B-165511, NOV 15, 1974

B-165511, NOV 15, 1974

FOR PURPOSE OF LEASEHOLD PROPERTY EXCHANGE WITH SOVIET UNION, GSA DETERMINED TO DELEGATE ITS PROPERTY DISPOSAL AUTHORITY TO STATE DEPARTMENT AS AGENCY BEST EQUIPPED TO HANDLE NEGOTIATIONS WITH FOREIGN GOVERNMENT AND SINCE, IF IT WERE HANDLING TRANSFER ITSELF, ITS APPROPRIATIONS WOULD BE AVAILABLE TO PAY FOR PREPARATION OF ENVIRONMENTAL IMPACT STATEMENT REQUIRED BY NATIONAL ENVIRONMENTAL POLICIES ACT OF 1969, 42 U.S.C. 4321, TOGETHER WITH THE FACT IT COULD RESCIND ITS DELEGATION AND HANDLE TRANSFER, GAO WILL NOT OBJECT TO GSA'S AMENDING ITS DELEGATION SO AS TO RETAIN RESPONSIBILITY FOR PREPARING AND FUNDING NECESSARY IMPACT STATEMENT, IRRESPECTIVE OF THE AVAILABILITY OF STATE DEPARTMENT'S APPROPRIATION THEREFOR.

GENERAL SERVICES ADMINISTRATION FUNDING OF ENVIRONMENTAL IMPACT STATEMENT:

THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION (GSA) HAS REQUESTED OUR ADVICE AS TO THE PROPERIETY OF EXPENDING FUNDS APPROPRIATED TO GSA FOR THE PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT CONCERNING AN EXCHANGE WITH THE UNION OF SOVIET SOCIALIST REPUBLICS (USSR) OF GSA- CONTROLLED REAL PROPERTY IN WASHINGTON, D.C., FOR REAL PROPERTY LOCATED IN THE SOVIET UNION.

THE FACTUAL BACKGROUND OF THE PROBLEM IS DESCRIBED BY THE ADMINISTRATOR AS FOLLOWS:

"(A) ON OCTOBER 15, 1965, THE PROPERTY COMPRISING THE MT. ALTO VA HOSPITAL, WASHINGTON, D.C., WAS REPORTED EXCESS BY THE VETERANS ADMINISTRATION. ON JULY 12, 1967, THE PROPERTY WAS DETERMINED BY GSA TO BE SURPLUS. ON AUGUST 1, 1968, CUSTODY AND CONTROL OF THE SITE WAS TRANSFERRED BY VA TO GSA. ON MARCH 12, 1969, GSA, PURSUANT TO SECTION 203(E)(6) OF THE FEDERAL PROPERTY AND ADMINISTRATION SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 484(E)(6), SUBMITTED TO THE COMMITTEES ON GOVERNMENT OPERATIONS OF THE CONGRESS AN EMPLANATORY STATEMENT OF THE PROPOSED NEGOTIATED IDSPOSAL TO THE SOVIET UNION OF AN 85-YEAR LEASEHOLD INTEREST IN THE MT. ALTO SITE, IN EXCHANGE FOR AN EQUIVALENT LEASE OF PROPERITIES IN MOSCOW. NEITHER COMMITTEE VOICED AN OBJECTION TO THE PROPOSED DISPOSAL.

