Subtitle C—Federal Property Management Regulations System (Continued)

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00013 Fmt 8008 Sfmt 8008 Q:\41\41V3.TXT ofr150 PsN: PC150 VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00014 Fmt 8008 Sfmt 8008 Q:\41\41V3.TXT ofr150 PsN: PC150 CHAPTER 102—FEDERAL MANAGEMENT REGULATION

SUBCHAPTER A—GENERAL

Part Page 102–1 General [Reserved] 102–2 Federal management regulation system ...... 7 102–3 Federal Advisory Committee Management ...... 11 102–4 Nondiscrimination in Federal financial assistance programs [Reserved] 102–5 Home-to-work transportation...... 36 102–6—102–30 [Reserved]

SUBCHAPTER B—PERSONAL PROPERTY 102–31 General [Reserved] 102–32 Management of personal property [Reserved] 102–33 Management of government aircraft ...... 41 102–34 Motor vehicle management ...... 68 102–35 Disposition of personal property ...... 82 102–36 Disposition of excess personal property ...... 84 102–37 Donation of surplus personal property ...... 107 102–38 Sale of personal property ...... 139 102–39 Replacement of personal property pursuant to the exchange/sale authority ...... 153 102–40 [Reserved] 102–41 Disposition of seized, forfeited, voluntarily abandoned, and unclaimed personal property ...... 158 102–42 Utilization, donation, and disposal of foreign gifts and decorations ...... 167 102–43—102–70 [Reserved]

SUBCHAPTER C—REAL PROPERTY 102–71 General ...... 175 102–72 Delegation of authority ...... 180 102–73 Real estate acquisition ...... 185 102–74 Facility management...... 198 102–75 Real property disposal ...... 221 102–76 Design and construction ...... 282 5

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00015 Fmt 8008 Sfmt 8008 Q:\41\41V3.TXT ofr150 PsN: PC150 41 CFR Ch. 102 (7–1–11 Edition)

Part Page 102–77 Art-in-architecture ...... 287 102–78 Historic preservation...... 288 102–79 Assignment and utilization of space ...... 291 102–80 Safety and environmental management ...... 296 102–81 Security ...... 303 102–82 Utility services...... 304 102–83 Location of space ...... 305 102–84 Annual real property inventories ...... 311 102–85 Pricing policy for occupancy in GSA space ...... 314 102–86—102–115 [Reserved]

SUBCHAPTER D—TRANSPORTATION 102–116 General [Reserved] 102–117 Transportation management...... 329 102–118 Transportation payment and audit ...... 344 102–119—102–140 [Reserved]

SUBCHAPTER E—TRAVEL MANAGEMENT [RESERVED] 102–141 General [Reserved] 102–142—102–170 [Reserved]

SUBCHAPTER F—TELECOMMUNICATIONS 102–171 General [Reserved] 102–172 Telecommunications management policy [Re- served] 102–173 Internet GOV Domain ...... 372 102–174—102–190 [Reserved]

SUBCHAPTER G—ADMINISTRATIVE PROGRAMS 102–191 General [Reserved] 102–192 Mail management...... 376 102–193 Creation, maintenance, and use of records ...... 386 102–194 Standard and optional forms management program 388 102–196 Federal facility ridesharing [Reserved] 102–197—102–220 [Reserved]

SUBCHAPTERS H–Z [RESERVED]

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00016 Fmt 8008 Sfmt 8008 Q:\41\41V3.TXT ofr150 PsN: PC150 SUBCHAPTER A—GENERAL

