Federal Management Regulation; FMR Case 2007-102-1, Replacement of Personal Property Pursuant to the Exchange/Sale Authority, 50878-50881 [E8-19892]
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50878
Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations
date, from a private citizen. The
comment did not address the removal of
Panama from the list of regions where
screwworm is considered to exist.
Therefore, for the reasons given in the
proposed rule, we are adopting the
proposed rule as a final rule, without
change.
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Executive Order 12866 and Regulatory
Flexibility Act
This rule has been reviewed under
Executive Order 12866. For this action,
the Office of Management and Budget
has waived its review under Executive
Order 12866.
This final rule amends the regulations
regarding the importation of live horses,
ruminants, swine, and dogs by removing
Panama from the lists of regions where
screwworm is considered to exist. We
are taking this action because the
eradication of screwworm from Panama
has been confirmed. This action will
relieve certain screwworm-related
certification and inspection
requirements for live animals imported
into the United States from Panama.
No significant change in program
operations is anticipated as a result of
this rule, nor will this action affect other
Federal agencies, State governments, or
local governments. The cost of all
technical support activities, including
establishment of animal quarantine
control measures, treatment stations,
maintenance of livestock census,
screwworm surveillance, establishment
and maintenance of laboratory support,
and aerial dispersion of sterile
screwworm flies in Panama is provided
by the Commission for the Eradication
and Prevention of Screwworm and the
cooperative agreement funded by the
U.S. Department of Agriculture and
Panama’s Ministry of Agriculture and
Livestock Development. When
importing live animals from a region
where screwworm is considered to
exist, the cost of any required testing
(and treatment, if needed) is paid by the
owner of the animals being shipped.
Our removal of Panama from the list of
regions where screwworm is considered
to exist will reduce the cost for
producers and others in Panama to
export ruminants, swine, horses, and
dogs to the United States.
The economic effects associated with
this rule are likely to be limited. This is
because the number of live animals
exported into the United States from
Panama is likely to remain small. Trade
statistics indicate that since 2001, the
United States has not imported any
ruminants, swine, or dogs from Panama.
Equine imports from Panama over this
period have numbered only 163, which
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14:42 Aug 28, 2008
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is approximately 0.06 percent of all
horse imports.2
According to Small Business
Administration size standards for beef
cattle ranching and farming (North
American Industry Classification
System (NAICS) 112111), dairy cattle
and milk production (NAICS 112120),
hog and pig farming (NAICS 112210),
sheep farming (NAICS 112410), goat
farming (NAICS 112420),3 and horse
and other equine production (NAICS
112920), as well as the commercial
production of dogs, which is classified
under ‘‘all other animal production’’
(NAICS 112990), operations with not
more than $750,000 in annual sales are
considered small entities. We do not
expect that these producers, small or
otherwise, will be affected significantly
by the change in Panama’s screwworm
status. This is because, for the reasons
discussed above, live ruminants, swine,
horses, and dogs from Panama do not
play much, if any, of a role in their
operations, and few susceptible live
animals are expected to be exported.
Under these circumstances, the
Administrator of the Animal and Plant
Health Inspection Service has
determined that this action will not
have a significant economic impact on
a substantial number of small entities.
Executive Order 12988
This final rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts
all State and local laws and regulations
that are inconsistent with this rule; (2)
has no retroactive effect; and (3) does
not require administrative proceedings
before parties may file suit in court
challenging this rule.
Paperwork Reduction Act
This final rule contains no new
information collection or recordkeeping
requirements under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 9 CFR Part 93
Animal diseases, Imports, Livestock,
Poultry and poultry products,
Quarantine, Reporting and
recordkeeping requirements.
I Accordingly, we are amending 9 CFR
part 93 as follows:
2 Based on U.S. Census Bureau data, as presented
by Foreign Agricultural Service, USDA: http//
www.fas.usda.gov/ustrade/
USTImHS10.asp?QI=onhline_trade_dataTRAD.
3 The ‘‘all other animal production’’ classification
also includes the production of other animals, such
as adornment birds (swans, peacocks, flamingos),
alpacas, birds for sale, buffalos, cats, crickets, deer,
elk, laboratory animals, llamas, rattlesnakes, worms,
and breeding of pets.
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PART 93—IMPORTATION OF CERTAIN
ANIMALS, BIRDS, FISH, AND
POULTRY, AND CERTAIN ANIMAL,
BIRD, AND POULTRY PRODUCTS;
REQUIREMENTS FOR MEANS OF
CONVEYANCE AND SHIPPING
CONTAINERS
1. The authority citation for part 93
continues to read as follows:
I
Authority: 7 U.S.C. 1622 and 8301–8317;
21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7
CFR 2.22, 2.80, and 371.4.
§ 93.301
[Amended]
2. In § 93.301, paragraph (j) is
amended by removing the word
‘‘Panama,’’.
I
§ 93.405
[Amended]
3. In § 93.405, paragraph (a)(3) is
amended by removing the word
‘‘Panama,’’.
I
§ 93.505
[Amended]
4. In § 93.505, paragraph (b) is
amended by removing the word
‘‘Panama,’’.
