10 U.S.C. § 18239 — Waiver of certain restrictions

Page 3798 TITLE 10—ARMED FORCES § 18238 Subsec. (a). Pub. L. 85–861 designated existing provi- sions as subsec. (a) and substituted ‘‘under any provi- sion of this chapter except section 2233(a)(2), (3), and (4) of this title’’ for ‘‘under this chapter’’. Subsec. (b). Pub. L. 85–861 added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–106 effective as if included in the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103–337, as enacted on Oct. 5, 1994, see section 1501(f)(3) of Pub. L. 104–106, set out as a note under section 113 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by section 1664(b)(2), (9) of Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–214 effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family hous- ing authorized before, on, or after such date, see sec- tion 12(a) of Pub. L. 97–214, set out as an Effective Date note under section 2801 of this title. § 18238. Army National Guard of United States; Air National Guard of United States: limita- tion on relocation of units A unit of the Army National Guard of the United States or the Air National Guard of the United States may not be relocated or with- drawn under this chapter without the consent of the governor of the State or, in the case of the District of Columbia, the commanding general of the National Guard of the District of Colum- bia. (Aug. 10, 1956, ch. 1041, 70A Stat. 123, § 2238; Pub. L. 85–861, § 1(43), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 97–214, § 3(d)(4), July 12, 1982, 96 Stat. 170; re- numbered § 18238, Pub. L. 103–337, div. A, title XVI, § 1664(b)(2), Oct. 5, 1994, 108 Stat. 3010.) HISTORICAL AND REVISION NOTES 1956 ACT Revised section Source (U.S. Code) Source (Statutes at Large) 2238 ......... 50:883(b). Sept. 11, 1950, ch. 945, § 4(b), 64 Stat. 830. The words ‘‘from any community or area’’ are omit- ted as surplusage. The word ‘‘relocated’’ is substituted for the words ‘‘location * * * be changed’’. The words ‘‘Territory, or Puerto Rico, or the commanding general of the National Guard of the District of Columbia’’ are inserted to reflect 50:886(b), since the source statute ap- plied to the District of Columbia and there is no ‘‘gov- ernor’’ of the District of Columbia. The words ‘‘as the case may be’’ are substituted for the words ‘‘within which such unit is situated’’. The words ‘‘with regard to such withdrawal or change of location’’ are omitted as surplusage. 1958 ACT Revised section Source (U.S. Code) Source (Statutes at Large) 2238 ......... 50:883(b). Aug. 9, 1955, ch. 662, § 1(c), 69 Stat. 593. The words ‘‘shall have been consulted’’ and ‘‘such withdrawal or change of location’’ are omitted as sur- plusage. Editorial Notes AMENDMENTS 1994—Pub. L. 103–337 renumbered section 2238 of this title as this section. 1982—Pub. L. 97–214 substituted ‘‘or, in the case of the District of Columbia, the commanding general of the National Guard of the District of Columbia’’ for ‘‘or Territory, or Puerto Rico, or the commanding general of the District of Columbia, as the case may be’’. 1958—Pub. L. 85–861 required the consent of the gov- ernor, or the commanding general of the National Guard of the District of Columbia, prior to relocation or withdrawal. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–214 effective Oct. 1, 1982, and applicable to military construction projects, and to construction and acquisition of military family hous- ing authorized before, on, or after such date, see sec- tion 12(a) of Pub. L. 97–214, set out as an Effective Date note under section 2801 of this title. § 18239. Waiver of certain restrictions (a) The Secretary of Defense and the Secretary of each military department may make expendi- tures and contributions under section 18233 of this title without regard to section 3324(a) and (b) of title 31. (b) Authority provided by law to place perma- nent or temporary improvements on land under section 18233 of this title may be exercised on land not owned by the United States— (1) before title to the land on which the im- provement is located (or is to be located) is ap- proved under section 3111 of title 40; and (2) even though the land will be held in other than a fee simple interest in a case in which the Secretary of the military department con- cerned determines that the interest to be ac- quired in the land is sufficient for the purposes of the project. (Added Pub. L. 97–214, § 3(b)(1), July 12, 1982, 96 Stat. 169, § 2239; amended Pub. L. 97–295, § 1(23), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 97–321, title VIII, § 805(a)(2), Oct. 15, 1982, 96 Stat. 1573; re- numbered § 18239 and amended Pub. L. 103–337, div. A, title XVI, § 1664(b)(2), (10), Oct. 5, 1994, 108 Stat. 3010, 3011; Pub. L. 107–217, § 3(b)(42), Aug. 21, 2002, 116 Stat. 1298.) Editorial Notes AMENDMENTS 2002—Subsec. (b)(1). Pub. L. 107–217 substituted ‘‘sec- tion 3111 of title 40’’ for ‘‘section 355 of the Revised Statutes (40 U.S.C. 255)’’. 1994—Pub. L. 103–337, § 1664(b)(2), renumbered section 2239 of this title as this section. Subsecs. (a), (b). Pub. L. 103–337, § 1664(b)(10), sub- stituted ‘‘18233’’ for ‘‘2233’’. 1982—Subsec. (a). Pub. L. 97–295 substituted ‘‘section 3324(a) and (b) of title 31’’ for ‘‘section 3648 of the Re- vised Statutes (31 U.S.C. 529)’’. Subsec. (b). Pub. L. 97–321, in introductory text, sub- stituted ‘‘on land’’ for ‘‘on lands’’ and inserted ‘‘on land not owned by the United States’’; redesignated former cl. (1) as par. (1); added par. (2) and struck out former cl. (2) ‘‘even though the land is held temporarily’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. Page 3799 TITLE 10—ARMED FORCES § 18240 103–337, set out as an Effective Date note under section 10001 of this title. EFFECTIVE DATE Section effective Oct. 1, 1982, and applicable to mili- tary construction projects, and to construction and ac- quisition of military family housing authorized before, on, or after such date, see section 12(a) of Pub. L. 97–214, set out as a note under section 2801 of this title. § 18240. Acquisition of facilities by exchange (a) EXCHANGE AUTHORITY.