[USC02] 38 USC PART VI, CHAPTER 81, SUBCHAPTER V: ENHANCED-USE LEASES OF REAL PROPERTY
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38 USC PART VI, CHAPTER 81, SUBCHAPTER V: ENHANCED-USE LEASES OF REAL PROPERTY
From Title 38—VETERANS' BENEFITSPART VI—ACQUISITION AND DISPOSITION OF PROPERTYCHAPTER 81—ACQUISITION AND OPERATION OF HOSPITAL AND DOMICILIARY FACILITIES; PROCUREMENT AND SUPPLY; ENHANCED-USE LEASES OF REAL PROPERTY

SUBCHAPTER V—ENHANCED-USE LEASES OF REAL PROPERTY

§8161. Definitions

For the purposes of this subchapter:

(1) The term "enhanced-use lease" means a written lease entered into by the Secretary under this subchapter.

(2) The term "congressional veterans' affairs committees" means the Committees on Veterans' Affairs of the Senate and the House of Representatives.

(3) The term "supportive housing" means housing that engages tenants in on-site and community-based support services for veterans or their families that are at risk of homelessness or are homeless. Such term may include the following:

(A) Transitional housing.

(B) Single-room occupancy.

(C) Permanent housing.

(D) Congregate living housing.

(E) Independent living housing.

(F) Assisted living housing.

(G) Other modalities of housing.


(4) The term "lessee" means the party with whom the Secretary has entered into an enhanced-use lease under this subchapter.

(5) The term "major enhanced-use lease" means an enhanced-use lease that includes consideration consisting of an average annual rent of more than $10,000,000.

(Added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 417; amended Pub. L. 112—154, title II, §211(a), Aug. 6, 2012, 126 Stat. 1179; Pub. L. 114–226, §3(d), Sept. 29, 2016, 130 Stat. 932.)

Amendments

2016—Pars. (4), (5). Pub. L. 114–226 added pars. (4) and (5).

2012—Par. (3). Pub. L. 112–154 added par. (3).

Effective Date of 2012 Amendment

Pub. L. 112—154, title II, §211(k), Aug. 6, 2012, 126 Stat. 1182, provided that "Except as otherwise provided in this section [enacting section 8168 of this title, amending this section and sections 8162, 8164 to 8167, and 8169 of this title, and enacting provisions set out as notes under sections 8162 and 8168 of this title], the amendments made by this section shall take effect on the date of the enactment of this Act [Aug. 6, 2012].

Training and Outreach Regarding Authority

Pub. L. 106–117, title II, §208(f), Nov. 30, 1999, 113 Stat. 1568, provided that: "The Secretary [of Veterans Affairs] shall take appropriate actions to provide training and outreach to personnel at Department [of Veterans Affairs] medical centers regarding the enhanced-use lease authority under subchapter V of chapter 81 of title 38, United States Code. The training and outreach shall address methods of approaching potential lessees in the medical or commercial sectors regarding the possibility of entering into leases under that authority and other appropriate matters."

Independent Analysis of Opportunities for Use of Authority

Pub. L. 106–117, title II, §208(g), Nov. 30, 1999, 113 Stat. 1568, provided that:

"(1) The Secretary [of Veterans Affairs] shall take appropriate actions to secure from an appropriate entity (or entities) independent of the Department [of Veterans Affairs] an analysis (or analyses) of opportunities for the use of the enhanced-use lease authority under subchapter V of chapter 81 of title 38, United States Code.

"(2) An analysis under paragraph (1) shall include—

"(A) a survey of facilities of the Department for purposes of identifying Department property that presents an opportunity for lease under the enhanced-use lease authority;

"(B) an assessment of the feasibility of entering into enhanced-use leases under that authority in the case of any property identified under subparagraph (A) as presenting an opportunity for such lease; and

"(C) an assessment of the resources required at the Department facilities concerned, and at the Department Central Office, in order to facilitate the entering into of enhanced-used leases in the case of property so identified.

"(3) If as a result of a survey under paragraph (2)(A) an entity carrying out an analysis under this subsection determines that a particular Department property presents no opportunities for lease under the enhanced-use lease authority, the analysis shall include the entity's explanation of that determination.

"(4) If as a result of such a survey an entity carrying out an analysis under this subsection determines that certain Department property presents an opportunity for lease under the enhanced-use lease authority, the analysis shall include a single integrated business plan, developed by the entity, that addresses the strategy and resources necessary to implement the plan for all property determined to present an opportunity for such lease."

Enhanced Use Leases

Pub. L. 104–110, title II, §202(c), Feb. 13, 1996, 110 Stat. 771, provided that: "The Secretary shall submit to Congress, not later than March 31, 1997, a report evaluating the operation of the program under subchapter V of chapter 81 of title 38, United States Code."