I
§ 93.600
[Amended]
5. In § 93.600, paragraph (a) is
amended by removing the word
‘‘Panama,’’.
I
Done in Washington, DC, this 25th day of
August 2008.
Kevin Shea,
Acting Administrator, Animal and Plant
Health Inspection Service.
[FR Doc. E8–20116 Filed 8–28–08; 8:45 am]
BILLING CODE 3410–34–P
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–39
[FMR Amendment 2008–07; FMR Case
2007–102–1; Docket 2007–0001; Sequence
3]
RIN 3090–AI38
Federal Management Regulation; FMR
Case 2007–102–1, Replacement of
Personal Property Pursuant to the
Exchange/Sale Authority
Office of Governmentwide
Policy, General Services Administration
(GSA).
ACTION: Final rule.
AGENCY:
SUMMARY: The General Services
Administration is amending the Federal
Management Regulation (FMR) by
updating coverage on the replacement of
personal property pursuant to the
exchange/sale authority. The changes
were prompted by recommendations of
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the Federal Asset Management
Evaluation (FAME) interagency working
group led by GSA.
DATES: This final rule is effective August
29, 2008.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Robert Holcombe, Office of
Governmentwide Policy, Office of
Travel, Transportation, and Asset
Management (MT), (202) 501–3828 or email at Robert.Holcombe@gsa.gov. For
information pertaining to status or
publication schedules contact the
Regulatory Secretariat, 1800 F Street,
NW, Room 4035, Washington, DC,
20405, (202) 501–4755. Please cite FMR
Amendment 2008–07, FMR case 2007–
102–1.
SUPPLEMENTARY INFORMATION:
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A. Background
The General Services
Administration’s (GSA’s) Office of
Governmentwide Policy (OGP)
facilitated the interagency Federal Asset
Management Evaluation (FAME)
initiative during 2004 and 2005.
Discussions with GSA’s Federal
customers during this initiative revealed
a perception that there were too many
unnecessary restrictions and ‘‘hurdles’’
hindering the effective use of this
authority. One of the recommendations
of the FAME report (March 31, 2005)
was to ‘‘increase the flexibility of the
exchange/sale program to promote the
use of this authority throughout the
Government.’’
A proposed rule was published in the
Federal Register on December 11, 2007
(72 FR 70266). Two Federal agencies
provided comments. Those comments
and GSA’s response to the comments
are as follows:
Comment: One comment questioned
the need to expand the discussion of
deviations to the exchange/sale
regulations; particularly, which
regulatory provisions are or are not
subject to deviation. It was also noted
that other GSA asset management
regulations do not describe deviations to
this extent.
GSA Response: FMR 102–39.25 is
being added to clarify which regulatory
provisions are subject to deviation. This
is due to numerous questions received
by GSA/OGP on this topic. Also, in
contrast to the other GSA asset
management regulations, most of the
restrictions found in FMR 102–39 are
not required by statute and therefore are
subject to deviation where beneficial to
the Federal Government. GSA has made
no changes as a result of this comment.
Comment: One comment suggested
that the answer to FMR 102–39.40 could
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be interpreted as requiring agencies to
use the exchange/sale authority.
GSA Response: Agencies are not
required to use the exchange/sale
authority. In order to eliminate any
confusion, GSA has clarified that
agencies should consider using this
authority. The text of FMR 102–39.40
has been modified in this final rule.
Comment: One comment questioned
the discussion in FMR 102–39.40
comparing the retention of sales
proceeds under the exchange/sale
authority to the retention of sales
proceeds when selling surplus property.
The comment also indicated that use of
the exchange/sale authority constitutes
an illegal augmentation of
appropriations.
GSA Response: The discussion of the
handling of exchange/sale sales
proceeds vs. surplus sales proceeds has
been in the exchange/sale regulations
for over 10 years. That discussion is
included for the benefit of GSA’s
customers who are not aware of the
difference. In summary, if an agency has
a continuing need for an item, the
agency may exchange or sell the item
and use the proceeds to acquire a
similar replacement item. Under that
scenario, the agency should not report
the item as excess. Also, the exchange/
sale authority is NOT an illegal
augmentation of appropriations; rather,
the law expressly authorizes the use of
sales proceeds in the acquisition of a
similar item. GSA has made no changes
as a result of this comment.
Comment: One comment objected to
the language in a sentence being added
to FMR 102–39.40 to explain to readers
that exchange allowances and sales
proceeds may only be used to offset the
cost of replacement property, not
services. The language at issue
specifically addresses the use of
exchange allowances and sales proceeds
in the context of a contract for services.
GSA Response: It is essential to
include this language so readers are
clear that under a contract for services
arrangement (which is fairly common
with respect to certain types of personal
property), exchange allowances and
sales proceeds can only be used for
property acquired under the contract,
not services acquired under the
contract. GSA has made no changes as
a result of this comment.
Comment: One comment questioned
an exception provided in FMR 102–
39.60 for the handling of certain
Department of Defense (DOD) property
under the exchange/sale authority.