"(B) ON MAY 9, 1969, BY VIRTUE OF FPMR TEMPORARY REGULATION H-9 (ATTACHED HERETO AS APPENDIX A), THE ADMINISTRATOR OF GENERAL SERVICE (1) DELEGATED TO THE SECRETARY OF STATE AUTHORITY TO EXCHANGE WITH THE U.S.S.R. AN 85- YEAR LEASEHOLD OF THE SITE OF THE FORMER MT. ALTO VA HOSPITAL FOR AN EQUIVALENT LEASEHOLD OF PROPERTIES IN MOSCOW, AND (2) TRANSFERRED CUSTODY AND CONTROL OF THE MT. ALTO SITE TO THE DEPARTMENT OF STATE, EFFECTIVE ON THE DATE THE U.S.S.R. IS GIVEN POSSESSION OF THE MT. ALTO SITE (WHICH POSSESSION HAS NOT BEEN GIVEN AS OF THIS DATE). THIS DELEGATION TO THE DEPARTMENT OF STATE WAS CONSIDERED TO BE THE MOST DESIRABLE PROCEDURE FOR EFFECTING THE DISPOSAL BECAUSE THE TRANSACTION COULD THEN BE HANDLED BY THAT AGENCY OF THE UNITED STATES BEST EQUIPPED TO DEAL WITH A FOREIGN GOVERNMENT.

"(C) ON MAY 16, 1969, THE UNITED STATES AND THE U.S.S.R. ENTERED INTO AN AGREEMENT (ATTACHED HERETO AS APPENDIX B) PROVIDING FOR THE RECIPROCAL ALLOCATION FOR USE FREE OF CHARGE OF THE PLOTS OF LAND REFERRED TO IN (B) ABOVE, WHICH PLOTS WERE DESIGNATED AS SITES FOR THE CONSTRUCTION OF COMPLEXES OF EMBASSY BUILDINGS. UNDER THE PROVISIONS OF ARTICLE III, SECTION 2, OF THIS AGREEMENT, THE 85-YEAR PERIOD OF USE OF THE SITES DOES NOT COMMENCE UNTIL BOTH COUNTRIES CONCURRENTLY ACCEPT THE SITES AS BEING READY FOR CONSTRUCTION. SUCH CONCURRENT ACCEPTANCE HAS NOT OCCURRED AS OF THIS DATE, AND THE AGREEMENT HAS NOT OTHERWISE EFFECTED A TRANSFER OF AN INTEREST IN THE SITES."

THE AGREEMENT BETWEEN THE UNITED STATES AND THE USSR SPECIFIES THE CONDITIONS UNDER WHICH CONSTRUCTION OF THE EMBASSY COMPLEXES WOULD BE UNDERTAKEN. BOTH PARTIES HAVE AGREED TO COMPLY WITH CONSTRUCTION REGULATIONS EXISTING IN MOSCOW AND WASHINGTON.

THE NATIONAL ENVIRONMENTAL POLICIES ACT OF 1969 (NEPA), PUB. L. NO. 91- 190, JANUARY 1, 1970, 83 STAT. 852, 42 U.S.C. 4321, WAS ENACTED AFTER THE MAY 1969 DELEGATION FROM GSA TO THE STATE DEPARTMENT AND THE U.S.-U.S.S.R. AGREEMENT. GSA'S GENERAL COUNSEL IS OF THE OPINION THAT THE DISPOSITION OF THIS INTEREST IN THE MT. ALTO SITE FOR THE PURPOSE OF CONSTRUCTION THEREON BY THE U.S.S.R. OF AN EMBASSY COMPLEX COULD REASONABLY BE VIEWED AS A MAJOR FEDERAL ACTION SIGNFICIANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT. HE HAS CONCLUDED THAT AN ENVIRONMENTAL IMPACT STATEMENT (EIS) SHOULD THEREFORE BE PREPARED PURSUANT TO THE PROVISIONS OF SECTION 102(2)(C) OF NEPA, 42 U.S.C. 4332(2)(C). THE ADMINISTRATOR REPORTS THAT THE DEPARTMENT OF STATE AND REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE SHARE THIS VIEW.

TRADITIONALLY, GSA HAS VIEWED ITS DELEGATIONS OF DISPOSAL AUTHORITY AS IMPOSING UPON THE DELEGATEE AGENCY THE FINANCIAL AND LEGAL RESPONSIBILITY FOR CMPLYING WITH NEPA AND OTHER LAWS GOVERNING THE DISPOSAL. IN THE CURRENT SITUATION, HOWEVER, REPRESENTATIVES OF THE STATE DEPARTMENT HAVE INFORMALLY ADVISED GSA THAT THE DEPARTMENT HAS CONCLUDED THAT NONE OF ITS APPROPRIATIONS IS AVAILABLE OUT OF WHICH PAYMENT FOR THE PREPARATION OF EIS GENERALLY MAY BE MADE.

