to be seized is in plain view or is readily discernible on the 
outside as evidence of criminal activity. When in doubt, proper search 
authority should be sought, during duty

[[Page 86]]

hours, through the Chief, Criminal Law Branch of the Office of Staff 
Judge Advocate and after duty hours from the Duty Judge Advocate, before 
searching.
    (2) The owner or operator is present. This situation can occur 
during either a traffic or criminal incident, or if the operator is 
apprehended for a crime or serious traffic violation and sufficient 
probable cause exists to seize the vehicle. This situation could also 
arise during cases of intoxicated driving or traffic accidents in which 
the operator is present but incapacitated or otherwise unable to make 
adequate arrangements to safeguard the vehicle. If danger exists to the 
Military Police or public or if there is risk of loss or destruction of 
evidence, an investigative type search of the vehicle may be conducted 
without search authority.
    (f) Disposition of vehicles after impoundment. (1) If a privately 
owned vehicle is impounded for evidentiary purposes, the vehicle can be 
held for as long as the evidentiary or law enforcement purpose exists. 
The vehicle must then be returned to the owner without delay unless 
directed otherwise by competent authority.
    (2) If the vehicle is unclaimed after 45 days from the date 
notification was mailed to the last known owner or the owner released 
the vehicle by properly completing DD Form 2505, the vehicle will be 
disposed of by one of the following procedures:
    (i) Release to the lienholder, if known.
    (ii) Processed as abandoned property in accordance with DOD 4160.21-
M.

                   Appendix A to Part 636--References

    Publications and forms referenced in this part may be viewed at the 
Office of the Provost Marshall on any major Army installation or may be 
obtained from the National Technical Information Service, U.S. 
Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161.
    In addition to the related publications listed in appendix A to part 
634 of this subchapter, the following publications provide a source of 
additional information:

FS Reg 190-7, Emergency Vehicle Operation
FS Reg 350-1, Active Component Training
FS Reg 385-14, Post Range Regulation
FS Reg 755-2, Lost, Abandoned, or Unclaimed Privately Owned Personal 
Property

    In addition to the prescribed forms used in appendix A to part 634 
of this subchapter, the following forms should be used:

AFZP Form Letter 316, Suspension of Driving Privileges
DA Form 3946, Military Police Traffic Accident Report
DA Form 3975, Military Police Report
DD Form 1920, Alcohol Influence Report
DD Form 2220, DOD Registered Vehicle
DD Form 2504, Abandoned Vehicle Notice
DD Form 2505, Abandoned Vehicle Removal Authorization
DD Form 2506, Vehicle Impoundment Report
DD Form 2507, Notice of Vehicle Impoundment

                            Other References

    8 U.S.C. 13.
    40 U.S.C. 318a.
    Memorandum of Understanding, Subject: Seizure of Assets for 
Administrative Forfeiture in Drug Related Cases.

                 Appendices B--C to Part 636 [Reserved]

                    Appendix D to Part 636--Glossary

    In addition to the terms listed in appendix D to part 634 of this 
subchapter, the following terms apply:

ATV--All Terrain Vehicles
CID--Criminal Investigation Division
CUCV--Commercial Utility Cargo Vehicle
DDC--Defensive Driving Course
DOD--Department of Defense
DPCA--Directorate of Personnel and Community Activities
DUI--Driving Under the Influence
DDC--Motorcycle Defensive Driving Course
MP--Military Police
NLT--Not later than
USAREUR--United States Army--Europe

[[Page 87]]





                       SUBCHAPTER J--REAL PROPERTY



                        PARTS 641-642 [RESERVED]



PART 643--REAL ESTATE--Table of Contents




                           Subpart A--General

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

                            Subpart B--Policy

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

                            Subpart C--Leases

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

                           Subpart D--Licenses

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

                          Subpart E--Easements

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

                           Subpart F--Permits

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

              Subpart G--Additional Authority of Commanders

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

[[Page 88]]

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

    Authority: 10 U.S.C. 2667.

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



                           Subpart A--General



Sec. 643.1  Purpose.

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



Sec. 643.2  Applicability.

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



Sec. 643.3  Authority to grant use of real estate.

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



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

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

[[Page 89]]

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



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

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



Sec. 643.6  Responsibilities of overseas commanders.

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



Sec. 643.7  Preparation of report of availability.

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



Sec. 643.8  Approval of report of availability.

    The recommendation that real estate is determined available for non-
Army use will be submitted by the installation commander to the major 
commander for approval, through the echelon of command. The major 
commander will approve such recommendation and submit it to the 
appropriate DE for action, except recommendations

[[Page 90]]

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



Sec. 643.9  Approval of availability outside the United States.

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



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

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



Sec. 643.11  Rights of entry.

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



Sec. 643.12  Preparation and signing of instruments.

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

[[Page 91]]



Sec. 643.13  Military requirement for real estate under grant.

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



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

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



Sec. 643.15  Unauthorized use.

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



                            Subpart B--Policy



Sec. 643.21  Policy--Surveillance.

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

[[Page 92]]

of excess and under-utilized real estate (AR 405-70). Real estate for 
which is retained for future use will be a requirement which will be 
disposed of in accordance with AR 405-90. Real estate which the Army 
does not currently need but which is retained for future use will be 
made available to others for use either exclusively or concurrently with 
the Army. When an installation is in an inactive status, the presumption 
is that it is available for other military or Federal use or for leasing 
unless there are cogent reasons that such action should not be taken. 
The purpose of this rule is to put to beneficial use Federal property, 
which is not for the time required for its basic use, for the benefit of 
other Federal agencies, the local economy, or for the benefits accruing 
to the United States from the income and/or savings of maintenance, 
protection, repair, or restoration.



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

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



Sec. 643.23  Policy--Preference.

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



Sec. 643.24  Policy--Competition.

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

[[Page 93]]



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

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



Sec. 643.26  Policy--Commercial advertising on reservations.

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



Sec. 643.27  Policy--Environmental considerations.

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



Sec. 643.28  Policy--Historic and cultural environment.

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



Sec. 643.29  Policy--Archeological surveys.

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



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

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

[[Page 94]]



Sec. 643.31  Policy--Flood hazards.

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



Sec. 643.32  Policy--Endangered species.

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



Sec. 643.33  Policy--Coastal zone management.

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



Sec. 643.34  Policy--Public utilities on installations.

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



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

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

[[Page 95]]

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



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

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



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

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



Sec. 643.38  Policy--Utility rates.

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



Sec. 643.39  Policy--American National Red Cross.

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

[[Page 96]]



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

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



Sec. 643.41  Policy--National Guard use.

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



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

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



                            Subpart C--Leases



Sec. 643.51  Additional items concerning leasing.

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



Sec. 643.52  Term.

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



Sec. 643.53  Consideration.

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

[[Page 97]]

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

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



Sec. 643.54  Receipts.

    Receipts will be deposited into the Treasury as miscellaneous 
receipts.



Sec. 643.55  Mandatory revocation clause in lease.

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



Sec. 643.56  Taxation of lessee's interest.

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



Sec. 643.57  Sublease or assignment.

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



                           Subpart D--Licenses



Sec. 643.71  Additional items concerning licenses.

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



Sec. 643.72  License.

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

[[Page 98]]



Sec. 643.73  Term.

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



Sec. 643.74  Consideration.

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



                          Subpart E--Easements



Sec. 643.81  Additional items concerning easements.

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



Sec. 643.82  Term.

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



Sec. 643.83  Consideration.

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



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

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



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

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



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

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

[[Page 99]]

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



                           Subpart F--Permits



Sec. 643.101  Additional items concerning permits.

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



Sec. 643.102  Permit.

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



Sec. 643.103  Term.

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



Sec. 643.104  Consideration.

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



              Subpart G--Additional Authority of Commanders



Sec. 643.111  Additional authority.

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



Sec. 643.112  Army exchange activities.

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



Sec. 643.113  Banks.

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

[[Page 100]]

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



Sec. 643.114  Civil disturbances.

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



Sec. 643.115  Contractors--Permission to erect structures.

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



Sec. 643.116  Credit unions.

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



Sec. 643.117  Hunting, trapping, and fishing.

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



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

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



Sec. 643.119  Licenses incidental to post administration.

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



Sec. 643.120  Post offices.

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

[[Page 101]]

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



Sec. 643.121  Private organizations on DA installations.

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



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

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



Sec. 643.123  Reserve facilities--Local civic organizations.

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



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

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



Sec. 643.125  Trailer sites.

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

[[Page 102]]

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



Sec. 643.126  Transportation licenses.

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



Sec. 643.127  Quarters.

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



Sec. 643.128  Veterans' conventions.

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



Sec. 643.129  Youth groups.

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



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

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



PART 644--REAL ESTATE HANDBOOK--Table of Contents




                       Subpart A--Project Planning

Sec.
644.1  Preface.

                               Civil Works

644.2  General.
644.3  Navigation Projects.

[[Page 103]]

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

        Military (Army and Air Force) and Other Federal Agencies

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

                          Subpart B--Appraisal

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

                         Subpart C--Acquisition

      Procurement of Title Evidence, Title Clearance, and Closings

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

             Acquisition by Purchase, Donation, and Transfer

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

              Involuntary Acquisition by the United States

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

                 Acquisition by Condemnation Proceedings

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

                         Acquisition by Leasing

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

                     Acquisition of Rights-of-Entry

644.155  General.
644.156  Definition.
644.157  Procedures.

    Procurement of Options prior to Real Estate Directives (Military)

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

                Subpart D--Relocation Assistance Program

644.175  Cross reference.

Subpart E--[Reserved]

                           Subpart F--Disposal

644.311  General.
644.312  Applicability.

[[Page 104]]

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

          Procedure for Placing Real Property in Excess Status

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

         Screening, Reassignment, and Transfer of Real Property

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

                 Clearances--Army Military Real Property

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

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

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

             Care and Custody of Excess and Surplus Property

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

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

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

                           Predisposal Action

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

[[Page 105]]

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

       Disposal of Fee-Owned Real Property and Easement Interests

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

            Disposal of Leaseholds and Leasehold Improvements

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

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

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

[[Page 106]]

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

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

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

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

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

                             Sale Procedure

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

        Inspections to Insure Compliance With Disposal Conditions

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

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

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

[[Page 107]]



                       Subpart A--Project Planning



Sec. 644.1  Preface.

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

                               Civil Works



Sec. 644.2  General.

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

[[Page 108]]

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



Sec. 644.3  Navigation Projects.

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



Sec. 644.4  Reservoir Projects.

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

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

[[Page 109]]

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

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

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

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

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

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

[[Page 110]]

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

[[Page 111]]

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

[[Page 112]]

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



Sec. 644.5  Mineral Acquisition Practices.

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

[[Page 113]]

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



Sec. 644.6  Feasibility Reports and Design Memoranda.

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

[[Page 114]]

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

[[Page 115]]

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

[[Page 116]]

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



Sec. 644.7  Acquisition lines.

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

[[Page 117]]

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



Sec. 644.8  Planning and scheduling real estate activities.

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

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

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

[[Page 118]]

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

[[Page 119]]

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

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


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

[[Page 120]]

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

[[Page 121]]

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

        Military (Army and Air Force) and Other Federal Agencies



Sec. 644.21  General.

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

[[Page 122]]

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



Sec. 644.22  Site selection.

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



Sec. 644.23  Real Estate Planning Documents.

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

[[Page 123]]

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

[[Page 124]]

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



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

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

[[Page 125]]

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



Sec. 644.25  Withdrawal of Public Domain for Defense Purposes.

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

[[Page 126]]

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



Sec. 644.26  Required clearances.

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



Sec. 644.27  Authority to issue Real Estate Directives.

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

[[Page 127]]

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



Sec. 644.28  Responsibility for acquisition.

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



Sec. 644.29  Authority to proceed with acquisition.

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



Sec. 644.30  Preliminary real estate work.

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

[[Page 128]]



                          Subpart B--Appraisal



Sec. 644.41  General.

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

[[Page 129]]

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

[[Page 130]]

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



Sec. 644.42  Appraisal report.

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

[[Page 131]]

    (c) Narrative Report Format. (1) The following report format is 
taken verbatim from ``Uniform Appraisal Standards For Federal Land 
Acquisitions,'' published by the Interagency Land Acquisition 
Conference, 1973.

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

                          PART I--INTRODUCTION

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

                          PART II--FACTUAL DATA

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

                   PART III--ANALYSES AND CONCLUSIONS

    11. ANALYSIS OF HIGHEST AND BEST USE. The report shall state the 
highest and best use that can be made of the property (land and 
improvements and where applicable, machinery and equipment) for which 
there is a current market. The valuation shall be based on this use.
    12. LAND VALUE. The appraiser's opinion of the value of the land 
shall be supported by confirmed sales of comparable, or nearly 
comparable lands having like optimum uses. Differences shall be weighed 
and explained to show how they indicate the value of the land being 
appraised.
    13. VALUE ESTIMATE BY COMPARATIVE (MARKET) APPROACH. All comparable 
sales used shall be confirmed by the buyer, seller, broker, or other 
person having knowledge of the price, terms and conditions of sale. Each 
comparable shall be weighed

[[Page 132]]

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

                      PART IV--EXHIBITS AND ADDENDA

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

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



Sec. 644.43  Gross appraisals.

    (a) Preparation. (1) The gross appraisal sections of real estate 
design memoranda and planning reports are subject to minute scrutiny by 
higher

[[Page 133]]

authority in the Department of Defense and by Congressional Committees. 
It is essential that they be meticulously prepared to reflect actual 
market conditions and unit prices.
    (2) Each gross appraisal will be supported by detailed analyses of 
an adequate number of typical comparable sales. Each index sale will be 
analyzed to show various land classifications and values, building 
contribution estimates and other relevant information. The sales prices 
should be verified by someone having knowledge of the transaction.
    (3) Where letter-type or brief real estate design memoranda on civil 
works projects are submitted, comparable sales data will be presented in 
one of the following methods:
    (i) Be submitted within the report in a brief manner, with at least 
three truly comparable sales discussed in narrative form and comparisons 
shown to the subject lands covered by the memorandum.
    (ii) Be referenced to the last real estate design memorandum issued 
on the same project and if values have changed in the interim, 
additional sales data submitted to support the changes. If the last 
design memorandum is over a year old, new supporting data must be 
submitted.



Sec. 644.44  Fee appraisals.

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

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develop this rate and properly process the income into a fair market 
value.
    (5) It is most important that the valuation estimates developed by 
all of the approaches used are correlated into one conclusive value. In 
those cases where there is a substantial spread among values, the 
appraiser is cautioned to recheck all his data and figures for accuracy. 
The cost figures and depreciation factors should be checked in the Cost 
Approach; the sales data should be further documented and analyzed in 
the Market Approach; and the Income Method may require a recheck of the 
soundness of the capitalization rate.
    (d) Partial Takings. (1) A substantial number of acquisitions 
require only portions of an ownership necessitating a ``partial 
taking.'' In these cases the appraiser is required to estimate the value 
of the whole ownership before the taking; the value of the remainder--
the difference being the value of the part taken. Many times the 
remainder is of less value after the taking, indicating a ``severance 
damage.'' The appraiser is usually required to allocate the total taking 
value between the value of the part acquired and the severance damage to 
the remainder by reason of the taking.
    (2) In order to promote uniformity in the reporting format, the 
following example of the ``before'' and ``after'' method is presented 
for guidance:

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

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



Sec. 644.45  Rental value.

    (a) Definition. (1) The fair rental value of the property is the 
amount which, in a competitive market, a well-informed and willing 
lessee would pay and which a well-informed and willing lessor would 
accept for the temporary use and enjoyment of the property.
    (2) Appraisals to establish fair rental values will be made in 
accordance with acceptable standards of appraisal applicable to the 
particular type of property and in accordance with general appraisal 
practices and procedures heretofore described in relating to all 
appraisal work. The preparation of time-

[[Page 135]]

consuming and lengthy appraisal reports should be kept to a minimum, 
particularly with regard to rental properties of low value. A brief 
summary of the essential facts will be sufficient to support leases by 
the Government of building space or unimproved land where the net rental 
value is not in excess of $3,600 per annum.
    (b) Applicability. All provisions of this subpart are applicable to 
``inleasing'' of real property for use of the Government, and equally 
applicable to ``outleasing'' of Government-owned real property. Section 
644.45(l) Government Quarters, is normally applicable only to 
``outleasing'' of quarters to civilian employees. The provisions are, 
however, also considered valid considerations in appraising 
``inleases,'' wherein privately-owned housing is being rented for 
occupancy by military personnel in lieu of quarters allowances.
    (c) Services. In the absence of an agreement or contract, a lessor 
is not bound to furnish any utilities or building services of any kind, 
and such services may not be acquired under the power of eminent domain. 
It is, therefore, necessary for the appraiser to include in his report 
as separate items the estimated cost of all customary services that may 
be required to permit the normal use and occupancy of the property.
    (d) Market Value of Fee. (1) Where temporary use of an entire 
building or other independent unit of an ownership is proposed, the 
appraisal will ordinarily report both the market value of the fee title 
and the fair annual rental value. However, no appraisal of fair market 
value of fee title is required in any case where assessed value, 
supported by statement of the assessor and ENG Form 869-R (15% Valuation 
Certificate), can be used for compliance with existing law, Section 322 
of the Act of June 30, 1932 (40 U.S.C. 278a), known as the ``Economy 
Act.'' Fee value is not required for land only leases, as the Economy 
Act is not applicable.
    (2) An exception to the above procedure is in regard to the 
appraisal of family housing units. As an alternative, the appraiser can 
support his rental valuation by use of comparable rentals and a 
statement that the lease value does not exceed 15% of the fair market 
value.
    (e) Lease of Minor Portions of Buildings. Where appraisals are 
required to establish rental value of a minor portion of a building, it 
will not be necessary to estimate the fee value of the entire property, 
provided that the net annual rental does not exceed $2,000. A sound 
rental value can ordinarily be estimated by comparison with established 
rentals in subject property and in adjacent similar properties in the 
community. However, care should be exercised to insure the 
reasonableness of the reported comparable rental values. The appraiser's 
report must include sufficient data on these current rentals to support 
adequately the rental estimate for the subject space.
    (f) Unexpired Lease. Where the premises to be acquired are occupied 
by tenants under leases which cannot be terminated at will by the 
landlord, the appraiser's report will set forth in detail the terms of 
the existing leases and will show the value of the tenant's interest. 
The value of the tenant's interest is based on the fair rental value 
(economic rent) of the part of the property occupied by the tenant for 
the unexpired term of the lease, or for the term condemned, whichever is 
shorter, less the rent which the tenant is obligated to pay (contract 
rent) under the existing lease. The difference between the economic and 
contract rent is known as ``bonus rent.''
    (g) Bonus Value. Wherein a ``bonus rent'' is reflected as being the 
difference between economic and contract rent, a full narrative 
discussion will be included in the report. It is of paramount importance 
that the present economic rental be supported by the rental market data. 
The ``bonus value'' is the present worth of the discounted bonus rent.
    (h) Rental Appraisal Report. The appraisal report will contain 
adequate facts and discussions relative to the following:
    (1) Land description, showing street frontages and lot depths.
    (2) Adequate description of improvements and furnishings, including 
type of construction, total floor space, floor

[[Page 136]]

load for storage space, number of rentable rooms, or income-producing 
space, nonproductive or public space, total cubic content, and 
reproduction cost of improvements less depreciation.
    (3) Assessed valuation and lawful ratio to market value, if the 
annual rental value exceeds $2,000.
    (4) Analysis and discussions of current rentals of similar 
properties and rental history of the property appraised.
    (5) Discussion of the appraisal process and rental rates applicable 
to the terms of the proposed lease, particularly as to any differential 
in the rate of return applicable to customary long term rentals.
    (6) Statement showing distribution of appraised annual rental as 
allocated to fixed charges and fair rate of return on land, buildings, 
and any furnishings or equipment that are included in the proposed 
taking.
    (i) Special Purpose Properties. Appraisals to estimate the rental 
value of hotels, clubs, hospitals, and other highly specialized 
properties will include full information on the income capacity of the 
property under average competent management and under accepted standards 
of operation for the particular type of property involved. The appraisal 
reports will, among other things, contain an analysis and discussion of 
the following items:
    (1) Financial history of property, including indebtedness, the 
actual past income or earnings of the property based upon audit reports 
for the past five years or longer, and any unaudited current months of 
the fiscal year. In the absence of audits, corporate statements may be 
furnished if properly certified.
    (2) Discussion of the past operation and management methods with 
comments relative to any excessive or insufficient charges appearing in 
the financial statements obtained.
    (3) Appraiser's estimate of the stabilized income of the property.
    (4) Appraiser's estimate of profits available for typical lessee-
operator.
    (5) Recommendations of the appraiser as to the relative merits of 
acquiring fee title to the property as against acquiring a leasehold 
interest.
    (j) Farms and Rural Properties. Appraisals to estimate the rental 
value of farms and other types of rural properties will report the 
present market value of the fee title, the fair annual rental value, and 
any direct damage to growing crops, standing timber, or improvements to 
be removed or destroyed. The damage will be reported separately from the 
rental value in order to permit the reflection of the damage in the 
primary rental term.
    (k) Industrial Installations. (1) Appraisal reports will be obtained 
to support all leases of industrial installations or portions thereof. 
It is important that appraisals of operating industrial installations be 
prepared by specially qualified appraisers or consultants intimately 
familiar with the particular processes and production capabilities and 
related factors having any bearing on the value of a particular plant.
    (2) The appraisers selected to estimate the rental value should be 
fully informed as to all known prospective lessees and the amount of any 
bids, or offers made for the use of the property, and as to all terms, 
conditions, and limitations under which the property will be made 
available for use or operation.
    (3) The appraisal reports will include a detailed inventory setting 
forth all physical factors pertaining to the land, buildings, machinery, 
and equipment and an adequate discussion of all local factors 
influencing the profitable use of the facility. Data pertinent to the 
prevailing rentals for other Government and privately-owned industrial 
plants and warehouses considered reasonably similar to the facilities to 
be leased will also be included. The conclusions of the appraiser as to 
other matters of importance to the Department of the Army in its leasing 
operations will likewise be presented. The appraiser should bear in mind 
that idle manufacturing plants, and all industrial properties, as a 
general rule, are valuable only to the extent and degree that they are 
usable in actual production. It is also a generally accepted economic 
fact that the plant and fixed equipment (real estate) is the production 
factor for which a return can ordinarily be realized after the cost of 
all

[[Page 137]]

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

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

    (iii) Furniture and Furnishings.
    (iv) Site Conditions:

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

    (v) Neighborhood Development and Data:

Local zoning regulation

[[Page 138]]

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

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



Sec. 644.46  Easements.

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

[[Page 139]]

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



Sec. 644.47  Appraisal of other interests.

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

[[Page 140]]

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

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

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



Sec. 644.48  Review and approval.

    (a) Procedure. (1) Upon completion of an appraisal, the signed 
report is to be reviewed by a reviewing appraiser to assure that the 
information and data developed by the appraiser substantiates the 
estimated valuation. The review function also serves as a means of

[[Page 141]]

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

[[Page 142]]

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



Sec. 644.49  Contracts.

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

[[Page 143]]

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



                         Subpart C--Acquisition

      Procurement of Title Evidence, Title Clearance, and Closings



Sec. 644.61  General.

    (a) Purpose. Sections 644.61 through 644.72 describe the procedures 
relating to the procurement of title evidence, title clearance, and 
closings for the acquisition of real estate and interests therein for 
all land acquisition programs administered by the Chief of Engineers. 
Exceptions in connection with the acquisition of properties under the 
Homeowners Assistance Program are set forth in subpart E.
    (b) Applicability. These sections are applicable to all Division and 
District Engineers having real estate responsibility.
    (c) Guidelines. (1) The satisfactory progress of land acquisition 
programs necessitates the prompt procurement of title evidence and 
prompt title clearance. One of the following types of title evidence 
should be obtained, after considering the cost of the several types and 
other factors mentioned below. To effect these objectives, careful 
planning is essential, including a determination of the most acceptable 
and available type of title evidence and the source from which such 
title evidence may be procured. The Chief of Engineers is responsible 
for procuring all title evidence, including title evidence needed for 
lands which are acquired by condemnation proceedings. The early 
procurement and examination of the title evidence and title clearance 
will expedite payment to landowners from whom offers are obtained or 
against whom condemnation proceedings are filed.

[[Page 144]]

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



Sec. 644.62  Title evidence.

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

[[Page 145]]

practice of law, insured certificates of title may be procured from 
attorneys, acceptable to the Lands Division of the Department of 
Justice, acting as agents for title companies. The procedure for the 
selection of attorneys is set forth in Sec. 644.63(b).
    (iii) Certificates of title will be based on a search of all records 
affecting the title to the land and be unqualified as to the period of 
search. In the event that it is not practicable to obtain certificates 
of title, unqualified as to the period of search, all pertinent facts 
will be referred to the Department of Justice for consideration and 
approval.
    (iv) Certificates of title or title insurance policies shall not 
limit the liability of the title company to a sum less than 50 percent 
of the reasonable value of the property. If property is acquired by 
donation or exchange, the value will be determined by the Corps of 
Engineers. However, as to acquisitions valued at more than $50,000, the 
liability of the title company may be limited to 50 percent of the first 
$50,000 and 25 percent of that portion of the value in excess of that 
amount. This limitation on the general rule has been approved by the 
Department of Justice. The appropriate ENG Forms for specifications for 
supplying title evidence may be amended, if that limited liability can 
be obtained. A certificate of title or title insurance policy by one 
title company for a single acquisition valued at more than 25 percent of 
the admitted assets (after deducting existing liabilities secured or 
unsecured and excluding any trust or escrow funds) of the issuing 
company is not acceptable.
    (v) Generally, it is not necessary to obtain a final certificate of 
title when land is acquired by condemnation proceedings. However, it may 
be necessary that an intermediate certificate of title be obtained 
setting forth the limitation of liability of the title company. Division 
and District Engineers will be governed by the requirements of the local 
United States Attorney as to the necessity of obtaining an intermediate 
or final certificate of title.
    (vi) Certificates of title, whether preliminary, intermediate, or 
final, will be procured in sufficient numbers to satisfy the needs of 
the District involved. Normally an original and two signed copies of 
each certificate of title will suffice.
    (vii) The specifications may be supplemented to require the title 
company to have a local representative stationed convenient to the 
project office, when, because of the nature of the project (anticipated 
complexities of title; high purchase prices, or other reasons), it is 
considered advisable that a local representative be available to perform 
preclosing interim title searches on request of the Contracting Officer.
    (viii) The title company's local representative must be authorized 
to pass on the sufficiency of the proposed deed to the United States; to 
give final approval of curative material furnished to satisfy title 
objections set forth in certificates of title; and to testify in court 
relative to the status of title, if called upon to do so.
    (2) Title guarantee or title insurance policies are acceptable title 
evidence.
    (i) Interim binders on owner's title guarantee or title insurance 
policies supplemented by an owner's title guarantee policy or title 
insurance policy in the forms approved by the Attorney General (ENG Form 
1014), Interim Binder on Owner's Title Guarantee (Insurance) Policy, and 
ENG Form 1015, Owner's Title Guarantee (Insurance) Policy will be 
acceptable as evidence of title only in acquisition in those States 
where certificates of title may not be issued. ENG Form 3893-R is the 
form of endorsement for use with the title insurance policies when 
changes or corrections become necessary. No other substantial variation 
in the form of interim binder or the form of title guarantee or title 
insurance policy will be acceptable without prior approval of the 
Attorney General.
    (ii) Companies contracting to issue such interim binders or 
preliminary reports and title guarantee or title insurance policies must 
have authority under the laws of the State of their incorporation and 
their charter to issue the same. They must also be financially sound and 
be willing and able to issue such binders and policies for all tracts 
for the amount of liability as set forth above.
    (iii) In contracting for title guarantee or title insurance 
policies, ENG

[[Page 146]]

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

[[Page 147]]

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



Sec. 644.63  Contracting for title evidence.

    (a) Survey of Area and Source of Title Evidence. Contemporaneously 
with the preparation of the real estate design memorandum, or real 
estate planning report, the Division or District Engineer is requested 
to:
    (1) Give careful consideration to the problems involved to determine 
the most acceptable type of title evidence, its source, availability of 
title plants, costs, and time of procurement, so that the most 
advantageous bid(s) may be received and accepted and the acquisition 
schedule maintained. In considering costs of abstracts of title versus 
certificates of title or title insurance, the workhours involved in the 
examination of abstracts of title by both Corps and Department of 
Justice personnel should be considered.
    (2) Determine the total number of tracks in the project area. In 
major projects, it may be desirable to invite bids for title evidence 
for each county or other specified areas, in addition to the entire 
project, in order to maintain the acquisition schedule.
    (3) Determine the names and addresses of title companies and 
abstractors available to furnish title evidence and whether such 
companies or abstractors

[[Page 148]]

have been approved by the Attorney General as acceptable companies or 
abstractors. Current information on approved title companies and 
abstractors may be obtained direct from the Land and Natural Resources 
Division, Department of Justice, WASH DC 20530.
    (b) Selection Procedure. (1) Normally selection of persons or firms 
to perform title evidence services will be based upon formal advertising 
in accordance with the Armed Services Procurement Regulation (ASPR) 
(chapter I of this title).
    (2) In those States where the furnishing of title evidence is held 
to constitute the practice of law and the State canons of legal ethics 
prohibit attorneys from engaging in competitive bidding for such 
services, contracts for title evidence services must necessarily be 
negotiated. In such cases, negotiations shall be conducted with 
attorneys or law firms duly authorized to practice law in the 
jurisdiction within which the real property is located. Division and 
District Engineers shall notify HQDA (DAEN-REA-P) WASH DC 20314 before 
negotiating for title evidence, and submit the list of attorneys with 
whom negotiations may be conducted. Selections shall be in accordance 
with the procedures set forth below:
    (i) A contract for title services shall be based upon, but not 
limited to, consideration of the following professional qualifications 
necessary for the satisfactory performance of the services required:
    (A) Professionally trained for type of work;
    (B) Specialized experience in the type of work required;
    (C) Capacity to accomplish the work in the required time;
    (D) Past experience, if any, with respect to performance on Corps of 
Engineers contracts;
    (E) Location in the general geographical area of the project to 
which the services relate: Provided, That there is an appropriate number 
of qualified attorneys or law firms therein for consideration; and
    (F) Volume of work previously awarded, with the objective of 
effecting an equitable distribution of title evidence contracts among 
qualified attorneys and law firms.
    (ii) A preselection list of qualified attorneys and law firms shall 
be prepared by a preselection board from data submitted by interested 
attorneys and law firms and from other pertinent information which may 
be available. The list shall be approved by the District Engineer or his 
designee.
    (iii) A selection board shall review the qualifications of each of 
the attorneys or law firms on the preselection list, in accordance with 
the procedure established in paragraph (b)(2)(i) of this section and 
shall recommend to the District Engineer, in order of preference, a 
minimum of three for approval for contract negotiations.
    (iv) Upon approval of the selections by the District Engineer and 
such approval as may be required by paragraph (b)(2)(vi) of this 
section, negotiations shall be initiated with the first selected 
attorney or law firm. If the negotiations result in a price which 
exceeds the Government estimate, revised to correct errors of fact or 
judgment, if any, by more than ten percent, the Contracting Officer 
shall terminate the negotiations and request a proposal from the 
attorney or law firm next in order of preference.
    (v) Preparation of preselection lists and selections for contracts 
estimated to cost more than $10,000, shall be accomplished by formally 
constituted boards consisting of at least three members, one of whom 
shall be the District Counsel or an attorney on his staff, and one of 
whom shall be the Chief, Real Estate Division, or a member of his staff.
    (vi) Special approval shall be required for certain selections as 
indicated below:
    (A) When the estimated cost of a contract to be negotiated exceeds 
$100,000, the selection shall require the approval of the Division 
Engineer.
    (B) When an attorney or law firm, to which the District has awarded 
contracts totalling over $100,000 during the current fiscal year, has 
been selected by the District for additional negotiations, the selection 
shall require the approval of the Division Engineer.
    (C) When the estimated cost of a contract to be negotiated exceeds 
$200,000,

[[Page 149]]

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



Sec. 644.64  Award of contracts.

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



Sec. 644.65  Ordering title evidence.

    (a) Placing Orders. Where the contract does not specify the order in 
which title evidence for particular tracts will be furnished, orders 
will be submitted to the abstractor or title company on ENG Form 1011, 
Order for Title Evidence. An accurate legal description of the tract of 
land involved will be attached to the order or will be typed thereon.
    (b) Orders Based on Contiguous Areas. If the contract does not 
contain a list

[[Page 150]]

of tracts for which title evidence is to be furnished, orders will be 
based on contiguous areas of land in identical ownership and will be 
deemed to be contiguous even though crossed by roads, railroads, rights-
of-way, or streams. In such event the variation in quantity shall not 
exceed plus or minus ten percent as prescribed by ASPR. If there has 
been a severance of surface and subsurface estates, determination of 
what constitutes a tract will be based on ownership of the surface. 
However, in unusual cases where such a contiguous area is composed of 
several parcels derived through separate chains of title and requiring 
separate searches of each chain of title down to a comparatively recent 
date or where such contiguous area lies in more than one section, the 
Contracting Officer may contract to pay a specified reasonable 
additional charge for each such additional chain or section if such 
additional charge is customary in the locality where the land lies.
    (c) Type of Title Evidence. The order will set forth the type of 
evidence to be furnished. When abstracts are contracted for, the 
following rules will be observed:
    (1) If an abstract of title in satisfactory form cannot be procured 
from the landowner, a new abstract will be ordered.
    (2) If an abstract in satisfactory form is procured from a 
landowner, the abstract will be transmitted to the abstractor with an 
order for a continuation of the old abstract.



Sec. 644.66  Payment for title services.

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



Sec. 644.67  Approval of Title by the Attorney General.

    (a) General. Section 355 of the Revised Statutes of the United 
States, as amended (40 U.S.C. 255), formerly required the written 
opinion of the Attorney General in favor of the validity of the title to 
lands as a prerequisite to the expenditure of public funds thereon.
    (b) Delegation. Pursuant to the provisions of Pub. L. 91-393, 
approved September 1, 1970, authority to approve title to lands being 
acquired for the use of the Department of the Army, or of any other 
department or agency for which the Department of the Army is authorized 
to acquire land, has been delegated to the Department of the Army, 
subject to the supervision and review of the Attorney General. 
Generally, military authorization and/or appropriation legislation 
expressly authorizes construction on the land prior to approval of 
title.
    (c) Redelegation. The authority delegated to the Department of the 
Army pursuant to Pub. L. 91-393 has been redelegated to Division and 
District Engineers with real estate responsibility.

