E7-6068. Federal Management Regulation; FMR Case 2007-102-2, Sale of Personal Property-Federal Asset Sales (FAS) Sales Centers

AGENCY:

Office of Governmentwide Policy, General Services Administration (GSA).

ACTION:

Proposed rule.

SUMMARY:

The General Services Administration is amending the Federal Management Regulation (FMR) by adding provisions for the sale of personal property through Federal Asset Sales (FAS) Sales Centers.

DATES:

Interested parties should submit comments in writing on or before May 3, 2007 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by FMR case 2007-102-2 by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Search for any document by first selecting the proper document types and selecting “General Services Administration” as the agency of choice. At the “Keyword” prompt, type in the FMR case number (for example, FMR Case 2007-102-2) and click on the “Submit” button. You may also search for any document by clicking on the “Advanced search/document search” tab at the top of the screen, selecting from the agency field “General Services Administration,” and typing the FMR case number in the keyword field. Select the “Submit” button.
• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.

Instructions: Please submit comments only and cite FMR case 2007-102-2 in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT:

The Regulatory Secretariat, Room 4035, GS Building, Washington, DC, 20405, at [phone] for information pertaining to status or publication schedules. For clarification of content, contact Mr. Robert Holcombe, Office of Governmentwide Policy, Personal Property Management Policy, at [phone], or e-mail at [e-mail]. Please cite FMR case 2007-102-2.

SUPPLEMENTARY INFORMATION:

A. Background

This proposed amendment to part 102-38 of the Federal Management Regulation (41 CFR part 102-38) would provide new policy to implement the Federal Asset Sales (FAS) e-Government initiative. The goals of this initiative are to:

• Maximize the value that the Federal Government receives from selling its real and personal property assets by maximizing the visibility of the assets to prospective buyers. This regulation only addresses the sale of personal property.
• Effect transparency in the sales process so that agencies are aware of the costs and performance of their sales alternatives, prospective buyers are aware of the conditions of the items offered for sale, and information on Federal sales activities and results are easily available to the public.
• Collect and report Governmentwide data on the volume, proceeds, cost, and other performance characteristics of Federal property sales.

This part discusses the requirement for agencies to sell their property through designated Sales Centers (SCs). The definitions of terms related to the FAS initiative are provided in this part, along with the policy related to how agencies must implement this initiative.

Changes are also being made to this part to strengthen the terms and conditions of sale to specifically include requirements to dispose of assets in accordance with Federal, State, and local laws and regulations (section 102-38.75).

B. Executive Order 12866

It has been determined that this proposed rule is not a significant regulatory action for the purposes of Executive Order 12866.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed 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.

D. Small Business Regulatory Enforcement Fairness Act

This proposed 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 102-38

• Government property management
• Surplus Government property

Dated: January 25, 2007.

Kevin Messner,

Acting Associate Administrator.

For the reasons set forth in the preamble, GSA amends 41 CFR part 102-38 as set forth below:

PART 102-38—SALE OF PERSONAL PROPERTY

1. The authority citation for part 102-38 continues to read as follows:

Authority: 40 U.S.C 545 and 40 U.S.C. 121(c).

§ 102-38.25

[Amended]

2. Amend § 102-38.25 by removing “holding” and adding “Sales Center” in its place.

3. Amend § 102-38.30 by revising the heading to read as follows:

§ 102-38.30

How does an executive agency request a deviation from the provisions of this part?

4. Amend § 102-38.35 by adding the definitions “Federal Asset Sales (FAS)”, “Holding Agency”, “Migration Plan”, and “Sales Center (SC)” to read as follows:

§ 102-38.35

What definitions apply to this part?

Federal Asset Sales (FAS) refers to the e-Government initiative to improve the way the Federal Government manages and sells its real and personal property assets. Under this initiative, only an agency designated as a Sales Center (SC) may sell Federal property. The FAS program is governed by the FAS Executive Steering Committee (ESC), with GSA as the managing partner agency.

Holding Agency refers to the agency in possession of personal property eligible for sale under this Part.

Migration Plan refers to the document a holding agency prepares to summarize its choice of SC and its plan for migrating agency sales to the SC(s). The format for this document is determined by the FAS ESC.

Sales Center (SC) means an agency that has been designated as an official sales agent for Federal property. The criteria for becoming an SC, the selection process, and the ongoing SC requirements for posting property for sale to the FAS portal and reporting sales activity and performance data are established by the FAS ESC and can be obtained from the FAS Program Management Office at GSA. SCs are expected to provide exemplary asset management solutions in one or more of the following areas: on-line sales; off-line sales; and sales-related value added services. SCs will enter into agreements with holding agencies to sell property belonging to these agencies.

5. Revise § 102-38.40 to read as follows:

§ 102-38.40

Who may sell personal property?

An executive agency may sell personal property (including on behalf of another agency when so requested) only if it is a designated Sales Center (SC). An SC may engage contractor support to sell personal property. Only a duly authorized agency official may execute the sale award documents and bind the United States.

6. Amend §102-38.50 by revising the heading and introductory paragraph to read as follows:

§ 102-38.50

What must we do when an executive agency suspects violations of 40 U.S.C. 559, fraud, bribery, or criminal collusion in connection with the disposal of personal property?