§8162. Enhanced-use leases

(a)(1) The Secretary may in accordance with this subchapter enter into leases with respect to real property that is under the jurisdiction or control of the Secretary. Any such lease under this subchapter may be referred to as an "enhanced-use lease". The Secretary may dispose of any such property that is leased to another party under this subchapter in accordance with section 8164 of this title. The Secretary may exercise the authority provided by this subchapter notwithstanding section 8122 of this title, subchapter II of chapter 5 of title 40, sections 541–555 and 1302 of title 40, or any other provision of law (other than Federal laws relating to environmental and historic preservation) inconsistent with this section. The applicability of this subchapter to section 421(b) of the Veterans' Benefits and Services Act of 1988 (Public Law 100–322; 102 Stat. 553) is covered by subsection (c).

(2) The Secretary may enter into an enhanced-use lease only for the provision of supportive housing and if the lease is not inconsistent with and will not adversely affect the mission of the Department.

(3) The provisions of sections 3141–3144, 3146, and 3147 of title 40 shall not, by reason of this section, become inapplicable to property that is leased to another party under an enhanced-use lease.

(4) A property that is leased to another party under an enhanced-use lease may not be considered to be unutilized or underutilized for purposes of section 501 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411).

(b)(1) If the Secretary has determined that a property should be leased to another party through an enhanced-use lease, the Secretary shall, at the Secretary's discretion, select the party with whom the lease will be entered into using such selection procedures as the Secretary considers appropriate.

(2) The term of an enhanced-use lease may not exceed 75 years.

(3)(A) For any enhanced-use lease entered into by the Secretary, the lease consideration provided to the Secretary shall consist solely of cash at fair value as determined by the Secretary.

(B) The Secretary shall receive no other type of consideration for an enhanced-use lease besides cash.

(C) The Secretary may enter into an enhanced-use lease without receiving consideration.

(D) The Secretary may not waive or postpone the obligation of a lessee to pay any consideration under an enhanced-use lease, including monthly rent.

(4) The terms of an enhanced-use lease may provide for the Secretary to use minor construction funds for capital contribution payments.

(5) The terms of an enhanced-use lease may not provide for any acquisition, contract, demonstration, exchange, grant, incentive, procurement, sale, other transaction authority, service agreement, use agreement, lease, or lease-back by the Secretary or Federal Government.

(6) The Office of Management and Budget shall review each enhanced-use lease before the lease goes into effect to determine whether the lease is in compliance with paragraph (5).

(c) The entering into an enhanced-use lease covering any land or improvement described in section 421(b)(2) of the Veterans' Benefits and Services Act of 1988 (Public Law 100–322; 102 Stat. 553) or section 224(a) of the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2008, other than an enhanced-use lease under the Los Angeles Homeless Veterans Leasing Act of 2016, shall be considered to be prohibited by such sections unless specifically authorized by law.

(d)(1) Nothing in this subchapter authorizes the Secretary to enter into an enhanced-use lease that provides for, is contingent upon, or otherwise authorizes the Federal Government to guarantee a loan made by a third party to a lessee for purposes of the enhanced-use lease.

(2) Nothing in this subchapter shall be construed to abrogate or constitute a waiver of the sovereign immunity of the United States with respect to any loan, financing, or other financial agreement entered into by the lessee and a third party relating to an enhanced-use lease.

(Added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 417; amended Pub. L. 106–117, title II, §208(a), (b), Nov. 30, 1999, 113 Stat. 1567; Pub. L. 106–400, §2, Oct. 30, 2000, 114 Stat. 1675; Pub. L. 107–95, §10(b), Dec. 21, 2001, 115 Stat. 920; Pub. L. 107–217, §3(j)(5), Aug. 21, 2002, 116 Stat. 1300; Pub. L. 108–178, §4(i)(1), Dec. 15, 2003, 117 Stat. 2642; Pub. L. 110–161, div. I, title II, §224(c), Dec. 26, 2007, 121 Stat. 2272; Pub. L. 112—154, title II, §211(b)(1), (c)(1), (d), Aug. 6, 2012, 126 Stat. 1180, 1181; Pub. L. 114–58, title VI, §601(25), Sept. 30, 2015, 129 Stat. 539; Pub. L. 114–226, §§2(m)(2)—3(b), Sept. 29, 2016, 130 Stat. 930; Pub. L. 115–182, title II, §212, June 6, 2018, 132 Stat. 1461.)

References in Text

Section 421(b) of the Veterans' Benefits and Services Act of 1988, referred to in subsecs. (a)(1) and (c), is section 421(b) of Pub. L. 100–322, title IV, May 20, 1988, 102 Stat. 553, which is not classified to the Code.

Section 224(a) of the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2008, referred to in subsec. (c), is section 224(a) of title II of div. I of Pub. L. 110–161, Dec. 26, 2007, 121 Stat. 2272, which is not classified to the Code.

No act with the title "Los Angeles Homeless Veterans Leasing Act of 2016", referred to in subsec. (c), has been enacted. However, a bill, H.R. 3484, entitled "Los Angeles Homeless Veterans Leasing Act of 2016", was introduced in the House of Representatives on Sept. 10, 2015, during the 114th Congress. That bill contained provisions similar to section 2 of Pub. L. 114–226, Sept. 29, 2016, 130 Stat. 926, known as the "West Los Angeles Leasing Act of 2016". Section 2(m)(2) of Pub. L. 114–226 amended this section; the remainder of section 2 of Pub. L. 114–226 is not classified to the Code.