[[Page 151]]

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



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

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

[[Page 152]]

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

[[Page 153]]

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



Sec. 644.69  Title Clearance--Easements.

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

[[Page 154]]

or subordination to such easements of mortgages, deeds of trust, 
judgments, vendors' liens, taxes which are a lien, whether or not 
presently due and payable, and similar encumbrances will ordinarily be 
the same as for easements costing in excess of $1,000.
    (2) In unusual circumstances, these requirements need not be applied 
if the purchase price of the easement is insufficient to satisfy the 
liens and interest, or the amount of such liens or interest is small in 
comparision with the value of the land in which the easement is being 
acquired, and in comparison with the cost of condemnation proceedings to 
clear the title. In such cases, the Division or District Engineer (or 
the Chief, Real Estate Division, if delegated such authority) may waive 
such title infirmities as he determines will not interfere with the use 
of the easement by the Government or jeopardize the interests of the 
United States: Provided:
    (i) The easement deed contains a general warranty covenant by the 
grantor to satisfy all such unpaid taxes and other liens and to warrant 
the title against any encumbrances or interests left outstanding.
    (ii) The Division or District Engineer (or the Chief, Real Estate 
Division, if delegated the authority) has determined that such 
outstanding liens, encumbrances, or interest, if left outstanding, will 
not interfere with the Government's use of the easement, or will not 
jeopardize the interests of the United States, and in his opinion the 
title is sufficient. A certificate to this effect should be attached to 
the Final Title Assembly.
    (c) Curative Action. (1) Curative action will be initiated promptly 
in all cases to eliminate all title defects or encumbrances, except 
those which may be administratively waived, those which may be 
eliminated by the payment of money and cleared at the time of closing, 
and those which may be waived as hereinafter provided. Curative material 
need not be recorded, however, until the closing of the transaction.
    (2) All encumbrances, defects, outstanding interests, and other 
matters shown in the preliminary certificates of title or interim 
binders, must be cured and eliminated before delivery of the purchase 
check, except those of a nature which have been waived as not 
interfering with the Government's use of the easement or as not 
jeopardizing the interest of the United States.



Sec. 644.70  Closing of cases.

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

[[Page 155]]

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

[[Page 156]]

    (5) The ENG Form 798 will be executed and placed with the title 
papers. If executed by an employee other than the Project Manager or 
Closing Officer, it must be approved by the Project Manager or Closing 
Officer, to indicate that the Project Manager or Closing Officer has 
authorized the employee signing the certificate to make the inspection 
and is satisfied it has been properly done.
    (h) Deed to the United States. (1) The deed to the United States 
will be drafted in accordance with the ``Standards for the Preparation 
of Title Evidence in Land Acquisition by the United States,'' issued by 
the Department of Justice in 1970.
    (2) Where the landowner's name appears in various forms among the 
title papers, full use will be made of the ``also known as'' clause in 
identifying the grantor in the deed to the United States.
    (3) The deed shall contain a quitclaim clause by which the grantor 
quitclaims to the United States all right, title, and interest which the 
grantor may have in the banks, beds, and waters of any streams bordering 
the said land to be conveyed, and also all interest in alleys, roads, 
streets, ways, strips, gores, or railroad rights-of-way abutting or 
adjoining said land and in any means of ingress or egress appurtenant 
thereto.
    (4) Recording fees, transfer taxes, and similar expenses incidental 
to conveying real property to the United States; penalty costs for 
prepayment of any preexisting recorded mortgage entered into in good 
faith encumbering such real property; and the pro rata portion of real 
property taxes paid which are allocable to a period subsequent to the 
date of vesting title in the United States, or the effective date of 
possession of such real property by the United States, whichever is the 
earlier, shall be paid by the Government pursuant to authority of 
section 303, Pub. L. 91-646, approved January 2, 1971.
    (i) Satisfaction of Liens and Encumbrances. All mortgages, deeds of 
trust, judgments, mechanics liens, and similar encumbrances will be 
satisfied and released or discharged of record. In the acquisition of 
easements, liens and encumbrances should be satisfied, released or 
subordinated to the Government's easement, except as provided in 
Sec. 644.69(a) or unless administratively waived under Sec. 644.69(c).
    (j) Payments to Tenants and Lessees. Amounts due lessees, or other 
tenants, under ENG Form 1564, Consent to Offer to Sell, will be paid 
from the purchase price or by the landowner direct. In either case, 
proper receipts and releases will be obtained.
    (k) Satisfaction and Release of Liens of Taxes and Assessments. (1) 
Except as provided in Sec. 644.69(b) and paragraph (k)(6) of this 
section, all taxes and assessments which, under the law of the State 
where the land is located, are a lien on the property as of the date of 
the delivery and recordation of the deed to the United States must be 
paid at or before closing, unless provision for their payment is made as 
follows:
    (i) Where closing takes place before the completion of the 
assessment and levy of the taxes necessary to the determination of the 
amount of the taxes, or before the taxes are due and payable, a 
sufficient sum will be withheld from the purchase price to satisfy such 
taxes when the amount is later determined or they later become due and 
payable. In cases where the amount of taxes has not been determined, an 
estimate will be made, after consultation with the assessor and 
consideration of the amount of taxes paid on the land for the preceding 
year. The amount withheld should be at least 20 percent in excess of the 
amount of taxes assessed against the property for the preceding year.
    (ii) If the taxes are not due and payable under State law, though 
the amount has been determined at the time of closing, payment will not 
be made to the collector or other official charged with the collection 
of taxes, unless he has authority to accept payment and receipt for them 
in advance of the due date.
    (2) Funds withheld for the payment of taxes will be transmitted 
promptly to the Division or District Engineer in the form of cashier's 
check or money order payable to the Treasurer of the United States, 
unless the taxes are

[[Page 157]]

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

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

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

[[Page 158]]

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

[[Page 159]]

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

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


The landowner's signature on a voucher is not necessary. On payments 
involving civil funds, paragraph 3-7g, ER 37-2-10, will be followed.
    (p) Procedure After Payment. When the above closing requirements 
have been met, the Closing Officer will:
    (1) Immediately order a final continuation of the type of title 
evidence which has been contracted for. The final title evidence must be 
dated as of the date of recordation of the deed to the United States, or 
a subsequent date, to show a valid title vested in the United States of 
America subject only to those title defects which have been 
administratively waived or to those liens and encumbrances for which 
sufficient funds were withheld from the

[[Page 160]]

purchase price to satisfy and discharge them.
    (2) Check carefully ENG Form 1566, Payment and Closing Sheet and 
Receipt for United States Treasurer's Check, to see that funds have been 
properly disbursed.
    (3) Review the continued abstract, final certificate of title, or 
title insurance policy, as soon as they are prepared and determine that 
the proper preliminary and final title evidence and related papers on 
the case have been completed in proper order. Thereupon a Final Title 
Opinion will be prepared.
    (4) Transmit as the Final Title Assembly to HQDA (DAEN-REA-P) WASH 
DC 20314, the Final Title Opinion, title evidence and related papers. 
This Final Title Assembly must be chronologically arranged and securely 
fastened for permanent filing, and should include the following:
    (i) Abstract of title, properly continued through time of closing; 
or preliminary, intermediate, and original of final certificate of 
title; or interim binder and original of the Title Guarantee (Insurance) 
Policy.
    (ii) Curative instruments and material pertaining to title defects 
appearing in the abstract, the final certificate of title, or the title 
guarantee or insurance policy.
    (iii) Deed to the United States, executed, stamped, acknowledged, 
and recorded.
    (iv) Copy of the accepted offer to sell (ENG Form 42 or ENG Form 
2970).
    (v) Completed ENG Form 798.
    (vi) Completed ENG Form 1566.
    (vii) Statement regarding payment of taxes or amount withheld to pay 
the taxes.
    (viii) Where required, completed ENG Form 1290.
    (ix) If the power of attorney procedure is followed, power of 
attorney on proper Department of the Treasury Form and completed ENG 
Forms 1569 and 1571.
    (x) Certified copy of any waiver letter or certificate.
    (xi) Any other papers relating to the title or closing of the case.
    (xii) An additional copy of the deed and the Attorney's Final Title 
Opinion for review by the Attorney General.
    (5) A copy of the executed and recorded deed will be retained by the 
Division or District Engineer for the project files.
    (6) Similar action will be taken by the Closing Officer in 
acquisition of easements costing not in excess of $1,000.



Sec. 644.71  Final Title Assembly.

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



Sec. 644.72  Transfer to Condemnation.

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

[[Page 161]]

             Acquisition by Purchase, Donation, and Transfer



Sec. 644.81  General.

    Sections 644.81 through 644.88 describe the procedures of the Corps 
of Engineers relating to the acquisition of land and interests therein 
for both military and civil works projects by purchase, donation and 
transfer.
    (a) Applicability. These sections are applicable to all Division and 
District Engineers having real estate responsibilities.
    (b) Acquisition Authority--(1) Limitation. Acquisition of land for 
use by the United States requires express authorization (10 U.S.C. 2676, 
41 U.S.C. 14).
    (2) Military. Title 10 U.S.C. 2571 authorizes transfer of real 
property between Defense elements without compensation if the 
Secretaries approve. Title 10 U.S.C. 2662 provides that acquisition of 
fee title or transfer of real property owned by the United States to 
another Federal agency, military department or a state must be reported 
to the Committees on Armed Services of the Senate and House of 
Representatives if the estimated value is more than $50,000 and the 
transaction may not be consummated until after 30 days have expired from 
the date the report is submitted to the Committees. Title 10 U.S.C. 2663 
provides for acquisition by the Secretary of a military department 
during time of war or when war is imminent of any interest in land, 
including temporary use, required for a Defense installation, munitions 
plant or power plant for production of munitions, through negotiation 
and purchase, by condemnation or by gift. Title 10 U.S.C. 2672 provides 
that the Secretary of a military department may acquire any interest in 
land, including temporary use, by gift, purchase, exchange of United 
States owned land or otherwise, that he or his designee determines is 
needed in the interest of national defense and does not cost more than 
$50,000 exclusive of administrative costs or the amounts of deficiency 
judgments.
    (3) Civil Works. Acquisition of real property for civil works 
projects for which provision has been made by law is authorized in 33 
U.S.C. 591-595a and 701. As in the case of military projects, the 
Secretary of the Army is also authorized to accept donations of lands 
and materials required for civil works projects.
    (c) Rights-of-Entry. Rights-of-entry for construction may be 
obtained by the Division or District Engineer, after he has been 
authorized by the Chief of Engineers to acquire the land, pending 
completion of acquisition by purchase or the filing of condemnation 
proceedings with declaration of taking. In the event the landowner will 
not voluntarily grant a right-of-entry, an appraisal of the required 
interest should be made and negotiations conducted on the basis thereof. 
If the negotiations are not successful, a declaration of taking should 
be submitted to acquire the necessary rights. The same procedure will be 
used for acquiring rights-of-entry for other purposes, such as survey 
and exploration.



Sec. 644.82  Prerequisites to acquisition.

    (a) Authority to Begin Acquisition. Action to acquire a tract of 
land will not be initiated until the Real Estate Design Memorandum (for 
all projects except military) or Real Estate Planning Report (for Army, 
other than Civil Works, and Air Force projects) is approved and specific 
authorization of the Chief of Engineers, or the appropriate Air Force 
Regional Civil Engineer (AFRCE), to proceed with the acquisition of the 
project is received by the Division and District Engineer and funds have 
been made available. Upon such approval, the Division or District 
Engineer is authorized to initiate action for the acquisition of the 
estate approved for the particular project in accordance with the 
procedures hereinafter set forth.
    (b) Tract Description. Authority to initiate engineering planning of 
a project will state the mapping procedures provided for in Chapter 3, 
ER 405-1-12. It is necessary that land requirements be determined, that 
the various tracts be identified by ownership, and that accurate tract 
descriptions be developed. Tract ownership data may be developed by 
Division or District personnel from the local land records or procured 
by contract from a qualified local Government official, abstractor or 
title company representative.

[[Page 162]]

    (c) Title Evidence. With approval to proceed with acquisition, title 
evidence contracts can be initiated. The procedures for obtaining title 
evidence are covered in Secs. 644.61 through 644.72. Preliminary title 
evidence to confirm ownership and status of the title is prerequisite to 
negotiating for acquisition of the land or interests therein.
    (d) Appraisals. Concurrently with the procurement of title evidence, 
the appraisal of the land should begin. The appraisal, when approved, 
forms the basis for the determination of fair market value which will 
not be less than the approved appraised value. The appraisal procedures 
are covered in Subpart B. Normally, one appraisal per tract (ownership) 
will be obtained; however, in unusual cases such as those which involve 
novel, unique or controversial appraisal concepts, there is no objection 
to obtaining more than one appraisal covering the same tract if 
considered advisable by the Division or District Engineer. When fee 
tracts are acquired by eminent domain procedures, where the value of the 
property is between $50,000 and $100,000, only one appraisal need be 
provided to the Department of Justice so long as it is a contract 
appraisal; two appraisals will be provided for values exceeding 
$100,000. Easement tracts acquired by eminent domain procedures, in 
excess of $50,000, will require two appraisals. At least one of the two 
appraisals must be made by a contract appraiser. Generally, in these 
cases, the second appraisal is procured only after negotiations indicate 
that agreement on price cannot be reached and that acquisition by 
condemnation will be required. The second appraisal will be procured in 
order that the Corps can take advantage of any negotiating flexibility 
that the second appraisal may afford in order to preclude court action. 
It is also necessary that the appraisals be relatively current in point 
of time (not to exceed six months) since dependent upon the real estate 
activity and degree of stability of the local economy, significant 
changes may take place in relatively short periods of time.
    (e) Environmental Considerations. Paragraph D3, Attachment 1 to 
Enclosure 1, DOD Directive 6050.1, dated March 19, 1974, subject: 
``Environmental Considerations in DOD Actions,'' requires close 
environmental scrutiny of real estate acquisitions, disposals and 
outgrants to determine if said actions constitute a ``Major Action 
Significantly Affecting the Quality of the Human Environment 
(MASAQHE).'' If the action is determined to be a MASAQHE, then an 
environmental impact statement is required. Paragraph D3 is quoted here 
for ready reference:

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

                                * * * * *

    3. Real estate acquisition, disposal and outgrants.

                                * * * * *



Sec. 644.83  Negotiations.

    (a) Acquisition Objectives. The objective of a land acquisition 
program is to acquire land at a price that will afford each landowner 
his constitutional guarantee of ``just compensation'' as that term has 
been defined by Federal judicial decisions. The Government must never 
pay less than just compensation unless a gift is intended. In eminent 
domain proceedings, the just compensation due a landowner is determined 
judicially by court award or by settlement prior to trial; in a purchase 
case, it is determined by negotiations leading to a satisfactory price 
and agreement with the landowner. While it is recognized that an 
appraisal is only an informed opinion and does not

[[Page 163]]

establish or determine just compensation, it is also recognized that, in 
negotiating for the purchase of land, an appraisal is the best and 
sometimes the only reliable opinion of the market value of the land 
which is supported by a thorough, acceptable analysis of market 
conditions at the time of purchase. Therefore, in the negotiation for 
the purchase of land, an approved current appraisal shall establish the 
minimum price to be paid for the land being acquired by the Corps of 
Engineers. Negotiations or offers below this price are prohibited except 
where the property is being acquired on a competitive basis and 
condemnation is not authorized.
    (b) Negotiating Objectives. In all cases, it is important that the 
negotiator receives adequate guidelines and explicit instructions. 
Promptly, after the amount of the estimated just compensation is 
established, the negotiator shall make an initial offer in the full 
amount of the fair market value, shall advise the landowner that the 
land was appraised for such amount, and shall furnish the landowner a 
written statement of, and summary of the basis for, said amount. A 
concentrated effort will be made to acquire the land for that amount. 
This written statement will be in the form of a letter which may be 
delivered personally or by first class mail. Such summary will include, 
as a minimum, the following items:
    (1) Definition of the term ``fair market value.''
    (2) An accurate legal description and location identification of the 
real property and the interest(s) therein to be acquired (legal 
description and estate may be attached).
    (3) The amount of the offer and a statement that such amount:
    (i) Is the amount believed by the agency to be just compensation for 
the property;
    (ii) Is not less than the approved appraisal of the fair market 
value of the property;
    (iii) Disregards any increase or decrease in the fair market value 
caused by the project for which the property is to be acquired, or by 
the likelihood that the property would be acquired for such project, 
other than that due to physical deterioration within the reasonable 
control of the owner;
    (iv) Does not reflect any consideration of or allowance for any 
relocation assistance and payments which the owner is entitled to 
receive.
    (4) An inventory identifying the buildings, structures, fixtures, 
and other improvements, including appurtenant removable building 
equipment, which are considered to be part of the real property for 
which the offer of just compensation is made. The inventory shall 
include a statement of the utility and condition of said buildings, 
structures, fixtures, and other improvements.
    (5) A description of the appraisal technique used, i.e., market 
approach, income approach, or cost approach, in sufficient detail to 
explain clearly to the landowner the process by which his property was 
valued. Thus, as an illustration, where the market approach was used, 
the explanation should include the number of comparable sales used, 
their general location and type, the factors considered in adjusting 
sales of subject property, and any other information which would help 
the landowner understand what was done to value his property. A 
statement that comparable sales of similar properties were examined 
without more explanation is not sufficient. Similar information should 
be given when any other appraisal technique is used. Unusual cases will 
require a more detailed explanation.
    (6) An identification of land classification categories (do not show 
acreage breakdown).
    (7) If only a portion of a property is to be acquired, an 
apportionment of the total estimated just compansation for the partial 
acquisition between:
    (i) The amount representing the just compensation for the real 
property to be acquired;
    (ii) The amount, if any, representing severance damages to the 
remainder, together with a brief narrative description of the cause 
thereof; and
    (iii) In the event ``off-setting benefits'' are involved, these must 
be shown, along with a narrative explanation and the landowner shall be 
given a ``person-to-person'' explanation by the negotiator.
    (8) If the property contain a dwelling, the value of said dwelling 
and homesite

[[Page 164]]

shall be set forth separately, with the statement that this figure will 
be used in calculating housing relocation benefits under title II of 
Pub. L. 91-646.
    (9) If any building, structure, fixture, or other improvement, 
comprising part of the real property, has been identified as being owned 
by a tenant who has the right or obligation to remove it at the 
expiration of his term, the amount of the value of such building, 
structure, fixture, or other improvement, being the greater of:
    (i) The amount which the tenant's improvement contributes to the 
fair market value of the real property to be acquired; or
    (ii) The fair market value of the tenant's improvement for removal 
from the real property. The basis of such amount shall be included.
    (c) Appraisal reports or the appraiser's analysis (complete 
breakdown of principal value elements) will not be revealed by the 
negotiator unless specifically authorized. Cases involving property for 
which the highest and best use cannot be definitely established, and to 
which the exceptions mentioned in paragraph (a) of this section do not 
apply, will be reported to HQDA (DAEN-REA) WASH DC 20314 for specific 
instructions. If the land is being donated, initial offers are not 
necessary, and the appraisal will be significant in negotiations only 
when considering the conditions under which the donation is made as, for 
example, an agreed valuation for tax purposes. Negotiations will be 
based on current market values, which normally means that last offers 
will be based on appraisals not over six months old. Exceptions will be 
required in instances of rapid escalation of values when the appraisal 
is quickly outdated or in instances of a relatively static market or 
other condition resulting in a minimal change in property values. In 
such cases an explanation will be necessary.
    (d) Exceptions--(1) Corps Employees. If an employee of the Corps of 
Engineers has a direct interest in a tract of land being acquired by the 
Corps for public use, the tract will be acquired by condemnation. In 
cases of this nature, appraisal reports should be prepared, reviewed and 
forwarded together with a declaration of taking, with the condemnation 
assembly. The negotiator's report, of course, will not be included. The 
Department of Justice will be requested to handle all further matters 
pertaining to settlement or trial of the case. The Department of Justice 
has agreed to accept full responsibility for negotiations and approval 
of settlements or awards in such cases, without contacting any Corps 
personnel other than the owner of the interests being acquired.
    (2) Members of Congress. Since, under 18 U.S.C. 431 and 432, members 
of Congress who hold interests in land that is required for project 
purposes cannot contract for sale of such interests to the Government, 
these interests will also be acquired by condemnation. Negotiations for 
acquisition by purchase or for settlement without trial cannot be 
conducted by officers or agents of the United States. The determination 
of just compensation must be made by judicial proceedings. Appraisal 
reports and the condemnation assembly should be prepared and forwarded 
as set forth in paragraph (d)(1) of this section.
    (e) Negotiating Guidelines. (1) The negotiator should be thoroughly 
familiar with the Division and District negotiating guidelines and 
should study the background data of the project, consisting of the 
authorizing act, survey report, project document, design memoranda, 
etc.; the applicable appraisal reports; tract ownership data; 
preliminary title certificates; and other related material. He should be 
entirely familiar with the project and the owner's individual property 
before initiating negotiations.
    (2) The owner shall be provided with available brochures which 
explain the project and the Pub. L. 91-646 benefits, together with the 
written statement and summary required by Sec. 644.83(b). The negotiator 
should explain to the landowner the Government's requirement for the 
land, the amount of land required, the estate(s) to be acquired, the 
terms and conditions of the Government's contract form, and the fact 
that relocation assistance benefits may be available. He should furnish 
the landowner a copy of a map indicating the boundaries of that portion 
of his land to be acquired, where the entire ownership is not being 
acquired or

[[Page 165]]

where different estates are being acquired in the same ownership, 
specifying the estate in each area.
    (3) Negotiations will be continued in an effort to obtain acceptance 
of the Government's offer or a reasonable counteroffer from the 
landowner, or until it is definitely determined that such a counteroffer 
will not be forthcoming. It is not intended that negotiations be 
continued until an unacceptable counteroffer is finally obtained. 
However, in an effort to obtain a reasonable counteroffer above the 
Government's estimate, the negotiator will, if necessary, take the 
initiative in suggesting a series of prices within a range which, in 
accord with the guidelines discussed in Sec. 644.84, has been 
predetermined to be reasonable.
    (4) The interest of both owners and tenants must be considered and 
protected. The tenant is a proper party to the transaction, and every 
effort must be made to obtain the consent of the landowner and tenant as 
to the price to be paid to the tenant for his leasehold interest. This 
can be accomplished by the tenant's execution of ENG Form 1564, Consent 
to Offer to Sell Real Property, which shall then accompany the owner's 
offer to sell. In cases where the tenant executes this form, payment for 
the tenant's interest can be made to him in the closing of the purchase 
transaction. This procedure will be followed whenever possible. An 
exception is permitted in those cases where the landowner and tenant 
prefer to handle the matter as a private transaction between themselves. 
In such cases, it should be determined that a satisfactory agreement has 
been made by the landowner and tenant. Consideration should be given to 
any interest which the tenant may have in growing crops. This procedure 
is also applicable to any third party having an interest in the 
property, except through severance of a subsurface estate.
    (5) Negotiations with landowners will be conducted in a fair and 
courteous manner. The negotiator must not, under any circumstances, 
resort to coercion or threats of condemnation.
    (6) The negotiator has no authority to obligate the Government in 
any manner beyond the contract form. He must refrain from oral promises 
or understandings and include all terms and conditions in the contract 
form.
    (7) Although appraisal reports cannot be made available for 
inspection by a landowner, the various elements of value considered by 
the appraisers may, and should, be discussed with the landowner to 
satisfy him that all elements of compensable values and damages have 
been considered in arriving at an overall value for the property being 
acquired. Care will be exercised during any discussion not to reveal 
specific amounts related to any elements considered in the appraisal, 
except the acquisition cost assigned to the dwelling for purpose of 
calculating replacement housing payment under section 203, Pub. L. 91-
646.
    (8) Any interest in a tract of land sought to be acquired, or any 
type of relationship with the owner, disqualifies the negotiator from 
participating in negotiations for the acquisition of that particular 
tract.
    (9) An appraiser is not, under any circumstances, permitted to 
negotiate for the acquisition of a tract of land for which he has 
prepared the appraisal or reviewed it as reviewing appraiser.
    (f) Discussions With Landowners. In order to avoid the creation of 
negotiating patterns, and keeping in mind that counteroffers must be 
justified as being just and reasonable, discussions with landowners 
should be conducted without disclosing the extent of the delegations and 
redelegations of authority to accept counteroffers. However, during 
negotiations on individual tracts, the landowners must be advised that, 
in the event of condemnation, the deposit will be in an amount no less 
than the approved appraised value, since the question of value cannot be 
resolved by negotiations. It must further be made clear that this advice 
is not in the nature of a threat, but is an explanation of the statement 
of policy directed by the Congress and the law. The negotiator will also 
inform each owner that offers and counteroffers made during negotiations 
are made without prejudice in the event of condemnation. The negotiator 
will make a notation on the Negotiator's Report to the effect that he 
has so informed the owner.

[[Page 166]]

    (g) Obtaining the Written Counteroffer; Preparation of Negotiator's 
Report. If the negotiator considers that a counteroffer in excess of the 
approved appraised value is in the amount which should be considered for 
acceptance, the counteroffer will be reduced to writing on ENG Form 42, 
Offer to Sell Real Property, or on ENG Form 2970, Offer to Sell 
Easement, and be properly executed by the landowner. In such cases, a 
complete written record of negotiations with respect to each tract or 
ownership, as appropriate, will be maintained by means of ENG Form 3423, 
Negotiator's Report, Part I. This record will state the chronological 
history of negotiations, all elements considered in evaluating the 
landowner's final counteroffer, and the justification for such 
recommendation in accordance with Sec. 644.84. The justification will be 
fully recorded in ENG Form 3423A, Negotiator's Report, Part II, which is 
a separate page of this report, and which will be removed in the Office 
of the Chief of Engineers prior to submitting the counteroffer assembly 
to higher authority for approval. Final action on the counteroffer, 
either by the Secretary of the Army, the Chief of Engineers or under the 
delegated authority to Division and District Engineers, will be entered 
on this record as soon as that information is available.



Sec. 644.84  Counteroffers.

    (a) Consideration of Counteroffers. In negotiations with landowners, 
if agreement cannot be reached with a landowner as to the purchase price 
established by the appraisal, the lowest price demanded by the landowner 
may be considered by the Division and District Engineer, and the Chief 
of the Real Estate Division, on the basis of the following factors:
    (1) Variations in Appraisals. In the usual case, the Corps will have 
the opinion of only one appraiser with respect to the market value of 
the particular tract of land. It must be recognized that the opinion of 
a second equally competent appraiser might be higher or lower than that 
of the appraiser who appraised the property. Hence in considering 
counteroffers of landowners, Division and District Engineers should keep 
in mind that two equally competent appraisals may reflect reasonably 
divergent opinions of value as to the same property. Instances requiring 
two appraisals are covered in Sec. 644.82(d).
    (2) Built-in Costs, Prior Counteroffers, Settlements and Liability 
Risks of Proceeding to Trial. It is recognized that there are certain 
Government administrative costs and liability risks involved when 
property is condemned by the United States and the land value is 
judicially determined. These items are definite in character but the 
attendant costs will vary. ``Built-in'' costs of proceeding to trial 
include, but are not limited to, the following items: Salaries of all 
Government personnel participating in trial preparation, pre-trial 
hearings, and the actual trial; cost of an additional appraisal(s); 
witness fees of contract appraisers employed by the Corps of Engineers 
or the Department of Justice; travel costs of all Government personnel 
and consultants participating in trial preparation, pre-trial hearings, 
and the actual trial; and cost of preparing trial documents and 
exhibits. Consideration should also be given to prior counteroffers 
which have been accepted and settlements approved prior to trial. 
``Liability risks'' of proceeding to trial are the amount of the 
anticipated award over and above the appraised value, taking into 
consideration probable testimony on behalf of the Government and the 
landowners, as well as the history of condemnation awards in the Federal 
court jurisdiction in which the lands are located, and the amount of 
interest on a deficiency judgment which would result from the 
anticipated award. Serious consideration of the above factors may 
justify a recommendation for authority to accept a counteroffer which 
otherwise would appear to liberal.
    (3) Non-Compensable Elements of Value. Elements of value based on 
consequential damages or speculative values, as defined by the Federal 
courts, may not be recognized in considering a landowner's counteroffer. 
However, even though a landowner's counteroffer might include non-
compensable items of value, favorable consideration of the counteroffer 
may be given if it can be justified on the basis of variances in

[[Page 167]]

appraisals, built-in costs, and liability risks of proceeding to trial.
    (4) Value of Reserved Items. The salvage value of improvements and 
the value of crops and/or timber reserved by the landowners, as provided 
in Sec. 644.86 (g), (h), and (i), will not be included in the amount of 
the counteroffer in determining the excess of counteroffers over 
appraised values when applying the dollar and percentage limitations in 
the delegations of authority to Division and District Engineers for 
acceptance of counteroffers. The determination of the excess will be 
made on the basis of the appraised value of the interests being acquired 
(including the value of the reserved items) compared to the cash payment 
which will be made to the landowner if the Government accepts his 
counteroffer. However, this method of analyzing the counteroffer is 
intended for use only in determining the limitations of authority. The 
overall transaction must be in the interest of the United States and not 
afford an unwarranted windfall to the vendor.
    (b) Application and Limits of Delegated Authority. The negotiating 
procedures outlined herein will apply to all acquisitions by the Corps 
of Engineers for the Army (military and civil), Air Force, Department of 
Energy (DOE), National Aeronautics and Space Administration (NASA), and 
other Federal agencies which utilize the services of the Corps for 
acquisition of real estate. Delegations of authority to Division and 
District Engineers and to the Chiefs of their Real Estate Divisions to 
accept offers in excess of the appriased valuation have been made. 
Offers which do not exceed the approved appraised value may be accepted 
by authorized Division and District personnel regardless of the amount. 
Other offers will be handled as outlined in the paragraphs which follow.
    (c) Exercise of Delegated Authority. The approval of a counteroffer 
over the appraised value, but within the authority redelegated to 
Divisions and Districts, will be evidenced by the Division Engineer, the 
District Engineer, the Chief of the Real Estate Division, or the 
incumbent of the position to which redelegations have been made, in one 
of the following manners:
    (1) Manually accepting, on behalf of the United States, the offer to 
sell, as provided in Sec. 644.87; or
    (2) Manually executing a dated notation of approval of the purchase 
price, to be placed in the tract file, preferably on the original of the 
Negotiator's Report (Sec. 644.83(g)).
    (d) Submission of Counteroffers to the Chief of Engineers. 
Recommendations for the grant of authority to accept counteroffers which 
are considered reasonable, but which cannot be accepted by the Division 
Engineer, the District Engineer, or the Chief of the Real Estate 
Division, within the limitations of delegated authority, will be 
submitted to HQDA (DAEN-REA) WASH DC 20314 for consideration. 
Negotiator's Reports, prepared in accordance with Sec. 644.83(g) will 
accompany this submission; the contents thereof need not be repeated in 
the transmittal letter or in forwarding indorsements. The assembly will 
consist of the forwarding correspondence and the Negotiator's Report, 
with any additional material needed to support the recommendation of the 
Division and District Engineer. An analysis should be made of this offer 
as compared with other counteroffers accepted for the project, as well 
as with results in condemnation cases settled before trial. Signed 
offers will not be forwarded unless they contain deviations requiring 
approval by the Chief of Engineers. Appraisal reports are helpful and 
may be necessary reference for proper consideration of the 
recommendation. In the event the appraisal report was approved by HQDA 
(DAEN-REA), the forwarding letter should refer to the approval 
correspondence and data. It will not be necessary to enclose copies of 
the appraisal report. Where only a portion of an ownership is required, 
information should be furnished in the Negotiator's Report or in the 
transmittal correspondence (1) as to whether or not the remainder 
portion is considered to be an uneconomic remnant and (2) if so, as to 
whether or not an offer was made to acquire the entire property. 
Further, a statement is required as to whether or not it is considered 
that the acquisition will have any adverse effect on the acquisition of 
the remaining land required for the project.

[[Page 168]]



Sec. 644.85  General negotiation procedures.

    (a) Provisions of Military Construction Appropriation Act. (1) 
Section 108 of the Military Construction Appropriation (MCA) Act of 1978 
(Pub. L. 95-101) provides that no part of the funds provided in the Act 
shall be used for purchase of land or easements in excess of the value 
as determined by the Corps of Engineers, except:
    (i) Where there is a determination of value by a Federal Court; or
    (ii) Purchases negotiated by the Attorney General or his designee; 
or
    (iii) Where the estimated value is less than $25,000; or
    (iv) As otherwise determined by the Secretary of Defense to be in 
the public interest.
    (2) The above wording, except for paragraph (a)(1)(iv) of this 
section, constitutes a limitation on accepting or submitting a 
recommendation for approval of a counteroffer in excess of the appraised 
value. Paragraph (a)(1)(iv) brings military acquisition within the 
general acquisition policy required under Pub. L. 91-646. Future MCA 
Acts should be carefully examined to determine if any limitations on 
acquisition have been restored.
    (b) Local Cooperation Projects. The participation of a non-Federal 
agency in a federally-assisted project will be in accord with section 
221 of Pub. L. 91-611 and subpart J (to be published). Acquisition of 
real property by a non-Federal agency will be in accord with sections 
210 and 305 of Pub. L. 91-646 and this chapter.
    (c) Negotiations on the Basis of Ownership; ``Package-Deal'' 
Negotiations. (1) Normally, negotiations for all interests in all tracts 
which are being acquired from one parent ownership will be negotiated at 
one time. These tracts will usually consist of all those to which the 
same basic tract number has been assigned. Exceptions may be made only 
where negotiations for some of the tracts in a series must be 
accomplished to obtain possession, or for other critical reasons. 
Piecemeal acquisition must be avoided if at all possible.
    (2) When more than one tract is operated by the owner as a unit, 
negotiations should take place on the two or more tracts or groups of 
tracts, whether or not they bear the same basic tract number.
    (3) In cases where an owner insists on a ``package-deal'' 
negotiation on all tracts in the same ownership, or having at least one 
common owner, the negotiations will be considered as one transaction.
    (4) Tracts which are in the same ownership, but which are not 
operated as a unit, should, unless the owner desires otherwise, be 
negotiated separately, on the basis of the separate appraisals which 
would be prepared in this type of case.
    (5) Under paragraphs (c)(1), (2), and (3) of this section, the 
limitations of authority to accept counteroffers will be applied to the 
entire transaction.
    (d) Acquisition by Condemnation if Negotiations Fail. As soon as it 
is determined that a satisfactory agreement cannot be reached after full 
consideration of all reasonable counteroffers received, action will be 
promptly taken to acquire the property by condemnation proceedings, 
including the filing of a declaration of taking, in order to make funds 
available to the landowner and to maintain the project acquisition 
schedule. The landowner should be advised in writing, sufficiently in 
advance of the submission of the condemnation assembly to the Chief of 
Engineers, that condemnation proceedings will be recommended and the 
reason therefor. Condemnation assemblies will include copies of the 
Negotiator's Reports or other written records of negotiations. The 
estimated compensation to be deposited in the registry of the Federal 
District Court with the filing of a declaration of taking will be in the 
amount of the approved appraisal.