GSA Response: The exception at issue
has been in the exchange/sale
regulations for over six years. The
exception exists because the DOD
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50879
property concerned is generally not
suitable for transfer to other Federal
agencies or donation to State Agencies
for Surplus Property. Also, DOD
regulations sufficiently control the
disposition of such property (e.g.,
through requirements contained in the
DOD 4160.21–M policies). GSA has
made no changes as a result of this
comment.
Comment: One comment objected to
the elimination of a requirement in FMR
102–39.65 that the number of items
acquired must equal the number of
items exchanged or sold unless certain
exceptions are met.
GSA Response: GSA is eliminating
this requirement for several reasons.
First, it is not required by statute. Also,
through GSA’s meetings and
discussions with Federal agencies over
recent years, GSA found that there is a
great deal of confusion about the
exceptions to the one-for-one
requirement. Finally, GSA is aware of
many instances where an agency would
like to adhere to the requirement and
replace property on a one-for-one basis
but the agency is unable to receive
sufficient funds from the sale and
therefore has to ask GSA for a deviation
from this requirement. This creates an
administrative burden for agencies to
prepare deviation requests and for GSA
to process those requests. As the statute
does not require the one-for-one
requirement, GSA almost always
approves such requests (as long as all
other applicable requirements are met).
GSA has made no changes as a result of
this comment.
Comment: One comment objected to
the addition of a requirement to FMR
102–39.85 that Federal agencies must
report annually to GSA on property
acquired under the exchange/sale
authority.
GSA Response: GSA has reconsidered
this proposed change, and will not go
forward with it at this time.
Comment: Finally, two comments
were based on a misunderstanding of
how the proposed rule was presented.
The proposed rule showed only the
fourteen proposed changes to the FMR
and the text affected by those changes.
The proposed rule did not show text
which is not being revised (except in
some cases where immediately adjacent
text was shown).
GSA Response: GSA has made no
changes as a result of these comments.
B. Executive Order 12866
This regulation is excepted from the
definition of ‘‘regulation’’ or ‘‘rule’’
under Section 3(d)(3) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993 and,
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Federal Register / Vol. 73, No. 169 / Friday, August 29, 2008 / Rules and Regulations
102–39.35
102–39.50
102–39.40
102–39.55
102–39.45
102–39.60
102–39.60
102–39.70
102–39.65
102–39.75
102–39.70
102–39.80
102–39.75
102–39.85
I 5. Add new § 102–39.5 to read as
follows:
therefore, was not subject to review
under Section 6(b) of that Executive
Order.
C. Regulatory Flexibility Act
This final rule is not required to be
published in the Federal Register for
notice and comment as per the
exemption specified in 5 U.S.C. 553
(a)(2); therefore, the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
does not apply.
§ 102–39.5
authority?
D. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because these final changes to
the FMR do not impose information
collection requirements that require the
approval of the Office of Management
and Budget under 44 U.S.C. 3501, et
seq.
E. Small Business Regulatory
Enforcement Fairness Act
This final rule is exempt from
Congressional review under 5 U.S.C.
801 since it relates solely to agency
management and personnel.
List of Subjects in 41 CFR Part 102–39
Dated: June 23, 2008.
David L. Bibb,
Acting Administrator of General Services.
For the reasons set forth in the
preamble, GSA amends 41 CFR part
102–39 as set forth below:
I
PART 102–39—REPLACEMENT OF
PERSONAL PROPERTY PURSUANT
TO THE EXCHANGE/SALE AUTHORITY
1. The authority citation for 41 CFR
part 102–39 is revised to read as
follows:
I
Authority: 40 U.S.C. 121(c); 40 U.S.C. 503.
I
I
[Removed]
2. Remove § 102–39.50.
§ 102–39.55
[Removed]
3. Remove § 102–39.55.
§§ 102–39.5, 102–39.15, 102–39.25, 102–
39.30, 102–39.35, 102–39.40, 102–39.45,
102–39.60, 102–39.65, 102–39.70, 102–39.75
[Redesignated]
4. Redesignate §§ 102–39.5, 102–
39.15, 102–39.25, 102–39.30, 102–39.35,
102–39.40, 102–39.45, 102–39.60, 102–
39.65, 102–39.70, 102–39.75 as follows:
Old section
New section
102–39.5
102–39.15
102–39.15
102–39.40
102–39.25
102–39.30
102–39.30
102–39.45
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I
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The exchange/sale authority is a
statutory provision, (40 U.S.C. 503),
which states in part: ‘‘In acquiring
personal property, an executive agency
may exchange or sell similar items and
may apply the exchange allowance or
proceeds of sale in whole or in part
payment for the property acquired.’’
I 6. Amend § 102–39.20 by revising the
definitions of the terms ‘‘Acquire’’,
‘‘Replacement’’, and ‘‘Similar’’; and, by
alphabetically adding the terms and
definitions ‘‘Excess property’’, ‘‘Service
Life Extension Program (SLEP)’’, and
‘‘Surplus property’’ to read as follows:
§ 102–39.20
part?
What definitions apply to this
*
Government property management,
Reporting and recordkeeping
requirements, and Government
property.
§ 102–39.50
What is the exchange/sale
*
*
*
*
Acquire means to procure or
otherwise obtain personal property,
including by lease (sometimes known as
rent).