PART 102—GENERAL [RESERVED] 102–2.120 How do I know whom to contact to discuss the regulatory requirements of programs addressed in the FMR? PART 102–2—FEDERAL MANAGE- 102–2.125 What source of information can MENT REGULATION SYSTEM my agency use to identify materials that describe how to do business with GSA? Subpart A—Regulation System Subpart B—Forms GENERAL 102–2.130 Where are FMR forms prescribed? Sec. 102–2.135 How do agencies obtain forms pre- 102–2.5 What is the Federal Management scribed by the FMR? Regulation (FMR)? 102–2.10 What is the FMR’s purpose? Subpart C—Plain Language Regulatory 102–2.15 What is the authority for the FMR Style system? 102–2.20 Which agencies are subject to the 102–2.140 What elements of plain language FMR? appear in the FMR? 102–2.25 When are other agencies involved in 102–2.145 To what do pronouns refer when developing the FMR? used in the FMR? 102–2.30 Where and in what formats is the FMR published? AUTHORITY: 40 U.S.C. 486(c). 102–2.35 How is the FMR distributed? SOURCE: 64 FR 39085, July 21, 1999, unless 102–2.40 May an agency issue implementing otherwise noted. and supplementing regulations for the FMR? Subpart A—Regulation System NUMBERING 102–2.45 How is the FMR numbered? GENERAL 102–2.50 How do I number my agency’s implementing regulations? § 102–2.5 What is the Federal Manage- 102–2.55 How do I number my agency’s ment Regulation (FMR)? supplementing regulations? The Federal Management Regulation (FMR) is the successor regulation to DEVIATIONS the Federal Property Management 102–2.60 What is a deviation from the FMR? Regulations (FPMR). It contains up- 102–2.65 When may agencies deviate from dated regulatory policies originally the FMR? found in the FPMR. However, it does 102–2.70 What are individual and class deviations? not contain FPMR material that de- 102–2.75 What timeframes apply to devi- scribed how to do business with the ations? General Services Administration 102–2.80 What steps must an agency take to (GSA). ‘‘How to’’ materials on this and deviate from the FMR? other subjects are available in cus- 102–2.85 What are the reasons for writing to tomer service guides, handbooks, bro- GSA about FMR deviations? chures and Internet websites provided 102–2.90 Where should my agency send its by GSA. (See § 102–2.125.) correspondence on an FMR deviation? 102–2.95 What information must agencies in- § 102–2.10 What is the FMR’s purpose? clude in their deviation letters to GSA? 102–2.100 Must agencies provide GSA with a The FMR prescribes policies con- follow-up analysis of their experience in cerning property management and re- deviating from the FMR? lated administrative activities. GSA 102–2.105 What information must agencies issues the FMR to carry out the Ad- include in their follow-up analysis? ministrator of General Services’ func- 102–2.110 When must agencies provide their follow-up analysis? tional responsibilities, as established by statutes, Executive orders, Presi- NON-REGULATORY MATERIAL dential memoranda, Circulars and bul- 102–2.115 What kinds of non-regulatory ma- letins issued by the Office of Manage- terial does GSA publish outside of the ment and Budget (OMB), and other pol- FMR? icy directives.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00017 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–2.15 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–2.15 What is the authority for the (a) FEDERAL REGISTER under the FMR system? ‘‘Rules and Regulations’’ section. The Administrator of General Serv- (b) Loose-leaf. (See § 102–2.35.) ices prescribes and issues the FMR (c) Code of Federal Regulations under the authority of the Federal (CFR), which is an annual codification Property and Administrative Services of the general and permanent rules Act of 1949, as amended, 40 U.S.C. published in the FEDERAL REGISTER. 486(c), as well as other applicable Fed- The CFR is available on line and in a eral laws and authorities. bound-volume format. (d) Electronically on the Internet. § 102–2.20 Which agencies are subject to the FMR? § 102–2.35 How is the FMR distrib- The FMR applies to executive agen- uted? cies unless otherwise extended to Fed- (a) A liaison appointed by each agen- eral agencies in various parts of this chapter. The difference between the cy provides GSA with their agency’s two terms is that Federal agencies in- distribution requirements of the loose- clude executive agencies plus establish- leaf version of the FMR. Agencies must ments in the legislative or judicial submit GSA Form 2053, Agency Con- branch of the Government. See para- solidated Requirements for GSA Regu- graphs (a) and (b) of this section for the lations and Other External Issuances, definitions of each term. to—General Services Administration, (a) What is an executive agency? An ex- Office of Communications (X), 1800 F ecutive agency is any executive depart- Street, NW., Washington, DC 20405. ment or independent establishment in (b) Order FEDERAL REGISTER and the executive branch of the Govern- Code of Federal Regulations copies of ment, including any wholly-owned FMR material through your agency’s Government corporation. (See 40 U.S.C. authorizing officer. 472(a).) (b) What is a Federal agency? A Fed- § 102–2.40 May an agency issue imple- eral agency is any executive agency or menting and supplementing regula- any establishment in the legislative or tions for the FMR? judicial branch of the Government (ex- Yes, an agency may issue imple- cept the Senate, the House of Rep- menting regulations (see § 102–2.50) to resentatives, and the Architect of the expand upon related FMR material and Capitol and any activities under that supplementing regulations (see § 102– person’s direction). (See 40 U.S.C. 2.55) to address subject material not 472(b).) covered in the FMR. The Office of the § 102–2.25 When are other agencies in- Federal Register assigns chapters in volved in developing the FMR? Title 41 of the Code of Federal Regula- Normally, GSA will ask agencies to tions for agency publication of imple- collaborate in developing parts of the menting and supplementing regula- FMR. tions.