Sec. 644.86  Exceptions and reservations.

    (a) General. Prior to the enactment of Pub. L. 91-646, the Corps 
encompassed a very generous policy of priority leasing with respect to 
former owners and tenants, in order to ease the burden of people who had 
to relocate because of the Corps' projects. Recognizing the inadequacies 
of the well-intentioned attempts by acquiring agencies to make whole the 
former landowner or tenant, the Congress enacted Pub. L. 91-646 which 
was approved on January 2, 1971.

[[Page 169]]

It would appear that the Congress intended that such law provide for the 
fair and equitable treatment of persons who are displaced, without 
having to rely on interim measures, such as priority leasing, to ease 
the inevitable relocation. In House Report 91-1656, the Committee on 
Public Works of the House of Representatives noted the likelihood that 
adequate housing may not be available readily and indicated this as its 
reason for including the provision in the law that satisfactory 
replacement housing must be available before displacement. In view of 
this, it is incumbent on the District Engineer to be opportune in 
seeking out replacement housing and to be judicious in the early 
relocation of owners and tenants before market changes eliminate any 
available supply of replacement homes. It is also essential that the 
District Engineer be diligent in providing the required relocation 
assistance advisory services and benefits authorized by the law.
    (b) Possession by Government. It will be the objective of the 
District Engineer to have the premises vacated and to cause unneeded 
improvements to be removed at the earliest practicable date and conform 
to the Congressional intention expressed above. In addition to the 
above, reasons for this objective are:
    (1) To provide for the expeditious payment of benefits to former 
owners and tenants;
    (2) To complete administration of the actual relocation of owners 
and tenants in a timely manner;
    (3) To avoid maintenance and security problems with respect to 
acquired improvements;
    (4) To prevent vandalism, trespassing and poaching with respect to 
acquired improvements;
    (5) To avoid any implication that former owners or tenants may be 
permitted to remain indefinitely on the federally acquired property;
    (6) To cause land to be leased on the basis of the most practicable 
size and configuration rather than on the basis of the size of the units 
acquired;
    (7) To permit the general public to bid for the lease of federally 
owned land rather than restricting the privilege of leasing to the 
former owner or tenant; and
    (8) To avoid a backlog of incomplete actions when construction or 
flooding is imminent or the land is otherwise required.
    (c) Possession Reserved to Former Owners and Tenants. It is 
considered that the policy of granting priority leases to former owners 
and tenants has been overridden by the enactment of Pub. L. 91-646. 
Accordingly, this policy is being phased out, and where applicable, the 
acquisition agreement will set forth the dates agreed upon for the 
vacation of the premises by the owner and tenant without commitments, 
express or implied, as to the leasing of the premises after such dates. 
Procedure for providing for vendor's continued possession after the 
Government's acquisition is covered in paragraph (l) of this section.
    (d) Outstanding Rights. (1) When the United States is acquiring 
title subject to outstanding rights, the offer will differentiate 
between:
    (i) Property which the vendor is excepting or rights which he is 
reserving and which are created for the first time; and
    (ii) Rights which third parties have acquired in the past, generally 
referred to as outstanding rights in third parties.
    (2) Exceptions or reservations of rights which the vendor may 
retain, without interfering with the construction or operation of the 
project, will be set forth in the offer and deed by a clause following 
the description, beginning with the words: ``Excepting * * *'' or 
``Reserving * * *.'' Any other outstanding rights, subject to which the 
United States is acquiring title, held by third parties will be set 
forth in the offer and deed by a clause, following the description, 
beginning with words, ``Said premises are conveyed subject to * * *.'' 
Negotiations with the surface owner will include the owner's interest in 
the subsurface, unless acquisition of a lesser interest has been 
authorized by directive or specific approvals. These negotiations will 
not include interest severed and outstanding in third parties by 
purchase or lease, unless the surface owner agrees to remove the 
outstanding interest or

[[Page 170]]

agrees to obtain a subordination from the holder of the outstanding 
interest if that is consistent with the acquisition plan. If 
negotiations with the surface owner are successful, an Offer to Sell 
will be obtained, reciting the outstanding interest in the ``Subject 
to'' paragraph of the form, unless the surface owner has agreed to 
remove the outstanding interest (or obtain a subordination, if 
appropriate), in which case the Offer to Sell must recite specifically 
that the surface owner is assuming this obligation. In order to carry 
out the requirements of this paragraph, the title evidence must be 
examined prior to negotiations or, in any event, prior to acceptance of 
the Offer to Sell.
    (e) Right to Repurchase Prohibited. In no case will an offer be 
obtained in which the vendor reserves the right to repurchase the 
property. Such a reservation would be contrary to the Federal Property 
and Administrative Services Act of June 30, 1949, 63 Stat. 377, 40 
U.S.C. 471, et seq.
    (f) General Reservation Guidelines. (1) Reservations of the right to 
remove crops, timber, buildings, and improvements during a specified 
period will not be permitted without express approval of the Division or 
District Engineer on civil works projects, the Army or Air Force using 
service on military projects, or the Federal agency, if other than the 
Army or Air Force, for which the land is being acquired.
    (2) At the time of the approval of the acquisition by the Chief of 
Engineers, a determination will generally have been made as to whether 
subsurface rights and/or water rights will be acquired or left 
outstanding. Acquisition will be on the basis of such determination and 
as outlined below. Lands will be acquired subject to minerals, oil and 
gas rights or other similar interests severed and outstanding in third 
parties by purchase or lease and as approved by the Chief of Engineers.
    (3) Where it is not possible to acquire or subordinate an 
outstanding interest by negotiation and the interest will not interfere 
with the operation of the project, consideration may be given to 
obtaining a waiver from the Office of the Chief of Engineers on the 
basis of taking a calculated risk rather than resorting to condemnation 
(paragraph (k) of this section). Waivers will be considered on a tract-
by-tract basis or on a project segment basis. Since such waivers involve 
several elements of the Office of the Chief of Engineers (Civil Works or 
Military Construction as well as Real Estate), the basis for the 
calculated risk must be fully explained.
    (4) Concurrently with the negotiations to acquire from the surface 
owner, negotiations should be opened with the owner of the subsurface 
rights or other interests severed and outstanding in third parties by 
purchase or lease and required for the project, unless these interests 
are held in ``block ownership.'' Block ownership exists where a person, 
corporation, or other entity owns subsurface or other interests in 
connection with more than one surface tract and in sufficient amount for 
the entire interest holding to have added value, for operational or 
other reasons, because it is in a block ownership. In other words, block 
ownership exists when the acquisition of a part of the block would 
require the assessment of severance damage, even if the value of the 
interest or the amount of the severance damage would be in a nominal 
amount. On this basis, subsurface or other interests need not be 
contiguous to constitute a block ownership. Block ownership interests 
will not be acquired (or subordinated) piecemeal.
    (5) Acquisition of the required interests, including subordination, 
held in block ownership should be started as soon as the extent of an 
operational unit is determined. As stated in paragraph (f)(4) of this 
section, all interests in a tract of land should be acquired at one time 
or as close in time as possible. Dual acquisitions of entire areas, one 
for surface rights and then for subsurface interests, should be avoided 
and acquisition of separate interests should be scheduled to coincide.
    (g) Reservation of Buildings and Improvements. The reservation by 
vendors of the right to remove buildings and improvements will be 
permitted under the following conditions:
    (1) Where the Division or District Engineer, in civil works 
projects, the using service in Army and Air Force projects, or the 
Federal agency, if

[[Page 171]]

other than the Army or Air Force, for which the land is being acquired, 
has determined that they will not be needed for the purpose of the 
project;
    (2) The consideration to the Government for the reservation will be 
an amount negotiated at not less than the appraised salvage value of the 
building and improvements which are reserved, and such amount will be 
deducted from the negotiated price at the time of negotiation prior to 
execution of the offer;
    (3) Where a reservation is permitted, the following clause will be 
inserted in the offer, following the description of the land:

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


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

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


The date on which the crops must be removed must be fixed so that there 
is no interference with construction or carrying out the mission of the 
project.
    (3) The consideration to the Government for the reservation will be 
an amount not less than the appraised value of the crops as of the date 
of surrender of possession as disclosed by an approved appraisal report, 
and such amount will be deducted from the purchase price at the time of 
preparation and execution of the offer.
    (4) Where a tenant has an interest in growing crops, the value of 
his interest must be fixed by use of ENG Form 1564, Consent to Offer to 
Sell Real Property, which provides that the value of the tenant's 
interest, as agreed upon by the landowner and tenant, will be paid from 
the purchase price for the land. The use of this form not only protects 
the tenant but, in addition, provides a simple method for extinguishing 
rights which the United States is legally bound to recognize. Where a 
tenant wishes to reserve the right to remove crops, it must be done in 
the name of the landowner, and in like manner. To accomplish the 
foregoing, any other form is satisfactory, in lieu of ENG Form 1564, as 
long as closing requirements are satisfied.
    (i) Reservation of Timber. (1) The reservation of the right to 
remove timber by vendors will be permitted only with the express 
approval of the Division or District Engineer, with the concurrence of 
the using service in cases other than civil works projects of the Corps 
of Engineers.

[[Page 172]]

    (2) Reservation of the right to remove timber will be handled in 
substantially the same manner as that described for the reservation of 
buildings and improvements. If owned by a third party, ENG Form 1564 
will be used in the same manner as for crops unless the timber interests 
are held in block ownerships. The consideration to the Government for 
the reservation will be an amount not less than the appraised value of 
the timber, giving full weight to any unusual difficulty in harvesting 
and transporting which are caused by the size, shape and location of the 
stand reserved, time limitations for removal, clearing requirements over 
the above those normally involved in prudent harvesting, and similar 
factors. If necessary, the stand reserved will be re-appraised on this 
basis. An amount not less than this appraised value will be deducted 
from the purchase price at the time of preparation and execution of the 
offer.
    (3) Where a reservation is permitted, the following clause will be 
inserted in the offer following the description of the land:

    Reserving to the vendor the right to cut and remove on or before 
______ 19 __, all trees in excess of ______ inches in diameter at breast 
height (DBH) located on the above-described land. In the event the 
timber is not removed on or before said date, the right of removal shall 
terminate automatically, and the United States shall have a good and 
indefeasible title to said timber, without notice to the vendor.

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

[[Page 173]]

the surface estate may be acquired separately, and the subsurface rights 
outstanding in third parties acquired as a separate transaction. The 
offer for the acquisition of the surface estate will provide for the 
conveyance of all interests of the surface owner in and to the 
subsurface estate, as well as all surface rights, and provide for taking 
``subject to'' the subsurface rights outstanding in third parties. In 
such cases, the negotiations described in Sec. 644.83 will be conducted 
on the basis of the approved appraisal, less the appraised value of the 
outstanding subsurface rights.
    (5) Where it has been determined that the subsurface rights and 
interests therein need not be acquired, but the owners of such rights 
must be excluded from the area, and the owner of the surface is the 
owner of the subsurface estate, the offer will contain a clause 
providing that he relinquish, for the period that title to the tract is 
vested in the Government, all rights to enter upon the lands covered by 
the offer or that he will limit entry and exploration in a named manner 
so as not to interfere with the operation of the project. If third 
parties own subsurface rights or interests, a similar waiver of the 
exercise of such rights must be procured from all third parties having 
any interest in the subsurface estate, whether as lessees or assignees. 
The waiver by third parties must be obtained at the time the offer is 
procured for the surface estate, unless these subsurface interests are 
held in block ownership.
    (k) Title Exceptions--Administrative Waivers. (1) A distinction 
should be made between those title defects, objections, liens or 
encumbrances which, if not eliminated, might possibly defeat or 
adversely affect the Government's title, and those interests in the 
property owned by parties other than the grantor. All encumbrances, 
defects, and outstanding interests which cannot be waived under 
paragraphs (k) (2), (3), and (4) of this section must be eliminated or a 
waiver of the defect secured from the Attorney General.
    (2) Title may be taken subject to an outstanding third party 
interest which has been administratively waived. Requests for 
administrative waivers shall be submitted to HQDA (DAEN-REA) WASH DC 
20314 for consideration, together with recommendations from Division and 
District Engineers. The recommendation for waiver should be coordinated 
with the using agency, if other than Department of the Army land 
(military or civil works), and should be accompanied by a certificate 
signed by the Chief, Real Estate Division or the Chief Appraiser, 
certifying that the outstanding interest has no contributory value to 
the estate being acquired and will not interfere with the purpose for 
which the property is being acquired.
    (3) It has previously been administratively determined that all 
lands for Department of the Army (military or civil works) or Air Force 
projects may be acquired ``subject to existing easements for public 
roads, public highways, public utilities, railroads and pipelines,'' and 
``to the reservations, exceptions and any other outstanding rights 
contained in or referred to in patents issued by the United States,'' 
and also ``to water rights, claims or title to water, if any, or other 
similar title exceptions.'' A decision as to whether any of these 
exceptions should be eliminated is the responsibility of the Division or 
District Engineer, after coordination with the using service if other 
than the Department of the Army. If such interests are to be left 
outstanding, they should be included in the ``subject to'' clause of the 
Offer to Sell.
    (4) Offers to Sell may be accepted subject to subsurface mineral 
interests owned by third parties in accordance with Sec. 644.86(d). In 
such case, the ``subject to'' clause of the Offer to Sell should recite 
the specific interest which is being left outstanding. Where it is not 
possible to acquire or subordinate an outstanding subsurface interest by 
negotiations and the outstanding interest will not interfere with 
construction, operation or maintenance of the project, consideration may 
be given to obtaining a waiver from HQDA (DAEN-REA) WASH DC 20314 on the 
basis of taking a calculated risk rather than resorting to condemnation. 
Such waivers may be considered on a tract-by-tract, segment-by-segment, 
or project basis.

[[Page 174]]

Where a number of small mineral interests in a project are to be 
recommended for waiver, it is preferable that the recommendation be 
submitted on an entire project or group of segments at one time. Such a 
recommendation should specifically identify the subsurface mineral 
interests which are to be left outstanding, together with the estimated 
value of each interest, and should be accompanied by a map(s) on which 
the areas affected by the outstanding interests have been outlined. The 
basis for the calculated risk should be explained fully.
    (l) Possession Reserved to Vendor. (1) The objective in acquisition 
is to obtain possession for project purposes at the earliest practicable 
time. It is recognized, however, that there are occasions when 
possession by the Government may be delayed and provision must be made 
for continued possession by the former owner in order to meet the 
requirements of the Government's acquisition policy and to further 
soften the impact of the Government's acquisition. The retention of 
possession will enable the owner-occupant of farm land, or residential 
property, to receive his purchase money and remove improvements reserved 
by him, and permit occupants who may be former owners or tenants the 
privilege of harvesting growing crops and sufficient time to relocate to 
other locations. Accordingly, the Division or District Engineer may make 
provision for the former owner, occupant, and/or his tenant(s) to remain 
in possession of the land under the terms and conditions as follows:
    (i) If the tract is to be acquired by direct purchase, the provision 
for retention will be written into the offer (ENG Form 42, ENG Form 
2970, or ENG Form 1564) and will read substantially as follows:

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

    (ii) When the tract is to be acquired by condemnation, the 
circumstances of the right to remain in possession, which has been 
established as hereinafter set forth, will be fully described in the 
correspondence forwarding the condemnation assembly to HQDA (DAEN-REA-C) 
WASH DC 20314. The retention of possession without payment of rent is 
directed to the benefit of the occupant of the property with some 
property maintenance consideration to the Government. This procedure 
will not be used to permit non-occupant owners a means of retaining 
possession without payment of rent and at the same time collect cash 
rents or unreserved crop rents from tenants.
    (iii) When the land being acquired is utilized by the owner and/or 
tenant for agricultural or related purposes, a period of possession may 
be allowed, if consistent with project requirements, to permit the crop 
owner to harvest growing crops, and to avoid abrupt dislocations. The 
period of possession reserved in the offer, or for which request for the 
order of the court is deferred in declaration of taking cases, should 
generally be co-extensive with the crop season or the date that, by 
custom in the community, leases of such properties ordinarily expire: 
Provided, however, That such period does not exceed 12 months from the 
date title vests in the Government. Reservation of possession or delay 
in entry of order of possession that will interfere with the 
Government's requirements for use of the land will not be allowed.
    (iv) In the case of owner-occupied residential property other than 
farm residences, possession may be permitted for a sufficient time to 
allow orderly relocation, but no longer than 12 months after title vests 
in the Government.
    (v) In connection with the acquisition of commercial, industrial, 
tenant-occupied residential property other

[[Page 175]]

than residences occupied by farm tenants, and special use properties, 
ordinarily the procedures of reserving possession to the vendor by a 
clause in the offer, or deferring the right to possession under a 
declaration of taking proceeding, should not be utilized. In such cases, 
after title vests in the United States, the continued possession of the 
property by vendor or tenant should be formalized by an outlease from 
the Government. However, if in the opinion of the Division and District 
Engineer a reservation for possession in the offer or deferral of order 
of possession is desirable in certain instances from a public relations 
standpoint or for other compelling reasons, such cases will be forwarded 
to HQDA (DAEN-REA) WASH DC 20314 for consideration.
    (vi) The reservation of use and occupancy in the vendor and/or 
tenant under the terms of the offer or deferment of possession must be 
based on adequate consideration to the Government. It is anticipated, 
however, that items such as the vendor's maintenance of the land, 
buildings, and structures, his protection of the property against loss 
by fire, waste, or other causes, and the fact that his possession can be 
revoked within a short period of time, will, in most instances, offset 
any rental for the period of the reserved occupancy or deferred 
possession which might otherwise be due. However, if possession is 
reserved by the vendor in the acquisition of commercial, industrial, and 
special use properties, or other type of property having a potentially 
high income factor, the fair rental value for the period of reserved use 
or deferred possession must be deducted from the agreed purchase price.
    (vii) Special provisions for protection of the Government, such as 
those appearing in ENG Form 1366, Department of the Army Lease--River 
and Harbor or Flood Control Property, will be added to the reservation 
clause in the offer in cases where, in the opinion of the Division or 
District Engineer, they are necessary or desirable. If the case is not 
to be closed by direct purchase, the letter to the vendor notifying him 
of the Goverment's intention to file a declaration of taking will set 
forth the fact that possession is to be deferred and for what period, 
and will contain a statement as to the Government's expectation that the 
vendor will properly maintain and protect the premises, and perform such 
other acts (or refrain from such acts) as deemed advisable by the 
Division or District Engineer. Both the letter of notice and the 
reservation clause in the offer will provide that the right to 
possession may be revoked on 30 days notice to the vendor.
    (2) It is recognized that farmers may experience difficulty in 
finding substitute farms needed for their livelihood within one year, 
and other owners and tenants may encounter difficulty in relocating 
within one year. Therefore, the District Engineer, as an exception to 
the procedure in paragraph (l)(1) of this section may lease properties 
to former owners or tenants at the fair market rental value for up to 
one additional year where the circumstances justify such action, and, in 
such event, the record will contain the reasons justifying the action. 
Any occupancy by the former owner or tenant beyond 12 months from the 
date the property was acquired by the Government will be covered by a 
lease and will provide payment of the fair market rental value of the 
property leased.
    (3) The District Engineer, through channels, may request the Chief 
of Engineers to grant exceptions to this policy where unusual 
circumstances warrant such consideration. In keeping with the intent of 
this action, it is hoped that such cases will be minimal in number.
    (4) The following will apply with respect to advance land 
acquisition projects. Former owners and tenants whose properties were 
acquired prior to August 1, 1972 will be allowed to remain on the 
property by lease on a year-to-year basis until the establishment of a 
land management use plan and thereafter, if the property is available 
for leasing, for a single five-year term. Former owners and tenants 
whose properties are acquired after August 1, 1972 will be allowed to 
remain on the property by lease on a year-to-year basis until 
construction commences: Provided, The property is available for leasing. 
After construction commences, if the property is not immediately 
required for project purposes, such former owners

[[Page 176]]

or tenants will be allowed to remain on the property by lease for an 
additional two years. Continued possession of properties acquired after 
the date construction commences will be governed by the procedure 
outlined in paragraph (l)(1) of this section.
    (m) Schools, Cemeteries, and Facilities of State and Local 
Governments. ER 1180-1-1, Section 73, provides for the discretionary 
relocation by the Chief of Engineers of schools and other local 
governmental facilities, and acquisition of the sites under section 111 
of Pub. L. 85-500. Section 73 will be followed in the acquisition and 
relocation of cemeteries. Where the school was formerly a part of an 
abutting tract, offers for the abutting tracts will contain a clause 
whereby the vendor or vendors agree to quitclaim all right, title, and 
interest whether vested or reversionary, in and to the school site in 
executing the deed to the United States.
    (n) Reservations Prior to Completion of Offer. Where immediate 
possession of areas is necessary and is obtained by right-of-entry or 
the filing of condemnation proceedings, owners often wish to move, 
taking with them buildings and improvements, or wish to harvest timber 
or crops, prior to any offer by the Government for the sale of their 
land. This action is authorized only under the following conditions:
    (1) Appraisals of all the land, buildings, improvements, timber, and 
crops of the particular tract are completed and approved.
    (2) A determination is made by the Division or District Engineer 
that the buildings, improvements, and timber will not be needed, and the 
harvesting of timber or crops will not interfere with construction or 
operation of the project.
    (3) ENG Form 1565, Agreement for Removal of Property, will be 
obtained from all persons having an interest in the property to be 
removed. This agreement will recite the amount which the owner is 
willing to have deducted from the value of the tract as a whole for the 
right of removal, which may not be less than the appraised salvage value 
of the buildings, improvements and timber, and the appraised value of 
the crops, as set out in paragraphs (g), (h), and (i) of this section.
    (4) ENG Form 1565 will be obtained and accepted by the Division or 
District Engineer, or the Chief of the Real Estate Division.
    (5) If an offer is obtained later, an appropriate reservation must 
be inserted in the Offer to Sell to reflect the prior agreement relative 
to reservations and removals of property and the agreed value of same.
    (6) If it is necessary later to file a declaration of taking on the 
particular tract, a copy of the agreement (ENG Form 1565) will be 
forwarded with the correspondence transmitting the declaration of taking 
assembly for use of the Department of Justice in the court action. The 
agreement by its own terms will serve as a stipulation as to the amount 
to be deducted from the ultimate award for the right of removing 
buildings, improvements, timber or crops.
    (o) Loss or Damages to Improvements, Timber, or Crops--(1) Insurance 
Protection Against Risks. The Government does not carry property 
insurance of any nature. Vendors, however, may be advised as to their 
liability for certain losses, and that insurance protection against such 
risks is optional. When buildings, improvements, timber, or crops on 
land being acquired by the United States are protected by insurance in 
effect when acquisition activities are initiated, the time and method of 
cancellation and negotiation for refund on premiums paid will be the 
responsibilities of the vendor. In order to avoid double payments to 
vendors, any amounts actually collected by vendors under the terms of 
the insurance policies for damage or loss occurring after acceptance of 
the offer by the Government will be deducted from the purchase price, 
regardless of when title is vested in the United States or the right to 
possession is exercised.
    (2) Fixing Liability--(i) Prior to Vesting Title in Government. 
Buildings, improvements, timber, or crops on land acquired by the United 
States by purchase or condemnation remain the property of the vendor 
until title has been vested in the United States by delivery of a deed 
of conveyance or filing of a declaration of taking, and loss or damage 
thereto caused by fire, acts of God, theft or vandalism, before such

[[Page 177]]

vesting of title, will be borne by the vendor, except as provided below.
    (ii) Possession by Government. When the right to possession has been 
exercised by the United States under an accepted Offer to Sell, 
condemnation proceeding, or possession has otherwise been surrendered to 
and accepted by the United States, losses arising from damage to 
buildings, improvements, timber, or crops by fire, acts of God, theft, 
or vandalism will be borne by the United States. If, however, prior to 
vesting of title, the right to possession has been exercised, or 
surrender has been made and accepted only to part of the property, and 
the vendor continues to use buildings and/or to cultivate or harvest 
crops or timber, such loss will be borne by the vendor as to buildings, 
timber or crops retained.
    (iii) Title in Government. After title has vested, losses to 
buildings, timber or crops not caused by the willful act or gross 
negligence of vendor will be borne by the United States; provided, 
however, that if the vendor continues in possession of buildings, timber 
or crops, after title has vested, and the deed, stipulation or order of 
court has reserved to the vendor the right to remove such buildings, 
timber or crops, loss or damage thereto, both before and after removal, 
caused by fire, act of God, theft, or vandalism will be borne by the 
vendor, only to the extent of the amount deducted from the purchase 
price, as provided in the deed, stipulation or order of court, for the 
right to remove.
    (p) Other Reservations. The following rights may be reserved to the 
owner wherever such reservation will be to the financial advantage of 
the Government and it has been determined by the Division or District 
Engineer that the reservation of the rights will not interfere with the 
operation of the project. These rights may be reserved in the Offer to 
Sell and in the condemnation estate but only whenever mutual agreement 
between the owner and the Government concerning all phases of the 
acquisition except just compensation has been reached, or by stipulation 
for settlement of condemnation cases, subject to approval of revestment, 
if any, by DAEN-REA.
    (1) Rights-of-Way for Stock to Water. Reservations of rights-of-way 
will be permitted for watering stock, in the case of bona fide livestock 
operations, such as dairymen and ranchers. Such rights-of-way will be 
limited to a reasonable width and will not be permitted in public access 
and use areas. The reservations will be so worded as not to require the 
owners to fence the rights-of-way, but to provide that if they elect to 
do so, they must provide gates at satisfactory intervals to permit 
crossing of the rights-of-way.
    (2) Rights-of-Way for Water Pipeline for Domestic Use. Reservations 
of rights-of-way for water pipelines for domestic use (household, stock 
watering, garden, farm yard, but excluding irrigation) may be permitted 
by providing for the reservation of a temporary or permanent easement.
    (3) Rights-of-Way for Water Pipline for Irrigation Use. (i) In areas 
where irrigation is commonly practiced, or is of paramount importance, 
owners of remainder or contiguous lands will be permitted to reserve a 
sufficient real estate interest to place water pipelines across 
Government-owned lands, in order to obtain financing for irrigation 
development and/or in order to be assured of being able to carry on 
irrigation operations. In ``water rights'' States (prior appropriation 
of water rights), the reservation of such interests will be permitted 
only to those owners who have established water rights from the State, 
or who may in the future obtain such rights. When irrigation is a 
project purpose, such reservation must be coordinated with the Bureau of 
Reclamation.
    (ii) Under these circumstances, a landowner may be permitted to 
reserve an easement and right-of-way for a water pipeline and pumping 
unit across the land he conveys, by appropriate provisions in the offer 
to sell and in the deed to the United States. In ``water rights'' 
States, this reservation will be ``for the exercise of established water 
rights, although no right to use water is created hereby.'' (This 
phraseology is to be incorporated in the reservation.) The reservation 
will also include any pertinent provisions considered essential by the 
Division or District Engineer, such as requirement to install

[[Page 178]]

the pipeline underground and at a specified depth.
    (iii) Reservations of this nature will also be permitted in those 
cases where acquisition is by condemnation. In these acquisitions, the 
reservation may be recited in the complaint and declaration of taking, 
whenever full agreement except as to just compensation has been reached, 
or it may permitted later by stipulation.
    (iv) When the project is located in an area in which the Bureau of 
Reclamation is developing, or planning to develop, irrigation districts 
or systems, prior coordination with the Bureau will provide that copies 
of all deeds and final condemnation judgments which recite reservations 
under this paragraph will be furnished to the local office of the 
Bureau. Thereafter, the Bureau of Reclamation will be responsible for 
supervising the exercise of the easements to insure compliance with 
Reclamation laws.
    (v) Plans to provide for irrigation will be fully covered in the 
Real Estate Design Memorandum.
    (4) Acquisitions in which these rights are to be reserved must, of 
course, be based on an appraisal of the fair market value of the estate 
to be acquired. Since the appraisal would probably be made originally on 
the basis that there would be no reservation, revision must be prepared 
whenever the reservation appears to be appropriate, to reflect the 
reduction in severance damages or other financial advantage accruing to 
the Government. Consideration of counteroffers which include proposals 
for these reservations by the landowner will be based on and compared 
with the appraised fair market value of the estate proposed to be 
acquired. Deposits with a declaration of taking will be based on the 
appraised fair market value of the estate to be acquired by the 
condemnation action.



Sec. 644.87  Preparation and execution of offers.

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

[[Page 179]]

the authority to act for the owner must be attached to each of the 
copies of the Offer to Sell.
    (8) Where it is necessary to attach sheets to the offer in order to 
fully set forth the terms of reservations, exceptions, or outstanding 
rights in third parties, such additional sheets must be securely 
attached and initialed by all parties signing the Offer to Sell.
    (9) The name and address of the person or persons to whom notice of 
acceptance is to be sent must be accurately set forth. The address where 
the landowner can be reached after he vacates the property, if different 
from the address to which the notice is to be sent, should be obtained.
    (b) Submission, Acceptance, and Distribution of Offers to Sell. (1) 
For each purchase transaction, the original offer and four copies will 
be signed by the landowner and spouse, if any. A copy (5th) will be left 
with the landowner when the offer is obtained.
    (2) Division and District Engineers, the Chiefs of the Real Estate 
Divisions, and the incumbents of the position to which authority is 
delegated as provided in Sec. 644.84(d) are authorized to accept offers 
to sell for the acquisition of land or interests in land and easements, 
licenses, permits, or similar acquisition instruments: Provided, The 
price set forth in the instrument is within their authority to approve 
or has been approved in writing by higher authority. The Division or 
District Engineer may also delegate to Project Managers (including the 
heads of any field offices with responsibility for real estate 
acquisition) authority to execute real estate instruments by which land 
or interests in land are acquired by agreement with landowners, provided 
the consideration set forth in the instrument is within the approved 
appraised value or has been approved as provided in Sec. 644.84(c). Upon 
approval of the offer or other instrument requiring payment to the 
landowner, a determination that necessary funds are available, and 
acceptance of the instrument under the authority contained in this 
subparagraph, the instrument will be numbered in conformity with 
existing regulations and will immediately be distributed as follows:
    (i) Original offers to sell will be retained at the Division or 
District for site audit.
    (ii) Send signed copy to vendor as provided in paragraph (b)(3) of 
this section below.
    (iii) Attached conformed copy to title assembly.
    (iv) File signed copy with project records.
    (3) Upon acceptance of the Offer to Sell, the Division or District 
Engineer will notify the vendor by transmitting a signed copy of the 
contract (accepted offer) to vendor by ENG Form 53, Notice of Acceptance 
of Offer to Sell Real Property.
    (4) Upon acceptance of the Offer to Sell, the Division or District 
Engineer will notify the using service, in the case of military 
acquisition, that the Offer to Sell has been accepted and that the 
Government has ``the right of immediate occupancy and use of the land,'' 
subject to the terms of the accepted offer. The land should be clearly 
identified to the using service.
    (5) Instruments which do not provide for payments to landowners will 
be distributed in accordance with regulations governing such cases.
    (c) Easement Acquisition Offer Form. (1) The use of ENG Form 2970, 
Offer to Sell Easement, is required for the acquisition of all types of 
easement estates, such as flowage, spoil, drainage, road, railroad, 
utility, restrictive or safety (Army and Air Force), clearance (Air 
Force), and other required easement acquisitions, except in those cases 
where agreements with landowners can be fully reflected in an executed 
deed, and where the provisions of Secs. 644.84(b) and 644.86(d) are not 
applicable or can be fully complied with without the use of an Offer to 
Sell. Pages 1 and 2 of ENG Form 2970, containing the terms and 
conditions of the acquisition, are standard and need no modification. 
The tract of land in which the particular easement will be acquired will 
be described in Exhibit ``A,'' and the easement estate will be set forth 
in Exhibit ``B'' to ENG Form 2970. Division Engineers are authorized to 
approve deviations in ENG Form 2970 in all cases where the easement does 
not cost more than $500: Provided, That any deviation from the estates 
listed in

[[Page 180]]

Figure 5-6 of ER 405-1-12, must have the prior approval of DAEN-REA. 
When easements are being acquired from a vendor from whom fee is also 
being acquired, ENG Forms 42 and 2970 may be combined into one 
instrument in order to complete the entire acquisition as one 
transaction.
    (2) In the acquisition of easements for rights-of-way for access 
roads, utility lines, etc., which cross or encroach upon rights-of-way 
or property of railroad companies, public utility companies, cities, 
counties and States, ENG Form 893, License for Installations Upon Right-
of-Way, may be accepted, at the discretion of the Division or District 
Engineer, provided it is determined that such companies, municipalities, 
counties, or States are not vested with authority to convey a perpetual 
easement and the granting of a license under the conditions recited in 
ENG Form 893 will protect the interests of the United States and grant 
sufficient use of the right-of-way or land for project purposes. 
Normally a license of this nature should be obtained for a nominal 
consideration. Occasionally it will be necessary to provide for the 
payment of a small fee to cover the licensor's engineering and 
administrative expenses. In such cases, the consideration for the 
granting of a license will not exceed $100. In cases where the licensor 
demands a consideration equal to the appraised value of the right to be 
acquired, consideration will be given to the acquisition of a perpetual 
easement by condemnation, if the licensor is not vested with authority 
to grant such an easement.
    (3) The description of the tract over which an easement is being 
acquired should be prefaced by terminology similar to that of ENG Form 
42 which makes the tract inclusive of the abutting owner's interest in 
contiguous roads and other easements, if any.
    (4) Offer assemblies will be prepared, accepted, and distributed in 
the same manner as provided for fee acquisition, except that ENG Form 
3422, Notice of Acceptance of Offer to Sell Easement, will be used.
    (d) Payment. After acceptance and distribution of the offer assembly 
and the acquisition is ready for closing, payment will be made.
    (e) Cancellation of Contracts. If, for any reason, it is necessary 
to cancel a contract for acceptance by the Government of the Offer to 
Sell, the cancellation will be effected by using ENG Form 1572, 
Agreement for Mutual Cancellation of Contract. Upon execution of this 
agreement by the landowner and the Division or District Engineer, or the 
Chief of the Real Estate Division, distribution of the original and 
copies of the agreement will be the same as for the accepted Offer to 
Sell.
    (f) Transfer of Tracts from Purchase to Condemnation. If, at any 
time in the course of acquisition by purchase, it becomes apparent that 
acquisition by purchase will involve substantial delay or cannot be 
accomplished, action will be taken to acquire the land by condemnation.
    (g) Acquisition of Land by Donation. (1) In cases where the 
acquisition of real property has been authorized and approved by 
donation, ENG Form 42, Offer to Sell Real Property, or ENG Form 2970, 
Offer to Sell Easement, will be entered into setting forth the terms and 
conditions of the donation and conveyance to the United States.
    (2) The offer, when approved and accepted, will be distributed in 
accordance with paragraph (b)(2) of this section.
    (3) Title clearance and closing of donation cases are processed in 
the same manner as any other fee or easement acquisition.
    (h) Vacation of Property by Landowners and Tenants--(1) Notice to 
Landowners. From the inception of the project, landowners and tenants 
will be instructed to notify the Division or District Engineer or Real 
Estate Project Manager, in writing, as soon as they vacate their 
property; to turn in their keys whenever possible in order that the 
buildings may be kept under lock; and to keep the Division or District 
Engineer or Real Estate Project Office advised of any changes in address 
in order to expedite title clearance, payment, closing action, and the 
distribution of funds in condemnation proceedings. Landowners and 
tenants will be informed that, in order to protect their interests, they 
should not move from their property and that the

[[Page 181]]

Government will not require them to surrender possession until:
    (i) They have received notice of acceptance of an offer granting the 
Government the right of immediate possession; or
    (ii) They have been served notice of the filing of a condemnation 
proceeding by which the Government has obtained the right of possession.
    (2) Complete Appraisals Prior to Vacation. Where an offer is 
accepted or a declaration of taking is filed, the individual tracts will 
have been surveyed and appraised. In condemnation proceedings for 
possession, there may be cases in which individual tract surveys and 
appraisals will not have been completed at the time the condemnation 
proceeding is filed. In such cases, landowners and tenants will not be 
required to surrender possession, and buildings and improvements will 
not be removed or destroyed in the conduct of construction work, until 
individual appraisals have been completed and photographs have been 
procured.
    (3) Inspection of Property. (i) As soon as a landowner or tenant 
gives notification that he is vacating his property, or as soon as this 
information is obtained from any other source, the District Engineer 
will immediately have a member of his staff make a personal inspection 
of the property and execute ENG Form 1567, Report on Vacation of 
Property. The inspection will be made with a view of determining whether 
all buildings, improvements, and crops on the land to be acquired, as 
listed in the appraisal report, are still on the land and in 
substantially the same condition as they were on the date of the 
appraisal.
    (ii) Where buildings, improvements, and crops have been removed 
under a reservation in the offer, an appropriate entry will be made in 
paragraph (3) of ENG Form 1567.
    (iii) Where buildings, improvements, and crops have been removed or 
destroyed in the conduct of construction work on the project, an 
appropriate entry will be made in paragraph (3) of ENG Form 1567.
    (iv) It will be determined whether or not the land is wholly 
unoccupied and vacant and whether there is evidence of present use 
thereof for farming and other operations.
    (v) The original report will be retained in the real estate project 
files. The second copy will be held for the use of the closing attorneys 
on purchase cases, or for the use of the local representative of the 
Department of Justice in condemnation cases.
    (i) Public Relations. One of the most difficult problems encountered 
in the real estate activities of the Department of the Army, 
particularly from a public relations standpoint, is that of the sudden 
dislocation of families, tenants as well as owners, and the relocation 
of these families. Special attention, therefore, will be given to their 
problems.
    (j) Payment of Relocation Assistance and Acquisition. Public Law 91-
646 provides for reimbursement of certain expenses incurred by owners 
and tenants who are displaced as the result of Federal and federally-
assisted programs. Payment of relocation assistance benefits and certain 
costs incurred by the vendor in transfer of title to the Government and 
certain litigation expenses incurred by the owner is provided for under 
that Act.