*
*
*
*
*
Excess property means any personal
property under the control of any
Federal agency that is no longer
required for that agency’s needs or
responsibilities, as determined by the
agency head or designee.
*
*
*
*
*
Replacement means the process of
acquiring personal property to be used
in place of personal property that is still
needed but:
(1) No longer adequately performs the
tasks for which it is used; or
(2) Does not meet the agency’s need
as well as the personal property to be
acquired.
Service Life Extension Program (SLEP)
means the modification of a personal
property item undertaken to extend the
life of the item beyond that which was
previously planned. SLEPs extend
capital asset life by retrofit, major
modification, remanufacturing,
betterment, or enhancement.
Similar means the acquired item(s)
and replaced item(s):
(1) Are identical; or
(2) Fall within a single Federal
Supply Classification (FSC) Group of
property (includes any and all forms of
property within a single FSC Group); or
(3) Are parts or containers for similar
end items; or
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(4) Are designed or constructed for
the same purpose (includes any and all
forms of property regardless of the FSC
Group to which they are assigned).
Surplus property means excess
personal property not required for the
needs of any Federal agency, as
determined by GSA under part 102–37
of this chapter.
I 7. Add new § 102–39.25 to Subpart A
to read as follows:
§ 102–39.25 Which exchange/sale
provisions are subject to deviation?
All of the provisions in this part are
subject to deviation (upon presentation
of adequate justification) except those
mandated by statute. See the link on
‘‘Exchange/Sale’’ at www.gsa.gov/
personalpropertypolicy for additional
information on requesting deviations
from this part.
I 8. Revise newly redesignated § 102–
39.30 to read as follows:
§ 102–39.30 How do I request a deviation
from this part?
See part 102–2 of this chapter (41 CFR
part 102–2) to request a deviation from
the requirements of this part.
I 9. Add new § 102–39.35 to Subpart B
to read as follows:
§ 102–39.35 When should I consider using
the exchange/sale authority?
You should consider using the
exchange/sale authority when replacing
personal property.
I 10. Transfer newly redesignated
§ 102–39.40 to Subpart B and revise the
section to read as follows:
§ 102–39.40 Why should I consider using
the exchange/sale authority?
You should consider using the
exchange/sale authority to reduce the
cost of replacement personal property.
When you have personal property that
is wearing out or obsolete and must be
replaced, you should consider either
exchanging or selling that property and
using the exchange allowance or sales
proceeds to offset the cost of the
replacement personal property.
Conversely, if you choose not to replace
the property using the exchange/sale
authority, you may declare it as excess
and dispose of it through the normal
disposal process as addressed in part
102–36 of this chapter. Keep in mind,
however, that any net proceeds from the
eventual sale of that property as surplus
generally must be forwarded to the
miscellaneous receipts account at the
United States Treasury and thus would
not be available to you. You may use the
exchange/sale authority in the
acquisition of personal property even if
the acquisition is under a services
contract, as long as the property
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acquired under the services contract is
similar to the property exchanged or
sold (e.g., for a SLEP, exchange
allowances or sales proceeds would be
available for replacement of similar
items, but not for services).
I 11. Amend newly redesignated § 102–
39.55 by revising the section heading to
read as follows:
§ 102–39.55 When should I offer property I
am exchanging or selling under the
exchange/sale authority to other Federal
agencies or State Agencies for Surplus
Property (SASP)?
*
*
*
*
*
12. Amend newly redesignated § 102–
39.60 by revising the section heading,
the introductory text, paragraph (a), the
note to paragraph (a), and paragraph (i)
to read as follows:
I
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§ 102–39.60 What restrictions and
prohibitions apply to the exchange/sale of
personal property?
Unless a deviation is requested of and
approved by GSA as addressed in part
102–2 of this chapter and the provisions
of §§ 102–39.25 and 102–39.30, you
must not use the exchange/sale
authority for:
(a) The following FSC groups of
personal property:
10 Weapons.
11 Nuclear ordnance.
12 Fire control equipment.
14 Guided missiles.
15 Aircraft and airframe structural
components (except FSC Class 1560
Airframe Structural Components).
42 Firefighting, rescue, and safety
equipment.
44 Nuclear reactors (FSC Class 4470
only).
51 Hand tools.
54 Prefabricated structure and
scaffolding (FSC Class 5410
Prefabricated and Portable Buildings,
FSC Class 5411 Rigid Wall Shelters, and
FSC Class 5419 Collective Modular
Support System only).
68 Chemicals and chemical products,
except medicinal chemicals.
84 Clothing, individual equipment,
and insignia.
Note to § 102–39.60(a): Under no
circumstances will deviations be
granted for FSC Class 1005, Guns
through 30mm. Deviations are not
required for Department of Defense
(DoD) property in FSC Groups 10 (for
classes other than FSC Class 1005), 12
and 14 for which the applicable DoD
demilitarization requirements, and any
other applicable regulations and statutes
are met.
*
*
*
*
*
(i) Flight Safety Critical Aircraft Parts
(FSCAP) and Critical Safety Items (CSI)
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unless you meet the provisions of § 102–
33.370 of this title.
*
*
*
*
*
I 13. New § 102–39.65 is added to
Subpart B to read as follows:
§ 102–39.65 What conditions apply to the
exchange/sale of personal property?