Amendments

2018—Subsec. (b)(6). Pub. L. 115–182, which directed the general amendment of "section 8162(b)(6)" without specifying the Code title to be amended, was executed by generally amending par. (6) of subsec. (b) of this section, to reflect the probable intent of Congress. Prior to amendment, par. (6) read as follows: "The Secretary may not enter into an enhanced-use lease without certification in advance in writing by the Director of the Office of Management and Budget that such lease complies with the requirements of this subchapter."

2016—Subsec. (b)(3)(D). Pub. L. 114–226, §3(a), added subpar. (D).

Subsec. (c). Pub. L. 114–226, §2(m)(2), inserted ", other than an enhanced-use lease under the Los Angeles Homeless Veterans Leasing Act of 2016," before "shall be considered".

Subsec. (d). Pub. L. 114–226, §3(b), added subsec. (d).

2015—Subsec. (a)(2). Pub. L. 114–58 inserted "if" after "housing and".

2012—Subsec. (a)(2). Pub. L. 112–154, §211(b)(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "The Secretary may enter into an enhanced-use lease only if—

"(A) the Secretary determines that—

"(i) at least part of the use of the property under the lease will be to provide appropriate space for an activity contributing to the mission of the Department;

"(ii) the lease will not be inconsistent with and will not adversely affect the mission of the Department; and

"(iii) the lease will enhance the use of the property; or

"(B) the Secretary determines that the implementation of a business plan proposed by the Under Secretary for Health for applying the consideration under such a lease to the provision of medical care and services would result in a demonstrable improvement of services to eligible veterans in the geographic service-delivery area within which the property is located."

Subsec. (b)(1). Pub. L. 112–154, §211(c)(1)(A), substituted "If the Secretary has determined that a property should be leased to another party through an enhanced-use lease, the Secretary shall, at the Secretary's discretion, select the party with whom the lease will be entered into using such selection procedures as the Secretary considers appropriate." for subpars. (A) and (B) which read as follows:

"(A) If the Secretary has determined that a property should be leased to another party through an enhanced-use lease, the Secretary shall select the party with whom the lease will be entered into using selection procedures determined by the Secretary that ensure the integrity of the selection process.

"(B) In the case of a property that the Secretary determines is appropriate for use as a facility to furnish services to homeless veterans under chapter 20 of this title, the Secretary may enter into an enhanced-use lease with a provider of homeless services without regard to the selection procedures required under subparagraph (A)."

Subsec. (b)(3). Pub. L. 112–154, §211(c)(1)(B), amended par. (3) generally. Prior to amendment, par. (3) read as follows:

"(3)(A) Each enhanced-use lease shall be for fair consideration, as determined by the Secretary. Consideration under such a lease may be provided in whole or in part through consideration in-kind.

"(B) Consideration in-kind may include provision of goods or services of benefit to the Department, including construction, repair, remodeling, or other physical improvements of Department facilities, maintenance of Department facilities, or the provision of office, storage, or other usable space."

Subsec. (b)(4). Pub. L. 112–154, §211(c)(1)(C), substituted "Secretary to use minor" for "Secretary to—

"(A) obtain facilities, space, or services on the leased property; and

"(B) use minor".

Subsec. (b)(5), (6). Pub. L. 112–154, §211(c)(1)(D), added pars. (5) and (6).

Subsec. (c). Pub. L. 112–154, §211(d), struck out par. (1) designation, substituted "The" for "Subject to paragraph (2), the" and struck out par. (2) which provided conditions under which entering into enhanced-use lease covering any land or improvement described in section 421(b)(2) of the Veterans' Benefits and Services Act of 1988 (Pub. L. 100–322) would not be considered prohibited under such section.

2007—Subsec. (c)(1). Pub. L. 110–161 inserted "or section 224(a) of the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2008" after "section 421(b)(2) of the Veterans' Benefits and Services Act of 1988 (Public Law 100–322; 102 Stat. 553)" and substituted "such sections" for "that section".

2003—Subsec. (a)(3). Pub. L. 108–178 struck out comma after "of title 40".

2002—Subsec. (a)(1). Pub. L. 107–217, §3(j)(5)(A), substituted "subchapter II of chapter 5 of title 40, sections 541–555 and 1302 of title 40" for "section 321 of the Act of June 30, 1932 (40 U.S.C. 303b), sections 202 and 203 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 483, 484)".

Subsec. (a)(3). Pub. L. 107–217, §3(j)(5)(B), substituted "sections 3141–3144, 3146, and 3147 of title 40" for "the Act of March 3, 1931 (40 U.S.C. 276a et seq.)".

2001—Subsec. (b)(1). Pub. L. 107–95 designated existing provisions as subpar. (A) and added subpar. (B).

2000—Subsec. (a)(4). Pub. L. 106–400 substituted "McKinney-Vento Homeless Assistance Act" for "Stewart B. McKinney Homeless Assistance Act".

1999—Subsec. (a)(2). Pub. L. 106–117, §208(a), inserted subpar. (A) designation before "the Secretary", redesignated subpars. (A) to (C) as cls. (i) to (iii), respectively, and realigned the margins, substituted "; or" for period at end of cl. (iii), and added subpar. (B).