Sec. 644.88  Other acquisition.

    (a) Acquisition From Other Federal Departments and Agencies--(1) 
Transfers. Transfers will be obtained from other Government agencies 
after issuance of real estate directives. Muniments of title will be 
obtained from the transferring agency, if possible, and be forwarded to 
HQDA (DAEN-REP) WASH DC 20314, with the original transfer letter or 
document. Title 10 U.S.C. 2571 authorizes transfer of real property 
within the Department of Defense (10 U.S.C. 2662).
    (2) Permits. Upon receipt of a proper request from an authorized 
command, service or agency, Division or District Engineers and the 
Chiefs of the Real Estate Divisions are authorized to obtain, accept, 
and renew permits from other Government departments or agencies for the 
temporary (five years) use of land (except public domain for Air Force) 
and buildings. The use of over 500 acres of public domain land

[[Page 182]]

must have prior approval by the Assistant Secretary of Defense (MRA&L) 
pursuant to Department of Defense Directive 4165.12.
    (b) Withdrawal of Public Domain Lands and Right-of-Entry Permits for 
Temporary Use. (1) Withdrawal of public domain lands will be necessary 
if a site is selected for construction and/or there is a continuing 
military use. Except in time of war, withdrawals in excess of 5,000 
acres for military use must be by authority of an Act of Congress (Pub. 
L. 85-337, 43 U.S.C. 156).
    (2) Requests for withdrawal of public domain land will be made to 
the appropriate State or Regional Supervisor of the Bureau of Land 
Management (BLM), Department of the Interior, by the Division or 
District Engineer, pursuant to 43 CFR part 295, as soon as a real estate 
directive is issued.
    (i) If use the of land is needed promptly to meet a construction 
deadline or for other use, the request for withdrawal will contain this 
information, and the BLM supervisor will be requested to expedite 
submission of his report to BLM in Washington, and to publish the 
proposed withdrawal in the Federal Register as soon as possible.
    (ii) A copy of the request will be forwarded to HQDA (DAEN-REA) WASH 
DC 20314 (with a copy to HQ, USAF (PRER), WASH DC 20330, on Air Force 
projects), with request for assistance in obtaining issuance of the 
Public Land Order in time to meet construction or military use deadline.
    (3) Pursuant to authority of 43 U.S.C. 416, requests for withdrawal 
of public domain lands may also be made to the appropriate State or 
Regional BLM Supervisor by the Division or District Engineer for the 
reservation of those public domain lands which will eventually be 
required for authorized Civil Works projects, in order to proceed with 
planning phase work and to prevent adverse private entry thereon. Such 
action will permit administrative jurisdiction to remain with the 
present Government agency for continued utilization not in conflict with 
the eventual purpose of the project. A copy of the request will be 
furnished to DAEN-REA.
    (4) If a withdrawal is requested, the BLM supervisor cannot grant a 
permit to use the area; however, permits can be obtained for survey and 
exploration purposes, since these do not involve construction or 
military use of the land.
    (5) Necessary rights-of-way will be obtained under the authority of 
section 507, Pub. L. 94-579, approved October 21, 1976.
    (c) Acquisition of Outstanding Rights on Public Domain--(1) 
Acquisition of Possessory Rights to Mining Claims. (i) Upon issuance of 
a real estate directive to extinguish outstanding mining interests in 
the public domain, and notification that the Bureau of Reclamation (BLM) 
has withdrawn the public domain from appropriation under the public land 
laws and the public mining and leasing laws, the Division or District 
Engineer will, if necessary to obtain possession for construction or 
other project purposes, recommend to the Chief of Engineers the filing 
of a complaint in an eminent domain proceeding, based on a perimeter 
description of the project, and the obtaining of an order of immediate 
possession. Thereafter, the Division or District Engineer will promptly 
determine the possessory mining claims within the area withdrawn, and he 
is authorized to acquire such claims for either a nominal sum or an 
amount not to exceed the combined estimated costs of obtaining a 
detailed appraisal report and having the validity of the claim 
investigated by the BLM. This authority is limited to $1,000 per claim.
    (ii) If an offer to settle is made on the basis provided in 
paragraph (c)(1)(i) of this section, and is not satisfactory to the 
possessory mineral owner, the Division or District Engineer will request 
the BLM to investigate the validity of the claim. In such case, under 
Comptroller General Decision B-143921, the District Engineer is 
authorized to make an agreement with the BLM for reimbursement of the 
following:
    (A) Examination of the claim itself and assembling of the evidence 
to support the claim of invalidity.
    (B) The presentation of the evidence, the cross-examination of 
witnesses for the mining claimant and other related expenses (subpart 
A).
    (iii) The Corps of Engineers is not authorized to reimburse the BLM 
for

[[Page 183]]

hearing of the evidence and the rendering of the decision as to the 
validity of the mining claim.
    (iv) If determined to be valid, claims will be appraised and an 
offer will be made to the owner at the approved appraised value. BLM is 
authorized to determine value of the claims and the Division or District 
Engineer may wish to arrange with BLM to perform this service on a 
reimbursable basis. In the event the offer based on the approved 
appraisal is not acceptable to the owner, and a reasonable settlement 
cannot be effected by negotiation, the Division or District Engineer 
will forward a report to HQDA (DAEN-REA) WASH DC 20314 with 
recommendation as to whether the claim should be acquired by declaration 
of taking or be left outstanding. Those cases in which occupants were 
dispossessed under the order of immediate possession, referred to in 
paragraph (c)(1)(i) of this section, will be given priority attention in 
all phases of the procedure set out herein, including preparation and 
submission of declaration of taking assemblies in appropriate instances.
    (2) Acquisition of Grazing Rights. (i) Grazing rights in the public 
domain are granted pursuant to the provisions of a series of 
Congressional acts commonly referred to as the Taylor Grazing Act, 43 
U.S.C. 315 et seq. Section 315q of this Act provides as follows:

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


It is emphasized that payments under this section are administrative; 
further that this section applies only to military projects.
    (ii) Upon issuance of a real estate directive to acquire or 
terminate grazing rights in the public domain or other property owned or 
controlled by the United States and notification that the Government 
department controlling such lands has granted a right-of-entry or 
transferred the lands to the Departments of Army or Air Force, the 
Division or District Engineer will initiate action to acquire or 
terminate such grazing rights as authorized by the real estate 
directive.
    (iii) Appraisals will be prepared in accordance with subpart B and 
the guidelines set forth in Comptroller General Decision No. B-132774, 
dated October 9, 1957.
    (iv) Discussions with landowners concerning acquisition of a ranch 
unit will be conducted in accordance with the procedures for fee 
acquisition.
    (v) Offers will be prepared, accepted, and distributed as provided 
in Sec. 644.87.
    (vi) Title procurement and title clearance relating to the 
acquisition of title to any fee lands within the ranch unit will be the 
same as in any other fee acquisition. In preparing title evidence 
covering leasehold interests, a search of the records will be made by 
the Division or District Engineer Office and ENG Form 909, Attorney's 
Preliminary Certificate of Title, will be prepared. In connection with 
the search of the records, it should be noted that Federal grazing 
privileges may be pledged or encumbered with mortgages.
    (d) Acquisitions Under Provisions of Relocation Contracts. (1) When 
land or interests therein, including subordination of minerals, required 
for project purposes are acquired under the provisions of relocation 
agreements negotiated in accord with Section 73, ER 1180-1-1, it will be 
necessary to procure title evidence covering such land and interests. If 
the value of interests so acquired is not otherwise determinable for 
compliance with Sec. 664.84, said value will be determined by the 
Division or District Engineer by means of a memorandum appraisal to be 
retained in the tract file. While this type of acquisition does not 
involve the closing procedure set forth in Sec. 644.70, so much of the 
title assembly described as is applicable, plus an executed or certified 
true copy of the relocation contract, will be

[[Page 184]]

used in the examination and approval of the title. The disposition of 
final title assemblies will be governed by Sec. 644.71.
    (2) The procedures described in Secs. 644.81 through 644.88 do not 
apply to the extinguishment of outstanding rights, including 
subordination of easements and similar interests, under the provisions 
of relocation contracts, as differentiated from the acquisition of land 
or easements, or the subordination of oil, gas, and other mineral 
rights, to be utilized for project purposes.
    (e) Acquisition By Exchange--(1) Military. The authority to acquire 
land by exchange for military projects is provided in 10 U.S.C. 2672, 
and in the Military Construction Authorization Act passed each year. As 
an example sections 601 and 702, Pub. L. 95-82, August 1, 1977, the 
Military Construction Authorization Act, 1978, provides in part, that 
``the authority to acquire real estate or land includes authority to 
make surveys and to acquire land, and interests in land (including 
temporary use), by gift, purchase, exchange of Government-owned land, or 
otherwise.'' Title 10 U.S.C. 2662a-4 provides that a transfer of real 
property owned by the United States to another Federal agency or another 
military department or to a state must be reported to the Committees on 
Armed Services if the estimated value of the property is more than 
$50,000. A prerequisite to any acquisition by exchange is authority for 
the acquisition.
    (2) Civil Works. The authority to exchange land or other Government 
property for private lands or property in execution of an authorized 
river and harbor or flood control work or improvement is found in 33 
U.S.C. 558b and 558b-1.
    (3) Coordination with the Office of Managment and Budget (OMB). OMB 
requests that each proposal to use Government-owned property in a land 
acquisition exchange be cleared with the appropriate Associate Director 
of OMB. Disposal actions where exchange through the authority of the 
General Services Administration or specific legislation is envisioned 
will be cleared with OMB prior to filing a disposal report pursuant to 
10 U.S.C. 2662. A draft letter to the Associate Director, Office of 
Management and Budget will be submitted to HQDA (DAEN-REA) WASH DC 20314 
stating the requirement for the new acquisition, the description of the 
property to be excessed, its estimated fair market value, and a 
justification for the exchange of that property as constituting its 
highest and best use. OMB clearance will be required before disposal 
reports outlining exchange proposals are filed with the Congress.

              Involuntary Acquisition by the United States



Sec. 644.101  General.

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



Sec. 644.102  Examples of involuntary acquisitions.

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

[[Page 185]]

    (a) Damage to real property caused by flooding, saturation, seepage, 
erosion, or other causes arising out of the construction, operation, or 
maintenance of an authorized project.
    (b) Damage as a result of overflights of aircraft.
    (c) Other instances where Government actions result in a restriction 
of the use of property.



Sec. 644.103  Litigation Reports.

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

[[Page 186]]



Sec. 644.104  Procurement of deed and title assembly.

    In any case in which the Court determines that the United States has 
taken an interest in real property, the Department of Justice will 
attempt to have included in the findings and in the judgment a precise 
description of the interests taken. An attempt will also be made to 
provide in the judgment that payment by the United States will not be 
required until the plaintiff has delivered a deed or other acceptable 
conveyance of the interest taken.
    (a) Preparation of Instrument. Upon receipt from the Department of 
Justice of information as to the nature of the settlement which has been 
reached, a deed will be prepared, drafted in accordance with 
Sec. 644.70, covering the estate provided in the judgment.
    (b) Execution and Recording of Deed. The Division or District 
Engineer will obtain proper execution of the deed, record the same, 
procure a final certificate of title of a commercial title company or a 
staff attorney, and obtain a final title opinion pursuant to the 
provisions of the Delegation to the Department of the Army for the 
Approval of the Title to Lands Being Acquired for Federal Public 
Purposes, dated December 4, 1970, and issued by the Assistant Attorney 
General, Land and Natural Resources Division, Department of Justice. The 
title assembly and final title opinion should be forwarded to HQDA 
(DAEN-REA-P) WASH DC 20314, with information copy of transmittal letter 
to Division Engineer.
    (c) Notification to the Department of Justice. If the recorded deed 
and the final certificate of title are not readily available, the 
Division or District Engineer will notify the Land and Natural Resources 
Division of the Department of Justice by letter, with a copy to the 
appropriate United States Attorney, that the deed has been properly 
executed and delivered by the plaintiff and has been entered for record 
in order that settlement will not be delayed.
    (d) Disposition of Final Title Assembly, Mapping, and Audit. When a 
final title opinion has been obtained, the Division or District Engineer 
will assign a tract number to the areas in which the interest has been 
acquired, will add the tract to the project map, and will transmit the 
final title opinion and related papers to HQDA (DAEN-REA-P) WASH DC 
20314. The tract will be included in the audit of the installation to 
which it pertains. Audits will be revised for this purpose, if 
necessary. The amount of the judgment received by the plaintiff will be 
shown in the audit assembly, with a proper notation that it represents 
the amount of the judgment entered in the litigation, which will be 
identified in the audit by its civil number, and by designation of the 
Court in which it was rendered. A copy or abstract of the judgment will 
be inserted in the District Office audit assembly, identified as 
follows:

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

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

                 Acquisition by Condemnation Proceedings

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



Sec. 644.111  General.

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

[[Page 187]]

District Engineers having real estate responsibilities.



Sec. 644.112  Applicable statutes in condemnation proceedings.

    A complaint in condemnation, and any declaration of taking filed in 
conjunction therewith, will contain a citation of the congressional 
authorization and appropriation acts for the particular project, and any 
other applicable acts of Congress. Existing acts of Congress authorizing 
the acquisition of land and interests therein are outlined in AR 405-10 
and subpart A. Acts of Congress applicable, generally, to condemnation 
proceedings are outlined below.
    (a) Military projects. (1) Act of Congress approved August 1, 1888 
(25 Stat. 357, 40 U.S.C. 257) authorizes the head of any Government 
department or agency to acquire real estate, otherwise authorized for 
acquisition, by condemnation proceedings.
    (2) Section 2663 of title 10, United States Code, authorizes the 
Secretary of a military department to acquire by condemnation any 
interest in land, including temporary use of the site, construction, or 
operation of fortifications, coast defenses, or military training camps.
    (3) Section 9773 of title 10, United States Code, authorizes the 
Secretary of the Air Force to acquire by condemnation additional 
permanent air bases and depots, enlarge existing air bases and depots, 
bombing and machine gun ranges, and areas for the training of tactical 
units.
    (4) Section 2233 of title 10, United States Code, authorizes the 
Secretary of Defense (with authority to delegate) to acquire by 
purchase, lease, or transfer, facilities necessary for the Reserve 
Components. The authority to acquire by purchase has been held to 
include the authority to condemn. Therefore, this section authorizes 
condemnation for both Army and Air Force Reserve Training Sites.
    (b) Civil works projects--(1) Rivers and harbors. (i) Act of 
Congress approved April 24, 1888 (25 Stat. 94, 33 U.S.C. 591) authorizes 
the Secretary of the Army to cause proceedings to be instituted for the 
acquisition by condemnation of any land, right of way, or material 
needed to maintain, operate, or prosecute works for the improvement of 
rivers and harbors for which provision has been made by law.
    (ii) Section 5 of the Act of Congress approved July 18, 1918 (40 
Stat. 911, 33 U.S.C. 594) provides that possession of lands being 
acquired by condemnation proceedings for river and harbor works may be 
taken, provided adequate provision shall have been made for payment of 
just compensation.
    (2) Flood control. (i) Act of Congress approved March 1, 1917 (39 
Stat. 950, 33 U.S.C. 701) makes the provisions of the Act of Congress 
approved April 24, 1888 (paragraph (b)(1)(i) of this section) applicable 
to flood control works.
    (ii) Section 6 of the Act of Congress approved August 18, 1941 (55 
Stat. 650, 33 U.S.C. 701c-2) makes the provisions of section 5 of the 
Act of Congress approved July 18, 1918 (paragraph (b)(1)(ii) of this 
section) applicable to flood control works.
    (3) Local cooperation. Acts of Congress approved June 29, 1906 (34 
Stat. 632, 33 U.S.C. 592) and August 8, 1917 (40 Stat. 267, 33 U.S.C. 
593) provide that the Secretary of the Army may institute condemnation 
proceedings for the acquisition of land or easement therein for river 
and harbor works which local interests undertake to furnish free of cost 
to the United States. The provisions of these Acts were made applicable 
to flood control works by the Acts of Congress approved March 1, 1917, 
and August 18, 1941 (paragraphs (b)(2)(i) and (ii) of this section).
    (c) Other pertinent statutes. (1) Act of Congress approved July 18, 
1918 (40 Stat. 911, 33 U.S.C. 594) provides that the United States shall 
have the right to take immediate possession of land to the extent of the 
interest condemned. The exercise of this right is subject, however, to 
the policy considerations set forth in the Act of Congress appoved 
January 2, 1971, Pub. L. 91-646 (84 Stat. 1894).
    (2) Act of Congress approved February 26, 1931 (46 Stat. 1421, 40 
U.S.C. 258a) makes provision for the filing of a declaration of taking 
in conjunction with condemnation proceedings and provides that title to 
the land or interests in land included in the declaration of taking 
vests in the United States

[[Page 188]]

upon filing with the court and deposit of the estimated compensation in 
the registry of the court.
    (3) Title III of the Act of Congress approved January 2, 1971 (Pub. 
L. 91-646, 84 Stat. 1894) contains policies and guidelines for 
acquisition of land.



Sec. 644.113  Filing of complaint without declaration of taking.

    (a) Only in exceptional cases will the Chief of Engineers give 
favorable consideration to the filing of a complaint in condemnation, 
and the request for an order of possession, without the concurrent 
filing of a declaration of taking and deposit of estimated compensation 
in the registry of the court. Examples of situations in which complaints 
may be used are as follows:
    (1) Immediate possession is required for some essential military 
need and time does not permit preparation of an appraisal, title work, 
or negotiations.
    (2) Condemnation proceedings are necessary in connection with a 
cemetery, in order to secure court approval of the relocation and 
reinterment plan in accordance with the procedure outlined in ER 1180-1-
1.
    (3) Where right of entry for survey and exploration, appraisal 
purposes, or other similar need is required, and there is no material 
interference with the owner's possession. However, where there is 
material interference with the owner's possession, or it is considered 
there will be significant damage to the land, a deposit of estimated 
compensation may be necessary.
    (b) Approval required. Prior to submission of a complaint assembly, 
except in cemetery cases, all pertinent facts justifying the need for 
such action will be submitted to the Division Engineer for approval. If 
the proposed action is approved, the Division or District Engineer will 
inform all affected landowners and tenants of the action being taken, 
the necessity therefor, and the subsequent procedure to be followed by 
the Government in conducting negotiations to acquire the land after the 
filing of the complaint.
    (c) Complaint assembly. The following assembly will be submitted to 
HQDA (DAEN-REA-C) WASH DC 20314 where only a complaint is to be filed:
    (1) Five copies of individual tract descriptions identified as 
Exhibit ``A''. (Reproduced copies will be accepted if clear and 
legible.)
    (2) Five copies of segment or project maps, showing each tract or 
area to be acquired shaded or outlined in red and identified as Exhibit 
``B''.
    (3) Five copies of a list of the names and addresses of the persons 
purporting to own the tracts or having an interest therein, identified 
as Exhibit ``C''.
    (4) Five copies of the exact estate or interest to be acquired, 
identified as Exhibit ``D''.
    (5) In Air Force projects and acquisitions for other agencies, one 
additional copy of each exhibit will be required.
    (6) In Air Force project acquisitions, the additional information 
set out in Sec. 644.114(f) will be submitted, in duplicate.
    (7) In those jurisdictions that adopt the alternate form declaration 
of taking, complaint assemblies should be similiar to the schedules 
submitted for the declaration of taking assembly.
    (d) Letter of transmittal. Where a complaint assembly is submitted, 
the letter of transmittal should include the following information:
    (1) A statement indicating the date of approval of the Real Estate 
Design Memorandum in civil works projects or the date of the Real Estate 
Directive for other projects, and whether the land included in the 
complaint assembly is within the approved project boundary line, 
together with the citations of the authorization and appropriation acts 
which cover the acquisition.
    (2) The approved appraised valuation and date of appraisal of the 
interest to be acquired or, if appraisals have not been prepared, the 
estimated value with a statement indicating the basis of the estimate.
    (3) Information as to whether the land included in the complaint 
assembly is vacant or occupied, together with the date any occupants 
will be required to vacate the premises.
    (4) If possession is required, an explanation of the need therefor 
and the reasons why the normal land acquisition schedule was not met.
    (5) Results of contacts with the landowners and tenants and their 
views

[[Page 189]]

with respect to the filing of condemnation proceedings.
    (6) A statement as to the plan and schedule to acquire such land 
after filing of the complaint in order to make funds available to the 
landowners and tenants.
    (7) In assemblies concerning land for other than civil works 
projects, a statement indicating whether all of the land authorized in 
the Real Estate Directive is included in the assembly. Any variance 
between the area or estate authorized in the directive and those in the 
assembly should be fully explained.
    (8) In military assemblies, a statement of expected local resistance 
to the proposed acquisition and efforts made to adjust military 
requirements to the local situation.
    (9) Whether there have been any Congressional inquiries regarding 
the acquisition.
    (e) Action after filing complaint. After filing of a complaint 
proceeding, action to acquire the land involved, either by direct 
purchase or by the filing of a declaration of taking, will be completed 
as soon as possible.
    (1) Where a satisfactory Offer to Sell is obtained and accepted, the 
transaction will proceed through the stages of title clearance, payment 
and closing. Upon final approval of title, the Division or District 
Engineer will recommend to the Chief of Engineers that the Department of 
Justice be requested to dismiss the tract from the proceeding.
    (2) Where a satisfactory lease of the premises included in a 
leasehold condemnation proceeding is obtained and accepted, the Division 
or District Engineer will recommend to the Chief of Engineers that the 
Department of Justice be requested to dismiss the tract from the 
proceeding.
    (3) The recommendation of the Division or District Engineer for 
dismissal of a tract from condemnation will include the following 
information:
    (i) Name of project.
    (ii) Caption of the complaint and civil action number assigned 
thereto.
    (iii) The date the final title approval was rendered; on lease 
cases, the date the lease was accepted.
    (iv) A statement as to whether the particular deed or lease includes 
the same land described in the complaint under the same tract number.
    (v) A statement as to whether the particular deed or lease includes 
all outstanding interests involved in the complaint insofar as the 
specific parcel of land is concerned. If all outstanding interests are 
not covered by the deed or lease instrument, a statement of the proposed 
method of acquiring those interests which remain outstanding, either by 
filing a declaration of taking or by direct purchase, or a 
recommendation that they be left outstanding permanently.



Sec. 644.114  Acquisition by declaration of taking.

    If it has been determined that acquisition of a tract cannot be 
accomplished by purchase due to failure to reach an agreement with the 
owners as to value, inability to contact the owners, title defects, or 
for other reasons, acquisition will be completed by the filing of a 
declaration of taking in a condemnation proceeding and the concurrent 
deposit of the estimated compensation in the registry of the court. The 
requirements for a declaration of taking are set forth in 40 U.S.C. 
258a.
    (a) Declaration of taking assembly. The assembly to be submitted by 
the Division or District Engineer to the Chief of Engineers, with a 
recommendation for the filing of a declaration of taking, will contain 
the following:
    (1) Seven copies of the declaration of taking. (Reproduced copies 
will be accepted if clear and legible). The copy to be executed and 
filed in court must be free of errors and erasures.
    (2) Seven copies of tract descriptions and names and addresses of 
purported owners, identified as Schedule ``A'' to the declaration of 
taking.
    (3) Seven copies of a segment or project map, showing the individual 
tracts outlined in red, or shaded in such a way as to identify them, 
constituting Schedule ``B'' to the declaration of taking.
    (4) In acquisitions for Air Force and other agencies, one additional 
copy of each of the above is required.
    (5) As to tracts which are appraised at $50,000 or more, it is 
necessary to

[[Page 190]]

have a least two appraisals for each such tract in condemnation. One 
copy of each appraisal will be forwarded with the assembly for those 
tracts valued less than $100,000, and two copies where the value is 
$100,000 or more. Also, a copy of the appraisal should be forwarded when 
there is a counteroffer of $50,000 or more, no matter what the appraisal 
is. In all cases where two appraisals are necessary, at least one will 
be by a contract appraiser approved in advance by the United States 
Attorney in whose jurisdiction the case will be filed.
    (6) Appraisals must be on a current basis so that at the time of 
submission of the assembly, the review certificates should indicate that 
the review has been made within thirty days prior to submission of the 
assembly.
    (7) Guides in preparing declarations of taking for acquisitions for 
the Departments of the Army (Military and Civil) and Air Force are 
contained in Figure 5-5 in ER 405-1-12.
    (8) Each case where there is an accepted Offer to Sell on which we 
will ask the Department of Justice to obtain judgment should be 
submitted as a separate Declaration of Taking.
    (b) Negotiator's report. Each declaration of taking assembly should 
be accompanied by a separate Negotiator's Report, ENG Form 3423 (Parts I 
and II), in duplicate, for each tract of land included in the assembly. 
The Negotiator's Report should be current, i.e., it should indicate a 
contact with the landowner, or his representative, at a time reasonably 
close to the date of submittal of the assembly, and should reflect that 
actual, practical and realistic negotiations were conducted in 
accordance with the procedure set forth in Sec. 644.83. The Negotiator's 
Report should be complete, but should be concise and not made unduly 
lengthy by extraneous material. It should contain so much of the 
following information as may be pertinent:
    (1) A brief physical description of the property, including its 
present use and highest and best use claimed by both the Government and 
the landowner.
    (2) Number of discussions and date and place of each discussion, and 
a statement that the landowner was furnished a summary of the basis for 
the Government's valuation prior to negotiations.
    (3) Statement of each offer made by the negotiator, any counteroffer 
received from the landowner, and any figures suggested by the negotiator 
in an effort to obtain a reasonable counteroffer above the Government's 
estimate of value.
    (4) Where the discussions reveal that further negotiations would not 
be productive, a statement that the real estate representative explained 
that it was necessary that the interests be obtained through 
condemnation, not in the sense of a threat, but as an effort on behalf 
of the Government to secure an impartial determination by the court of 
the differences of opinion as to value, and in order to make funds 
available to the landowner.
    (5) If the owner cannot be contacted for the purpose of conducting 
negotiations, a full explanation of the circumstances and the efforts 
made to contact the owner should be set forth in the Negotiator's 
Report.
    (6) A statement that any remaining property of the owner enjoys 
access and is an economic unit, or if it is an uneconomic remainder, 
that the Government has offered to acquire the remainder.
    (7) Where there is an Offer to Sell, the Negotiator's Report should 
include a statement that no separate representations were made in order 
to obtain the offer, if this was the case. If any such representations 
were made, they should be fully explained. The report should also 
include the negotiator's telephone number.
    (c) Letter of transmittal. The letter of transmittal to be submitted 
with a declaration of taking assembly will contain the following:
    (1) The date of the real estate directive or the date of approval of 
the real estate design memorandum which includes the land to be 
condemned, a statement that the land is within the approved project 
boundary line, and the date of approval of the boundary line.
    (2) A statement concerning the availability of funds.
    (3) A list of the dates of the appraisals of the tracts in the 
assembly and the dates of the last review thereof. If

[[Page 191]]

more than one approved appraisal exists for any tract, the deposit will 
be in the amount of the highest approved appraisal. If the value of 
growing crops has been included in the appraisal, a statement concerning 
same is required in the transmittal letter pursuant to paragraph (h)(3) 
of this section.
    (4) A statement that all owners of land included in the assembly, 
whose addresses are known, have been notified in writing that 
condemnation will be recommended and the reason therefor. The 
information furnished to the owners should include the name and address 
of the United States Attorney who will advise and assist them in 
applying for withdrawal of the funds deposited in the registry of the 
court. The notice to the owners should also state the date on which 
possession of their property will be required.
    (5) A statement concerning the date when possession of each tract 
included in the assembly should be obtained. This should include 
information as to when the 90-day notice was given, as required by 
section 301(5) of Pub. L. 91-646 (84 Stat. 1894), or if not required, an 
explanation as to why not.
    (6) In assemblies involving other than civil works projects, a 
statement as to whether or not all of the land authorized in the real 
estate directive is included in the proposed declaration of taking. Any 
variance that may exist between the acreage in the directive and the 
acreage in the declaration of taking should be fully explained.
    (7) For military projects, a statement of the expected local 
resistance to the proposed acquisition by condemnation, and the efforts 
which have been made to adjust requirements to the local situation.
    (8) For those assemblies involving the first case in a particular 
project, information as to:
    (i) When the initial land acquisition for the project took place.
    (ii) The total acreage for the project and the estimate of the cost 
thereof; if available, two copies of the project brochure furnished to 
landowners should be forwarded.
    (iii) Whether or not an environmental impact statement has been 
filed, and, if not, when it is expected to be filed.
    (9) Two copies of each accepted Offer to Sell covering any of the 
tracts included in the declaration of taking will be submitted with the 
assembly.
    (10) A statement as to whether there have been any Congressional 
inquiries regarding the acquisition.
    (d) Title defects. If a tract is recommended for condemnation due to 
title defects, three copies of the title opinion will be submitted with 
the assembly.
    (e) Deposit of funds. Two copies of the declaration of taking, as 
finally approved and signed, will be transmitted by the Chief of 
Engineers to the Division and District Engineer. Procurement and 
delivery of a check to the United States Attorney for deposit in the 
registry of the court will be authorized, subject to the availability of 
funds.
    (f) Additional information to accompany Air Force acquisitions. Each 
condemnation assembly (complaint or declaration of taking) covering the 
acquisition of land for an Air Force project will include the following 
information and material, in duplicate:
    (1) A map showing the base boundaries, outlining in red all land 
included in the applicable real estate directive, and showing the land 
included in the condemnation assembly hachured in red. In the case of an 
off-base facility, the map will show the nearest boundary of the main 
base with relation to the off-base facility, outlining in red all land 
in the appplicable real estate directive, with the land covered by the 
condemnation assembly hachured in red.
    (2) On the same map or a larger scale map, the following information 
on each tract in the applicable real estate directive:
    (i) Tract number.
    (ii) Acreage.
    (iii) Ownership.
    (iv) Contours.
    (v) Existing improvements.
    (vi) Proposed construction, including utilities, drainage ditches, 
and other supporting facilities.
    (3) Summary of status of acquisition of all land included in the 
applicable real estate directive. ENG Form 3905-R