You may use the exchange/sale
authority only if you meet all of the
following conditions:
(a) The property exchanged or sold is
similar to the property acquired;
(b) The property exchanged or sold is
not excess or surplus and you have a
continuing need for similar property;
(c) The property exchanged or sold
was not acquired for the principal
purpose of exchange or sale;
(d) When replacing personal property,
the exchange allowance or sales
proceeds from the disposition of that
property may only be used to offset the
cost of the replacement property, not
services; and
(e) Except for transactions involving
books and periodicals in your libraries,
you document the basic facts associated
with each exchange/sale transaction. At
a minimum, the documentation must
include:
(1) The FSC Group of the items
exchanged or sold, and the items
acquired;
(2) The number of items exchanged or
sold, and the number of items acquired;
(3) The acquisition cost and exchange
allowance or net sales proceeds of the
items exchanged or sold, and the
acquisition cost of the items acquired;
(4) The date of the transaction(s);
(5) The parties involved; and
(6) A statement that the transactions
comply with the requirements of this
part 102–39.
Note to § 102–39.65: In acquiring
items for historical preservation or
display at Federal museums, you may
exchange historic items in the museum
property account without regard to the
FSC group, provided the exchange
transaction is documented and certified
by the head of your agency to be in the
best interests of the Government and all
other provisions of this part are met.
The documentation must contain a
determination that the item exchanged
and the item acquired are historic items.
I 14. Revise newly redesignated § 102–
39.80 to read asfollows:
§ 102–39.80 What are the accounting
requirements for exchange allowances or
proceeds of sale?
You must account for exchange
allowances or proceeds of sale in
accordance with the general finance and
accounting rules applicable to you.
Except as otherwise authorized by law,
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50881
all exchange allowances or proceeds of
sale under this part will be available
during the fiscal year in which the
property was sold and for one fiscal year
thereafter for the purchase of
replacement property. Any proceeds of
sale not applied to replacement
purchases during this time must be
deposited in the United States Treasury
as miscellaneous receipts.
[FR Doc. E8–19892 Filed 8–28–08; 8:45 am]
BILLING CODE 6820–14–S
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Parts 206 and 207
[Docket ID FEMA–2006–0035]
RIN 1660–AA21
Management Costs
Federal Emergency
Management Agency, DHS.
ACTION: Reopening of comment period.
AGENCY:
SUMMARY: The Management Cost Interim
Rule implemented the management cost
provisions in section 324 of the Robert
T. Stafford Disaster Relief and
Emergency Assistance Act, as amended.
The Federal Emergency Management
Agency (FEMA) is reopening the public
comment period on its Management
Cost Interim Rule. FEMA is taking this
action to solicit data from grantees and
subgrantees to use in reevaluating the
fixed management cost rates established
in the rule.
DATES: Comments are due on or before
September 29, 2008.
ADDRESSES: You may submit comments,
identified by Docket ID FEMA–2006–
0035, by one of the following methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: FEMA–RULES@dhs.gov.
Include Docket ID FEMA–2006–0035 in
the subject line of the message.
Fax: 866–466–5370.
Mail/Hand Delivery/Courier: Rules
Docket Clerk, Office of Chief Counsel,
Federal Emergency Management
Agency, Room 835, 500 C Street, SW.,
Washington, DC 20472.
FOR FURTHER INFORMATION CONTACT:
Jonna M. Long, Office of the Chief
Financial Officer, Federal Emergency
Management Agency, 500 C Street, SW.,
Washington, DC 20472, 202–646–7057,
(facsimile) (202) 646–4268 (phone), or
(e-mail) jonna.long@dhs.gov.
E:\FR\FM\29AUR1.SGM
29AUR1
]]>Agencies
[Federal Register Volume 73, Number 169 (Friday, August 29, 2008)]
[Rules and Regulations]
[Pages 50878-50881]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-19892]
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GENERAL SERVICES ADMINISTRATION
41 CFR Part 102-39
[FMR Amendment 2008-07; FMR Case 2007-102-1; Docket 2007-0001; Sequence
3]
RIN 3090-AI38
Federal Management Regulation; FMR Case 2007-102-1, Replacement
of Personal Property Pursuant to the Exchange/Sale Authority
AGENCY: Office of Governmentwide Policy, General Services
Administration (GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration is amending the Federal
Management Regulation (FMR) by updating coverage on the replacement of
personal property pursuant to the exchange/sale authority. The changes
were prompted by recommendations of
[[Page 50879]]
the Federal Asset Management Evaluation (FAME) interagency working
group led by GSA.
DATES: This final rule is effective August 29, 2008.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Robert Holcombe, Office of Governmentwide Policy, Office of Travel,
Transportation, and Asset Management (MT), (202) 501-3828 or e-mail at
Robert.Holcombe@gsa.gov. For information pertaining to status or
publication schedules contact the Regulatory Secretariat, 1800 F
Street, NW, Room 4035, Washington, DC, 20405, (202) 501-4755. Please
cite FMR Amendment 2008-07, FMR case 2007-102-1.