§ 102–2.30 Where and in what formats NUMBERING is the FMR published? § 102–2.45 How is the FMR numbered? Proposed rules are published in the FEDERAL REGISTER. FMR bulletins are (a) All FMR sections are designated published in looseleaf format. FMR in- by three numbers. The following exam- terim and final rules are published in ple illustrates the chapter (it’s always the following formats— 102), part, and section designations:

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00018 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–2.85

(b) In the looseleaf version, the § 102–2.70 What are individual and month, year, and number of FMR class deviations? amendments appear at the bottom of An individual deviation is intended each page. to affect only one action. A class deviation is intended to affect more than § 102–2.50 How do I number my agency’s implementing regulations? one action (e.g., multiple actions, the actions of more than one agency, or in- The first three-digit number rep- dividual agency actions that are ex- resents the chapter number assigned to pected to recur). your agency in Title 41 of the CFR. The part and section numbers correspond to § 102–2.75 What timeframes apply to FMR material. For example, if your deviations? agency is assigned Chapter 130 in Title Timeframes vary based on the nature 41 of the CFR and you are imple- of the deviation. However, deviations menting § 102–2.60 of the FMR, your im- cannot be open-ended. When consulting plementing section would be numbered with GSA about using an individual or § 130–2.60. class deviation, you must set a timeframe for the deviation’s duration. § 102–2.55 How do I number my agency’s supplementing regulations? § 102–2.80 What steps must an agency Since there is no corresponding FMR take to deviate from the FMR? material, number the supplementing (a) Consult informally with appro- material ‘‘601’’ or higher. For example, priate GSA program personnel to learn your agency’s supplementing regula- more about how your agency can work tions governing special services to within the FMR’s requirements instead states might start with § 130–601.5. of deviating from them. The consultation process may also highlight reasons DEVIATIONS why an agency would not be permitted to deviate from the FMR; e.g., statu- § 102–2.60 What is a deviation from the tory constraints. FMR? (b) Formally request a deviation, if A deviation from the FMR is an consultations indicate that your agen- agency action or policy that is incon- cy needs one. The head of your agency sistent with the regulation. (The devi- or a designated official should write to ation policy for the FPMR is in 41 CFR GSA’s Regulatory Secretariat to the part 101–1.) attention of a GSA official in the program office that is likely to consider § 102–2.65 When may agencies deviate the deviation. (See the FMR bulletin from the FMR? that lists contacts in GSA’s program Because, it consists primarily of set offices and § 102–2.90.) The written re- policies and mandatory requirements, quest must fully explain the reasons deviation from the FMR should occur for the deviation, including the bene- infrequently. However, to address fits that the agency expects to achieve. unique circumstances or to test the effectiveness of potential policy changes, § 102–2.85 What are the reasons for agencies may be able to deviate from writing to GSA about FMR devi- the FMR after following the steps de- ations? scribed in § 102–2.80. The reasons for writing are to:

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00019 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 ER21JY99.001 § 102–2.90 41 CFR Ch. 102 (7–1–11 Edition)