[[Page 192]]

will be used for this purpose. All discrepancies in figures for acreages 
and costs should be fully explained.
    (4) If any of the land included in the applicable real estate 
directive is held under voluntary lease or leasehold condemnation, 
report for each such tract the annual rental, the period of time the 
leasehold interest has been held, and whether it is a voluntary lease or 
a condemnation leasehold. If the land is not under lease, this fact 
should be reported.
    (5) If the United States has previously acquired an easement 
interest (clearance easement, safety area easement, etc.) in any of the 
land included in the condemnation assembly, identify the real estate 
directive which authorized the previous acquisition by number, date, 
interest acquired, acres, cost and method of acquisition (including 
lease number, tract number, caption with civil action number as 
applicable). A negative report is required.
    (6) If severance damage is involved in any of the land included in 
the condemnation assembly, include a detailed statement of the facts and 
justification for the severance allowed, unless the severance damage has 
been adequately explained in a Real Estate Planning Report or a Real 
Estate Requirements Estimate, in which case such Report or Estimate 
should be identified for reference.
    (7) A copy of the appraisal report on which the deposit in a 
declaration of taking is based, irrespective of value.
    (g) Interests included in declaration of taking. (1) The estate 
recommended for use in a declaration of taking should conform to the 
estate approved by the Chief of Engineers in Civil Works projects and to 
the applicable directive in military and other agency projects. Any 
deviation should be fully explained and justified in the transmittal 
letter. Examples of estates which have been approved for use in 
declarations of taking are contained in Figure 5-6 in ER 405-1-12. A 
condemnation proceeding is an in rem action. The definition of 
``property'' and what constitutes property is generally determined by 
reference to State law. Therefore, full consideration should be given to 
the applicable State law in connection with requests for deviations from 
the standard approved estates.
    (2) Normally, under the ``unit'' rule a condemnation proceeding 
should include all interests in a given tract authorized for acquisition 
even though an Offer to Sell may have been obtained and accepted from 
the surface owner with an outstanding interest in the subsurface estate 
recited in the ``Subject to'' paragraph. In such a case, if it is 
necessary to condemn due to title difficulties or failure of the owner 
to carry out the terms of the Offer to Sell, the deposit will be 
increased by the appraised value of the outstanding subsurface interest. 
The only exception to including subsurface interests outstanding in 
third parties is in the case of block ownership of subsurface interests; 
i.e., where a person, corporation, or other entity owns subsurface 
interests under more than one surface tract and in sufficient amount for 
the entire interest holding to have added value, for operational or 
other reasons, because it is in a block ownership. In other words, block 
ownership exists when the acquisition of a part of the block would 
require the assessment of severance damage, even if the value of the 
interest or the amount of the severance damage would be in a nominal 
amount. On this basis, subsurface interests need not be contiguous to 
constitute a block ownership.
    (3) If future negotiations to acquire or subordinate the subsurface 
interests left outstanding under paragraph (g)(2) of this section (or 
any non-block subsurface interests ``excepted'' from direct purchase 
cases) are unsuccessful, and the outstanding interest cannot be waived 
under the provisions of Sec. 644.86, then acquisition or subordination 
of the outstanding interest should be accomplished by condemnation 
proceedings. In so doing, block ownerships should be condemned as a unit 
rather than on a piecemeal basis. Full information should be submitted 
with such assemblies as to the method of acquisition of each surface 
ownership affected by the subsurface acquisition.
    (h) Payment for crops. At the time the declaration of taking 
assembly is prepared, it will be necessary that a determination be made 
as to whether the value of growing crops should be added

[[Page 193]]

to the value of the land improvements in determining the amount to be 
deposited as estimated compensation. The determination will be made as 
follows:
    (1) If the crops have been harvested, or it is known or highly 
probable that the crops will be harvested by the landowner or tenant, no 
deposit will be made for the crops.
    (2) The approved appraised value of crops will be included in the 
amounts to be deposited in all other cases.
    (3) The letter forwarding the declaration of taking to the Chief of 
Engineers will state whether the value of growing crops has been 
included in the amount recommended for deposit, and will set forth a 
statement of the facts upon which the action is based.
    (i) Filing and possession. Upon the filing of a complaint, 
accompanied by a declaration of taking, the court has the power to fix 
the time within which and the terms upon which the parties in possession 
shall be required to surrender possession to the United States (40 
U.S.C. 258a). Requests for orders of possession should be made only 
after all requirements of Pub. L. 91-646 (84 Stat. 1894) regarding 
possession have been satisfied.
    (1) The Division or District Engineer will ascertain from the United 
States Attorney the date on which the condemnation proceeding with 
declaration of taking is filed and the date on which possession is 
available. The using service of the Army and Air Force or the local 
representative of other agencies will be informed of the date on which 
possession of the land is available.
    (2) The above information, together with the civil number assigned 
to the case, and a copy of the complaint and order of possession will be 
furnished to HQDA (DAEN-REA-C) WASH DC 20314 within six weeks after the 
date the case was forwarded by the Chief of Engineers to the Department 
of Justice. If this cannot be accomplished, an explanation will be 
furnished by such date.
    (3) Where an Order of Possession is obtained but the landowner 
refuses to comply, it may be necessary to obtain a Writ of Assistance 
from the court. Prior to requesting the United States Attorney to obtain 
such a Writ, all pertinent facts should be reported to DAEN-REA-C.
    (4) The United States Attorney should be requested to have judgment 
entered in accordance with the terms of any accepted Offers to Sell 
immediately after the filing of the case, since delay in taking such 
action works to the disadvantage of the Government. Any difficulty in 
securing prompt action by the United States Attorney in this matter 
should be reported to DAEN-REA-C.
    (j) Amendments. (1) If at any time it becomes necessary to amend a 
complaint or declaration of taking previously filed, an amendment 
assembly will be submitted to DAEN-REA-C together with a full statement 
of the facts requiring the amendment. The letter of transmittal should 
certify that the tracts affected by the amendment have not been 
adjudicated.
    (2) No amendment should be submitted which will result in a 
revestment of an interest in property, unless a stipulation for 
revestment has been obtained from the former owner in accordance with 
Sec. 644.115.
    (3) If, after the filing of a declaration of taking, a substantially 
higher appraisal is approved for any reason, and a settlement does not 
appear imminent, an amendment will be submitted promptly to increase the 
amount of the deposit.
    (k) Alternate form declaration of taking. An alternate form of 
Declaration of Taking has been approved by the Judicial Conference on an 
optional basis, and must be used where the local District Court 
requires. Under this form a Declaration of Taking may have up to 15 
ownerships, but each ownership will be set up separately so that it may 
be included in a separate civil action. In other words, there may be up 
to 15 separate civil actions which are keyed in to one Declaration of 
Taking. An example of this type of Declaration is included in Figure 5-5 
in ER 405-1-12. In this form, Schedule ``A'' will include the authority 
and public uses. Schedule ``B'' will include the description, the 
estimated compensation, and the estate to be acquired. Schedule ``C'' 
will be the plan showing the land to be acquired. It will be noted that 
there will be a separate Schedule ``A'', ``B'', and

[[Page 194]]

``C'' for each ownership. The schedules may include more than one tract 
where the ownership is unified and is an economic unit. All of the civil 
actions will be keyed in to the Declaration of Taking by a Master File 
number. The Master File number must be used on all correspondence 
pertaining to tracts in this type of an assembly.



Sec. 644.115  Revestment of title by stipulation.

    When fee title or an interest in property has been acquired by the 
United States by declaration of taking in a condemnation proceeding and 
it is determined to be in the best interest of the Government to wholly 
or partially exclude said property or interests therein, or to acquire a 
lesser estate, such exclusion or diminution in the estate can be 
accomplished by stipulation with the former owner under the provisions 
of the Act of Congress approved October 21, 1942 (40 U.S.C. 258f).
    (a) Required approval. All stipulations involving a revestment of 
title must be forwarded to DAEN-REA-C for approval with a full statement 
of the facts, related data and recommendations. Approval of the 
revestment action must be obtained from the appropriate using agency. 
Such stipulations will not be filed in the condemnation proceedings by 
the United States Attorney until the specific approval of the Chief of 
Engineers is obtained and the matter coordinated by the Chief of 
Engineers with the Department of Justice. It should be stressed in 
negotiations that final approval of the stipulation is under the 
judrisdiction of the Attorney General, based on the recommendation of 
the Chief of Engineers.
    (b) Reduction of price. A stipulation for revestment should provide 
for a deduction from the agreed price or from the ultimate award of an 
amount equal to the difference between the value of the property 
originally taken and the value of said property after the proposed 
exclusion of a part thereof or acquisition of a lesser interest therein, 
i.e., the stipulation should be an over-all settlement of the case 
whenever possible. If it is impossible to reach an amicable agreement 
for complete settlement for the Government's acquisition of the tract, 
an agreement as to the area and estate, leaving final determination as 
to compensation with the court, may be submitted with facts showing that 
the proposed action is in the best interest of the Government. The 
stipulation should also include a release concerning any benefits under 
section 304, Pub. L. 91-646 (84 Stat. 1894), because of the revestment, 
particularly when no agreement is reached concerning compensation.
    (c) Required information. A sample stipulation for revestment is 
contained in Figure 5-8 in ER 405-1-12 which may be adapted to fit the 
particular project and tract involved. In this connection, the following 
requirements should be observed:
    (1) The stipulation will not provide for any change in the amount of 
the deposit unless the stipulation provides for an overall settlement of 
the case or the entire tract is to be excluded from the acquisition.
    (2) The areas in which the Government has acquired an interest and 
those in which an interest will be retained after the revestment will be 
fully described.
    (3) The estates to be retained by the Government after the 
revestment will be accurately described; where the owner reserves 
mineral or other interests or use, appropriate restriction of 
exploration and subordination to the paramount right of the Government 
to use the property for the required purpose will be included.
    (4) The stipulation should include, as part of the consideration:
    (i) Consent by the former owner to the Government's acquisition of 
the revised area and the estates therein in the event the stipulation is 
approved.
    (ii) Withdrawal of any answer contesting the Government's right to 
acquire the property and any interrogatories theretofore filed.
    (iii) A waiver of any and all claims by the former owner, his heirs 
and assigns, against the United States, the State, County and political 
subdivisions thereof for loss of access to the land (where applicable).
    (5) The stipulation will include, as an exhibit, maps delineating 
the fee area in red, the easement area in blue, and the area to be 
revested in yellow.

[[Page 195]]

    (6) The letter of transmittal in connection with any revestment in 
Civil Works projects should include information as to whether the area 
in which title is to be revested has a potential for recreational use 
without regard to the currently established public access areas.
    (d) Application. The foregoing procedure applies only to instances 
where a declaration of taking has been filed. Where only a complaint has 
been filed, the necessary revisions may be made by securing a 
satisfactory Offer to Sell and deeds to the United States, or by 
amending the complaint and filing a declaration of taking containing the 
revised descriptions or estates.



Sec. 644.116  Distribution, reservations, and title evidence.

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



Sec. 644.117  Procedure prior to trial.

    (a) General. After filing of condemnation proceedings, the Division 
or District Engineer will maintain close liaison with the United States 
Attorneys and will render all possible assistance to the United States 
Attorneys in negotiating settlements, preparing cases for trial, and in 
conducting such trials. When the Division or District Engineer

[[Page 196]]

is informed that a case has been set for trial involving an unusual or 
novel issue of fact or law, or where the Government testimony will be 
$100,000 or more, he will promptly furnish this information to DAEN-REA-
C. In addition, the Division or District Engineer should:
    (1) In coordination with the United States Attorney, conduct 
discussions for settlement with landowners and other interested parties 
defendant. When a satisfactory agreement has been reached, an executed 
stipulation in a form satisfactory to the United States Attorney will be 
obtained. A suggested form of stipulation as to just compensation is 
contained in Figure 5-8 in ER 405-1-12. In this connection, the closest 
cooperation and collaboration must exist between representatives of the 
Department of the Army and the Department of Justice; no settlement 
negotiations should be conducted by Corps personnel without the 
knowledge and consent of the United States Attorney. If the property 
owner is unwilling to execute a stipulation until assured that the 
amount of the settlement will be accepted by the Government, formal 
execution of the stipulation may, in such instances, be delayed. 
However, the offer will be processed in accordance with the applicable 
provisions of paragraph (b) of this section.
    (2) Furnish maps, photographs and other necessary exhibits for 
trial.
    (3) Assist in preparing expert witnesses for trial.
    (4) Take necessary action to assure the presence of witnesses at the 
trial. District personnel who qualify as expert witnesses will be made 
available.
    (5) Be represented at the trial by an attorney thoroughly familiar 
with Federal court procedures, condemnation law, and the details of the 
project affected by the condemnation proceedings.
    (b) Stipulated settlements. (1) Where the amount of the stipulation 
obtained in accordance with paragraph (a)(1) of this section does not 
exceed the high, approved appraisal prepared by an appraiser employed 
by, or under contract with, the Corps of Engineers, and the proposed 
settlement will completely dispose of the issue of compensation for all 
interests acquired in the tract in the proceeding, approval of the 
settlement will be recommended by the Division or District Engineer or 
the Chief of the Real Estate Division directly to the United States 
Attorney. The Division or District Engineer will inform DAEN-REA-C of 
the action taken, either by sending a copy of the letter addressed to 
the United States Attorney of by separate correspondence.
    (2) Where the total settlement for all interests acquired in a given 
tract does not exceed $40,000 and the proposed settlement will 
completely dispose of the issue of compensation for all interests 
acquired in the tract in the proceeding, Division and District Engineers 
and the Chiefs of the Real Estate Divisions are also authorized to 
recommend approval of settlements directly to the United States 
Attorney. In leasehold condemnation cases the monetary limitation 
includes the full lease term and not merely the per annum rental. DAEN-
REA-C will be informed of the action taken in the same manner as in 
paragraph (b)(1) of this section. Even though the total settlement for 
all interests acquired in a given tract does not exceed $40,000, the 
proposed settlement will be submitted to DAEN-REA-C for consideration in 
the following instances:
    (i) If the United States Attorney and the Division or District 
Engineer cannot agree as to whether a particular settlement should be 
consummated.
    (ii) If the stipulation involves a novel issue of law or question of 
policy which would adversely affect the disposition of other tracts in a 
project.
    (iii) If revestment of any land or interests therein or change in 
estate is involved.
    (3) All proposed settlements not covered by paragraphs (b) (1) and 
(2) of this section will be forwarded to DAEN-REA-C, together with 
specific recommendations of the Division and District Engineers and a 
full statement of the facts. Three copies of the signed stipulation will 
be forwarded to DAEN-REA-C with the report in those situations where the 
stipulation contains any unusual conditions or terms. The report should 
contain the following:
    (i) The amount of the deposit and the amount of the proposed 
settlement.

[[Page 197]]

    (ii) The amounts and dates of all Government appraisals. Where the 
Department of Justice appraisal is substantially above or below the 
Corps of Engineers' appraisals, the Division and District reviewing 
appraisers should carefully examine the appraisals and ascertain whether 
the facts in the case and the appraisal techniques have been 
consistently applied, and should prepare a comparative analysis.
    (iii) The appraisal valuations by the property owners, their 
appraisers, or other witnesses who may testify for the owners, if such 
can be ascertained.
    (iv) A statement of the recommendation of the United States Attorney 
as to the proposed settlement.
    (v) Such other matters as should be considered by the Chief of 
Engineers in determining whether the proposed settlement is 
satisfactory; e.g., any pattern of awards which has been established as 
the result of other trials concerning land at the same project, or in 
the same Federal judicial district, disposition of any accepted Offer to 
Sell, any unusual legal or factual issues involved, any unusual factors 
which would increase the hazard of proceeding to trial, or the 
anticipated effect of the settlement on remaining acquisition in the 
project.
    (vi) Whether or not funds are available to satisfy any deficiency.
    (vii) The report should contain the required information in 
tabulated form. For each item the statement should be short and concise; 
lengthy reports are not required.
    (4) A copy of the report and recommendation sent to the Chief of 
Engineers will be immediately transmitted to the United States Attorney. 
If the settlement is satisfactory, the Chief of Engineers will forward a 
letter of approval to the Department of Justice, recommending that the 
stipulation be approved, filed and judgment entered thereon. A copy of 
the letter of approval will be sent to the Division or District 
Engineer. Receipt of such copy is authority to satisfy the judgment when 
entered, provided funds are available.
    (5) If a stipulation is obtained by a United States Attorney in 
excess of their authority, they will forward the proposed settlement to 
the Department of Justice. Simultaneously, in accordance with procedures 
agreed upon by the Chief of Engineers and the Department of Justice, the 
United States Attorney will transmit copies of the transmittal letter 
and of the proposed stipulation to the Division or District. The 
Division or District Engineer will immediately forward the letter 
outlined in paragraph (b)(3) of this section to the Chief of Engineers.
    (6) All settlements negotiated for interests acquired in 
condemnation proceedings will be inclusive of interest and will include 
all claims of any nature arising as a result of the taking of the estate 
recited in the complaint or declaration of taking, with the exception of 
benefits to which the landowner may be entitled under Pub. L. 91-646 (84 
Stat. 1894). In lease-hold condemnation cases, all proposed settlements 
should include not only an agreement as to compensation for the period 
of the leasehold but also an agreement as to any and all claims arising 
from restoration of the premises, if known (Sec. 644.121(b)).
    (7) Where surface and subsurface interests are acquired in a single 
condemnation proceeding, it is desirable to settle by stipulation, or to 
go to trial, on the ``unit'' basis. Many United States Attorneys insists 
on this course of action. However, Division or District Engineer should 
cooperate with United States Attorneys who wish to negotiate for 
stipulated settlements which may not include all of the interests 
acquired in a given proceeding as to a specific tract or tracts, 
provided appraisal reports have been prepared in such a manner as to 
make the appraised value of the several interests ascertainable.
    (8) If an offer of settlement is not intended to include the full 
interest which was condemned in a particular tract, the letter 
transmitting the settlement offer will specifically identify the 
interests included in the settlement, the interests which remain 
unsettled, and the amount of estimated compensation remaining on deposit 
for the unsettled interests. The amounts remaining on deposit for the 
unsettled interests should be the appraised valuation of such interests.

[[Page 198]]

    (9) Landowners will be advised during negotiations for settlement 
that offers to settle are not binding on the United States until 
accepted by a duly authorized representative of the Department of 
Justice.
    (10) In cases where tracts which are covered by accepted Offers to 
Sell are acquired by declaration of taking because of title defects or 
the failure of the landowner to carry out the terms of the Offer to 
Sell, the United States Attorney will be informed by letter and 
furnished copies of the Offer to Sell. The consideration contained in 
the Offer to Sell is considered binding upon the landowner despite the 
fact that condemnation is used to acquire title to the land. No 
settlement will be approved by the Division or District Engineer in an 
amount exceeding the amount contained in the Offer to Sell unless the 
Offer has been set aside by court order. Reports submitted in accordance 
with paragraph (b)(3) of this section will contain a statement as to the 
status of any Offer to Sell which may have been accepted.
    (c) Appraisal Review. Land and Natural Resources Division Directive 
No. 11-68, dated 22 November 1968, provides that where two or more 
appraisals for a particular property have a valuation spread in excess 
of 10 percent of the high appraisal figure, the United States Attorney 
should submit such appraisals to the local representative of the Corps 
for approval. Every effort should be taken to see that this policy is 
followed so that the Corps has full knowledge of the appraisal reports 
on which settlement negotiations or trial preparation is based. In those 
instances where the United States Attorney and the Division or District 
Engineer cannot agree as to whether an appraisal or appraiser should be 
used at trial or in connection with settlement negotiations, copies of 
all appraisals, together with the analysis of the reviewing appraiser, 
should be submitted to HQDA (DAEN-REE) WASH DC 20314 for further 
consideration and possible discussion with the Department of Justice.



Sec. 644.118  Awards.

    (a) Approval by Division or District. Division or District Engineers 
and the Chiefs of the Real Estate Divisions have been authorized to 
approve court awards (including jury or commission awards) where such 
awards do not exceed the highest testimony presented at the trial by a 
qualified appraiser employed by the Government. In such cases, the 
United States Attorney will be notified that the award is approved and 
the Chief of Engineers will be notified of such action.
    (b) Approval by Chief of Engineers. (1) If the award is in excess of 
the highest testimony presented at the trial by a qualified appraiser 
employed by the Government, or involves a matter of a doubtful or 
controversial nature, a report concerning the trial will be forwarded by 
the Division or District Engineer to DAEN-REA-C. The report should 
contain, but not be limited to, the following information:
    (i) The amount of the verdict or award.
    (ii) The appraisal valuations given in testimony by all witnesses, 
including any pertinent comments on the effectiveness of the witnesses, 
as appropriate.
    (iii) A statement of the recommendations of the United States 
Attorney as to the acceptance of the verdict or award, if available 
without causing a delay in submittal of the report.
    (iv) Where the trial concerned less than all interests acquired in a 
given tract, the report should state the precise interests adjudicated 
at the trial, the other interests which remain unadjudicated, the 
proposed disposition of the unadjudicated interests and the amount of 
the deposit allocated to the unadjudicated interests.
    (v) Whether or not funds are available to satisfy any deficiency 
plus interest.
    (2) Long narrative reports of the events at the trial or hearing are 
not necessary except in unusual cases. A brief, but complete, statement 
of the pertinent facts will be adequate in most cases. A form for use in 
connection with submission of trial reports is included in Figure 5-9 in 
ER 405-1-12; however, it is not intended that this form constitute the 
entire report. Where the case was tried by a Commission, copies of the 
Commissioners' Report will be submitted with each copy of the trial 
report. Close liaison must

[[Page 199]]

be maintained with the United States Attorney's Office in order that 
these reports will be received promptly after they are filed in the 
case.
    (3) The report outlined above should be accompanied by the 
recommendation of the Division or District Engineer as to what action 
should be taken with respect to the Commissioner's Report, court award 
or jury verdict. This recommendation should include a discussion of any 
matters which should be considered by the Chief of Engineers in 
determining whether the award is satisfactory, e.g., the history of past 
awards at this project or in the same judicial district, the basis used 
by the commission in arriving at its determination of value, whether 
enhancement from the project or a second taking was an issue, the 
disposition of any accepted Offer to Sell on any tract involved in the 
trial, etc. (The basis of findings of value to be included in the report 
of a commission appointed under Rule 71A(h) was considered by the 
Supreme Court in United States v. Merz, 376 U.S. 192). Where the 
recommendation is to reject the award, specific reasons with supporting 
legal analysis should be given. The fact, standing alone, that an award 
is considered excessive is not sufficient reason upon which to base an 
appeal.
    (4) The report and recommendation should be received by the Chief of 
Engineers within five working days after the Commissioners' Report has 
been filed or the trial concluded. In order to accomplish reporting 
within the prescribed time limits, District Engineers will forward 
reports and recommendations direct to DAEN-REA-C, with a copy to the 
appropriate Division Engineer. The Division Engineer will submit 
comments and recommendations to DAEN-REA-C within three working days 
after receipt of the copy of the District Engineer's report. The 
District must insure that our right to object is extended if the 
situation warrants.
    (c) Payment of awards and settlements. (1) If an award or stipulated 
settlement requires the deposit of a deficiency, judgment will be 
entered by the court and thereafter transmitted to the Division or 
District Engineer by the Department of Justice for procurement of a 
check for deposit in the registry of the court in satisfaction of the 
final judgment.
    (2) The copy of the letter from the Chief of Engineers to the 
Department of Justice recommending approval of an award or settlement, 
if required under Secs. 644.117(b)(3) and 644.118(b), will constitute 
authority for payment of the deficiency, provided funds are available. 
If approval is not recommended by the Chief of Engineers to the 
Department of Justice and the judgment is submitted to the Division or 
District Engineer for payment, it should be forwarded to DAEN-REA-C 
without action. Upon receipt of a judgment where payment is authorized 
and funds are available, the Division or District Engineer will 
immediately procure and deliver the check to the United States Attorney 
and inform DAEN-REA-C of the action taken.



Sec. 644.119  Procedure after final judgment.

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

[[Page 200]]



Sec. 644.120  Condemnation for local cooperation projects.

    Under the provisions of the River and Harbor Acts approved June 29, 
1906 (33 U.S.C. 592) and August 8, 1917 (33 U.S.C. 593), and the Flood 
Control Acts approved March 1, 1917 (39 Stat. 950) and August 18, 1941 
(33 U.S.C. 701c-2), respectively, the Secretary of the Army may cause 
proceedings to be instituted in the name of the United States for 
acquisition by condemnation of lands, easements or rights-of-way which 
local interests undertake to furnish free of cost to the United States. 
Requests for the institution of proceedings in the name of the United 
States will be addressed by the local parties to the Secretary of the 
Army and submitted to the Division or District Engineer. No land will be 
acquired on behalf of local interests by the filing of condemnation 
proceedings until local interests have furnished the Division or 
District Engineer with satisfactory assurances in accordance with the 
authorization act, and sufficient funds have been deposited with the 
Division or District Engineer to pay the expenses of the proceedings and 
any awards that may be made in the proceedings.
    (a) General. The Corps of Engineers will institute condemnation 
proceedings on behalf of a local interest only when the local interest:
    (1) Lacks authority to acquire the necessary real estate interests 
by eminent domain; or
    (2) Cannot obtain possession by local eminent domain proceedings in 
time to meet the construction schedule; or
    (3) Unusual circumstances exist so that acquisition by local 
inerests would not be in the best interest of the United States.
    (b) Information to accompany assembly. Upon request of the local 
interests that the real estate interest be acquired by condemnation 
proceeding in the name of the United States, the Division or District 
Engineer will transmit to HQDA (DAEN-REA-C) WASH DC 20314 an appropriate 
condemnation assembly, prepared in accordance with Sec. 644.114, with 
recommendations and the following information:
    (1) Citation of authorizing act.
    (2) Whether valid assurances have been accepted, giving date of 
acceptance.
    (3) That the estate or estates to be acquired conform to the 
requirements set forth in subpart J (to be published).
    (4) Appraisal values of the interest proposed for acquisition.
    (5) That sufficient funds to cover court awards and expenses of the 
proceedings have been deposited by local interests with the Division or 
District Engineer.
    (6) Efforts made by local interests to acquire the real estate 
interests and reasons for requesting the United States to file 
condemnation proceedings.



Sec. 644.121  Leasehold condemnation requirements.

    (a) Requirements for extension. The interest acquired in land by a 
leasehold condemnation proceeding terminates after a one-year term, 
unless notice to extend the term is filed in the appropriate United 
States District Court. In all leasehold cases, the Division or District 
Engineer will ascertain from the using service whether the premises 
included in such condemnation proceedings will be required for an 
additional term. This should be done sufficiently in advance of the end 
of the term to allow adequate time for the action necessary to extend 
the term. These instructions apply to civil works projects as well as 
military projects.
    (1) The Department of the Air Force will ascertain and advise the 
Chief of Engineers concerning the future requirements for the land in 
Air Force leasehold cases. Where the Department of the Air Force has a 
continuing requirement for land included in condemnation leasehold cases 
which are not extendible, the appropriate Division and District 
Engineers will be informed at the earliest practicable date.
    (2) Extension of the term in a leasehold condemnation case must be 
accomplished through the Department of Justice which, upon request of 
the Chief of Engineers, will issue instructions to its field 
representatives to prepare a notice of election to extend the term and 
file it in the appropriate United States District Court. The Chief

[[Page 201]]

of Engineers should be advised of requirements of using services for 
extension of leasehold condemnation cases five months prior to the time 
that filing notice of extension with the court is due. The majority of 
pending leasehold condemnation cases require that notice to extend the 
term be filed with the court 30 days prior to the end of the term, 
although a few cases require the notice of extension to be filed at 
least 60 days prior to the end of the term. Negative reports are 
required.
    (3) Since the General Services Administration is the disposal agency 
for excess and surplus airport property, all condemnation leaseholds 
forming an integral part of an airport should be extended and kept in 
force with the concurrence of the Department of the Air Force unless and 
until contrary instructions are received from the General Services 
Administration. In the event a bombing range or other installation in 
which leasehold interests have been acquired by condemnation is excess 
or surplus, but will not be decontaminated or dedudded prior to the end 
of the term, the leasehold condemnation proceeding will be extended 
beyond that date. In reporting leasehold condemnation cases to be 
extended within the categories mentioned in this paragraph, full 
information as to the necessity for extensions in each case should be 
furnished DAEN-REA-C.
    (4) Specific authorization for deposit of funds in condemnation 
leasehold cases will be issued to Division and District Engineers by the 
Chief of Engineers.
    (b) Termination of leasehold condemnation proceedings. If the need 
for all or part of the land included in a leasehold condemnation 
proceeding should terminate prior to the expiration of the term 
condemned, in the case of fixed term estates, or prior to the expiration 
of the right to renew by filing notice of extension, the Division or 
District Engineer, upon notification by the using service that the land 
is no longer needed, shall advise DAEN-REA-C accordingly. Prompt action 
will be taken by the Division or District Engineer to comply with the 
applicable requirements of subpart I (to be published) relative to 
screening real property excess to one component of the Department of 
Defense with all other components and Federal agencies outside of the 
Department of Defense. Where restoration is involved, a report will be 
furnished DAEN-REA-C setting forth the status thereof.
    (c) Report to close leasehold condemnation cases. When the term 
condemned has expired or all interests have been terminated and all 
interests have been disposed of by final judgment, the Division or 
District Engineer will so advise DAEN-REA-C in order that the case may 
be closed. Report in accordance with Sec. 644.119(b) shall be furnished 
and shall also include a statement that the issue of restoration has 
been settled.

                         Acquisition by Leasing

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



Sec. 644.131  General.

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



Sec. 644.132  Authority.

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

[[Page 202]]

family housing facilities and real property relating thereto may be for 
a period of more than five years but may not be for a period of more 
than ten years.



Sec. 644.133  Responsibilities.

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



Sec. 644.134  Definitions.

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

[[Page 203]]



Sec. 644.135  Lease authorization and approvals.

    (a) Title 10 Reports. Under the provisions of 10 U.S.C. 2662, a 
lease proposal or renewal with an estimated annual rental in excess of 
$50,000 (gross rent as recited in the lease or for each project covered 
by one or more leases) must be reported to the Armed Services Committees 
of Congress. The General Services Administration (GSA) charges a 
Standard Level User Charge (SLUC) for furnishing space. For title 10 
reporting purposes, where GSA leases space at Corps request, the SLUC 
figure, if greater than the gross contract rental figure, shall control. 
For all leases which require title 10 clearance, the Division/District 
Engineers will prepare and submit an Acquisition Report to HODA (DAEN-
REA-L), WASH DC 20314 in the format shown in Figure 5-10 in ER 405-1-12. 
The report will support an action to obtain approvals from the Assistant 
Secretary of the Army (Installations, Logistics and Financial 
Management) and the Deputy Assistant Secretary of Defense (Installations 
and Housing) for the proposed lease prior to its submission to the 
Committees, and will serve as a basis for a hearing before the Real 
Estate Subcommittee of the House Armed Services Committee. Draft 
acquisition report pursuant to title 10 for a lease renewal should be 
submitted at least 12 months in advance of the termination date of the 
lease. An explanation for any delay in forwarding the draft acquisition 
report is required in the transmittal letter if lease terminates prior 
to one year. Supporting data for this report will include the following:
    (1) The geographical area in which the availability of Government-
owned space was surveyed, together with reasons for limiting the area. 
The mission is to be set forth in detail, along with the reason(s) why 
space in this particular geographical area is essential to the 
performance of the mission.
    (2) Current and required space (including parking) for each using 
service. For GSA leases the square feet should be the same as reported 
on the SLUC. Corrected square feet may be reported if a letter of 
concurrence from the appropriate GSA Region is provided.
    (3) Statement covering all Government-owned buildings and facilities 
under the control of the military departments in that area, together 
with the reasons why each was rejected. Even though no space is 
available, a list of the installations in the area will be furnished.
    (4) Statement from (GSA) indicating that no space is available to 
that agency and other Federal agencies in the area or, in the 
alternative, a list of space that is available, together with reasons 
why the space is not acceptable to the using service.
    (5) Identification of the headquarters and personnel making the 
determination that any available Government-owned space is not suitable.
    (6) Original request, signed by the responsible head of the using 
agency that action be taken to obtain required clearances under 10 
U.S.C. 2662. The using service shall advise whether or not a long-range 
use is contemplated.
    (7) A statement of the current and anticipated contract rentals and 
current and anticipated SLUC for GSA leases. The SLUC should be as 
reported by GSA, unless an explanation is provided.
    (b) The Economy Act. Section 322 of the Act of Congress approved 30 
June 1932, as amended (40 U.S.C. 278a) provides that no appropriation 
shall be obligated or expended for the rent of any building or part of a 
building to be occupied for Government purposes at a rental in excess of 
the per annum rate of 15 percent of the fair market value of the rented 
premises at date of the lease under which the premises are to be 
occupied by the Government, nor for alterations, improvements, and/or 
repairs of the rented premises in excess of 25 percent of the amount of 
the rent for the first year of the rental term, or for the entire rental 
if the full term is less than one year. The provisions of section 322, 
as applicable to rentals, shall apply only where the rental to be paid 
shall exceed $2,000 per annum.
    (c) Exception to Economy Act. The Act of Congress approved 28 April 
1942 (40 U.S.C. 278b) provides that 40 U.S.C. 278a shall not apply 
during war or a national emergency declared by Congress or by the 
President to such leases or renewals of existing leases of privately-

[[Page 204]]

owned or publicly-owned property as are certified by the Secretary of 
the Army or the Secretary of the Navy or by such person or persons as he 
may designate, as covering premises for military or civilian purposes 
necessary for the prosecution of the war or vital in the national 
emergency. The provisions of the National Emergencies Act, Pub. L. 94-
412 (90 Stat. 1255), 14 September 1976, shall not apply to the powers 
and authorities conferred by 40 U.S.C. 278b and actions taken 
thereunder.
    (d) Federal Property and Administrative Services Act. The 
Administrator, GSA is authorized by 40 U.S.C. 490a(8) to alter and 
improve rented premises without regard to the 25 percent limitation of 
40 U.S.C. 278a upon a determination by the Administrator that the 
alterations and improvements are advantageous to the Government in terms 
of economy, efficiency, or national security, and that the total cost of 
the proposed work to the Government for the expected life of the lease 
shall be less than the cost of alternative space which needs no such 
improvements.
    (e) Certificates of Necessity. Department of the Army requests for 
Certificates of Necessity pursuant to 40 U.S.C. 278b will be forwarded 
to the Assistant Secretary of the Army through DAEN-REA-L. In any case 
requiring the issuance of a Certificate of Necessity, the amount 
requested will be sufficient to provide for all improvements which can 
be foreseen and that will be required during the term of the lease. 
Should unforeseen, essential requirements arise at a later date, an 
additional Certificate of Necessity to cover such work will be 
necessary. It is required that the using service furnish Division or 
District Engineers with a request for a Certificate of Necessity, 
explaining the circumstances, followed by a statement that the continued 
use of the leased premises, or the work to be performed, as the case may 
be, is vital in the national emergency. All requests by Division and 
District Engineers will include a completed ENG Form 869-R, 15 percent 
Valuation Certificate.
    (f) Approval--Chief of Engineers. (1) The Chief of Engineers is 
authorized to approve leases where proposed temporary construction to be 
placed on land by the Government has an estimated cost equal to or in 
excess of the current market value of the property, or where the 
estimated rentals to be paid in the future, plus the cost of 
restoration, would exceed 50 percent of the current market value of the 
property.
    (2) Leases, renewals, or lease extensions, which are controversial, 
unusual, or inconsistent with existing policies, require the approval of 
the Chief of Engineers.
    (3) Any lease involving clearances by higher authority will be 
submitted to HQDA (DAEN-REA-L) WASH DC 20314.
    (4) Leases, renewals, or lease extensions of industrial properties, 
other than for bakeries, laundries, and drycleaning facilities, are to 
be submitted to DEAN-REA-L for prior approval.
    (5) Division and District Engineers, and Chiefs of the Real Estate 
Divisions, are authorized to perform emergency maintenance and repairs 
to leased premises not in excess of $500 where lessors refuse to 
perform, or under such circumstances that the lessor cannot perform. 
Where the cost exceeds $500, approval by DAEN-REA-L is required. The 
Comptroller General has ruled that where the lessor is obligated to 
perform maintenance and repairs under the terms of the lease and after 
demand of and refusal by the lessor, the Government makes such repairs 
in order to utilize the property to the fullest extent, the cost should 
be withheld from rental payments under the lease as soon as possible 
after work is completed (15 Comp. Gen. 1064). However, no rental 
payments will be withheld and no repairs made after demand and a refusal 
by the lessor, without prior approval of DAEN-REA-L.
    (g) Division and District Engineer Authorization. (1) Division 
Engineers and their Chiefs of the Real Estate Division have been 
delegated, without authority to redelegate, leasing authority to approve 
leases where the annual rent, excluding services and utilities, unless 
said services and utilities are included in the recited rental 
consideration, is in excess of $25,000, but not in excess of $50,000. 
The $50,000 limitation will be

[[Page 205]]

strictly observed because of the reporting requirements under the 
provisions of 10 U.S.C. 2662.
    (2) District Engineers and their Chiefs of the Real Estate Divisions 
are authorized to approve leases wherein the rental excluding utilities 
and services, unless included in the recited rental consideration, does 
not exceed $25,000 per annum.
    (3) Except for space in the National Capital Region, Division and 
District Engineers are authorized to process all requests for the 
assignment of space in Government-owned buildings or leased space in the 
GSA urban centers to the regional GSA office having jurisdiction.