If an executive agency suspects violations of 40 U.S.C. 559, fraud, bribery, or criminal collusion in connection with the disposal of personal property, the agency must—

7. Revise § 102-38.60 to read as follows:

§ 102-38.60

Who is responsible for the costs of care and handling of the personal property before it is sold?

The holding agency is responsible for the care and handling costs of the personal property until it is removed by the buyer, the buyer's designee, or an SC. The holding agency may request the SC to perform care and handling services in accordance with their agreement. When specified in the terms and conditions of sale, the SC may charge costs for storage when the buyer is delinquent in removing the property. The amount so charged may only be retained by the agency performing the care and handling in accordance with § 102-38.295.

§ 102-38.65

[Amended]

8. Amend § 102-38.65 in the heading, by removing “we are” and adding “we or the holding agency is” in its place; and in the second sentence by adding “or the holding agency” after “you”.

§ 102-38.70

[Amended]

9. Amend § 102-38.70 in the heading, by removing “we” and adding “the holding agency” in its place; and in paragraph (a), by removing “you” and adding “the holding agency” in its place.

10. Amend § 102-38.75 by revising the introductory text to paragraph (a), and paragraph (a)(12) to read as follows:

§ 102-38.75

How may we sell personal property?

(a) You will sell personal property upon such terms and conditions as the head of your agency or designee deems proper to promote the fairness, openness, and timeliness necessary for the sale to be conducted in a manner most advantageous to the Government. When you are selling property on behalf of another agency, you must consult with the holding agency to determine any special or unique sales terms and conditions. You must also document the required terms and conditions of each sale, including, but not limited to, the following terms and conditions, as applicable:

(12) Requirements to comply with applicable laws and regulations. Part 101-42 of this subchapter contains useful guidance addressing many of these requirements. You should also contact your agency's Office of General Counsel or Environmental Office to identify applicable Federal, State, or local environmental laws and regulations.

11. Revise § 102-38.120 to read as follows:

§ 102-38.120

When may we conduct negotiated sales of personal property at fixed prices (fixed price sale)?

You may conduct negotiated sales of personal property at fixed prices (fixed price sale) under this section when:

(a) The items are authorized to be sold at fixed price by the GSA Office of Travel, Transportation, and Asset Management (MT) in GSA Bulletin FMR B-10 (located at www.gsa.gov/​fmrbulletin). You may also contact MT at the address listed in § 102-38.115 to determine which items are on this list of authorized items;

(b) The head of your agency, or designee, determines in writing that such sales serve the best interest of the Government. When you are selling property on behalf of a holding agency, you must consult with the holding agency in determining whether a fixed price sale meets this criterion; and

(c) You must publicize such sales to the extent consistent with the value and nature of the property involved, and the prices established must reflect the estimated fair market value of the property. Property is sold on a first-come, first-served basis. You or the holding agency may also establish additional terms and conditions that must be met by the successful purchaser in accordance with § 102-38.75.

12. Revise § 102-38.295 to read as follows:

§ 102-38.295

May we retain sales proceeds?

(a) You may retain that portion of the sales proceeds, in accordance with your agreement with the holding agency, equal to your direct costs and reasonably related indirect costs (including your share of the Governmentwide costs to support the FAS Internet portal and Governmentwide reporting requirements) incurred in selling personal property.

(b) A holding agency may retain that portion of the sales proceeds equal to its costs of care and handling directly related to the sale of personal property by the SC (e.g., shipment to the SC, storage pending sale, and inspection by prospective buyers).

(c) After accounting for amounts retained under paragraphs (a) and (b), a holding agency may retain the balance of proceeds from the sale of its agency's personal property when—

(1) It has the statutory authority to retain all proceeds from sales of personal property;

(2) The property sold was acquired with non-appropriated funds as defined in § 102-36.40 of this subchapter B;

(3) The property sold was surplus Government property that was in the custody of a contractor or subcontractor, and the contract or subcontract provisions authorize the proceeds of sale to be credited to the price or cost of the contract or subcontract;

(4) The property was sold to obtain replacement property under the exchange/sale authority pursuant to part 102-39 of this subchapter B; or

(5) The property sold was related to waste prevention and recycling programs, under the authority of Section 607 of Public Law 107-67 (Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Public Law 107-67, 115 Stat. 514). Consult your General Counsel or Chief Financial Officer for guidance on use of this authority.

13. Revise the section heading to § 102-38.300 to read as follows:

§ 102-38.300

What happens to sales proceeds that neither we nor the holding agency are authorized to retain, or that are unused?

14. Add Subpart H, consisting of § 102-38.360 to read as follows:

Subpart H—Implementation of the Federal Asset Sales Program

§ 102-38.360

What must an executive agency do to implement the Federal Asset Sales (FAS) program?

An executive agency must:

(a) Complete a migration plan which outlines the agency's action and timetable to begin using or become a SC. The migration plan must include the deadline to have all agency personal property sales conducted by an SC no later than [date six months after publication of the final rule in the Federal Register].

(b) Migrate all agency sales processes to your selected SC(s) no later than [date six months after publication of the final rule in the Federal Register]. Content and format of item data reported to the SC for sale must be in conformance with standards developed by the FAS ESC.

(c) Provide all post-sale data and metrics to the FAS Planning Office in care of GSA MT using format and process developed by the FAS ESC no later than [date six months after publication of the final rule in the Federal Register].