(a) Explain your agency’s rationale § 102–2.105 What information must for the deviation. Before it can ade- agencies include in their follow-up quately comment on a potential devi- analysis? ation from the FMR, GSA must know In your follow-up analysis, provide why it is needed. GSA will compare information that may include, but your need against the applicable poli- should not be limited to, specific ac- cies and regulations. tions taken or not taken as a result of (b) Obtain clarification from GSA as the deviation, outcomes, impacts, an- to whether statutes, Executive orders, ticipated versus actual results, and the or other controlling policies, which advantages and disadvantages of tak- may not be evident in the regulation, ing an alternative course of action. preclude deviating from the FMR for the reasons stated. § 102–2.110 When must agencies pro- (c) Establish a timeframe for using a vide their follow-up letters? deviation. (a) For an individual deviation, once (d) Identify potential changes to the the action is complete. FMR. (b) For a class deviation, at the end (e) Identify the benefits and other re- of each twelve-month period from the sults that the agency expects to time you first took the deviation and achieve. at the end of the deviation period.

§ 102–2.90 Where should my agency NON-REGULATORY MATERIAL send its correspondence on an FMR deviation? § 102–2.115 What kinds of non-regu- Send correspondence to: General latory material does GSA publish Services Administration, Regulatory outside of the FMR? Secretariat (MVRS), Office of Govern- As GSA converts the FPMR to the mentwide Policy, 1800 F Street, NW, FMR, non-regulatory materials in the Washington, DC 20405. FPMR, such as guidance, procedures, standards, and information, that de- § 102–2.95 What information must scribe how to do business with GSA, agencies include in their deviation will become available in separate docu- letters to GSA? ments. These documents may include Agencies must include: customer service guides, handbooks, (a) The title and citation of the FMR brochures, Internet websites, and FMR provision from which the agency wish- bulletins. GSA will eliminate non-regu- es to deviate; latory material that is no longer need- (b) The name and telephone number ed. of an agency contact who can discuss the reason for the deviation; § 102–2.120 How do I know whom to (c) The reason for the deviation; contact to discuss the regulatory re- (d) A statement about the expected quirements of programs addressed benefits of using the deviation (to the in the FMR? extent possible, expected benefits Periodically, GSA will issue for your should be stated in measurable terms); reference an FMR bulletin that lists (e) A statement about possible use of program contacts with whom agencies the deviation in other agencies or Gov- can discuss regulatory requirements. ernmentwide; and At a minimum, the list will contain or- (f) The duration of the deviation. ganization names and telephone numbers for each program addressed in the § 102–2.100 Must agencies provide GSA FMR. with a follow-up analysis of their experience in deviating from the § 102–2.125 What source of information FMR? can my agency use to identify mate- Yes, agencies that deviate from the rials that describe how to do busi- FMR must also write to the relevant ness with GSA? GSA program office at the Regulatory The FMR establishes policy; it does Secretariat’s address (see § 102–2.90) to not specify procedures for the acquisi- describe their experiences in using a tion of GSA services. However, as a deviation. service to users during the transition

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00020 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–3