Sec. 644.136  Leasing guidelines.

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

[[Page 206]]

not the responsibility of the Division or District Engineer.
    (4) Department of Energy/Nuclear Regulatory Commission. Space is 
acquired by these agencies direct from GSA in the designated urban 
centers pursuant to Reorganization Plan No. 18. In instances where 
general purpose space is not obtained through GSA and instances 
involving the leasing of special-purpose space, managers of field 
offices of subject agencies are authorized to initiate requests to 
Division or District Engineers for the leasing of properties where the 
net per annum rental does not exceed $50,000. Leasing of properties 
where the net rental per annum exceeds $50,000 requires the prior 
approval of the appropriate agency head, i.e., the Secretary of Energy, 
the Chairman of the Nuclear Regulatory Commission, or their designees.
    (5) Metropolitan Washington, DC. All requests for leased space in 
the National Capital Region will be processed in accordance with DOD 
Instruction 5305.5.
    (b) Requirements Survey. The availability, use, and adaptability of 
property owned by the Government, whether under control of the GSA or 
other agencies, shall be thoroughly explored before additional space is 
leased, or existing leases are renewed, or construction commenced. 
Particular attention is to be given to the availability of space, or 
land, at military reservations, camps, posts, or stations.
    (1) A statement covering the non-availability of Government-owned 
space, or if such is available and not suitable, reasons why it is not 
suitable, for occupancy by the requesting using service, should be made 
for each lease executed by the Corps of Engineers, excluding family 
housing leases.
    (2) Suitable privately-owned space shall be acquired only when 
satisfactory Government-owned space is not available. Rental charges 
will be consistent with prevailing rates in the community for comparable 
facilities.
    (3) The quality of office space for Government occupancy shall be 
appropriate for the efficient and economical performance of required 
operations, affording employees safe, healthful and convenient 
facilities.
    (4) Full consideration shall be given to the efficient performance 
of the mission and programs of the using service.
    (c) Government-Owned and General Services Administration Furnished 
Space. If Government-owned space is available, the Division or District 
Engineer will inform the using agency, and details of occupancy will be 
developed. If it is necessary for GSA to lease space, the Division or 
District Engineer will make a careful review to determine if there are 
any statutory or regulatory limitations involved. If so, appropriate 
action will be taken to satisfy the limitations. During the processing 
of all GSA space assignments and leases, the Division or District 
Engineer is the only official contact representative with GSA. This 
procedure is to be emphasized at all time with the using service.
    (1) The Division of District Engineer will submit a Standard Form 
81, Request for Space, to the appropriate GSA Regional Office for space 
assignment in urban centers under the jurisdiction of GSA. The 
requirement to this form applies to lease renewals or lease supplements, 
and for space assignments in Federal office buildings. Excluded from 
this procedure is a proposed space assignment in the National Capitol 
Region.
    (2) Except for the acquisition of general-purpose space of 2,500 
square feet or less, outside the designated urban centers, and special-
purpose space of 2,500 square feet or less, irrespective of the 
location, the need for any type of building space will be made kown to 
the appropriate GSA Regional Office by filing Standard Form 81, Request 
for Space.
    (3) The designated urban centers are listed in Figure 5-11 in ER 
405-1-12.
    (d) Advertising. As a general rule, procurement of space will be by 
formal advertising. However, in leasing certain types of premises where 
only one location will serve the Government's purpose, such as municipal 
airports, recruiting stations, and similar facilities, negotiations 
without advertising are permissible. In instances where building space 
is needed and the requirement cannot be met through the use of existing 
buildings, there must be

[[Page 207]]

advertising to solicit bids for the furnishing of the space. In every 
instance, it is essential that efforts be made to seek competition. For 
each lease, a statement will be prepared concerning competition in the 
solicitation for space or land and Standard Form 1036, Statement and 
Certificate of Award, will be used. Where specific space or land is 
needed, and competition is therefore not involved, the facts and 
circumstances will be fully explained and such explanation will be made 
a part of the lease file for future reference.
    (e) Appraisals. Appraisals are required as a basis for making rental 
determinations in all leases except those for a nominal consideration. 
At the discretion of the Division and District Engineers, and the Chiefs 
of the Real Estate Divisions, formal or detailed appraisals can be 
dispensed with for leases wherein the annual rent does not exceed 
$5,000. Where the rental of a building or part of a building, or family 
housing unit, exceeds $3,600 per annum, excluding services and 
utilities, it may be necessary to estimate the fee value of the property 
contemplated for leasing to determine whether or not the rental rate is 
in excess of 15 percent of the fee value of the property. For family 
housing leases, the opinion of fee value will be in short summary form 
and will be supported by general evidence of comparable values of the 
unit to be leased. If the proposed annual rental, excluding services and 
utilities, of a family housing unit exceeds 15 percent of the estimated 
fee value, the unit will not be leased.
    (f) Determination of Valid Interest. Persons executing leases for 
and on behalf of the United States of America will satisfy themselves, 
before executing leases, that the prospective lessors have an interest 
in the real estate which will assure the validity of the lease. Where 
leased lands are used as a site for contruction, the land records of the 
county will be examined by a staff attorney familiar with land title 
records, who will execute a certificate that he has examined the said 
records and that title is vested in the lessor, subject to the 
infirmities, liens and encumbrances noted in the certificate. In lieu of 
such examination, a certificate from the Register of Deeds, County 
Recorder or other qualified officer is acceptable. If considered 
advisable in unusual cases, title evidence may be obtained from 
commercial sources.
    (g) Outstanding Rights and Damages. (1) Where the land is subject to 
outstanding oil, gas, mineral, or similar interests, the Division or 
District Engineer will determine, from the appropriate command, in 
advance of the consummation of the lease, whether the continued exercise 
of the mineral or outstanding rights will interfere with the 
contemplated use of the premises.
    (2) Where buildings, structures, or growing crops are located on 
land to be leased, a determination will be made by the Division or 
District Engineer, in coordination with the appropriate command, as to 
whether they will interfere with the use of the premises.
    (3) Where the lessor will not be permitted to harvest crops or 
remove improvements and timber which will be destroyed by the 
Government, the appraised value thereof will be determined, and such 
amount will be included in the rental for the initial term of the lease, 
together with an express provision relieving the Government of 
restoration.
    (4) Leases of land for bombing, artillery, rifle ranges, and other 
extraordinary usage will specify that the leased premises are to be used 
for such purpose, and an effort will be made to include in the lease a 
provision waiving restoration and claims for damages, particularly where 
the premises are wastelands or unproductive.
    (5) Where the lessor will not consent to a waiver of restoration, 
the estimated value of such damage, if it can be determined in advance, 
will be included in the rental for the initial term of the lease, and 
the lease will contain an express provision relieving the Government 
from responsibility for restoration.
    (6) If restoration is not waived, and the damages cannot be 
determined in advance, a provision may be included in the lease to the 
effect that the rental payments do not include compensation for damages 
arising from the use of the premises for the purpose leased and that, 
upon termination of the

[[Page 208]]

lease, the damages, mutually determined, will be paid by supplemental 
agreement to the lease. In event the amount of the loss or damage cannot 
be mutually determined, the lessor may file a claim for the alleged loss 
or damage in accordance with subpart H.
    (h) Services and Utilities. Services, such as janitorial, heat, air 
conditioning, light and water, should be included in leases for building 
space wherever possible. Whether services are paid for as part of the 
rent or by a service contract, the time period for furnishing heat, air 
conditioning and light, i.e., usual business hours, 24-hour basis, 
Saturdays and Sundays, should be clearly stated.
    (i) Other Contracts. The negotiation and execution of contracts not 
involving an interest in real estate are the responsibility of the 
services concerned.
    (j) Condition Surveys. (1) Whenever possession of any premises is 
acquired by lease or other agreement, or by condemnation for a term of 
years, the Division or District Engineer will cause a survey and 
inspection of the condition of the real and personal property to be made 
as of the time the Government takes possession.
    (2) The survey and inspection required above will be made jointly 
with the lessor or his duly authorized representative. The report will 
be signed by both parties.
    (3) The initial survey report must be made with great care since it 
is the basis for future restoration claims by a lessor. The use of 
photographs is encouraged. Full explanatory data covering condition of 
the premises will be added to the report if, in the opinion of the 
Chief, Real Estate Division, a useful purpose will be served thereby. 
The survey report of real property, and the inventory and condition 
report of personal property, will be made with care, as the condition 
reflected as of the date of initial occupancy will be compared with the 
condition shown by the terminal reports made upon vacation of premises.
    (4) A survey is not required of unimproved land where an appraisal 
has been made and the condition of the land is set forth by the 
appraiser and made a part of the record.
    (5) A survey will be made wherever property of another Federal 
agency is used, with the exception of post offices and Federal 
buildings. In the event privately-owned buildings, crops, or other 
property, are on the Federal property, a report will be made outlining 
the terms and conditions under which they were placed thereon, and the 
value thereof will be appraised as of the date of possession.
    (6) Normally, ENG Forms 3143 and 3143A, Joint Survey and Inspection 
of Condition of Government Leased Property, are adequate for the joint 
survey and inspection. In certain cases, narrative reports may, at the 
discretion of the Division or District Engineer, be considered 
preferable; however, local forms will not be developed for this purpose.
    (k) Possession. Possession of real property will not be taken until 
required approvals and clearances are obtained and a lease is executed. 
When requested by an appropriate command, rights-of-entry for 
exploration and survey, or construction, will be obtained in accordance 
with instructions in Secs. 644.155 through 644.157.
    (l) Condemnation of Leaseholds. Where the required leasehold 
interest cannot be acquired by a negotiated lease, the recommendation of 
the Division or District Engineer for the institution of condemnation 
proceedings will be submitted to HQDA (DAEN-REA-C) WASH DC 20314, in 
accordance with Sec. 644.121, setting forth the negotiations that have 
been conducted with the property owner(s) and all other factors 
supporting the recommendation.
    (m) Decease of Lessor. (1) Any claim on account of death of a lessor 
(except uncurrent depository check claims) may be settled without 
submission to the Chief of Engineers where no doubt exists as to the 
amount and validity of the claim or as to whom payment may be made under 
the laws of the domicile of the decedent.
    (2) Any claim for rent or services due a deceased lessor which is 
considered doubtful will be forwarded to HQDA (DAEN-REM) WASH DC 20314 
in accordance with subpart H.

[[Page 209]]

    (n) Recording Leases. If the property is located in a State 
requiring the recording of leases, all statutory requirements will be 
met. Leases, and supplemental agreements prior to termination, involving 
property upon which substantial Government improvements are to be 
constructed, will be recorded in all cases.
    (o) Change in Ownership. (1) When the title to premises leased to 
the Government is transferred, the contracting officer shall satisfy 
himself that the new owner has a valid interest in the premises covered 
by the lease, and thereafter enter into a supplemental agreement between 
the old and new owners and the Government, for distribution in the same 
manner as the original lease.
    (2) Upon being notified or otherwise determining that a foreclosure 
proceeding has been filed against the leased premises, or that the 
enforcement of a deed of trust or mortgage is imminent, the Division or 
District Engineer will take such action as is appropriate under State 
laws for protection of the United States. This would consist of filing 
by the United States Attorney with the court, or with the trustee, 
receiver, or commissioner, as the case might be under local law, of a 
notice of the Government's lease on the property, with request that the 
foreclosure proceedings be made subject thereto. If the proceeding is 
made subject to the lease, an abstract of such proceeding will be made, 
certified by a staff attorney, and distributed in the same manner as the 
original lease. If considered advisable, a supplemental agreement to the 
old lease will be made with the new owner; or a superseding lease may be 
executed and distributed. If the proceeding results in vesting title in 
a new owner, free and clear of the Government's lease, attempt will be 
made to negotiate a new lease; if this fails, condemnation action will 
be taken sufficiently early to protect the interests of the United 
States. Negotiation and condemnation in this latter type of situation 
must be based on a current appraisal.
    (p) Supplemental Agreements. Modification of existing leases will be 
in the form of supplemental agreements and will be prepared, executed, 
and distributed in the manner prescribed for the original lease. Where a 
supplemental agreement provides for an increase in space at an increased 
rental, the supplemental agreement should contain appropriate recitals 
of this fact, and provide that the Government, thereafter, may, upon 30 
days notice, partially reduce, or discontinue, the use of the space 
covered by either the supplemental agreement, the basic lease, or both. 
Supplemental agreements enlarging or reducing space will show the total 
area and rental comprising the basic lease and preceding supplemental 
agreements.
    (q) Annual Review of Leases. Annual review of leasing requirements 
and space assignments from GSA are to be initiated by the Division or 
District Engineer not later than one year before the end of the lease 
term for each lease.
    (1) Special attention will be given by Division and District 
Engineers to leases which expire by their own terms and continued 
occupancy is required at annual rentals of $50,000 or more. These leases 
require approval by the Department of Defense and reporting to the Armed 
Services Committees of the Congress by the Chief of Engineers. An 
Acquisition Report together with full justification, as set forth in 
Sec. 644.135(a), in support of each lease (or project covered by more 
than one lease) must be furnished. For leases in which it is not clear 
whether Title 10 reporting is required, DAEN-REA-L will be informed of 
the facts for decision. Attention will be given also to existing leases 
having annual rentals between $30,000 and $50,000. It is probable that 
current appraisals will indicate annual rental rates in excess of 
$50,000 and, therefore, require a title 10 report.
    (2) If the using command anticipates that there will be further need 
for the leased property, and the total estimated rentals to be paid by 
the Government, excluding utilities and services, for the additional 
period, plus the cost of restoration, will exceed, 50 percent of the 
estimated current market value of the property, DAEN-REA-L will be 
informed of all details in order that the review required by paragraph 
1-8, AR 405-10, may be made. Only estimated future rent payment is to be

[[Page 210]]

considered and not the rental paid in the past for the property. In 
applying this formula, if the period of future use cannot be ascertained 
but it is likely that a property will be used for a long period of time, 
use a period of five years for calculations.
    (r) Lease Renewals and Extensions. (1) Lease entered into under 
authority of the annual appropriation acts may include a provision for 
automatic renewal after expiration of the initial term subject to the 
availability of appropriated funds. However, if the property is still 
needed after lease expiration, a new lease is required and the old lease 
will not be extended by supplemental agreement for the new term. Where 
the lease requires notice in writing to be given to the lessor to 
exercise the option of renewal, notice will be served by the use of ENG 
Form 221, Notice of Renewal of Contract or Lease, in accordance with the 
terms of the lease. The notice, properly addressed, will be sent by 
certified mail, with return receipt requested. Adequate time, in 
addition to the number of days specified in the lease, will be allowed 
for delivery to, and receipt by, the lessor. The Division or District 
Engineer will maintain adequate records to assure prompt service of 
notice to avoid the lapse of leases.
    (2) No lease will be renewed or kept in existence unless it has been 
administratively determined, through advertising or otherwise, that 
other suitable property at a lower rental is not obtainable. At all 
times, and in particular during the lease renewal review period, the 
Division or District Engineer will take cognizance of the availability 
of property in the area of the using service that is Government-owned, 
or property under GSA control.
    (s) Payment of Rents. (1) One of the most important factors 
involving good relationships between the Government and the lessor is 
the prompt payment of the rent. Under existing regulations, the rent is 
paid by the using commands. The Division or District Engineer makes 
rental payments for leases when the Corps is the using service and for 
recruiting facilities, since the Chief of Engineers is the Department of 
Defense Executive Agent for recruiting facilities acquisition. It is 
therefore appropriate for the Division or District Engineer to inquire 
periodically of the using commands whether delays in processing payments 
are encountered. If payments are not being made within seven working 
days after payment is due, appropriate action will be taken to correct 
the delay; if no action is taken after a reasonable time allowed for 
correction of procedures, DAEN-REA-L will be informed fully of the facts 
and an investigation will be conducted.
    (2) Prior to payment, the Division or District Engineer, or his 
designee, will certify for submission to the Disbursing Officer that the 
leased property was occupied or available for use. The following 
certification, contained on Standard Form 1166, Voucher and Schedule for 
Payments, is used:

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



Sec. 644.137  Maneuver agreements.

    Joint training exercises or maneuvers are conducted by elements of 
the Department of Defense. Land use requirements vary with the exercise 
objectives and the force elements which participate. The Corps 
participates in the planning and acquires rights to use land and other 
facilities for Department of the Army exercises. The current Memorandum 
of Understanding by Department of the Army, United States Readiness 
Command (USCINCRED), and United States Army Forces, Readiness Command 
(USCINCARRED) on acquisition of maneuver rights for United States 
Readiness Command (USREDCOM) Joint Training exercises is included as 
Figure 5-13 in ER 405-1-12. This Memorandum covers timing of requests 
for preliminary surveys, real estate studies, funding and acquisition of 
maneuver rights. The Corps also responds to requests from other 
Department of Defense commands for maneuver rights, and the same 
procedure is envisioned although no Memoranda of Understanding have been 
entered into. Upon receipt of a request for real estate services, an 
estimate of the funds required

[[Page 211]]

for the report should be forwarded to the using command.
    (a) Procedures. The appropriate Division or District Engineer will 
be responsible for negotiating maneuver agreements and short-term leases 
and, after the maneuver is completed, will be responsible for 
negotiating restoration settlements and/or releases, as appropriate. 
Real estate acquisition will be in the form of agreements with 
landowners, granting the right to conduct maneuvers at a given time, or 
periodically. Short-term leases for exclusive use may also be acquired 
for special areas (such as headquarters areas, radio relay sites, base 
camp sites, field hospital sites and supply dumps), and buildings needed 
for warehouses, ordnance shops and similar purposes directly related to 
the maneuver. Permits will be obtained to cover the use of lands under 
the jurisdiction of another Government department or agency.
    (b) Claims and Restoration. Notwithstanding the assignment of 
restoration responsibility, understanding may be reached with the 
maneuver director at field level whereby the command will assume 
responsibility for settlement of real estate damages using claim funds. 
However, in instances where the damage exceeds the monetary claims 
jurisdiction of the Army Commander pursuant to AR 27-20 and is 
cognizable as a contractual obligation under the maneuver permit, 
settlement will be accomplished by the Division or District Engineer 
either by supplement to the permit or by processing a claim under AR 
405-15 (see Sec. 552.16 of this chapter) since the Division or District 
Engineer can usually accomplish settlements more quickly for claims in 
excess of that amount. Therefore, it should be suggested to the maneuver 
director that all claims, cognizable as a contractual obligation, in 
excess of his monetary claims jurisdiction be handled by the Division or 
District Engineer. Funds appropriated for field exercises and maneuvers 
are allotted to Army Commanders and include administrative costs. The 
reporting requirements included in Figure 5-13 in ER 405-1-12 will be 
established by the Chief of Engineers upon receipt of a specific request 
from the using command to acquire maneuver rights.



Sec. 644.138  Family housing leasing program.

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

[[Page 212]]

are executed on behalf of the United States shall contain the following 
nondiscrimination clause:

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

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

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


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



Sec. 644.139  Leases for civil works purposes.

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



Sec. 644.140  Physical protection.

    It is essential that the Division or District Engineer make 
provision for the physical protection for all facilities under Corps 
control. Coordination with state, county, and city law enforcement 
officials as well as the U.S. Attorney's Office is required. These 
officials should be alerted at the first indication of possible 
disturbances. The U.S. Attorney's Office should be provided with an up-
to-date list of the locations of such facilities.
    (a) Self-Protection Plan. Space or property controlled by GSA is the 
responsibility of GSA for physical protection. In accordance with 41 CFR 
101-20.504, a Facility Self-Protection Plan is to be established by 
agencies in

[[Page 213]]

GSA-controlled space. This requirement should be coordinated with 
appropriate GSA Regional personnel. A similar plan should be made 
operational, where feasible, in other space over which the Corps has 
responsibility.
    (b) Funding. Space under GSA control may require protection and the 
GSA Regional Offices may not have funds. In these situations, the facts 
will be made known to DAEN-REA-L, accompanied by a request for funds. 
Likewise, for Corps leases, funds for physical protection shall be 
requested from DAEN-REP if they are not already available to the 
Division or District Engineer.



Sec. 644.141  Alterations and construction on leased real property.

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

[[Page 214]]

whether single-service or collocated. However, as to recruiting 
facilities acquired by GSA, all alterations are the responsibility of 
GSA and processing is accomplished through the Division or District 
Engineer.
    (f) Permanent Construction Requirements. If permanent construction 
is to be placed on land, the Government must have fee title or acquire 
title to the land or a permanent easement must be secured, with the 
following exceptions:
    (1) Real property, including land or buildings, which the Government 
currently holds the right to reuse by exercise of the National Security 
Clause.
    (2) Real property, including land or buildings, which the Government 
holds the right to reuse by exercise of a National Emergency Use 
Provision.

Since such rights apply only during the period or periods of national 
emergency and are extinguished by the termination thereof, every effort 
will be made to negotiate a lease covering such property under terms 
that would provide the Government the right of continuous possession for 
a minimum of 25 years.
    (3) Real property required for installation of utility lines and 
necessary appurtenances thereto, provided a long-term easement or lease 
can be secured at a consideration of $1.00 per term or per annum.
    (4) Real property required for air bases, provided such property can 
be acquired by lease containing provisions for:
    (i) Right of continuous use by the Government under firm term or 
right of renewal for a minimum of 50 years.
    (ii) A rental consideration of $1.00 per term or per annum.
    (iii) Reserving to the Government, title to all improvements to be 
placed on the land and the right to dispose of such improvements by sale 
or abandonment.
    (iv) Waiver by the lessor of any and all claims for restoration of 
the leased premises.
    (v) Use of the property for ``Government purposes'' rather than for 
a specific military purpose.
    (5) Property required for facilities for the Reserve Components of 
the Armed Forces, provided such property can be acquired by lease 
containing provisions detailed in paragraph (f)(4) of this section. 
Whenever possible, the insertion in a lease of a provision restricting 
the use of land to a specific purpose will be avoided; use a term such 
as ``Government purposes''.
    (6) Property required for air defense sites, provided such property 
can be acquired by lease containing provisions in paragraphs (f)(4)(ii), 
(iii), and (iv) of this section and the right of continuous use by the 
Government under a firm term or right of renewal for as long as required 
for defense purposes.
    (7) Assistant Secretary of Defense (MRA&L) approval is required when 
leases for air bases, Reserve Components facilities, or air defense 
sites can be obtained containing some but not all of the above listed 
provisions. Such approval is also required for leases for all other 
types of installations upon which permanent construction is to be placed 
by the Government when leases can be obtained containing similar 
provisions. In all cases, it must be in the best interest of the 
Government to acquire a lesser interest than fee title.
    (8) Construction projects estimated to cost less than $25,000 will 
not be considered a permanent construction for purposes of the above 
policy.
    (g) GSA Reimbursement. Reimbursement to GSA for Standard Level User 
Charges (SLUC) and other costs incident to leasing will be in accordance 
with the applicable provisions of the Federal Property Management 
Regulation.
    (h) Nominal Rent Leases. (1) Where premises are occupied by the 
Government at a nominal rent or rent-free basis, any alterations, 
improvements, and repairs necessary for occupancy may be considered as a 
cost of occupancy, i.e., in lieu of rent, for each year of the rental 
term. However, the total cost of such alterations, improvements, and 
repairs, plus the nominal rental, during any year of the rental term may 
not exceed 15 percent of the fair market value at the date of the lease, 
unless the total cost plus nominal rental does not exceed $2,000 per 
annum.
    (2) When rental plus amounts to be spent by the Government for 
alterations, improvements, and repairs total more than $2,000 and more 
than 15

[[Page 215]]

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



Sec. 644.142  Lease forms and instructions.

    ENG Form 856 will be used for Corps of Engineers leases in the 
United States and possessions, and overseas, for the leasing of 
unimproved land. ENG Form 527 is recommended for leases of improved 
property in overseas areas. Standard Forms 2, 2A, or 2B (short form) 
will be used for all Corps of Engineers leases of improved property in 
the United States and possessions. Standard Form 2B is limited to 
rentals not exceeding $3,600 per annum. The General Provisions are on 
the reverse side of the short form lease.
    (a) Mandatory Clauses. The following clauses must be included in all 
Corps of Engineers leases:
    (1) Officials Not to Benefit clause (para 15 of ENG Form 527) is 
required by 18 U.S.C. 431.
    (2) Gratuities clause (para 16a of ENG Form 527) is required by 5 
U.S.C. 174d.

[[Page 216]]

    (3) Covenant against Contingent Fees (para 14, ENG Form 527) is 
required by 10 U.S.C. 2306(b).
    (4) An Examination of Records clause (para 17, ENG Form 527) is 
required by 10 U.S.C. 2313(b). Exceptions to the use of this clause in 
10 U.S.C. 2313(c) are permitted when the contractor is a foreign 
Government or agency thereof, or when the laws of the country involved 
preclude it. Also, if the Head of the Agency determines, with the 
concurrence of the Comptroller General, that the use of the clause would 
not be in the public interest, it may be omitted in leases covering land 
in foreign countries.
    (5) The Nondiscrimination clause (Executive Order 11063, dated 20 
November 1962) is required in all leases in the United States. It is 
desirable, but is not considered mandatory in overseas leases.
    (b) Hold Harmless Clauses. ``Hold harmless'' clause will not 
normally be added to the lease forms. Where lessors insist upon such a 
clause, however, the following is suggested for use: ``The Lessors 
(licensors) shall not be responsible or liable for injuries to persons 
or damage to property when such injuries or damage are caused by or 
result from the Government's use of the premises under the terms of this 
agreement and are not due to the negligence of the Lessors.''
    (c) Escalator Clauses. In those cases where a lessor expresses an 
unwillingness to enter into a lease, extending for a number of years, 
with a rental consideration that includes a fixed amount for utilities, 
the following clause may be inserted in the standard lease:

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

                     Acquisition of Rights-of-Entry

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



Sec. 644.155  General.

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



Sec. 644.156  Definition.

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



Sec. 644.157  Procedures.

    (a) ENG Form 1258, Right-of-Entry for Survey and Exploration, will 
be used to obtain authority from the owner of lands to be used for the 
purpose of making surveys, test borings, and other exploratory work as 
may be necessary to complete the particular investigation.
    (b) ENG Form 2803, Right-of-Entry for Construction, will be used to 
obtain authority from the owner of lands to be used for construction 
purposes when all of the following conditions apply:
    (1) A Real Estate Directive has been issued on an Army (military) or 
Air Force project, or the Chief of Engineers has approved acquisition in 
connection with a civil works project or for another Government agency.
    (2) The construction schedule does not allow sufficient time to 
secure the

[[Page 217]]

right of possession by normal acquisition procedures.
    (c) Upon execution of an ENG Form 2803, a copy thereof shall be 
forwarded to HQDA (DAEN-REA-L) WASH DC 20314 on Army Military and Air 
Force acquisitions, and in all other cases to HQDA (DAEN-REA-P) WASH DC 
20314, together with a proposed schedule of final acquisition of the 
necessary interests in real estate. If final acquisition is not 
contemplated within six months from the date of the right-of-entry, an 
explanation should also be furnished as to the reason for the delay.
    (d) Division and District Engineers may modify ENG Forms 1258 and 
2803, where necessary, to meet requirements of landowners, provided such 
modifications do not increase the scope of the liability or 
responsibility of the Government over that contained in the standard 
forms.
    (e) It is necessary to recognize not only the effects of entry upon 
a particular parcel of land, but also the effects of the passage of any 
vehicle (land, air, or water) on the area traversed. All possibilities 
of disturbing effects on the countryside shall be considered and routes 
selected to eliminate or minimize such disturbances.
    (f) Any cash settlements in lieu of restoration for damages, 
incurred under ENG Forms 1258 and 2803, will be consummated by 
supplemental agreement in accordance with subpart I.

    Procurement of Options Prior to Real Estate Directives (Military)

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



Sec. 644.165  Purpose and scope.

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



Sec. 644.166  Authority and applicability.

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



Sec. 644.167  Implementation.

    When a District or Division Engineer determines that any of the 
conditions described in Sec. 644.166(b) exist in connection with any 
proposed land acquisition project for military purposes not yet 
authorized by law, or if authorized, not yet covered by a real estate 
directive, he will initiate the following actions:
    (a) Planning Report. A planning report will be developed and 
submitted in accordance with Subpart A. The report will include the 
purpose for which the property is ``likely to be needed''; the estimated 
probable increase in value, if

[[Page 218]]

applicable; and the justification for negotiating for options under the 
authority cited in Sec. 644.166. The report will identify any real 
estate planning reports previously prepared which included the land in 
question. Any future planning reports relating to the same land will 
contain appropriate references to this report.
    (b) Property Identification. Upon receipt of authority to acquire 
options and determination that funds are available, the District or 
Division Engineer will obtain and verify ownership data. If it is deemed 
necessary, title evidence may be obtained in accordance with 
Secs. 644.61 through 644.72.
    (c) Appraisal. Detailed tract appraisals will be prepared in 
accordance with subpart B.
    (d) Procurement of Options. (1) Negotiations for the option will be 
in accordance with procedures outlined in Secs. 644.83 through 644.85, 
except that ENG Form 2926, Option to Purchase Real Property, will be 
used. An attempt should be made to include a provision in the option 
giving the Government the right to acquire all or part of the land 
covered by the option where the land held in a single ownership can be 
separated into definable parcels and the possibility exists that, as 
planning is developed, the entire tract will not be required.
    (2) The following instructions for the use of ENG Form 2926 will be 
followed:
    (i) Insert amount to be paid for the option privilege. This amount 
cannot exceed five percent of the appraised value.
    (ii) If the land has been separated into definable parcels in 
accordance with paragraph (d)(1) of this section, the option should 
describe each parcel and provide for a separate purchase price inclusive 
of any severance damage, as well as an agreed purchase price for the 
entire tract. The amount to be paid for the option privilege will be 
apportioned among the separate parcels.
    (iii) The expiration date of the option on unauthorized projects 
should be far enough in advance to permit the insertion of a land 
acquisition line item in the next available budget; enactment of 
legislation; apportionment of funds by the Office of Management and 
Budget; clearance within the Department of Defense; clearance with the 
Committees on Armed Services of the Senate and House of Representatives, 
if required; issuance of a real estate directive; and allotment of 
funds.
    (iv) Since options obtained under this section will normally be 
recorded, ENG Form 2926 will be acknowledged in the form used in the 
jurisdiction in which the real property is located.
    (e) Report. When all options within the approval area have been 
acquired, and prior to their being exercised by the Government, a report 
will be made to HQDA (DAEN-REA-L) WASH DC 20314 including, but not 
limited to, the following items:
    (1) Project identification.
    (2) Directive authorizing acquisition of options.
    (3) Number of tracts optioned.
    (4) Expiration date of options.
    (5) Total acreage optioned.
    (6) Total amount to be paid if options are excercised.
    (7) Total amount paid for option privilege.
    (8) One copy of each option.
    (9) One copy of each appraisal.



Sec. 644.168  Exercise of options.

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



                Subpart D--Relocation Assistance Program



Sec. 644.175  Cross Reference.

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

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

Subpart E [Reserved]



                           Subpart F--Disposal

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

[[Page 219]]



Sec. 644.311  General.

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



Sec. 644.312  Applicability.

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



Sec. 644.313  Authority.

    The major portion of real property disposal actions performed by the 
Corps of Engineers is predicated on authority derived from the Federal 
Property and Administrative Services Act of 1949, as amended (40 U.S.C. 
471, et seq.), hereinafter referred to as the Federal Property Act, and 
the rules, regulations and delegations of authority issued by the 
General Services Administration (GSA) thereunder. Other authorities 
relating to the disposal of military real property are found in AR 405-
90. The Army and Air Force Basic Real Estate Agreements covering 
disposal of Air Force real estate are found in AR 405-5 and AFR 87-15.



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

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



Sec. 644.315  Disposal priorities.

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



Sec. 644.316  Environmental considerations.

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



Sec. 644.317  Preserving historic landmarks and properties.