GSA ALSO EXPLORED THE POSSIBILITY OF HAVING THE SOVIET UNION PROVIDE THE FUNDS NECESSARY TO PREPARATION OF THE EIS, BUT WAS ADVISED BY STATE DEPARTMENT REPRESENTATIVES THAT LACKING A RECIPROCAL OBLIGATION FOR UNITED STATES CONSTRUCTION IN MOSCOW, THE U.S.S.R. COULD NOT BE REQUIRED TO BEAR NEPA-RELATED EXPENSES. MOREOVER, CITING GREEN COUNTY PLANNING BOARD V. FEDEERAL POWER COMMISSION, 455 F.2D 412 (2D CIR. 1972) REQUIRING IMPARTIAL HANDLING OF EIS PREPARATIONS, GSA NOTES THAT THE OBJECTIVITY OF THE RESULTS MIGHT BE OPEN TO QUESTION.

THE URGENCY INVOLVED IN UNDERTAKING THE EIS IS EXPLAINED BY THE ADMINISTRATOR AS FOLLOWS:

"WE ARE ADVISED BY REPRESENTATIVES OF THE DEPARTMENT OF STATE THAT EACH SIGNIFICANT STEP TAKEN BY THE UNITED STATES AND THE SOVIET UNION IN THE IMPLEMENTATION OF THE ATTACHED AGREEMENTS MUST BE TAKEN SIMULTANEOUSLY. THEREFORE, ANY DELAY BEYOND THE NORMAL NEPA COMPLIANCE TIME WILL FURTHER DELAY THE CONSTRUCTION OF THE UNITED STATES EMBASSY COMPLEX IN MOSCOW. SUCH DELAY, WE ARE FURTHER ADVISED, MIGHT LEAD THE SOVIET UNION THE THE CONCLUSION THAT THE UNITED STATES IS CONSCIOUSLY DELAYING IMPLEMENTATION OF THE ATTACHED AGREEMENT, AND COULD LEAD TO FRUSTRATION OF THE PURPOSES OF THE AGREEMENTS AS WELL AS OTHER SERIOUS PROBLEMS IN THE RELATIONS BETWEEN THE TWO COUNTRIES. BECAUSE OF THE NEED TO PROCEED EXPEDITIOUSLY WITH THE NEPA STATEMENT, IT IS NOT ADVISABLE FOR THE DEPARTMENT OF STATE TO INCUR THE DELAY INVOLVED IN SEEKING A SUPPLEMENTAL APPROPRIATION FOR THAT PURPOSE."

THE ADMINISTRATOR FURTHER EXPLAINS THAT THE STATE DEPARTMENT HAS REQUESTED GSA TO FUND THE EIS RELATED TO THIS DISPOSAL.

GSA BELIEVES IT HAS THE AUTORITY TO PAYF OR THE PREPARATION OF THE EIS. IT BELIEVES THAT THE ESTIMATED $115,000 REQUIRED TO PREPARE THE EIS BY CONTRACT MAY BE PAID FROM APPROPRIATIONS UNDER THE HEADING GENERAL SERVICES ADMINISTRATION, DISPOSAL OF SURPLUS REAL AND RELATED PERSONAL PROPERTY, OPERATING EXPENSES, CONTAINED IN THE TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATION ACT, 1975, PUB. L. NO. 93-381, AUGUST 21, 1974, 88 STAT. 621, WHICH PROVIDES:

"NOT TO EXCEED $7,200,000 OF ANY PROCEEDS RECEIVED BY THE GENERAL SERVICES ADMINISTRATION DURING THE CURRENT FIDSCAL YEAR FROM TRANSFERS OF EXCESS PROPERTY AND THE DISPOSAL OF SURPLUS REAL AND RELATED PERSONAL PROPERTY SHALL BE DEPOSITED TO THIS APPROPRIATION, AND SHALL BE AVAILABLE FOR NECESSARY EXPENSES INCURRED IN THE FEDERAL BUILDINGS FUND IN CARRYING OUT SURPLUS PROPERTY FUNCTIONS, PURSUANT TO THE LAND AND WATER CONSERVATION ACT OF 1965, AS AMENDED (16 U.S.C. 460 1-5)."