Subsec. (b)(2). Pub. L. 106–117, §208(b)(1), substituted "may not exceed 75 years." for "may not exceed—"

"(A) 35 years, in the case of a lease involving the construction of a new building or the substantial rehabilitation of an existing building, as determined by the Secretary; or

"(B) 20 years, in the case of a lease not described in subparagraph (A)."

Subsec. (b)(4). Pub. L. 106–117, §208(b)(2), added par. (4) and struck out former par. (4) which read as follows: "Any payment by the Secretary for the use of space or services by the Department on property that has been leased under this subchapter may only be made from funds appropriated to the Department for the activity that uses the space or services. No other such payment may be made by the Secretary to a lessee under an enhanced-use lease unless the authority to make the payment is provided in advance in an appropriation Act."

Effective Date of 2012 Amendment

Pub. L. 112—154, title II, §211(b)(2), Aug. 6, 2012, 126 Stat. 1180, provided that:

"(A) In general.—Paragraph (2) of section 8162(a) of title 38, United States Code, as amended by paragraph (1), shall take effect on January 1, 2012, and shall apply with respect to enhanced-use leases entered into on or after such date.

"(B) Previous leases.—Any enhanced-use lease that the Secretary has entered into prior to the date described in subparagraph (A) shall be subject to the provisions of subchapter V of chapter 81 of such title, as in effect on the day before the date of the enactment of this Act [Aug. 6, 2012]."

Pub. L. 112—154, title II, §211(c)(2), Aug. 6, 2012, 126 Stat. 1181, provided that: "Paragraph (3) of section 8162(b), as amended by paragraph (1)(B) of this subsection, shall take effect on January 1, 2012, and shall apply with respect to enhanced-use leases entered into on or after such date."

Effective Date of 2007 Amendment

Pub. L. 110–161, div. I, title II, §224(d), Dec. 26, 2007, 121 Stat. 2272, provided that: "This section [amending this section], including the amendment made by this section, shall apply with respect to fiscal year 2008 and each fiscal year thereafter."

Effective Date of 2003 Amendment

Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees.

Effective Date of 2001 Amendment

Pub. L. 107–95, §10(c), Dec. 21, 2001, 115 Stat. 920, provided that: "The amendments made by subsection (b) [amending this section] shall apply to leases entered into on or after the date of the enactment of this Act [Dec. 21, 2001]."

§8163. Hearing and notice requirements regarding proposed leases

(a) If the Secretary proposes to enter into an enhanced-use lease with respect to certain property, the Secretary shall conduct a public hearing before entering into the lease. The hearing shall be conducted in the community in which the property is located. At the hearing, the Secretary shall receive the views of veterans service organizations and other interested parties regarding the proposed lease of the property and the possible effects of the uses to be made of the property under a lease of the general character then contemplated. The possible effects to be addressed at the hearing shall include effects on—

(1) local commerce and other aspects of the local community;

(2) programs administered by the Department; and

(3) services to veterans in the community.


(b) Before conducting such a hearing, the Secretary shall provide reasonable notice to the congressional veterans' affairs committees and to the public of the proposed lease and of the hearing. The notice shall include the following:

(1) The time and place of the hearing.

(2) Identification of the property proposed to be leased.

(3) A description of the proposed uses of the property under the lease.

(4) A description of how the uses to be made of the property under a lease of the general character then contemplated—

(A) would—

(i) contribute in a cost-effective manner to the mission of the Department;

(ii) not be inconsistent with the mission of the Department;

(iii) not adversely affect the mission of the Department; and

(iv) affect services to veterans; or


(B) would result in a demonstrable improvement of services to eligible veterans in the geographic service-delivery area within which the property is located.


(5) A description of how those uses would affect services to veterans.


(c)(1) If after a hearing under subsection (a) the Secretary intends to enter into an enhanced-use lease of the property involved, the Secretary shall notify the congressional veterans' affairs committees, the Committees on Appropriations of the House of Representatives and the Senate, and the Committees on the Budget of the House of Representatives and the Senate of the Secretary's intention to enter into such lease, shall publish a notice of such intention in the Federal Register, and shall submit to the congressional veterans' affairs committees a copy of the proposed lease. With respect to a major enhanced-use lease, upon the request of the congressional veterans' affairs committees, not later than 30 days after the date of such notice, the Secretary shall testify before the committees on the major enhanced-use lease, including with respect to the status of the lease, the cost, and the plans to carry out the activities under the lease. The Secretary may not delegate such testifying below the level of the head of the Office of Asset Enterprise Management of the Department or any successor to such office.

(2) The Secretary may not enter into an enhanced use lease until the end of the 45-day period beginning on the date of the submission of notice under paragraph (1).

(3) Each notice under paragraph (1) shall include the following:

(A) An identification of the property involved.

(B) An explanation of the background of, rationale for, and economic factors in support of, the proposed lease.

(C) A summary of the views expressed by interested parties at the public hearing conducted in connection with the proposed designation, together with a summary of the Secretary's evaluation of those views.