    Purposes of the National Historic Preservation Act of 1966, as 
amended, (16 U.S.C. 470) and Executive Order 11593, Protection and 
Enhancement of the Cultural Environment (13 May 1971) will be set forth 
in subpart H (to be

[[Page 220]]

published) and the authorities there cited also apply to the disposal of 
real property. Specific policy guidance in connection with disposals 
having historic significance is published in AR 200-1 and AR 405-90 for 
military real properties and in ER 1105-2-460 for civil works real 
properties.
    (a) The Criteria of Adverse Effect on eligible properties may occur 
under conditions which include but are not limited to:
    (1) Destruction or alteration of all or part of a property.
    (2) Isolation from or alteration of the property's surrounding 
environment.
    (3) Transfer or sale of a property without adequate conditions or 
restrictions regarding preservation, maintenance, or use.
    (b) It is normally intended that the agency responsibilities under 
Section 106 of the National Historical Preservation Act of 1966 and 
Executive Order 11593 run concurrently with the NEPA review process. 
However, obligations pursuant thereto are independent from NEPA 
requirements and must be complied with even when an environmental impact 
statement is not required.



Sec. 644.318  Compliance with State Coastal Zone Management Programs.

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



Sec. 644.319  Protection of wetlands.

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



Sec. 644.320  Floodplain management.

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



Sec. 644.321  Nondiscrimination covenant.

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

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



Sec. 644.322  Disposition of proceeds from disposal.

    (a) Land and Water Conservation Fund. Except as provided in 
paragraphs (b) and (c) of this section and unless otherwise obligated by 
existing or future acts of Congress, all proceeds received from any 
civil works project disposal of surplus real property or related 
personal property under the Federal Property Act, shall be covered into 
the land and water conservation fund in the Treasury of the United 
States (16 U.S.C. 460L-5(a), FPMR Section 101-47.307-6). This includes 
the net proceeds from the sale of timber and structures.
    (b) Department of Defense Family Housing Management Account. Section

[[Page 221]]

501(b) of Pub. L. 87-554, as amended, 42 U.S.C. 1594a-1, provides that 
the proceeds from the disposal of family housing of the Department of 
Defense, including related land and improvements, shall be transferred 
to Family Housing Management Account, Defense. This does not include 
civil works housing, or houses on land acquired for military purposes 
unless the housing was specifically acquired to house military 
personnel. This means that excess military family housing and related 
land and improvements should be reported to GSA on Standard Form 118 
separate and apart from Reports of Excess for other portions of an 
excess installation. Particular care should be taken to ensure that the 
following statement be included in each such report of excess to GSA:

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

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



Sec. 644.323  Neutral language.

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



Secs. 644.324--644.325  [Reserved]

          Procedure for Placing Real Property in Excess Status



Sec. 644.326  Army military real property.

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



Sec. 644.327  Air Force military real property.

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



Sec. 644.328  Army military leased property.

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



Sec. 644.329  Army civil works real property.

    (a) Fee-Owned Land and Easements. (1) Action by Division/District 
Engineer (DE). When the DE is of the opinion that real property acquired 
in fee or

[[Page 222]]

easement for a civil works project is no longer required for such 
purpose, he will submit a report and recommendation to HQDA (DAEN-REM) 
WASH DC 20314, accompanied by:
    (i) A brief description of the character or nature of the land with 
an appropriately marked map showing the approximate acreage 
consideration to be excess. Detailed perimeter descriptions need not be 
procured or furnished with the report and recommendation for excessing.
    (ii) Description of buildings and improvements.
    (iii) Information as to circumstances that might hinder or prevent 
disposition, e.g. remoteness of location, unfavorable topography, and 
lack of legal access.
    (iv) Information as to when and how the property was acquired.
    (v) Information as to the estate which the Government has in the 
land, reservations and exceptions in and to the Government's title, and 
outstanding interests granted by the Government or reserved or excepted 
in the acquisition of the land, will be stated with particularity. The 
map or plat will delineate any grant, exception or reservation, such as 
telephone, telegraph, electric transmission, oil, gas, and water lines.
    (vi) Purchase price of lands (estimate if only a portion of original 
tract), buildings and improvements acquired with the lands, and the cost 
of buildings and improvements, if any, constructed by the United States.
    (2) Action by the Office of the Chief of Engineers. When the value 
of an easement interest reported pursuant to (a)(1) of this section does 
not exceed $1,500, OCE will make the final determination of excess and 
authorize action accordingly. In the case of fee-owned land regardless 
of value, or easement interests having a value in excess of $1,500, when 
OCE finds that no requirement for the property exists, a recommendation 
will be made to the Secretary of the Army that authority be granted for 
disposal of the property.
    (b) Leaseholds. When the DE is of the opinion that real property 
acquired by lease for a civil works project is no longer required for 
such purpose, and after screening the property for other Federal 
requirements in accordance with Secs. 644.333 through 644.339, he will 
take necessary action to terminate the lease in accordance with the 
procedure outlined in Secs. 644.444 through 644.471.



Secs. 644.330--644.332  [Reserved]

          Screening, Reassignment and Transfer of Real Property



Sec. 644.333  Screening for defense needs.

    Real property which becomes excess to the needs of any element of 
the Army or Air Force will be screened against requirements of other 
Department of Defense (DOD) agencies and the U.S. Coast Guard in order 
to promote and obtain the most efficient and complete utilization of 
real property before disposing of it.
    (a) Procedure for Screening Army Military Property. Screening for 
defense requirements with respect to base closures publicly announced by 
the Secretary of Defense or Secretary of the Army which result in 
excessing of real property will not be accomplished unless directed by 
HQDA (DAEN-ZCI) Washington DC 20314. Instructions to screen will be 
included in the disposal directive transmitted to the DE when such 
action is desired. In the absence of such instructions, it is presumed 
that DOD has negatively evaluated all possible requirements of DOD 
agencies before making the public announcement.
    (1) Fee-owned Land. Screening is required in all other cases unless 
specifically directed otherwise. Property will be screened 
simultaneously against other Army requirements, and for Navy, Air Force, 
Coast Guard, and Defense agency requirements. The property should also 
be screened against known Department of the Army Civil Works 
requirements.
    (i) The DE will dispatch a screening message promptly upon receipt 
of an excess directive or recommendation pursuant to AR 405-90. The 
sample screening message in ER 405-1-12 at Figure 11-1, or a letter 
similar in form and content will be used without substantial deviation.
    (ii) All action addressees and parties listed for information on 
Figure 11-1 in ER 405-1-12 will be included, except that Air Force real 
property in Hawaii will be screened with the Commander-

[[Page 223]]

in-Chief, Pacific Air Forces, in lieu of HQ, USAF. The appropriate major 
Army command, when not the using command, will be listed as an action 
addressee.
    (iii) In no case will screening be deferred unless authorized by 
DAEN-REM. At the expiration of the screening period (normally 30 days) a 
report of results will be forwarded and subsequent action initiated as 
provided in paragraph (e) of this section.
    (iv) For certain cases, most frequently in connection with base 
realignments or Executive Order 11954 surveys, accelerated screening 
procedures are set out in AR 405-90.
    (2) Capehart and Wherry Housing Projects. Due to the complicated 
financial arrangements under which such projects are constructed and 
operated, the disposal thereof, whether separately or as a part of a 
larger installation, requires careful study. In order to assure maximum 
time in which to discover and evaluate problems arising in each of such 
cases, the DE will notify HQDA (DAEN-REM) Washington DC 20314, by 
teletype, immediately upon receipt of information of an installation 
commander's recommendation of excess involving Capehart and acquired 
Wherry housing projects. Included with this notice will be advice on the 
source of utilities and any problems of which the DE may be aware.
    (b) Leaseholds, Buildings and Improvements. Leaseholds, buildings, 
and other improvements will not be screened formally within the 
Department of the Army (DA). When such property is made available or 
disposal under AR 405-90 and Secs. 644.326 through 644.329, it will be 
screened by the responsible DE with the Air Force, Coast Guard, and Navy 
and against known Army military and civil works requirements within the 
Division. Screening with the Air Force of leaseholds having an annual 
rental in excess of $50,000 will be addressed to HQ, USAF. Other Air 
Force screening under this subparagraph will be with local Air Force 
installations. Screening with the Navy will be addressed to the 
appropriate naval district. Screening with the Coast Guard and Defense 
agencies will be with the local representatives of those agencies. 
Property under the jurisdiction of GSA which has been assigned to the DA 
or Department of the Air Force (DAF) for use is not subject to this 
screening procedure, but the DE will determine whether such property 
would serve any current unfulfilled real property acquisition directives 
pending in his office.
    (1) Family Housing Leases. Family housing leases under authority of 
Section 515, Pub. L. 84-161, 69 Stat. 352, as amended and extended, will 
be terminated promptly upon determination that the property is excess to 
the needs of the using command, without screening for other 
requirements.
    (2) Limit Screening. Screening which would serve no useful purpose 
is to be avoided. Screening of buildings and improvements on sites 
needed for approved construction should be limited as construction 
schedules require. The DE will take timely action to minimize additional 
cost and rental payments due to screening and may, at his discretion, 
limit screening of leaseholds and improvements to be removed from the 
site to informal notices to appropriate local Defense agencies. The DEs 
are authorized to waive screening of nonassignable or short term 
interests in real property when such screening would serve no useful 
purpose.
    (3) Notice of Restoration Requirements. All screening notices of 
leaseholds and improvements available for off-site removal will indicate 
that transferees will be required to perform necessary site restoration 
as a prerequisite to obtaining transfer and will reflect the extent of 
restoration required.
    (c) Procedure for Screening Civil Works Property. Buildings and 
improvements, leaseholds, and fee-owned land that have been determined 
excess to civil works requirements in accordance with this part will be 
screened with the appropriate major Army and local service commanders, 
and with the Navy, Air Force, Coast Guard, and Defense agencies. (GSA 
property assigned to the Army for use is not subject to formal screening 
hereunder but will be screened against known acquisition directives or 
requirements in the DE office.) Except to the extent that DEs determine 
they are inappropriate, screening procedures for civil works property

[[Page 224]]

will be the same as for Army military property.
    (d) Screening of Air Force Property. HQ, USAF and the major Air 
Force commands screen Air Force real property before authorizing 
disposal action by the Corps of Engineers in accordance with AFR 87-4. 
DEs will act on requests for disposal action on buildings and 
improvements and leased property received directly from major Air Force 
commands which conform with AFR 87-4. Disposal directives on fee-owned 
land and easements will be issued by HQ, USAF and referred through DAEN-
REM.
    (e) Report on Screening and Related Actions. Immediately following 
the screening of fee-owned land, the DE will forward to DAEN-REM a 
report of the results of the screening (with comments and 
recommendations where a further Army or other Defense requirement is 
indicated). This report will serve as one of the basis of a 
determination whether the property is excess to the rquirements of the 
DOD. Upon dispatch of the screening report, the DE will proceed with 
further action pursuant to Secs. 644.340 through 644.347 and 
Secs. 644.385 through 644.389. No report on screening of civil works 
property is required unless there is a request for transfer or 
reassignment of the property screened.
    (f) Property with an Estimated Value of $50,000 or Less. If the 
property has an estimated value of $50,000 or less, the determination 
that the property is excess to Army requirements will be made by the 
Department of the Army without referral to DOD, and the Chief of 
Engineers will direct the DE accordingly. Upon receipt of this disposal 
directive, prompt action will be taken to report the property to GSA or 
take other disposal action as appropriate.
    (g) Estimated Value in Excess of $50,000. If military property has 
an estimated value in excess of $50,000, it must be reported to the 
Armed Services Committees of Congress pursuant to title 10, United 
States Code, section 2662. The final Army determination of excess and 
recommendations to the Assistant Secretary of Defense (MRA&L) to approve 
the proposed disposal report to the Armed Services Committees by the 
Chief of Engineers, utilizing Real Estate Disposal Report, ENG Form 
2187R, are combined in a single action. The Chief of Engineers will 
advise of DOD approval of the proposed disposal when made. Upon receipt 
of this information responsible Division and District Engineers will 
furnish GSA a preliminary report of excess. The preliminary report of 
excess will be finalized, upon receipt of instructions from the Chief of 
Engineers. This procedure is also applicable to Air Force disposals. If 
the preliminary report of excess is sufficiently complete and accurate, 
it may be finalized by letter or simple statement on Standard Form 118, 
Report of Excess Real Property.
    (h) Date of Excess for Reporting Purposes. From the above, it will 
be noted that where property has an estimated value in excess of 
$100,000, the determination that the property is excess to the 
requirements of the Department of the Army is, in effect, made 
concurrently with the determination that the property is excess to the 
requirements of the DOD, or is approved for transfer to another military 
department. For all practical purposes, these determinations are best 
evidenced by the Assistant Secretary of Defense's approval of the 
proposed disposal. The date of approval may be used as the date the 
property was determined excess to Army requirements for reporting 
purposes.



Sec. 644.334  Reassignment and transfer procedures.

    Reassignment refers to the changing of the administrative or command 
jurisdiction of real property from one command to another within the 
same military department. Reassignments may be accomplished by the 
Secretary or the staff without prior approval of the DOD or the Armed 
Services Committees of the Congress. Transfer refers to changing the 
jurisdiction for using and administering real property from one military 
department to another.
    (a) Reassignment Procedures--Army--(1) Military. Reassignments of 
military real property are accomplished pursuant to a directive from 
DAEN-REM. These are not real estate disposal actions.
    (2) Civil Works. Reassignments from civil works to military 
jurisdiction,

[[Page 225]]

and vice versa, are accomplished pursuant to directive or approval of 
the Secretary of the Army based on the recommendations of the Chief of 
Engineers.
    (3) Information Required. Information to support recommendation for 
reassignments of military or civil real property to another using 
service of the Army, or to change the military or civil accountability 
within the Corps, will be furnished by the DE to DAEN-REM as follows:
    (i) Reference to excess directive, if any.
    (ii) Description and map of lands.
    (iii) Date, manner, and cost of acquisition of land and 
improvements.
    (iv) Reference to any encumbrances which might affect the 
reassignment and use.
    (v) Proposed effective date of reassignment.
    (vi) Proposed new use.
    (b) Reassignment of Air Force Property. The Air Force Staff 
reassigns real property within the Department of the Air Force.
    (c) Transfer of Military Property. Procedure for transfer among 
military departments is substantially the same as for transfer to other 
Federal agencies, and is set forth in Secs. 644.400 through 644.443 and 
Secs. 644.472 through 644.500.



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

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



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

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



Secs. 644.337--644.339  [Reserved]

                 Clearances--Army Military Real Property



Sec. 644.340  Reports to the Armed Services committees.

    (a) Sections 644.340 through 644.347 describe the responsibilities 
of the Chief of Engineers in, and prescribes procedures for, clearing 
proposals for certain leasing and for disposals of Army real property 
with the Department of Defense and the Armed Services Committees of the 
Senate and

[[Page 226]]

House of Representatives. (The Air Force obtains its own clearance.) It 
is applicable to Division and District Engineers having military real 
estate responsibility. Clearance is not required for civil works 
properties.
    (b) Title 10 U.S.C. 2662 as amended by Pub. L. 96-418, dated 10 Oct. 
1980, provides, in part that:

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

                                * * * * *

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

                                * * * * *

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

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



Sec. 644.341  Clearance with the Armed Services committees.

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



Sec. 644.342  Prior approval of Department of Defense.

    (a) DOD Instruction 4165.12 requires advance approval by the 
Assistant Secretary of Defense (MRA&L) of disposal actions requiring 
congressional committee clearance. DOD approval is also

[[Page 227]]

required for withdrawal from excess of real estate, or an interest in 
real estate, which has an estimated fair market value in excess of 
$100,000.
    (b) The data submitted pursuant to Sec. 644.341 will be used to 
obtain DOD approval of projects to be submitted to the Armed Services 
Committees. Appropriate information will be furnished to obtain required 
DOD approval of withdrawals from excess.



Sec. 644.343  Additional data for clearance with the committees.

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

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

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



Sec. 644.344  Coordination with GSA.

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



Secs. 644.345--644.347  [Reserved]

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



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

    Much of the authority and responsibility of the COE as real estate 
agent for the Departments of the Army and

[[Page 228]]

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



Sec. 644.349  Excess property reported for disposal.

    The following types of excess real property must be reported to GSA 
for disposal, utilizing Standard Form 118 (SF 118), Report of Excess 
Real Property, as set forth in Sec. 644.355:
    (a) Fee-owned. All fee-owned property, with improvements and related 
personal property, which has, in the opinion of the DE, an estimated 
fair market value of $1,000 or more, together with such incidental, 
related, or appurtenant lesser interests, with or without Government-
owned improvements and related personal property, held under lease, 
permit, license, easement, or similar instrument, useful in connection 
therewith, except property which is subject to:
    (1) A lease containing an option to purchase;
    (2) A lease containing a right of first refusal to purchase or to 
lease for an additional period;
    (3) A right in the Government's grantor to the reversion of title; 
or
    (4) A right reserved by the Government's grantor to repurchase the 
property.
    (b) Public Domain. All withdrawn or reserved public domain lands, 
together with the improvements thereon which, in the opinion of the DE, 
have an estimated fair market value of $1,000 or more, and for which 
notification, pursuant to 43 CFR 2374.1, has been received from the 
Bureau of Land Management (BLM) that the property, in effect, has been 
determined excess within the meaning of the Federal Property Act (see 
Secs. 644.376 through 644.384 for procedures for disposal of public 
domain land). Minerals in the lands will be specifically excluded from 
the report of excess unless BLM advises otherwise. The Report of Excess, 
SF 118, will include as a part of the report on the Government's legal 
title, a true copy of the notice by BLM to report the property excess, 
and information of record in BLM on claims, if any, by other agencies, 
and any claims or encumbrances under the public land laws.



Sec. 644.350  Excess property reported for screening.

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

[[Page 229]]

from site. The report of excess will contain an estimate of the cost of 
restoration necessary under the lease that a prospective transferee 
agency will be required to assume.
    (d) Fee-owned property which, with improvements and related personal 
property, in the opinion of the responsible Division or District 
engineer, have a fair market value of $1,000 or more, and is not 
reported to the General Services Administration for disposal as a result 
of the exception contained in Sec. 644.349(a) (because of outstanding 
options to purchase, etc., or because of rights retained by the 
Government grantor).



Sec. 644.351  Excess property exempted from reporting.

    No reports to GSA are required for the following types of excess 
property:
    (a) Fee-owned land, including withdrawn or reserved public domain 
land which BLM made available for disposal under Federal Property Act, 
together with the Government-owned improvements and related personal 
property, having an estimated fair market value of less than $1,000 in 
the opinion of the responsible DE;
    (b) Excess non-Government-owned property held under lease, license, 
easement, or similar instrument, when Government-owned improvements with 
related personal property have a net salvage value of less than $1,000 
or are to be transferred to the owner of the land in restoration 
settlement, and;
    (1) The lease or similar instrument is subject to termination by the 
grantor of the premises within nine months; or
    (2) The remaining term of the lease or similar instrument, including 
renewal rights, will provide for less than nine months of use and 
occupancy; or
    (3) A provision of the lease or similar instrument would preclude 
transfer to another Federal agency or disposal to a third party; or
    (4) The lease or similar instrument provides for use and occupany of 
space for office, storage, and related facilities, which does not exceed 
a total of 2,500 square feet; or
    (5) Where additional rental would be incurred.
    (c) Excess Government-owned improvements on nonexcess land, which 
improvements, in the opinion of the responsible DE, have a net salvage 
value of less that $1,000.
    (d) Leased space assigned by GSA, and land and improvements owned by 
and permitted from other Government agencies.
    (e) Excess timber, sand, gravel and stone-quarried products, and 
growing crops on nonexcess land regardless of value.
    (f) Excess withdrawn or reserved public domain lands, regardless of 
value, which are offered to and accepted by the Department of the 
Interior for return to the public domain pursuant to Secs. 644.376 
through 644.384.
    (g) Prefabricated movable structures, such as Butler-type storage 
warehouses and quonset huts, and housetrailers (with or without 
undercarriages), which are located on nonexcess land for off-site use. 
These types of structures shall be reported as personal property in 
accordance with FPMR, part 101-43, Utilization of Personal Property. 
However, when such structures are located on leased or permitted land 
subjecting the Department to any restoration obligations, the property 
will be treated as real property for the purpose of satisfying such 
obligations to the maximum extent feasible.



Sec. 644.352  Evaluation and reporting of flood hazards.

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

[[Page 230]]



Sec. 644.353  Determination of values for reporting.

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



Sec. 644.354  Conditional reports of excess.

    As an exception to its general policy, GSA has agreed with the 
Department of Defense to accept reports of excess on some facilities 
with instructions on their disposal, specifically:
    (a) Defense Industrial Reserve (DIR). The Defense Industrial Reserve 
Act 50 U.S.C. 451 et seq., authorizes the Secretary of Defense to 
determine which excess industrial properties should become a part of DIR 
and to formulate a national security clause or recapture provisions to 
preserve the production capacity of the plants for use in the event of a 
national emergency. Excess DIR plants are reported to GSA for disposal 
subject to the national security clause or the recapture provisions. 
(See FPMR Subsection 101-47.306-2 for procedures where GSA is unable to 
dispose of the property because of the restrictions imposed by the 
national security clause or recapture provisions.)
    (b) Reserving Property for Civil Defense Purposes. GSA has agreed to 
accept reports of excess of missile sites and other facilities having 
similar protective features, with restrictions on their disposal. DEs 
will be notified when DOD advises that a specified local government unit 
is interested in acquiring such property. Reports of excess will specify 
the local government unit interested. Disposal of the property will be 
limited to conveyance to the local government unit, with conditions 
restricting its use to civil defense purposes for a period of 20 years, 
with reverter to the United States for breach of condition. In 
appropriate cases, GSA will enter into a temporary lease arrangement if 
necessary to afford a local government unit an opportunity to obtain the 
necessary funds for purchase. This procedure is limited to cases where 
DOD has determined and advised there is a civil defense need. Disposal 
action will not be delayed pending receipt of such advise.



Sec. 644.355  Preparation and submission of reports of excess.

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

[[Page 231]]

report and continuing in numerical sequence for succeeding reports made 
during the calendar year. The number will be preceded by the symbol of 
the DE making the report and the calendar year e.g., SWF-79-6, for the 
sixth report submitted by Fort Worth District of Southwestern Division 
for calendar year 1979.



Sec. 644.356  Report on Government title.

    In all cases where Government-owned land is reported, there shall be 
attached to and made a part of SF 118 (original and copies thereof), a 
report prepared by a qualified employee of the holding agency on the 
Government's title to the property, based upon his review of the records 
of the agency. The report shall recite:
    (a) The description of the property.
    (b) The date title vested in the United States.
    (c) All exceptions, reservations, conditions and restrictions 
relating to the title acquired.
    (d) Detailed information concerning any action, thing or 
circumstance that occurred from the date of the acquisition of the 
property by the United States to the date of the report which in any way 
affected, or may have affected, the right, title, and interest of the 
United States in and to the real property (together with copies of such 
legal comments or opinions as may be contained in the file concerning 
the manner in which and the extent to which such right, title or 
interest may have been affected). In the absence of any such action, 
thing or circumstance, a statement to that effect shall be made a part 
of the report.
    (e) The status of legislative civil and criminal jurisdiction over 
the land peculiar to the property by reason of it being Government-owned 
land. If the United States does not hold such legislative jurisdiction, 
the report on government title should so state.
    (f) All exceptions, reservations, conditions and restrictions 
imposed by higher authority on the property at time of disposal. No 
additions or substantive changes to these will be made without prior 
approval from HQDA (DAEN-REM), WASH, DC 20314.
    (g) If the property, or any portion of it, has been listed in the 
National Register of Historic Places, or has been nominated for listing 
or nomination, this should be included in the SF 118. Specific fixtures 
and related personal property having possible historic or artistic value 
should also be included. (See Sec. 644.317 for information on historic 
preservation.)



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

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

[[Page 232]]



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

    (a) Title 42 U.S.C. 1594a-1(b) provides that the proceeds from the 
disposition of Department of Defense Housing, including related land and 
improvements, shall be transferred to the DOD Family Housing Management 
Account for the purpose of debt service. Arrangements have been made 
between DOD and GSA to implement this law and apply it to excess MCA 
housing as well as to housing encumbered by mortgage debts such as 
Capehart and Wherry Housing projects. (See Sec. 644.322(b).)
    (b) The agreement with GSA calls for separate identification and 
description in the Report of Excess (SF 118) of those improvements which 
are considered family housing within the purview of the law and a 
request in the report that proceeds from disposal be transferred to the 
DOD Family Housing Management Account. (The actual transfer of funds 
will be accomplished at Washington level.)
    (c) Where the Report of Excess includes both housing and property 
not related to housing, separate schedules (SF 118 a and b) will be 
prepared to cover the housing involved, including related land and other 
improvements. The housing schedules should be annotated and arranged 
categorically to show:
    (1) Number of structures by type of authorization, i.e. Wherry Act, 
Capehart Act, Military Construction Authorization Act, Lanham Act, etc.
    (2) The number of family units.
    (3) Those improvements and collateral facilities which are 
considered ``related'' to the housing.
    (4) Where reasonably apparent, a description of the acreage or 
boundaries of the family housing areas as distinguished from other 
excess lands.
    (5) A statement as follows: ``Net proceeds from the sale of this 
family housing, including related lands and improvements, shall be 
remitted to DOD for deposit to Family Housing Management Account, 
Defense 97X0700.''



Sec. 644.359  Supplemental information.

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



Sec. 644.360  Reports submitted for screening.

    Excess leaseholds and buildings and improvements to be disposed of 
separately from the land which, pursuant to Sec. 644.350, must be 
reported to GSA for screening purposes only, will be reported 
immediately when the property is determined to be excess to the 
particular military department having jurisdiction. The report will 
contain the statement: ``This property is reported for screening with 
civilian agencies by GSA prior to its disposal by the Corps of 
Engineers. The property is being screened within DOD and when the 
screening has been completed, appropriate certification will be 
submitted to GSA.'' Screening against defense requirements, pursuant to 
Secs. 644.333 through 644.339, will then be completed and GSA notified 
of the result. If such screening results in the development of a 
requirement by one of the other military services, the Report of Excess 
will be withdrawn and the transfer of the property to the requesting 
military service effected. This specialized procedure for this type of 
property is adopted to allow screening for defense requirements by the 
Corps of Engineers to be accomplished simultaneously with the screening 
of civilian agencies by GSA. Where circumstances require that this type 
of property be screened within a limited period of time, the period 
should be specified and an explanation set forth on the face of the 
Report of Excess, as, for example: ``Buildings are in the way of planned 
new construction and must be removed or demolished not later than 
(date). Accordingly, advice must be received on or before (date) as to 
whether a requirement exists for the property, or whether it is

[[Page 233]]

to be transferred or assigned to another Federal agency for removal 
within the time specified.'' If such advice is not received by the time 
specified, the property should be disposed of without further delay and 
GSA notified of the action.



Sec. 644.361  Distribution of report of excess.

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



Sec. 644.362  Notice of receipt.

    GSA should promptly notify the holding agency of the date of 
acceptance of each Report of Excess (SF 118). The date GSA will assume 
the expense of cost and custody as provided in Secs. 644.368 through 
644.375, will be figured from this date.



Sec. 644.363  Withdrawals or corrections of reports of excess.

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



Sec. 644.364  Supply of forms.

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



Secs. 644.365--644.367  [Reserved]

             Care and Custody of Excess and Surplus Property



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

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

[[Page 234]]



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

    Detailed guidelines are provided in FPMR Subsection 101-47.4913.
    (a) Calculated Risk. These guidelines, which are binding on holding 
agencies, embody the principle of calculated risk. In applying this 
principle, the anticipated losses and deteriorations, including 
pilferage and vandalism, in terms of realizable values are expected to 
be less than expenditures to minimize the risks. Normally, where 
property is of little value, only periodic surveillance is necessary and 
care and custody forces will not be maintained. However, where property, 
regardless of realizable value, is potentially an attractive nuisance to 
children and curiosity seekers, or is inherently dangerous, the public 
should be protected by guards stationed on the property or by other 
satisfactory means. Every effort should be made to minimize the cost of 
care, protection and maintenance consistent with these principles.
    (b) Improvements or Alterations. FPMR Subsection 101-47.401-5, 
provides that improvements and alterations to excess and surplus real 
property may be considered, with the prior approval of GSA, where 
disposal cannot be made. However, it is not considered likely that a 
situation will arise in the Corps' disposal operations where such 
improvements or alterations can be justified. Repairs necessary for 
protection and maintenance of marketable property will not be undertaken 
except to prevent serious loss to the Government. Excess equipment or 
facilities should not be updated or improved. At predisposal 
conferences, or earlier where practicable, the DE, in coordination with 
GSA representatives, will furnish specific guidance to the using command 
as to the minimum acceptable GSA requirement for care and custody. The 
requirement for minimum maintenance does not extend to historic places. 
Historic places in excess or suplus status will be maintained in 
accordance with the letter and spirit of approved Department of the Army 
criteria for protection, preservation and maintenance of historic 
places.



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

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

[[Page 235]]

is to be carried on the real property inventory of the department.



Sec. 644.371  Contracting for care and custody.

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



Sec. 644.372  Care and custody through interim use.

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



Secs. 644.373--644.375  [Reserved]

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



Sec. 644.376  Procedure for disposal of public domain land.

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

[[Page 236]]

Bureau of Land Management (BLM) Land Office having jurisdiction.

Excess buildings and improvements on the property should be left in 
place and no disposal action taken thereon pending further instructions 
from BLM, unless it is determined that they should be abandoned in 
accordance with the procedures set forth in Secs. 644.472 through 
644.500. A copy of the Notice of Intention to Relinquish submitted to 
the appropriate BLM Land Office will be transmitted to HQDA (DAEN-REM) 
Washington, DC 20314 and to the appropriate GSA regional office.
    (b) If any restoration, or other work, is proposed to be performed 
on the land, the matter will be forwarded to DAEN-REM for prior 
approval. Where the DE recommends disposition of the land by GSA as 
excess property rather than return to the public domain, no restoration 
of the property will be proposed (see 43 CFR 2372.1). Generally, lands 
which are unimproved, or contain only minor improvements, will be 
recommended for return to the public domain. Exception to this procedure 
should be made where development surrounding, or in the vicinity of the 
land, has changed its character, although the land itself has not been 
improved. Another exception would be the situation described in 
Sec. 644.350(d). Generally lands which are extensively improved will be 
recommended to BLM for disposal as excess property.
    (c) If the authorized officer of BLM determines, pursuant to 43 CFR 
2372.3, that the conditions prescribed by that regulation have been met 
and that the land is suitable for return to the public domain, he will 
notify the DE, as the representative of the holding agency, that the 
Department of the Interior accepts accountability and responsibility for 
the property. A copy of this notification will be furnished to HQDA 
(DAEN-REP) Washington, DC 20314.
    (d) If the authorized officer of BLM determines, pursuant to 43 CFR 
2374.1, that the land is not suitable for return to the public domain 
because it is substantially changed in character, and GSA concurs in 
this determination, he will notify the DE to report the land and 
improvements, with or without minerals, to GSA as excess property. Upon 
receipt of this notice, the DE will advise DAEN-REP and report the 
property to GSA on SF 118, Report of Excess Real Property, including the 
information on claims and encumbrances furnished by BLM under 43 CFR 
2374.1 (c). The holding agency has the same responsibility for care, 
custody, and accountability of excess public domain as for other 
property reported to GSA for disposal.



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

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



Sec. 644.378  Cancellation of permits.

    (a) Land obtained by permit, or some other form of instrument, from 
another Federal agency on a temporary basis which has not been 
substantially improved while being utilized by the Department, when 
determined to be excess in accordance with the procedure set forth in 
Secs. 644.326 through 644.332, will be returned to the Federal agency 
from which it was obtained.
    (b) When it is determined by the DE that land obtained by permit, or 
other form of instrument, from another Federal agency on a temporary 
basis has been substantially improved while being utilized by the 
Department, the DE will request DAEN-REM to determine whether the land 
is excess, or is expected to become excess, to the requirements of the 
agency from which it was obtained.
    (1) If the agency from which the land was obtained advises that the 
land is excess, or is expected to become excess, to its requirements, 
the improvements will be reported to GSA on SF 118 in accordance with 
the procedure described in Secs. 644.348 through 644.347, with a 
statement that the agency from

[[Page 237]]

which the land was obtained has advised that the land is excess, or is 
expected to become excess to its requirements, and that the agency will 
be or has been requested to reassume administrative control over the 
land. Coincident with the report of excess, action will be initiated to 
return the land to the agency from which it was obtained.
    (2) If the agency from which the land was obtained advises that the 
land is not excess, and is not expected to become excess to its 
requirements, improvements constructed thereon while the property was 
being utilized by the Department will be disposed of in accordance with 
the provisions of Sec. 644.381. Where the improvements are substantial, 
and cannot be utilized effectively by the agency from which the land was 
obtained, and it appears that the best interests of the Government may 
not be served by disposal of the improvements for removal from the site, 
a report, with recommendations, should be forwarded to DAEN-REM for a 
determination whether the permit and improvements should be reported to 
GSA for disposal, or whether other action would be appropriate.
    (c) The Chief of Engineers, or his duly authorized representatives, 
will execute and deliver necessary papers effecting the relinquishment 
of permits and the transfer of real property to other Federal agencies 
when the installations to which such real property or permits pertain 
have been determined to be excess. However, where permits were obtained 
at local level, DEs will effect relinquishment in the same manner. 
Unless otherwise instructed, no action will be taken by the DE to 
restore or return the lands pertaining to an industrial installation to 
the agency which granted the permit. DEs will, however, submit the 
report required in Sec. 644.379.
    (d) Where an installation embraces lands acquired in fee by a 
military department and lands acquired for temporary use from other 
departments or agencies, and if return of the latter type of lands to 
the department or agency which granted the permit would destroy the 
integrity of the installation or affect its ultimate disposal as a unit, 
a report will be made to DAEN-REM with recommendations that they will 
provide disposition instructions.



Sec. 644.379  Procedure for cancellation of permits.

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



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

    (a) Requirement. Where the Department retransfers real property, the 
use of which has been obtained from other Federal agencies (including 
withdrawals from the public domain recommended for return to the public 
domain) by means of use permits, public land orders, or other methods, 
the

[[Page 238]]

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

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


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



Sec. 644.381  Disposal of buildings and other improvements.

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



Secs. 644.382--644.384  [Reserved]

                           Predisposal Action



Sec. 644.385  Record of excess classification.

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



Sec. 644.386  Utilization for other needs.