THE ADMINISTRATOR NOTES THAT THE JUST QUOTED LANGUAGE DOES NOT DIFFER IN SUBSTANCE FROM PRIOR YEARS' APPROPRIATIONS PROVISIONS CONCERNING EXPENDITURES FOR NECESSARY EXPENSES (SUCH AS THE COST OF NEPA STATEMENTS) INCURRED IN CONNECTION WITH SURPLUS REAL PROPERTY DISPOSALS. HE STATES: "INDEED, WERE GSA DISPOSING OF THIS PROPERTY INSTEAD OF THE STATE DEPARTMENT BY DELEGATION, THE PROPRIETY OF THE EXPENDITURE BY GSA FOR THE NEPA STATEMENT WOULD NOT BE OPEN TO QUESTION." HE NOTES THAT AS PROVIDED FOR IN THE GUIDELINES OF THE COUNCIL ON ENVIRONMENTAL QUALITY CONCERNING EIS PREPARATION, 40 C.F.R. 1500.7(B), GSA AND THE STATE DEPARTMENT CAN, AND WILL, AGREE THAT GSA IS TO BE "LEAD AGENCY" FOR NEPA PURPOSES.

THE ADMINISTRATOR ALSO STATES THAT GSA COULD RESCIND ITS MAY 1969 DELEGATION OF AUHORITY TO THE STATE DEPARTMENT AND THEREBY REASSUME RESPONSIBILITY AND CLEAR LEGAL AUTHORITY TO PREPARE THE NEPA STATEMENT NECESSITATED BY THE PROPOSED DISPOSAL. HOWEVER, HE STATES THAT -

"*** THE SAME CONSIDERATIONS WHICH LED TO THE DELEGATION OF AUTHORITY IN MAY OF 1969 REMAIN AS VALID TODAY AS THEY WERE IN 1969. IN FACT THEY ARE ENHANCED BY THE ACTIONS TAKEN BY THE STATE DEPARTMENT PURSUANT TO THE DELEGATION. GSA WOULD NOT PROPOSE, THEREFORE, TO RESCIND THAT DELEGATION."

AS WE UNDERSTNAD IT, IN THE INSTANT SITUATION, GSA DELEGATED ITS DISPOSAL AUTHORITY SO THAT NEGOTIATIONS ON THE EXCHANGE OF LEASEHOLD INTERESTS IN PROPERTIES LOCATED IN MOSCOW AND WASHINGTON, D.C., WOULD BE HANDLED BY THE STATE DEPARTMENT AS THE FEDERAL AGENCY BEST EQUIPPED TO DEAL WITH A FOREIGN GOVERNMENT. GSA COULD, OF COURSE, RESCIND ITS DELEGATION IN WHICH CASE ITS APPROPRIATIONS WOULD CLEARLY BE AVAILBLE TO FUND THE EIS PREPARATION. IN VIEW OF THE UNUSUAL FACTS INVOLVED IN THIS SITUATION, AND IRRESPECTIVE OF WHETHER THE STATE DEPARTMENT HAS APPROPRIATIONS WHICH WOULD BE AVAILABLE FOR THIS PURPOSE, GAO WOULD NOT OBJECT IN THIS CASE TO GSA'S AMENDING ITS DELEGATION OF AUTHORITY TO THE STATE DEPARTMENT TO PROVIDE THAT IT WOULD RETAIN RESPONSIBILITY, AND PROVIDE FUNDING, FOR PREPARING THE NECESSARY EIS.