(D) A description of the provisions of the proposed lease.

(E) A description of how the proposed lease—

(i) would—

(I) contribute in a cost-effective manner to the mission of the Department;

(II) not be inconsistent with the mission of the Department;

(III) not adversely affect the mission of the Department; and

(IV) affect services to veterans; or


(ii) would result in a demonstrable improvement of services to eligible veterans in the geographic service-delivery area within which the property is located.


(F) A description of how the proposed lease would affect services to veterans.

(G) A summary of a cost-benefit analysis of the proposed lease.

(Added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 419; amended Pub. L. 106–117, title II, §208(c), Nov. 30, 1999, 113 Stat. 1567; Pub. L. 106–419, title II, §241, title IV, §404(b)(1), Nov. 1, 2000, 114 Stat. 1847, 1865; Pub. L. 108–170, title II, §202(a), (d)(1), Dec. 6, 2003, 117 Stat. 2047, 2048; Pub. L. 114–226, §3(c)(1), Sept. 29, 2016, 130 Stat. 931.)

Amendments

2016—Subsec. (c)(1). Pub. L. 114–226 inserted ", the Committees on Appropriations of the House of Representatives and the Senate, and the Committees on the Budget of the House of Representatives and the Senate" after "notify the congressional veterans' affairs committees", substituted ", shall publish" for "and shall publish", inserted ", and shall submit to the congressional veterans' affairs committees a copy of the proposed lease" after "in the Federal Register", and inserted at end "With respect to a major enhanced-use lease, upon the request of the congressional veterans' affairs committees, not later than 30 days after the date of such notice, the Secretary shall testify before the committees on the major enhanced-use lease, including with respect to the status of the lease, the cost, and the plans to carry out the activities under the lease. The Secretary may not delegate such testifying below the level of the head of the Office of Asset Enterprise Management of the Department or any successor to such office."

2003Pub. L. 108–170, §202(d)(1), substituted "Hearing and notice requirements regarding proposed leases" for "Designation of property to be leased" in section catchline.

Subsec. (a). Pub. L. 108–170, §202(a)(1), in first sentence, substituted "enter into an enhanced-use lease with respect to certain property" for "designate a property to be leased under an enhanced-use lease" and "before entering into the lease" for "before making the designation".

Subsec. (b). Pub. L. 108–170, §202(a)(2), substituted "to the congressional veterans' affairs committees and to the public of the proposed lease" for "of the proposed designation" in introductory provisions.

Subsec. (c)(1). Pub. L. 108–170, §202(a)(3)(A), substituted "enter into an enhanced-use lease of the property involved" for "designate the property involved" and "to enter into such lease" for "to so designate the property".

Subsec. (c)(2). Pub. L. 108–170, §202(a)(3)(B), substituted "45-day period" for "90-day period".

Subsec. (c)(3)(D). Pub. L. 108–170, §202(a)(3)(C)(i), substituted "description of the provisions" for "general description".

Subsec. (c)(3)(G). Pub. L. 108–170, §202(a)(3)(C)(ii), added subpar. (G).

Subsec. (c)(4). Pub. L. 108–170, §202(a)(3)(D), struck out par. (4) which read as follows: "Not less than 30 days before entering into an enhanced-use lease, the Secretary shall submit to the congressional veterans' affairs committees a report on the proposed lease. The report shall include—

"(A) updated information with respect to the matters described in paragraph (3);

"(B) a summary of a cost-benefit analysis of the proposed lease;

"(C) a description of the provisions of the proposed lease; and

"(D) a notice of designation with respect to the property."

2000—Subsec. (c)(2). Pub. L. 106–419, §241, amended par. (2) generally. Prior to amendment, par. (2) read as follows: "The Secretary may not enter into an enhanced-use lease until the end of a 60-day period of continuous session of Congress following the date of the submission of notice under paragraph (1). For purposes of the preceding sentence, continuity of a session of Congress is broken only by an adjournment sine die, and there shall be excluded from the computation of such 60-day period any day during which either House of Congress is not in session during an adjournment of more than three days to a day certain."

Subsec. (c)(3)(E). Pub. L. 106–419, §404(b)(1), amended directory language of Pub. L. 106–117, §208(c)(2). See 1999 Amendment note below.

1999—Subsec. (b). Pub. L. 106–117, §208(c)(1)(A), substituted "include the following:" for "include—" in introductory provisions.

Subsec. (b)(1) to (3). Pub. L. 106–117, §208(c)(1)(B), (C), capitalized the first letter of the first word and substituted a period for the semicolon at end.

Subsec. (b)(4). Pub. L. 106–117, §208(c)(1)(B), (D), in introductory provisions, capitalized the first letter of the first word, added subpars. (A) and (B), and struck out former subpars. (A) to (C) which read as follows:

"(A) would contribute in a cost-effective manner to the mission of the Department;

"(B) would not be inconsistent with the mission of the Department; and

"(C) would not adversely affect the mission of the Department; and".

Subsec. (b)(5). Pub. L. 106–117, §208(c)(1)(B), capitalized the first letter of the first word.