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

[[Page 239]]



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

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



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

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



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

    (a) DEs will be advised of military installations to be surveyed 
under E.O. 11954 by a DOD or GSA survey team.
    (b) If property is to be declared excess as a result of a decision 
by the Department of the Army, appropriate commanders and DEs will be 
advised. The major commander will be requested to submit a Report of 
Excess pursuant to AR 405-90 to HQDA

[[Page 240]]

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



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

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



Sec. 644.391  Predisposal conference.

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

[[Page 241]]

economical and in the best interest of the Government. Important 
benefits to DOD agencies would be reduction in expenditures and 
personnel of the military departments for such functions. Copies of the 
study will be furnished the using command concerned for timely review 
and recommendations.



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

    The DAF will issue a preliminary real estate disposal directive when 
a disposal project is forwarded to the Assistant Secretary of Defense 
(Manpower, Reserve Affairs and Logistics) for clearance. (Air Force 
screens its own properties for other defense requirements and clears the 
disposal with DOD and the Armed Services Committees of the Congress.) 
When the preliminary real estate disposal directive is received, the DE, 
unless directed otherwise, will proceed to perform all necessary actions 
in coordination with the installation commander concerned, for 
submission of a preliminary Report of Excess to GSA.



Sec. 644.393  Final report of excess to GSA.

    Where a preliminary Report of Excess is made to GSA, the DE will 
promptly finalize the report upon receipt to the final Air Force 
disposal directive. In all cases where a disposal is reported to the 
Armed Services Committee, the DE will furnish HQDA (DAEN-REM) advice 
when the final report is made to GSA. Where the report is finalized by 
statement confirming a preliminary report as final, copies of the 
preliminary report and confirming statement should be distributed in 
accordance with Secs. 644.348 through 644.367. Distribution of 
preliminary Reports of Excess, except to GSA, will not be made in other 
cases.



Sec. 644.394  Protection of disposal information.

    To prevent premature disclosure to the public, information on and 
plans for disposal of all or a portion of an installation should be 
protected (AR 340-16), until such time as the property is determined 
excess to Army or Air Force requirements. (The Air Force preliminary 
real estate disposal directive is not issued until a determination has 
been made that the property is excess to Air Force requirements.) After 
determinations of excess are made, it is desirable that information on 
the availability of the property for disposal be widely disseminated. 
``FOR OFFICIAL USE ONLY'' marking on plans and correspondence pertaining 
to the excess action may be cancelled by any recipient or holder. Where 
the classification ``CONFIDENTIAL'' or higher has been used, documents 
must be declassified in accordance with AR 380-5.



Sec. 644.395  Coordination on disposal problems.

    If any major change or problem requires a significant revision in 
the time schedule for disposal, prompt action will be taken to advise 
offices concerned. HQDA (DAEN-REM) should be promptly informed of any 
problem adversely affecting a specific disposal project or the overall 
program for disposal or property.



Sec. 644.396  Assignment of personnel to administer.

    To extent appropriate according to the circumstances and nature of 
the property, the DE will assign a responsible representative to each 
installation, or group of installations, to act under his staff 
supervision in performance of the following functions:
    (a) Monitoring and expediting the actions described in Secs. 644.385 
through 644.399 and maintaining close liaison with GSA on disposal 
problems and actions.
    (b) Monitoring and expediting performance of such demolition, 
dismantling or other construction work as may be authorized.
    (c) Administration, operation and maintenance of the excess 
installation until final disposal, making every effort by consolidation 
of activities and otherwise to reduce the costs consistent with economic 
management of the facilities.
    (d) Coordination of ultimate transfer of assumed custodial 
responsibility to other agencies or persons as directed.

[[Page 242]]



Secs. 644.397--644.399  [Reserved]

       Disposal of Fee-Owned Real Property and Easement Interests



Sec. 644.400  Authorities--general.

    (a) Statutory Authorities. Power to dispose of real estate belonging 
to the United States is vested in Congress (paragraph 2, Section 3, 
Article IV, Constitution of the United States), and no real estate of 
the Department will be sold or otherwise disposed of without authority 
of Congress. By the Federal Property and Administrative Services Act of 
1949 (Federal Property Act), (Pub. L. 152, 81st Congress; 63 Stat. 377) 
as amended, (40 U.S.C. 471 et seq.), Congress provided authority for 
utilization of excess property and the disposal of surplus Federal 
property, and established the General Services Administration (GSA) to 
administer the provisions of that Act. All excess and surplus Federal 
real estate and real property components will be disposed of under 
authority of the Federal Property Act, as amended, unless other 
statutory authority for such disposal is specifically withheld under the 
provisions of the Act or enacted subsequent thereto. In connection with 
disposals made under statutory authority other than the Federal Property 
Act, attention should be given to the purposes of the legislation and 
insofar as practicable, disposal of property should be in accordance 
with the provisions of the Act and the regulations issued thereunder, in 
order that the greatest overall efficiency and economy be effected.
    (b) Rules and Regulations--(1) Issued by the GSA. Rules and 
regulations issued by the GSA to effectuate its authority in respect to 
disposal of real estate and real property components are contained in 
FPMR, Section 101-47, as amended, including disposition of timber, 
embedded sand, gravel and stone, buildings and other structures, and 
leaseholds and other rights to use or occupy real estate. The DE will be 
governed by these rules and regulations. GSA also issues, from time to 
time, special delegations of authority to the Department of Defense with 
power of redelegation.
    (2) Issued by the Departments. Policies and procedures of the 
departments with respect to the control, management, maintenance, and 
disposition of real estate and real property components located within 
the continental United States and its territories and possessions, 
placed in excess status or to be placed in excess status are contained 
in AR 405-90, AFR 87-4, and AR 405-5/AFR 87-15, except Army civil works 
property which is governed by ER 405-1-12.
    (c) Authorities Delegated to the Department of Defense. Under the 
publications and special delegations issued by GSA, the Department of 
Defense has been designated disposal agency categories enumerated in 
Sec. 644.314.
    (d) Authorities Delegated to the Army and Air Force. Department of 
Defense Directive 4165.6, among other things, redelegates to the 
Secretaries of the Army, Navy and Air Force, and to such individuals as 
they may designate for the purpose of administering real estate actions 
within their respective departments, the authorities which were then, or 
may hereafter be, assigned and delegated to, or vested in the Secretary 
of Defense by:
    (1) Sections 401 and 402 of the Federal Property and Administrative 
Services Act of 1949, as amended (40 U.S.C. 511 and 512) and regulations 
of the GSA promulgated thereunder.
    (2) The Administrator of General Services, pursuant to Section 203 
(a), (b) and (c) of the Federal Property and Administrative Services Act 
of 1949, as amended (40 U.S.C. 484).
    (3) Other specific delegations from the Administrator of General 
Services.
    (e) Authorities (Special). In addition to the general authority 
cited in paragraph (d)(2) of this section, the Department derives 
authority from a number of special purpose statutes to transfer real 
property to other Federal agencies and to dispose of real property for 
special purposes, or to special classes or in a specific manner to 
achieve a specific objective. Some of these acts are utilized in 
conjunction with regulations of GSA and some are exercised independently 
thereof according to the nature of the particular law. These laws are 
described in subsequent sections of ER 405-1-12.

[[Page 243]]



Sec. 644.401  Transfers--general.

    Resumes of the principal legislative acts authorizing transfer of 
Army and Air Force real property to other Federal departments are 
contained in Secs. 644.402 through 644.408. The authorities in these 
acts are exercised independently of GSA regulations. Transfers under 
these authorities are made without reimbursement. Real property can also 
be transferred under the Federal Property Act within the scope of 
disposal authority delegated by GSA. Transfers under the Federal 
Property Act are subject to reimbursement as prescribed by FPMR, section 
101-47.203-7. Property reported to GSA for disposal will be transferred 
only at the direction of GSA. Excess property excepted from reporting 
may be transferred by the DE under GSA regulations. Transfers to the 
Department of the Interior of surplus lands chiefly valuable for 
migratory bird management are subject to GSA regulations but are made 
without reimbursement (Sec. 644.429).



Sec. 644.402  Transfers among the armed services.

    10 U.S.C. 2571(a) authorizes the interchange without reimbursement 
of military stores, supplies, and equipment of every character, 
including real estate owned by the Government, between the Army, Navy, 
Air Force and Coast Guard upon request by the head of one service and 
with the approval of the head of the other service.



Sec. 644.403  Transfers to Tennessee Valley Authority.

    10 U.S.C. 831f(b) authorizes the President of the United States to 
provide for the transfer to the Tennessee Valley Authority of the use, 
possession and control of such real or personal property of the United 
States as he may from time to time deem necessary and proper for its 
purposes. This authority is applicable to property under the 
jurisdiction or control of the Secretaries of the Army and the Air 
Force. The authority vested in the President by this law has been 
delegated to the Office of Management and Budget by Executive Order No. 
10530 dated 11 May 1954, as amended (see footnote to 3 U.S.C. 301).



Sec. 644.404  Transfers to Federal Prison Industries, Inc.

    18 U.S.C. 4122 authorizes any department or agency of the Department 
of Defense to transfer without exchange of funds, to Federal Prison 
Industries, Inc., any property or equipment suitable for use in 
performing the functions and duties covered by agreement entered into 
under subsection (d) of this Act. The provisions include the industrial 
employment and training of prisoners convicted by general courts-martial 
and confined in any institution under the jurisdiction of any DOD agency 
or department.



Sec. 644.405  Transfers to Veterans Administration.

    38 U.S.C. 5003 authorizes the Secretaries of the military 
departments to transfer, without reimbursement, to the Veterans 
Administration, facilities, supplies, equipment, or material necessary 
and proper for the authorized care of veterans. The word ``facilities,'' 
as used in this Act, has been construed to include buildings and 
grounds.



Sec. 644.406  Transfers to Secretary of Transportation and the National Weather Service.

    49 U.S.C. 1157 authorizes the Department of Defense to transfer, 
without charge, to the Secretary of Transportation, airport property and 
airway property, exclusive of meteorological facilities in territory 
outside the continental limits of the United States (including Alaska). 
Section (b) of this Act similarly authorizes transfer of meteorological 
facilities, without charge, to the National Weather Service.



Sec. 644.407  Transfers to District of Columbia.

    40 U.S.C. 122 authorizes Federal and District authorities 
administering properties within the District of Columbia, owned by the 
United States or by the District, to transfer jurisdiction over parts or 
all of such property among or between themselves for purposes of 
administration and maintenance under such conditions as may be mutually 
agreed upon, provided that, prior to the consummation of any such 
transfer, the proposed transfer shall be recommended by the National 
Capital

[[Page 244]]

Planning Commission. All such transfers and agreements shall be reported 
to Congress by the District authorities concerned.



Sec. 644.408  Interchange of national forest and military and civil works lands.

    16 U.S.C. 505a, 505b authorizes the Secretary of Agriculture, with 
respect to national forest lands, and the Secretary of a military 
department, with respect to lands under the control of the military 
department which lie within or adjacent to the exterior boundaries of a 
national forest, to interchange such lands, or parts thereof, without 
reimbursement or transfer of funds whenever they shall determine that 
such interchange will facilitate land management and provide maximum use 
thereof, for authorized purposes. This law further provides that no 
transfer thereunder shall become effective until 45 days after the 
submission to the Congress by the respective Secretaries of notice of 
intention to make the interchange. The law also provides, in effect, 
that lands so transferred shall thereafter be subject only to the laws 
applicable to the lands of which the transferred lands become a part. 
Lands under the administrative control of the Congress, both military 
and civil, and that of the Air Force are within the scope of this law.



Sec. 644.409  Procedures for Interchange of National Forest Lands.

    (a) General. The interchange of national forest lands is 
accomplished in three steps: first, agreement must be reached between 
the two departments involved as to which lands will be interchanged; 
second, the two departments will jointly notify the Speaker of the House 
of Representatives and the President of the Senate, by letter, of the 
intention of the two departments to make the interchange agreed upon; 
third, upon the expiration of 45 days from the date of submission of the 
notice of intention (counting only days occurring during any regular or 
special session of the Congress) the two secretaries will execute 
jointly and cause to be published in the Federal Register an order 
transferring the respective lands of each department to the other.
    (b) Initiation of Requests for Interchange. Requests for interchange 
of lands may be originated by either the military department involved or 
the Department of Agriculture. Those originated by the Department of the 
Army may result from land requirements generated by newly authorized 
civil works or military construction projects or from authorized 
expansion of existing projects or as a result of property utilization 
surveys. Department of the Air Force requirements may develop similarly. 
When a request originates with the Department of the Air Force 
requirements may develop similarly. When a request originates with the 
Department of Agriculture pertaining to a civil works project or a 
military installation, it will be analyzed and coordinated by the DE 
with local representatives of the Department of Agriculture and the 
using service, as appropriate, to determine the feasibility of and need 
for the acquisition of any forest land to improve administration of the 
Army project or installation and the availability of Army lands for 
transfer to the Department of Agriculture. When coordinated analysis 
indicates the propriety of an interchange, an interchange planning 
report will be developed by the DE, in coordination with interested 
local elements of the two departments and submitted to HQDA (DAEN-REM) 
WASH DC 20314, with appropriate recommendations.
    (c) Contents of Interchange Planning Report. The planning report 
should include the following information:
    (1) Location of the areas proposed for interchange, including the 
county or municipality, names of the forest, project or installation, 
and number of acres to be interchanged by each department.
    (2) If the areas involved include public domain lands, the number 
and date of the Executive Order or Public Land Order by which withdrawn 
or established.
    (3) If the areas include acquired lands:
    (i) Approximate dates, methods and cost of acquisition of Department 
of the Army lands proposed for interchange.

[[Page 245]]

    (ii) Interest, restrictions and reservations currently outstanding, 
to which the lands were subject when acquired, together with such rights 
subsequently granted by the Government and presently in force.
    (4) Any additional reservations, conditions or restrictions under 
which the interchange is to be made.
    (5) A map, in triplicate, indicating by appropriate color scheme the 
lands of each department which are to be interchanged. The map should 
show the jurisdictional boundary, and, where appropriate, the contour 
elevations used as a basis for determining the extent of the 
interchange.
    (6) An informal estimate of the current values of the areas to be 
interchanged.
    (7) Information upon which to base a determination by the two 
Secretaries that the interchange will facilitate land management and 
provide maximum use thereof for authorized purposes.
    (8) Any other information or data that might be helpful to 
representatives of the Department of the Army in answering pertinent 
questions that may be raised by the committees of Congress.
    (9) A draft of order of interchange prepared, in sextuplicate, in 
coordination with representatives of the Forest Service for execution 
jointly by the two Secretaries.
    (10) Recommendations of the District and Division Engineers.
    (d) Relinquishment and Assumption of Possession. Upon notification 
by the Chief of Engineers that an order of interchange has been 
published, the DE will coordinate with local representatives of the 
Forest Service, and the using service if appropriate, the exchange of 
custody and accountability of the respective areas.



Sec. 644.410  Procedure for other transfers.

    (a) Applicability--Exceptions. Sections 644.410 through 644.412 are 
applicable to all transfers of real and related personal property to 
other Federal agencies by the Army and Air Force except as provided 
above.
    (b) Authority to Execute--(1) Secretaries of the Army and Air Force. 
Instruments effecting the transfer of fee-owned land (except fee-owned 
land that has been reported to GSA and is transferred at the direction 
of GSA) will be executed at Secretarial level. The Secretary of the 
Army, or his designee, will execute instruments transferring Air Force 
land to other Federal agencies.
    (2) Division and District Engineers will execute instruments 
transferring real property and related personal property to other 
Federal agencies: (i) Which has been reported to GSA and which is 
transferred at the direction of GSA; (ii) leaseholds, easements, and 
other lesser interests in lands; and (iii) buildings, fixtures, and 
other improvements.



Sec. 644.411  Form of inter-agency transfer instrument.

    (a) Inter-agency transfer instruments will be prepared by the Chief 
of Engineers in either memorandum or letter form. The instruments will 
be prepared for signature of the Secretary of the transferring 
department and will be addressed to the Secretary of head of the 
receiving department or agency. The instrument will provide, as a 
minimum, the following: citation of statutory authority for the 
transfer; statement as to whether the transfer is made with or without 
reimbursement; statement of the reimbursement amount, if applicable; 
statement as to whether the requirements of 10 U.S.C. 2662 have been met 
or that the transfer is not subject thereto; statement as to the acreage 
of land involved; and, by means of an inclosure, a description of the 
property being transferred. Based on the circumstances and nature of the 
property, other appropriate data outlined below will be included in the 
instrument.
    (1) Effective date of transfer (where right-of-entry has been 
granted or custody transferred, this date will be used.)
    (2) Restrictions, conditions, reservations and exceptions, as 
necessary.
    (3) When, where, how and by whom transfer of physical possession and 
accountability for the property will be accomplished.
    (4) Location and proposed disposition of title papers pertaining to 
the property.

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    (5) Description of the land and copy of map depicting the property 
and reflecting its relation to retained property, if any, and to 
encumbrances such as rights-of-way, easements, and leaseholds.
    (6) Instructions concerning payment of rent where a lease is 
involved. The transfer will be conditioned upon assumption of all 
obligations incurred in connection with the leasehold, including 
obligations to restore the premises.
    (7) Instructions concerning removal and site restoration where 
buildings or timber, or sand and gravel, or other separable property is 
involved.
    (8) Statement of source of title and cost of acquisition where land 
is involved. Reservations and exceptions in and to the Government's 
title and easements and other rights in the property granted by the 
Government will be stated with particularity.
    (9) List and description of buildings and improvements and cost of 
buildings and improvements not acquired with the land.
    (10) A reference to excess or other directive making the property 
available for transfer when instrument is executed by District Engineer.
    (11) Statement of responsibility and reimbursement for utility 
services.
    (12) Reference to Report of Excess, Standard Form 118, where 
property has been reported to GSA.
    (13) Other appropriate information.
    (b) The DE will provide the data outlined in paragraph (a) of this 
section to HQDA (DAEN-REM) WASH DC 20314 for use in preparing transfers 
to be executed at the Secretariat level. The forwarding correspondence 
will contain sufficient information for a full and complete 
understanding of the proposed transfer action, including an appraisal 
when reimbursement is required, together with other appropriate comments 
and recommendations.



Sec. 644.412  Transfer of custody and accountability.

    The DE will transfer custody and accountability or will coordinate 
the transfer, as appropriate. The DE will collect any reimbursement and 
obtain any releases required. Where a leasehold is involved, the DE will 
furnish the transferee a copy of the lease and advice of the last rental 
paid and when the next rent is due. Upon completion of the transfer, 
proper notice will be given to the General Accounting Office, the 
lessor, and the Finance Officer as to the responsibility of the 
transferee for future rental payments. This action will be initiated or 
completed promptly upon receipt of a copy of the executed instrument, 
and a conformed copy thereof will be furnished to HQDA (DAEN-REP) WASH 
DC 20314.



Sec. 644.413  Exchanges of fee-owned land and easement interests.

    The statutes identified in Secs. 644.414 through 644.417 authorize 
the exchange of Government-owned lands and interests therein for private 
lands and lands owned by States, other non-Federal agencies, and their 
instrumentalities. As a general rule, any exchange of lands should be 
restricted to lands of approximately equal value. Where the Government 
property proposed for exchange has a value substantially in excess of 
the private land to be acquired, the question of whether the transaction 
is truly an exchange arises. In drafting relocation contracts, care must 
be exercised to insure that there is legal authority for execution of 
the conveyance or easement proposed.



Sec. 644.414  MCA acts.

    The annual military construction authorization acts usually contain 
general authority for the acquisition, ``by donation, purchase, exchange 
of Government-owned lands, or otherwise,'' of lands and interests 
therein at specified installations or for specified military purposes. 
The annual acts must be examined to determine that specific authority 
exists to acquire land by exchange, unless a contemplated exchange falls 
within the scope of one of the special laws mentioned in Secs. 644.415 
through 644.419.



Sec. 644.415  Army military and Air Force lands--$50,000 limitation.

    (a) 10 U.S.C. 2672 authorizes the Secretary of a military department 
to acquire land and interests in land, by gift, purchase, exchange of 
Government-owned land, or otherwise, that:

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    (1) The Secretary or his designee determines is needed in the 
interest of national defense, and
    (2) Does not cost more than $50,000.
    (b) 10 U.S.C. 2672a authorizes the Secretary of a military 
department to acquire any interest in land, including by exchange of 
Government-owned land, that:
    (1) The Secretary or his designee determines is needed in the 
interest of national defense;
    (2) Is required to maintain the operations integrity of a military 
installation; and
    (3) Considerations of urgency do not permit the delay necessary to 
include the required acquisition in an annual Military Construction 
Authorization Act.



Sec. 644.416  Army civil works lands.

    The Secretary of the Army is authorized to exchange lands acquired 
for river and harbor and flood control projects for privately-owned 
lands required for such purposes (33 U.S.C. 558b and 558b-1).



Sec. 644.417  For MCA family housing.

    The Act of 1 September 1954, Pub. L. 765, 83rd Congress (68 Stat. 
1119), as amended by section 415 of Pub. L. 968, 84th Congress, Act of 3 
August 1956 (70 Stat. 1018) authorizes the acquisition of real estate by 
donation, purchase, exchange of Government-owned lands, or otherwise, 
for ``Military Construction-Army Family Housing at Military 
Installations and Facilities.''



Sec. 644.418  Procedure for exchange.

    (a) Each agreement for the exchange of real property should be 
formalized by written contract specifying the terms and conditions of 
the exchange, including, by reference to exhibits incorporated therein 
or otherwise, the form and terms of the conveyance of the title to the 
property to and from the Government. The agreement, in the case of 
relocation contracts, will be developed in accordance with ER 1180-1-1. 
Where an exchange of land or interests therein is considered desirable 
in the course of a condemnation proceeding, the agreement can be 
incorporated in a stipulation therein (Secs. 644.111 through 644.121)
    (b) Submission to the Chief of Engineers of draft of conveyance.
    (1) Conveyance will usually be executed by the Secretary or head of 
the agency involved Sec. 644.441. To avoid impinging on his 
discretionary powers, the execution of any contract or agreement 
involving an exchange of real property interests must be approved in 
advance, be deferred pending execution of the conveyance, or provide 
that the terms and conditions of any grant to be made pursuant to the 
contract will be subject to approval by the Secretary or agency head. It 
is considered preferable that the contract contain a draft of conveyance 
as an exhibit thereto and, where time will permit, be submitted to DAEN-
REM for review prior to final execution of the contract in order to 
avoid possible difficulties arising from subsequent disagreement over 
terms acceptable to the signatory of the Government's conveyance.
    (2) In submitting for final approval and execution the conveyance of 
the Government's interest in land pursuant to a contract for exchange, 
the following data should included to support the proposed action:
    (i) Description and map of the property to be conveyed.
    (ii) Statements as to how and when the Government acquired title to 
the property, the nature and extent of its interest therein, and a 
statement of any encumbrance to which the property is subject and the 
nature thereof, such as easements for road rights-of-way, utility lines, 
etc.
    (iii) A sufficient number of drafts or the conveyance to permit 
distribution thereof to interested agencies and the grantee.
    (iv) Two copies of the contract, option, stipulation in condemnation 
or other agreement which provides for the proposed conveyance, or, in 
lieu thereof, pertinent excerpts therefrom sufficient to clearly show 
the nature and extent of the Government's obligation to execute the 
conveyance.
    (v) A citation of the statutory authority on which the execution of 
the conveyance is to be predicated.
    (vi) Any additional information necessary to a proper understanding 
of the proposed transaction.

[[Page 248]]

    (vii) When the exchange agreement is other than a relocation 
contract, an appraisal report showing the relative fair values of the 
properties to be exchanged.
    (viii) A copy of the conveyance to be made to the United States, or 
a statement by the Attorney General that an acceptable conveyance has 
been executed and delivered to the United States, and that an opinion of 
good title has been made or is not required by regulation to be made.
    (ix) Recommendations of the Division and District Engineers.



Sec. 644.419  Public Law 87-852 easements.

    Public Law 87-852, approved 23 October 1962 (76 Stat. 1129), 
authorizes executive agencies to grant easements on real property of the 
United States for rights-of-way or other purposes on terms and 
considerations deemed necessary to protect the interest of the United 
States, with or without monetary consideration, or other consideration, 
including any interest in real property. The Act also authorizes the 
relinquishment of legislative jurisdiction to the State.



Sec. 644.420  Disposal of property in which the military departments have a continuing interest under special acts of Congress.

    General. Because of the continuing interest of the departments in 
the following properties and in view of the determinations under the 
Acts on which the disposals are premised, properties that can be 
conveyed under authorities discussed in Secs. 644.421 through 644.424 
are not considered surplus or excess within the meaning of these terms 
as defined in the Federal Property Act.



Sec. 644.421  Highway purposes.

    Title 23 U.S.C. 317 provides that upon application of the Secretary 
of Transportation, land or materials may be transferred to a state for 
the construction or maintenance of a right-of-way for any highway 
adjacent to a Government installation. If, within a period of four 
months after such application by the Secretary of Transportation, the 
Secretary of the Department shall not have certified to the Secretary of 
Transportation that the proposed appropriation of such land or material 
is contrary to the public interest or inconsistent with the purpose for 
which such land or materials have been reserved, they may be 
appropriated and transferred to the state for such purposes. When the 
need for such land or material ceases to exist, they shall revert to the 
control of the department. This section applies only to projects 
constructed on a Federal-aid system, or under the provisions of chapter 
2 of title 23 U.S.C. Usually applications for highway rights-of-way or 
the use of borrow material made under this Act by the Federal Highway 
Administration, Department of Transportation, on behalf of a particular 
state can be and are more simply satisfied by the issuance of a road 
easement or a license to take borrow material. This latter procedure is 
also desirable in that controls necessary to satisfy military 
requirements may be retained. Title 23 U.S.C. 107(d) directs Federal 
agencies to cooperate with the Secretary of Transportation in providing 
rights-of-way, including control of access, for the interstate highway 
system over lands and interests in lands owned by the United States.



Sec. 644.422  Authorized widening of a public highway, street, or alley.

    40 U.S.C. 345c authorizes the conveyance, upon application, of such 
interest in real property as is determined will not be adverse to the 
interests of the United States, to the states or political subdivisions 
for authorized widening of a public highway, street, or alley. The 
conveyance may be made with or without consideration, and subject to 
terms and conditions deemed necessary to protect the interests of the 
United States. Excepted from this authority is the conveyance of any 
interest in real property that can be transferred under title 23 of the 
United States Code (see Sec. 644.421), and to public lands in the 
National Forest System.



Sec. 644.423  Airport development.

    (a) Authority. 49 U.S.C. 1723 provides that

    (a) . . . whenever the Secretary of Transportation determines that 
use of any lands owned or controlled by the United States is

[[Page 249]]

reasonably necessary for carrying out a project for airport development 
under this subchapter, or for the operation of any public airport, 
including lands reasonably necessary to meet future development of an 
airport in accordance with the national airport system plan, he shall 
file with the head of the department or agency having control of the 
lands a request that the necessary property interests therein be 
conveyed to the public agency sponsoring the project in question or 
owning or controlling the airport. The property interest may consist of 
the title to, or any other interest in, land or any easement through or 
other interest in airspace. (b) Upon receipt of a request from the 
Secretary under this section, the head of the department or agency 
having control of the lands in question shall determine whether the 
requested conveyance is inconsistent with the needs of the department or 
agency, and shall notify the Secretary of his determination within a 
period of four months after receipt of the Secretary's request. If the 
department or agency head determines that the requested conveyance is 
not inconsistent with the needs of that department or agency, the 
department, or agency head is hereby authorized and directed, with the 
approval of the President and the Attorney General of the United States, 
and without any expense to the United States, to perform any acts and to 
execute any instruments necessary to make the conveyance requested. A 
conveyance may be made only on the condition that, at the option of the 
Secretary, the property interest conveyed shall revert to the United 
States in the event that the lands in question are not developed for 
airport purposes or used in a manner consistent with the terms of the 
conveyance. If only a part of the property interest conveyed is not 
developed for airport purposes, or used in a manner consistent with the 
terms of the conveyance, only that particular part shall at the option 
of the Secretary, revert to the United States.

    (b) Approval. The requirement for approval by the President was 
waived by Executive Order 12079 dated 18 September 1978. The Attorney 
General delegated his authority to approve to the Assistant Attorney 
General, Land and Natural Resources Division, by Sec. 0.67 of title 28 
of the Code of Federal Regulations (Order No. 468.71 of the Attorney 
General, October 22, 1971: 36 FR 20428). The instrument of conveyance 
must cite authority for the waiver and the delegation as shown in the 
suggested format of deed in ER 405-1-12.
    (c) Requirements for Conveyance Instrument. Under authority 
delegated by the Secretary of Transportation to the Federal Aviation 
Administration (FAA), when the Administrator of the FAA requests a 
conveyance from a military department, the instrument of conveyance 
requires the following provisions as covenants running with the land, 
binding the grantee, its successors and assigns.
    (1) That the grantee will use the property interest for airport 
purposes, and will develop that interest for airport purposes within one 
year after the date of this conveyance, except that if the property 
interest is necessary to meet future development of an airport in 
accordance with the National Airport System Plan the grantee will 
develop that interest for airport purposes on or before the period 
provided in the plan or within a period satisfactory to the 
Administrator and any interim use of that interest for other than 
airport purposes will be subject to such terms and conditions as the 
Administrator may prescribe.
    (2) That the airport, and its appurtenant areas and its buildings 
and facilities, whether or not the land is conveyed, will be operated as 
a public airport on fair and reasonable terms, without discrimination on 
the basis of race, color, religion, age, sex, handicap or national 
origin, as to airport employment practices, and as to accommodations, 
services, facilities, and other public uses of the airport.
    (3) That the grantee will not grant or permit any exclusive right 
forbidden by section 308(a) of the Federal Aviation Act of 1958 (49 
U.S.C. 1349(a)) at the airport, or at any other airport now owned or 
controlled by it.
    (4) That the grantee agrees that no person shall be excluded from 
any participation, be denied any benefits or be otherwise subjected to 
any discrimination, on the grounds of race, color, religion, age, sex, 
handicap or national origin.
    (5) That the grantee agrees to comply with all requirements imposed 
by or pursuant to part 21 of the Regulations of the Office of the 
Secretary of Transportation (49 CFR part 21)--nondiscrimination in 
federally assisted programs of the Department of Transportation--
effectuation of title IV of the Civil Rights Act of 1964.

[[Page 250]]

    (6) That in furtherance of the policy of the FAA under this 
covenant, the grantee:
    (i) Agrees that, unless authorized by the Administrator, it will 
not, either directly or indirectly, grant or permit any person, firm or 
corporation the exclusive right at the airport, or at any other airport 
now owned or controlled by it, to conduct any aeronautical activities, 
including, but not limited to, charter flights, pilot training, aircraft 
rental and sightseeing, aerial photography, crop dusting, aerial 
advertising and surveying, air carrier operations, aircraft sales and 
services, sale of aviation petroleum products whether or not conducted 
in conjunction with other aeronautical activity, repair and maintenance 
of aircraft, sale of aircraft parts, and any other activities which 
because of their direct relationship to the operation of aircraft can be 
regarded as an aeronautical activity;
    (ii) Agrees that it will terminate any existing exclusive right to 
engage in the sale of gasoline or oil, or both, granted before 17 July 
1962 at such an airport, at the earliest renewal, cancellation, or 
expiration date applicable to the agreement that established the 
exclusive right; and
    (iii) Agrees that it will terminate forthwith any other exclusive 
right to conduct any aeronautical activity now existing at such an 
airport.
    (7) That any later transfer of the property interest conveyed will 
be subject to the covenants and conditions in the instrument of 
conveyance.
    (8) That, if the covenant to develop the property interest (or any 
part thereof) for airport purposes within one year after the date of 
this conveyance is breached, or if the property interest (or any part 
thereof) is not used in a manner consistent with the terms of the 
conveyance, the Administrator may give notice to the grantee requiring 
him to take specified action towards development within a fixed period. 
These notices may be issued repeatedly, and outstanding notices may be 
amended or supplemented. Upon expiration of a period so fixed without 
completion by the grantee of the required action, the Administrator may, 
on behalf of the United States, enter, and take title to, the property 
interest conveyed or the particular part of the interest to which the 
breach relates.
    (9) That, if any covenant or condition in the instrument of 
conveyance, other than the covenant contained in paragraph (c)(7) of 
this section, is breached, the Administrator may, on behalf of the 
United States, immediately enter, and take title to, the property 
interest conveyed or, in his discretion, that part of that interest to 
which the breach relates.
    (10) That a determination by the Administrator that one of the 
foregoing covenants has been breached is conclusive of the facts; and 
that, if the right of entry and possession of title stipulated in the 
foregoing covenants is exercised, the grantee will, upon demand of the 
Administrator, take any action (including prosecution of suit or 
executing of instruments) that may be necessary to evidence transfer to 
the United States of title to the property interest conveyed, or, in the 
Administrator's discretion, to that part of that interest to which the 
breach relates.
    (d) Procedure for Conveyance. Upon receipt of a deed from the 
District Engineer, DAEN-REM will submit the deed to the appropriate 
Secretary for execution, and to the Assistant Attorney General, Land and 
Natural Resources Division, for approval, before returning it to the 
District Engineer for delivery to the grantee.
    (1) The deed assembly submitted will contain, in triplicate:
    (i) The request from the Administrator of FAA to the Secretary of 
the military department concerned;
    (ii) The reply from the Secretary involved to the Administrator, 
making the property available;
    (iii) The resolution by the appropriate governing body of the public 
agency sponsoring the project in question indicating authorization for 
acquisition by such agency and its concurrence with the terms and 
conditions of the conveyance.
    (2) Transmittal correspondence shall also set forth:
    (i) The type and condition of the property, including improvements 
acquired therewith or constructed since acquisition;
    (ii) Whether there has been any change in the nature, quantity, 
etc., of

[[Page 251]]

the property requested by the agency from the date of its original 
request to the present. If so, details should be furnished together with 
an appropriate amendatory resolution (in triplicate) by the governing 
body of the sponsoring agency;
    (iii) Expenses of transfer. In view of the provision in the Act that 
the conveyance will be made without any expense to the United States, if 
land surveys are required the transferee agency will be required to pay 
cost of making such surveys.



Sec. 644.424  Development of public port or industrial facilities.

    (a) Authority. Section 108 of Pub. L. 86-645 approved 14 July 1960 
(33 U.S.C. 578) authorizes the Secretary of the Army, after certain 
determinations are made, to convey land which is a part of a water 
resource development project to a state, political subdivision thereof, 
port district, port authority, or other body created by the State or 
through a compact between two or more States for the purpose o