from the FPMR to the FMR and as PART 102–3—FEDERAL ADVISORY needed thereafter, GSA will issue FMR COMMITTEE MANAGEMENT bulletins to identify where to find information on how to do business with Subpart A—What Policies Apply to Advi- GSA. References include customer sory Committees Established Within the service guides, handbooks, brochures, Executive Branch? Internet websites, etc. Sec. 102–3.5 What does this subpart cover and Subpart B—Forms how does it apply? 102–3.10 What is the purpose of the Federal § 102–2.130 Where are FMR forms pre- Advisory Committee Act? scribed? 102–3.15 Who are the intended users of this In any of its parts, the FMR may pre- part? scribe forms and the requirements for 102–3.20 How does this part meet the needs of its audience? using them. 102–3.25 What definitions apply to this part? 102–3.30 What policies govern the use of ad- § 102–2.135 How do agencies obtain visory committees? forms prescribed by the FMR? 102–3.35 What policies govern the use of sub- For copies of the forms prescribed by committees? in the FMR, do any of the following: 102–3.40 What types of committees or groups are not covered by the Act and this part? (a) Write to us at: General Services APPENDIX A TO SUBPART A OF PART 102–3— Administration, National Forms and KEY POINTS AND PRINCIPLES Publications Center (7CPN), Warehouse 4, Dock No. 1, 501 West Felix Street, Subpart B—How Are Advisory Committees Fort Worth, TX 76115. Established, Renewed, Reestablished, (b) Send e-mail messages to: and Terminated? NFPC@gsa-7FDepot. 102–3.45 What does this subpart cover and (c) Visit our web site at: www.gsa.gov/ how does it apply? forms/forms.htm. 102–3.50 What are the authorities for establishing advisory committees? Subpart C—Plain Language 102–3.55 What rules apply to the duration of an advisory committee? Regulatory Style 102–3.60 What procedures are required to establish, renew, or reestablish a discre- § 102–2.140 What elements of plain lan- tionary advisory committee? guage appear in the FMR? 102–3.65 What are the public notification re- The FMR is written in a ‘‘plain lan- quirements for discretionary advisory guage’’ regulatory style. This style is committees? 102–3.70 What are the charter filing require- easy to read and uses a question and ments? answer format directed at the reader, 102–3.75 What information must be included active voice, shorter sentences, and, in the charter of an advisory committee? where appropriate, personal pronouns. 102–3.80 How are minor charter amendments accomplished? § 102–2.145 To what do pronouns refer 102–3.85 How are major charter amendments when used in the FMR? accomplished? Throughout its text, the FMR may APPENDIX A TO SUBPART B OF PART 102–3— KEY POINTS AND PRINCIPLES contain pronouns such as, but not limited to, we, you, and I. When pronouns Subpart C—How Are Advisory Committees are used, each subchapter of the FMR Managed? will indicate whether they refer to the reader, an agency, GSA, or some other 102–3.90 What does this subpart cover and how does it apply? entity. In general, pronouns refer to 102–3.95 What principles apply to the man- who or what must perform a required agement of advisory committees? action. 102–3.100 What are the responsibilities and functions of GSA? 102–3.105 What are the responsibilities of an agency head?

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00021 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.5 41 CFR Ch. 102 (7–1–11 Edition)

102–3.110 What are the responsibilities of a Subpart A—What Policies Apply to chairperson of an independent Presi- dential advisory committee? Advisory Committees Estab- 102–3.115 What are the responsibilities and lished Within the Executive functions of an agency Committee Man- Branch? agement Officer (CMO)? 102–3.120 What are the responsibilities and § 102–3.5 What does this subpart cover functions of a Designated Federal Officer and how does it apply? (DFO)? 102–3.125 How should agencies consider the This subpart provides the policy roles of advisory committee members framework that must be used by agen- and staff? cy heads in applying the Federal Advi- 102–3.130 What policies apply to the appoint- sory Committee Act (FACA), as amendment, and compensation or reimburse- ed (or ‘‘the Act’’), 5 U.S.C., App., to ad- ment of advisory committee members, visory committees they establish and staff, and experts and consultants? operate. In addition to listing key defi- APPENDIX A TO SUBPART C OF PART 102–3— nitions underlying the interpretation KEY POINTS AND PRINCIPLES of the Act, this subpart establishes the scope and applicability of the Act, and Subpart D—Advisory Committee Meeting outlines specific exclusions from its and Recordkeeping Procedures coverage. 102–3.135 What does this subpart cover and how does it apply? § 102–3.10 What is the purpose of the 102–3.140 What policies apply to advisory Federal Advisory Committee Act? committee meetings? FACA governs the establishment, op- 102–3.145 What policies apply to sub- eration, and termination of advisory committee meetings? 102–3.150 How are advisory committee meet- committees within the executive ings announced to the public? branch of the Federal Government. The 102–3.155 How are advisory committee meet- Act defines what constitutes a Federal ings closed to the public? advisory committee and provides gen- 102–3.160 What activities of an advisory eral procedures for the executive committee are not subject to the notice branch to follow for the operation of and open meeting requirements of the these advisory committees. In addi- Act? tion, the Act is designed to assure that 102–3.165 How are advisory committee meet- the Congress and the public are kept ings documented? 102–3.170 How does an interested party ob- informed with respect to the number, tain access to advisory committee purpose, membership, activities, and records? cost of advisory committees. 102–3.175 What are the reporting and recordkeeping requirements for an advisory § 102–3.15 Who are the intended users committee? of this part? APPENDIX A TO SUBPART D OF PART 102–3— (a) The primary users of this Federal KEY POINTS AND PRINCIPLES Advisory Committee Management part are: Subpart E—How Does This Subpart Apply to (1) Executive branch officials and Advice or Recommendations Provided others outside Government currently to Agencies by the National Academy involved with an established advisory of Sciences or the National Academy committee; of Public Administration? (2) Executive branch officials who 102–3.180 What does this subpart cover and seek to establish or utilize an advisory how does it apply? committee; 102–3.185 What does this subpart require (3) Executive branch officials and agencies to do? others outside Government who have APPENDIX A TO SUBPART E OF PART 102–3— decided to pursue, or who are already KEY POINTS AND PRINCIPLES engaged in, a form of public involve- AUTHORITY: Sec. 205(c), 63 Stat. 390 (40 ment or consultation and want to U.S.C. 486(c)); sec. 7, 5 U.S.C., App.; and E.O. avoid inadvertently violating the Act; 12024, 3 CFR, 1977 Comp., p. 158. and SOURCE: At 66 FR 37733, July 19, 2001, unless (4) Field personnel of Federal agen- otherwise noted. cies who are increasingly involved with