—In addition to the acquisition authority provided by section 18233 of this title, the Secretary of Defense may au- thorize the Secretary of a military department to acquire a facility, or addition to an existing facility, needed to satisfy military requirements for a reserve component by carrying out an ex- change of an existing facility under the control of that Secretary through an agreement with an Executive agency (as defined in section 105 of title 5), the United States Postal Service, or a State, local government, local authority, or pri- vate entity. The acquisition of a facility or an addition to an existing facility under this sec- tion may include the acquisition of utilities, equipment, and furnishings for the facility. (b) FACILITIES ELIGIBLE FOR EXCHANGE.—Only a facility of a reserve component that is not ex- cess property (as defined in section 102(3) of title 40) may be exchanged using the authority pro- vided by this section. (c) EQUAL VALUE EXCHANGE.—In any exchange carried out using the authority provided by this section, the value of the replacement facility, or addition to an existing facility, including any utilities, equipment, and furnishings, to be ac- quired by the United States shall be at least equal to the fair market value of the facility conveyed by the United States under the agree- ment. If the values are unequal, the values may not be equalized by any payment of cash consid- eration by either party to the agreement. (d) REQUIREMENTS FOR REPLACEMENT FACILI- TIES.—The Secretary of a military department may not accept a replacement facility, or addi- tion to an existing facility, to be acquired by the United States in an exchange carried out using the authority provided by this section until that Secretary determines that the facil- ity or addition— (1) is complete and usable, fully functional, and ready for occupancy; (2) satisfies all operational requirements; and (3) meets all applicable Federal, State, and local requirements relating to health, safety, fire, and the environment. (e) CONSULTATION REQUIREMENTS.—The Sec- retary of a military department authorized to enter into an agreement under subsection (a) to convey an existing facility under the control of that Secretary by exchange shall consult with representatives of other reserve components to evaluate— (1) the value of using the facility to meet the military requirements of another reserve com- ponent, instead of conveying the facility under this section; and (2) the feasibility of using the conveyance of the facility to acquire a facility, or an addi- tion to an existing facility, that would be jointly used by more than one reserve compo- nent or unit. (f) ADVANCE NOTICE OF PROPOSED EXCHANGE.— (1) When a decision is made to enter into an agreement under subsection (a) to exchange a facility using the authority provided by this sec- tion, the Secretary of the military department authorized to enter into the agreement shall submit to the congressional defense committees a report on the proposed agreement. The report shall include the following: (A) A description of the agreement, includ- ing the terms and conditions of the agree- ment, the parties to be involved in the agree- ment, the origin of the proposal that lead to the agreement, the intended use of the facility to be conveyed by the United States under the agreement, and any costs to be incurred by the United States to make the exchange under the agreement. (B) A description of the facility to be con- veyed by the United States under the agree- ment, including the current condition and fair market value of the facility, and a description of the method by which the fair market value of the facility was determined. (C) Information on the facility, or addition to an existing facility, to be acquired by the United States under the agreement and the in- tended use of the facility or addition, which shall meet requirements for information pro- vided to Congress for military construction projects to obtain a similar facility or addi- tion to an existing facility. (D) A certification that the Secretary com- plied with the consultation requirements under subsection (e). (E) A certification that the conveyance of the facility under the agreement is in the best interests of the United States and that the Secretary used competitive procedures to the maximum extent practicable to protect the in- terests of the United States. (2) The agreement described in a report pre- pared under paragraph (1) may be entered into, and the exchange covered by the agreement made, only after the end of the 21-day period be- ginning on the date the report is received by the congressional defense committees in an elec- tronic medium pursuant to section 480 of this title. (3) Section 2662 of this title shall not apply to an exchange carried out using the authority pro- vided by this section. (g) RELATION TO OTHER MILITARY CONSTRUC- TION REQUIREMENTS.—The acquisition of a facil- ity, or an addition to an existing facility, using the authority provided by this section shall not be treated as a military construction project for which an authorization is required by section 2802 of this title. (Added Pub. L. 108–375, div. B, title XXVIII, § 2809(a)(1), Oct. 28, 2004, 118 Stat. 2125; amended Pub. L. 109–163, div. B, title XXVIII, § 2808(a), Jan. 6, 2006, 119 Stat. 3508; Pub. L. 110–181, div. B, title XXVIII, § 2807, Jan. 28, 2008, 122 Stat. 541; Pub. L. 115–91, div. B, title XXVIII, § 2801(g), Dec. 12, 2017, 131 Stat. 1845.)