SUPPLEMENTARY INFORMATION:
A. Background
The General Services Administration's (GSA's) Office of
Governmentwide Policy (OGP) facilitated the interagency Federal Asset
Management Evaluation (FAME) initiative during 2004 and 2005.
Discussions with GSA's Federal customers during this initiative
revealed a perception that there were too many unnecessary restrictions
and ``hurdles'' hindering the effective use of this authority. One of
the recommendations of the FAME report (March 31, 2005) was to
``increase the flexibility of the exchange/sale program to promote the
use of this authority throughout the Government.''
A proposed rule was published in the Federal Register on December
11, 2007 (72 FR 70266). Two Federal agencies provided comments. Those
comments and GSA's response to the comments are as follows:
Comment: One comment questioned the need to expand the discussion
of deviations to the exchange/sale regulations; particularly, which
regulatory provisions are or are not subject to deviation. It was also
noted that other GSA asset management regulations do not describe
deviations to this extent.
GSA Response: FMR 102-39.25 is being added to clarify which
regulatory provisions are subject to deviation. This is due to numerous
questions received by GSA/OGP on this topic. Also, in contrast to the
other GSA asset management regulations, most of the restrictions found
in FMR 102-39 are not required by statute and therefore are subject to
deviation where beneficial to the Federal Government. GSA has made no
changes as a result of this comment.
Comment: One comment suggested that the answer to FMR 102-39.40
could be interpreted as requiring agencies to use the exchange/sale
authority.
GSA Response: Agencies are not required to use the exchange/sale
authority. In order to eliminate any confusion, GSA has clarified that
agencies should consider using this authority. The text of FMR 102-
39.40 has been modified in this final rule.
Comment: One comment questioned the discussion in FMR 102-39.40
comparing the retention of sales proceeds under the exchange/sale
authority to the retention of sales proceeds when selling surplus
property. The comment also indicated that use of the exchange/sale
authority constitutes an illegal augmentation of appropriations.
GSA Response: The discussion of the handling of exchange/sale sales
proceeds vs. surplus sales proceeds has been in the exchange/sale
regulations for over 10 years. That discussion is included for the
benefit of GSA's customers who are not aware of the difference. In
summary, if an agency has a continuing need for an item, the agency may
exchange or sell the item and use the proceeds to acquire a similar
replacement item. Under that scenario, the agency should not report the
item as excess. Also, the exchange/sale authority is NOT an illegal
augmentation of appropriations; rather, the law expressly authorizes
the use of sales proceeds in the acquisition of a similar item. GSA has
made no changes as a result of this comment.
Comment: One comment objected to the language in a sentence being
added to FMR 102-39.40 to explain to readers that exchange allowances
and sales proceeds may only be used to offset the cost of replacement
property, not services. The language at issue specifically addresses
the use of exchange allowances and sales proceeds in the context of a
contract for services.
GSA Response: It is essential to include this language so readers
are clear that under a contract for services arrangement (which is
fairly common with respect to certain types of personal property),
exchange allowances and sales proceeds can only be used for property
acquired under the contract, not services acquired under the contract.
GSA has made no changes as a result of this comment.
Comment: One comment questioned an exception provided in FMR 102-
39.60 for the handling of certain Department of Defense (DOD) property
under the exchange/sale authority.
GSA Response: The exception at issue has been in the exchange/sale
regulations for over six years. The exception exists because the DOD
property concerned is generally not suitable for transfer to other
Federal agencies or donation to State Agencies for Surplus Property.
Also, DOD regulations sufficiently control the disposition of such
property (e.g., through requirements contained in the DOD 4160.21-M
policies). GSA has made no changes as a result of this comment.
Comment: One comment objected to the elimination of a requirement
in FMR 102-39.65 that the number of items acquired must equal the
number of items exchanged or sold unless certain exceptions are met.
GSA Response: GSA is eliminating this requirement for several
reasons. First, it is not required by statute. Also, through GSA's
meetings and discussions with Federal agencies over recent years, GSA
found that there is a great deal of confusion about the exceptions to
the one-for-one requirement. Finally, GSA is aware of many instances
where an agency would like to adhere to the requirement and replace
property on a one-for-one basis but the agency is unable to receive
sufficient funds from the sale and therefore has to ask GSA for a
deviation from this requirement. This creates an administrative burden
for agencies to prepare deviation requests and for GSA to process those
requests. As the statute does not require the one-for-one requirement,
GSA almost always approves such requests (as long as all other
applicable requirements are met). GSA has made no changes as a result
of this comment.
Comment: One comment objected to the addition of a requirement to
FMR 102-39.85 that Federal agencies must report annually to GSA on
property acquired under the exchange/sale authority.
GSA Response: GSA has reconsidered this proposed change, and will
not go forward with it at this time.
Comment: Finally, two comments were based on a misunderstanding of
how the proposed rule was presented. The proposed rule showed only the
fourteen proposed changes to the FMR and the text affected by those
changes. The proposed rule did not show text which is not being revised
(except in some cases where immediately adjacent text was shown).
GSA Response: GSA has made no changes as a result of these
comments.