Subsec. (c)(3)(E). Pub. L. 106–117, §208(c)(2), as amended by Pub. L. 106–419, §404(b)(1), substituted cls. (i) and (ii) for former cls. (i) to (iii) which read as follows:

"(i) would contribute in a cost-effective manner to the mission of the Department;

"(ii) would not be inconsistent with the mission of the Department; and

"(iii) would not adversely affect the mission of the Department."

Effective Date of 2000 Amendment

Pub. L. 106–419, title IV, §404(b)(1), Nov. 1, 2000, 114 Stat. 1865, provided that the amendment made by section 404(b)(1) is effective Nov. 30, 1999, and as if included in Pub. L. 106–117 as originally enacted.

§8164. Authority for disposition of leased property

(a) If, during the term of an enhanced-use lease or within 30 days after the end of the term of the lease, the Secretary determines that the leased property is no longer needed by the Department, the Secretary may initiate action for the transfer to the lessee of all right, title, and interest of the United States in the property. A disposition of property may not be made under this section unless the Secretary determines that the disposition under this section rather than under section 8118 or 8122 of this title is in the best interests of the Department.

(b) A disposition under this section may be made in return for cash at fair value as the Secretary determines is in the best interest of the United States and upon such other terms and conditions as the Secretary considers appropriate.

(c) Not less than 45 days before a disposition of property is made under this section, the Secretary shall notify the congressional veterans' affairs committees of the Secretary's intent to dispose of the property and shall publish notice of the proposed disposition in the Federal Register. The notice shall describe the background of, rationale for, and economic factors in support of, the proposed disposition (including a cost-benefit analysis summary) and the method, terms, and conditions of the proposed disposition.

(Added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 420; amended Pub. L. 108–170, title II, §202(b), Dec. 6, 2003, 117 Stat. 2047; Pub. L. 108–422, title IV, §411(e)(3), Nov. 30, 2004, 118 Stat. 2390; Pub. L. 112—154, title II, §211(e), Aug. 6, 2012, 126 Stat. 1181.)

Amendments

2012—Subsec. (b). Pub. L. 112–154 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "A disposition under this section may be made for such consideration as the Secretary determines is in the best interest of the United States and upon such other terms and conditions as the Secretary considers appropriate."

2004—Subsec. (a). Pub. L. 108–422 inserted "8118 or" after "rather than under section".

2003—Subsec. (a). Pub. L. 108–170, §202(b)(1), struck out "by requesting the Administrator of General Services to dispose of the property pursuant to subsection (b)" after "in the property" in first sentence and struck out at end "The Administrator, upon request of the Secretary, shall take appropriate action under this section to dispose of property of the Department that is or has been subject to an enhanced-use lease."

Subsec. (b). Pub. L. 108–170, §202(b)(2), substituted "Secretary determines" for "Secretary and the Administrator of General Services jointly determine" and "Secretary considers" for "Secretary and the Administrator consider".

Subsec. (c). Pub. L. 108–170, §202(b)(3), substituted "45 days" for "90 days".

§8165. Use of proceeds

(a)(1) Funds received by the Department under an enhanced-use lease and remaining after any deduction from those funds under subsection (b) shall be deposited in the Department of Veterans Affairs Medical Care Collections Fund established under section 1729A of this title.

(2) Funds received by the Department from a disposal of leased property under section 8164 of this title shall be deposited into the Department of Veterans Affairs Construction, Major Projects account or Construction, Minor Projects account, as the Secretary considers appropriate.

(b) An amount sufficient to pay for any expenses incurred by the Secretary in any fiscal year in connection with an enhanced-use lease shall be deducted from the proceeds of the lease for that fiscal year and may be used by the Secretary to reimburse the account from which the funds were used to pay such expenses. The Secretary may use the proceeds from any enhanced-use lease to reimburse applicable appropriations of the Department for any expenses incurred in the development of additional enhanced-use leases.

(Added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 421; amended Pub. L. 106–117, title II, §208(d), Nov. 30, 1999, 113 Stat. 1568; Pub. L. 107–217, §3(j)(6), Aug. 21, 2002, 116 Stat. 1301; Pub. L. 108–7, div. K, title I, §113(d)(1), Feb. 20, 2003, 117 Stat. 483; Pub. L. 108–170, title II, §202(c), Dec. 6, 2003, 117 Stat. 2048; Pub. L. 108–178, §4(i)(2), Dec. 15, 2003, 117 Stat. 2642; Pub. L. 108–422, title IV, §411(e)(4), Nov. 30, 2004, 118 Stat. 2390; Pub. L. 112—154, title II, §211(f), Aug. 6, 2012, 126 Stat. 1181.)

Amendments

2012—Subsec. (a)(2). Pub. L. 112–154 substituted "into the Department of Veterans Affairs Construction, Major Projects account or Construction, Minor Projects account, as the Secretary considers appropriate" for "in the Department of Veterans Affairs Capital Asset Fund established under section 8118 of this title".

2004—Subsec. (a)(2). Pub. L. 108–422 substituted "Department of Veterans Affairs Capital Asset Fund established under section 8118 of this title" for "nursing home revolving fund".

2003—Subsec. (a)(1). Pub. L. 108–7 substituted "Department of Veterans Affairs Medical Care Collections Fund established under section 1729A of this title" for "Department of Veterans Affairs Health Services Improvement Fund established under section 1729B of this title".

Subsec. (a)(2). Pub. L. 108–170, §202(c)(1), struck out "and remaining after any deduction from such funds under the laws referred to in subsection (c)" after "title".

Subsec. (b). Pub. L. 108–170, §202(c)(2), inserted at end "The Secretary may use the proceeds from any enhanced-use lease to reimburse applicable appropriations of the Department for any expenses incurred in the development of additional enhanced-use leases."

Subsec. (c). Pub. L. 108–178 struck out comma after "of title 40".

Pub. L. 108–170, §202(c)(3), struck out subsec. (c) which read as follows: "Subsection (a) does not affect the applicability of subchapter IV of chapter 5 of title 40 with respect to reimbursement of the Administrator of General Services for expenses arising from any disposal of property under section 8164 of this title."

2002—Subsec. (c). Pub. L. 107–217 substituted "subchapter IV of chapter 5 of title 40" for "section 204 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 485) or the Act of June 8, 1896 (40 U.S.C. 485a)".

1999—Subsec. (a)(1). Pub. L. 106–117 added par. (1) and struck out former par. (1) which read as follows: "Of the funds received by the Department under an enhanced-use lease and remaining after any deduction from such funds under subsection (b), 75 percent shall be deposited in the nursing home revolving fund established under section 8116 of this title and 25 percent shall be credited to the Medical Care Account of the Department for the use of the Department facility at which the property is located."

Effective Date of 2003 Amendment

Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees.

§8166. Construction standards

The construction, alteration, repair, remodeling, or improvement of a property that is the subject of an enhanced-use lease shall be carried out so as to comply with all applicable provisions of Federal, State, and local law relating to land use, building standards, permits, and inspections.

(Added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 421; amended Pub. L. 108–422, title IV, §417, Nov. 30, 2004, 118 Stat. 2393; Pub. L. 112—154, title II, §211(g), Aug. 6, 2012, 126 Stat. 1181.)

Amendments

2012Pub. L. 112–154 amended section generally. Prior to amendment, section read as follows:

"(a) Unless the Secretary provides otherwise, the construction, alteration, repair, remodeling, or improvement of the property that is the subject of the lease shall be carried out so as to comply with all standards applicable to construction of Federal buildings. Any such construction, alteration, repair, remodeling, or improvement shall not be subject to any State or local law relating to land use, building codes, permits, or inspections unless the Secretary provides otherwise.

"(b) Unless the Secretary has provided that Federal construction standards are not applicable to a property, the Secretary shall conduct periodic inspections of any such construction, alteration, repair, remodeling, or improvement for the purpose of ensuring that the standards are met."

2004—Subsec. (a). Pub. L. 108–422 inserted "land use," after "relating to" in second sentence.

§8167. Exemption from State and local taxes

(a) Improvements and Operations Not Exempted.—The improvements and operations on land leased by a person with an enhanced-use lease from the Secretary shall be subject to all applicable provisions of Federal, State, or local law relating to taxation, fees, and assessments.

(b) Underlying Fee Title Interest Exempted.—The underlying fee title interest of the United States in any land subject to an enhanced-use lease shall not be subject, directly or indirectly, to any provision of State or local law relating to taxation, fees, or assessments.

(Added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 421; amended Pub. L. 112—154, title II, §211(h), Aug. 6, 2012, 126 Stat. 1181.)

Amendments

2012Pub. L. 112–154 amended section generally. Prior to amendment, section read as follows: "The interest of the United States in any property subject to an enhanced-use lease and any use by the United States of such property during such lease shall not be subject, directly or indirectly, to any State or local law relative to taxation, fees, assessments, or special assessments, except sales taxes charged in connection with any construction, alteration, repair, remodeling, or improvement project carried out under the lease."

§8168. Annual reports

(a) Report on Administration of Leases.—(1) Not later than 120 days after the date of the enactment of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 and not less frequently than once each year thereafter, the Secretary shall submit to the congressional veterans' affairs committees, the Committees on Appropriations of the House of Representatives and the Senate, and the Committees on the Budget of the House of Representatives and the Senate a report on enhanced-use leases.

(2) Each report under paragraph (1) shall include the following:

(A) Identification of the actions taken by the Secretary to implement and administer enhanced-use leases.

(B) For the most recent fiscal year covered by the report, the amounts deposited into the Medical Care Collection Fund account that were derived from enhanced-use leases.

(C) Identification of the actions taken by the Secretary using the amounts described in subparagraph (B).

(D) Documents of the Department supporting the contents of the report described in subparagraphs (A) through (C).


(b) Report on Lease Consideration.—(1) Each year, as part of the annual budget submission of the President to the congressional veterans' affairs committees, the Committees on Appropriations of the House of Representatives and the Senate, and the Committees on the Budget of the House of Representatives and the Senate under section 1105(a) of title 31, the Secretary shall submit to the congressional veterans' affairs committees, the Committees on Appropriations of the House of Representatives and the Senate, and the Committees on the Budget of the House of Representatives and the Senate a detailed report of the consideration received by the Secretary for each enhanced-use lease under this subchapter.