B. Executive Order 12866
This regulation is excepted from the definition of ``regulation''
or ``rule'' under Section 3(d)(3) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993 and,
[[Page 50880]]
therefore, was not subject to review under Section 6(b) of that
Executive Order.
C. Regulatory Flexibility Act
This final rule is not required to be published in the Federal
Register for notice and comment as per the exemption specified in 5
U.S.C. 553 (a)(2); therefore, the Regulatory Flexibility Act, 5 U.S.C.
601, et seq., does not apply.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because these final
changes to the FMR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
E. Small Business Regulatory Enforcement Fairness Act
This final rule is exempt from Congressional review under 5 U.S.C.
801 since it relates solely to agency management and personnel.
List of Subjects in 41 CFR Part 102-39
Government property management, Reporting and recordkeeping
requirements, and Government property.
Dated: June 23, 2008.
David L. Bibb,
Acting Administrator of General Services.
0
For the reasons set forth in the preamble, GSA amends 41 CFR part 102-
39 as set forth below:
PART 102-39--REPLACEMENT OF PERSONAL PROPERTY PURSUANT TO THE
EXCHANGE/SALE AUTHORITY
0
1. The authority citation for 41 CFR part 102-39 is revised to read as
follows:
Authority: 40 U.S.C. 121(c); 40 U.S.C. 503.
Sec. 102-39.50 [Removed]
0
2. Remove Sec. 102-39.50.
Sec. 102-39.55 [Removed]
0
3. Remove Sec. 102-39.55.
Sec. Sec. 102-39.5, 102-39.15, 102-39.25, 102-39.30, 102-39.35, 102-
39.40, 102-39.45, 102-39.60, 102-39.65, 102-39.70, 102-
39.75 [Redesignated]
0
4. Redesignate Sec. Sec. 102-39.5, 102-39.15, 102-39.25, 102-39.30,
102-39.35, 102-39.40, 102-39.45, 102-39.60, 102-39.65, 102-39.70, 102-
39.75 as follows:
Old section New section
102-39.5 102-39.15
102-39.15 102-39.40
102-39.25 102-39.30
102-39.30 102-39.45
102-39.35 102-39.50
102-39.40 102-39.55
102-39.45 102-39.60
102-39.60 102-39.70
102-39.65 102-39.75
102-39.70 102-39.80
102-39.75 102-39.85
0
5. Add new Sec. 102-39.5 to read as follows:
Sec. 102-39.5 What is the exchange/sale authority?
The exchange/sale authority is a statutory provision, (40 U.S.C.
503), which states in part: ``In acquiring personal property, an
executive agency may exchange or sell similar items and may apply the
exchange allowance or proceeds of sale in whole or in part payment for
the property acquired.''
0
6. Amend Sec. 102-39.20 by revising the definitions of the terms
``Acquire'', ``Replacement'', and ``Similar''; and, by alphabetically
adding the terms and definitions ``Excess property'', ``Service Life
Extension Program (SLEP)'', and ``Surplus property'' to read as
follows:
Sec. 102-39.20 What definitions apply to this part?
* * * * *
Acquire means to procure or otherwise obtain personal property,
including by lease (sometimes known as rent).
* * * * *
Excess property means any personal property under the control of
any Federal agency that is no longer required for that agency's needs
or responsibilities, as determined by the agency head or designee.
* * * * *
Replacement means the process of acquiring personal property to be
used in place of personal property that is still needed but:
(1) No longer adequately performs the tasks for which it is used;
or
(2) Does not meet the agency's need as well as the personal
property to be acquired.
Service Life Extension Program (SLEP) means the modification of a
personal property item undertaken to extend the life of the item beyond
that which was previously planned. SLEPs extend capital asset life by
retrofit, major modification, remanufacturing, betterment, or
enhancement.
Similar means the acquired item(s) and replaced item(s):
(1) Are identical; or
(2) Fall within a single Federal Supply Classification (FSC) Group
of property (includes any and all forms of property within a single FSC
Group); or
(3) Are parts or containers for similar end items; or
(4) Are designed or constructed for the same purpose (includes any
and all forms of property regardless of the FSC Group to which they are
assigned).
Surplus property means excess personal property not required for
the needs of any Federal agency, as determined by GSA under part 102-37
of this chapter.
0
7. Add new Sec. 102-39.25 to Subpart A to read as follows:
Sec. 102-39.25 Which exchange/sale provisions are subject to
deviation?
All of the provisions in this part are subject to deviation (upon
presentation of adequate justification) except those mandated by
statute. See the link on ``Exchange/Sale'' at www.gsa.gov/
personalpropertypolicy for additional information on requesting
deviations from this part.
0
8. Revise newly redesignated Sec. 102-39.30 to read as follows:
Sec. 102-39.30 How do I request a deviation from this part?
See part 102-2 of this chapter (41 CFR part 102-2) to request a
deviation from the requirements of this part.
0
9. Add new Sec. 102-39.35 to Subpart B to read as follows:
Sec. 102-39.35 When should I consider using the exchange/sale
authority?
You should consider using the exchange/sale authority when
replacing personal property.
0
10. Transfer newly redesignated Sec. 102-39.40 to Subpart B and revise
the section to read as follows:
Sec. 102-39.40 Why should I consider using the exchange/sale
authority?