(2) Each report under paragraph (1) shall include the following with respect to each enhanced-use lease covered by the report:

(A) An overview of how the Secretary is using consideration received by the Secretary under the lease to support veterans.

(B) The amount of consideration received by the Secretary under the lease.

(C) The amount of any revenues collected by the Secretary relating to the lease not covered by subparagraph (B), including a description of any in-kind assistance or services provided by the lessee to the Secretary or to veterans under an agreement entered into by the Secretary pursuant to any provision of law.

(D) The costs to the Secretary of carrying out the lease.

(E) Documents of the Department supporting the contents of the report described in subparagraphs (A) through (D).

(Added Pub. L. 112—154, title II, §211(i)(1), Aug. 6, 2012, 126 Stat. 1181; amended Pub. L. 114–226, §3(c)(2), Sept. 29, 2016, 130 Stat. 931.)

References in Text

The date of the enactment of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, referred to in subsec. (a)(1), is the date of enactment of Pub. L. 112–154, which was approved Aug. 6, 2012.

Prior Provisions

A prior section 8168, added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 421, limited number of enhanced-use leases that could be entered into under this subchapter, prior to repeal by Pub. L. 105–114, title II, §205(b)(1), Nov. 21, 1997, 111 Stat. 2288.

Amendments

2016Pub. L. 114–226, §3(c)(2)(A), substituted "to the congressional veterans' affairs committees, the Committees on Appropriations of the House of Representatives and the Senate, and the Committees on the Budget of the House of Representatives and the Senate" for "to Congress" wherever appearing.

Subsec. (a). Pub. L. 114–226, §3(c)(2)(B), designated existing provisions as par. (1), substituted "a report on enhanced-use leases." for "a report identifying the actions taken by the Secretary to implement and administer enhanced-use leases.", and added par. (2).

Subsec. (b). Pub. L. 114–226, §3(c)(2)(C), designated existing provisions as par. (1), substituted "this subchapter." for "this subchapter, along with an overview of how the Secretary is utilizing such consideration to support veterans.", and added par. (2).

Elements of Initial Report

Pub. L. 112—154, title II, §211(i)(2), Aug. 6, 2012, 126 Stat. 1182, provided that: "The first report submitted by the Secretary under section 8168(a) of title 38, United States Code, as added by paragraph (1) [and prior to amendment by Pub. L. 114–226], shall include a summary of those measures the Secretary is taking to address the following recommendations from the February 9, 2012, audit report of the Department of Veterans Affairs Office of Inspector General on enhanced-use leases under subchapter V of chapter 81 of title 38, United States Code:

"(A) Improve standards to ensure complete lease agreements are negotiated in line with strategic goals of the Department of Veterans Affairs.

"(B) Institute improved policies and procedures to govern activities such as monitoring enhanced-use lease projects and calculating, classifying, and reporting on enhanced-use lease benefits and expenses.

"(C) Recalculate and update enhanced-use lease expenses and benefits reported in the most recent Enhanced-Use Lease Consideration Report of the Department.

"(D) Establish improved oversight mechanisms to ensure major enhanced-use lease project decisions are documented and maintained in accordance with policy.

"(E) Establish improved criteria to measure timeliness and performance in enhanced-use lease project development and execution.

"(F) Establish improved criteria and guidelines for assessing projects to determine whether they are or remain viable candidates for enhanced-use leases."

§8169. Expiration

The authority of the Secretary to enter into enhanced-use leases under this subchapter expires on December 31, 2023.

(Added Pub. L. 102–86, title IV, §401(a), Aug. 14, 1991, 105 Stat. 422; amended Pub. L. 103–452, title I, §103(d), Nov. 2, 1994, 108 Stat. 4786; Pub. L. 104–110, title I, §101(k), Feb. 13, 1996, 110 Stat. 769; Pub. L. 105–114, title II, §205(a), Nov. 21, 1997, 111 Stat. 2288; Pub. L. 106–117, title II, §208(e), Nov. 30, 1999, 113 Stat. 1568; Pub. L. 112—154, title II, §211(j), Aug. 6, 2012, 126 Stat. 1182.)

Amendments

2012Pub. L. 112–154 substituted "December 31, 2023" for "December 31, 2011".

1999Pub. L. 106–117 substituted "December 31, 2011" for "December 31, 2001".

1997Pub. L. 105–114 substituted "December 31, 2001" for "December 31, 1997".

1996Pub. L. 104–110 substituted "December 31, 1997" for "December 31, 1995".

1994Pub. L. 103–452 substituted "December 31, 1995" for "December 31, 1994".

Ratification of Actions During Period of Expired Authority

Any action taken by Secretary of Veterans Affairs before Feb. 13, 1996, under provision of law amended by title I of Pub. L. 104–110 that was taken during period beginning on date on which authority of Secretary under such provision of law expired and ending on Feb. 13, 1996, considered to have same force and effect as if such amendment had been in effect at time of that action, see section 103 of Pub. L. 104–110, set out as a note under section 1710 of this title.