You should consider using the exchange/sale authority to reduce the
cost of replacement personal property. When you have personal property
that is wearing out or obsolete and must be replaced, you should
consider either exchanging or selling that property and using the
exchange allowance or sales proceeds to offset the cost of the
replacement personal property. Conversely, if you choose not to replace
the property using the exchange/sale authority, you may declare it as
excess and dispose of it through the normal disposal process as
addressed in part 102-36 of this chapter. Keep in mind, however, that
any net proceeds from the eventual sale of that property as surplus
generally must be forwarded to the miscellaneous receipts account at
the United States Treasury and thus would not be available to you. You
may use the exchange/sale authority in the acquisition of personal
property even if the acquisition is under a services contract, as long
as the property
[[Page 50881]]
acquired under the services contract is similar to the property
exchanged or sold (e.g., for a SLEP, exchange allowances or sales
proceeds would be available for replacement of similar items, but not
for services).
0
11. Amend newly redesignated Sec. 102-39.55 by revising the section
heading to read as follows:
Sec. 102-39.55 When should I offer property I am exchanging or
selling under the exchange/sale authority to other Federal agencies or
State Agencies for Surplus Property (SASP)?
* * * * *
0
12. Amend newly redesignated Sec. 102-39.60 by revising the section
heading, the introductory text, paragraph (a), the note to paragraph
(a), and paragraph (i) to read as follows:
Sec. 102-39.60 What restrictions and prohibitions apply to the
exchange/sale of personal property?
Unless a deviation is requested of and approved by GSA as addressed
in part 102-2 of this chapter and the provisions of Sec. Sec. 102-
39.25 and 102-39.30, you must not use the exchange/sale authority for:
(a) The following FSC groups of personal property:
10 Weapons.
11 Nuclear ordnance.
12 Fire control equipment.
14 Guided missiles.
15 Aircraft and airframe structural components (except FSC Class
1560 Airframe Structural Components).
42 Firefighting, rescue, and safety equipment.
44 Nuclear reactors (FSC Class 4470 only).
51 Hand tools.
54 Prefabricated structure and scaffolding (FSC Class 5410
Prefabricated and Portable Buildings, FSC Class 5411 Rigid Wall
Shelters, and FSC Class 5419 Collective Modular Support System only).
68 Chemicals and chemical products, except medicinal chemicals.
84 Clothing, individual equipment, and insignia.
Note to Sec. 102-39.60(a): Under no circumstances will deviations
be granted for FSC Class 1005, Guns through 30mm. Deviations are not
required for Department of Defense (DoD) property in FSC Groups 10 (for
classes other than FSC Class 1005), 12 and 14 for which the applicable
DoD demilitarization requirements, and any other applicable regulations
and statutes are met.
* * * * *
(i) Flight Safety Critical Aircraft Parts (FSCAP) and Critical
Safety Items (CSI) unless you meet the provisions of Sec. 102-33.370
of this title.
* * * * *
0
13. New Sec. 102-39.65 is added to Subpart B to read as follows:
Sec. 102-39.65 What conditions apply to the exchange/sale of personal
property?
You may use the exchange/sale authority only if you meet all of the
following conditions:
(a) The property exchanged or sold is similar to the property
acquired;
(b) The property exchanged or sold is not excess or surplus and you
have a continuing need for similar property;
(c) The property exchanged or sold was not acquired for the
principal purpose of exchange or sale;
(d) When replacing personal property, the exchange allowance or
sales proceeds from the disposition of that property may only be used
to offset the cost of the replacement property, not services; and
(e) Except for transactions involving books and periodicals in your
libraries, you document the basic facts associated with each exchange/
sale transaction. At a minimum, the documentation must include:
(1) The FSC Group of the items exchanged or sold, and the items
acquired;
(2) The number of items exchanged or sold, and the number of items
acquired;
(3) The acquisition cost and exchange allowance or net sales
proceeds of the items exchanged or sold, and the acquisition cost of
the items acquired;
(4) The date of the transaction(s);
(5) The parties involved; and
(6) A statement that the transactions comply with the requirements
of this part 102-39.
Note to Sec. 102-39.65: In acquiring items for historical
preservation or display at Federal museums, you may exchange historic
items in the museum property account without regard to the FSC group,
provided the exchange transaction is documented and certified by the
head of your agency to be in the best interests of the Government and
all other provisions of this part are met. The documentation must
contain a determination that the item exchanged and the item acquired
are historic items.
0
14. Revise newly redesignated Sec. 102-39.80 to read asfollows:
Sec. 102-39.80 What are the accounting requirements for exchange
allowances or proceeds of sale?
You must account for exchange allowances or proceeds of sale in
accordance with the general finance and accounting rules applicable to
you. Except as otherwise authorized by law, all exchange allowances or
proceeds of sale under this part will be available during the fiscal
year in which the property was sold and for one fiscal year thereafter
for the purchase of replacement property. Any proceeds of sale not
applied to replacement purchases during this time must be deposited in
the United States Treasury as miscellaneous receipts.
[FR Doc. E8-19892 Filed 8-28-08; 8:45 am]
BILLING CODE 6820-14-S