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00022 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–3.25

the public as part of their efforts to in- Advisory committee subject to the Act, crease collaboration and improve cus- except as specifically exempted by the tomer service. Act or by other statutes, or as not cov- (b) Other types of end-users of this ered by this part, means any com- part include individuals and organiza- mittee, board, commission, council, tions outside of the executive branch conference, panel, task force, or other who seek to understand and interpret similar group, which is established by the Act, or are seeking additional guid- statute, or established or utilized by ance. the President or by an agency official, for the purpose of obtaining advice or § 102–3.20 How does this part meet the recommendations for the President or needs of its audience? on issues or policies within the scope of This Federal Advisory Committee an agency official’s responsibilities. Management part meets the general Agency has the same meaning as in 5 and specific needs of its audience by U.S.C. 551(1). addressing the following issues and re- Committee Management Officer lated topics: (‘‘CMO’’), means the individual designated by the agency head to imple- (a) Scope and applicability. This part ment the provisions of section 8(b) of provides guidance on the threshold the Act and any delegated responsibil- issue of what constitutes an advisory ities of the agency head under the Act. committee and clarifies the limits of Committee Management Secretariat coverage by the Act for the benefit of (‘‘Secretariat’’), means the organization the intended users of this part. established pursuant to section 7(a) of (b) Policies and guidelines. This part the Act, which is responsible for all defines the policies, establishes min- matters relating to advisory commit- imum requirements, and provides guid- tees, and carries out the responsibil- ance to Federal officers and agencies ities of the Administrator under the for the establishment, operation, ad- Act and Executive Order 12024 (3 CFR, ministration, and duration of advisory 1977 Comp., p. 158). committees subject to the Act. This in- Committee meeting means any gath- cludes reporting requirements that ering of advisory committee members keep Congress and the public informed (whether in person or through elec- of the number, purpose, membership, tronic means) held with the approval of activities, benefits, and costs of these an agency for the purpose of delib- advisory committees. These require- erating on the substantive matters ments form the basis for implementing upon which the advisory committee the Act at both the agency and Govern- provides advice or recommendations. mentwide levels. Committee member means an indi- (c) Examples and principles. This part vidual who serves by appointment or provides summary-level key points and invitation on an advisory committee or principles at the end of each subpart subcommittee. that provide more clarification on the Committee staff means any Federal role of Federal advisory committees in employee, private individual, or other the larger context of public involve- party (whether under contract or not) ment in Federal decisions and activi- who is not a committee member, and ties. This includes a discussion of the who serves in a support capacity to an applicability of the Act to different de- advisory committee or subcommittee. cisionmaking scenarios. Designated Federal Officer (‘‘DFO’’), means an individual designated by the § 102–3.25 What definitions apply to agency head, for each advisory com- this part? mittee for which the agency head is re- The following definitions apply to sponsible, to implement the provisions this Federal Advisory Committee Man- of sections 10(e) and (f) of the Act and agement part: any advisory committee procedures of Act means the Federal Advisory Com- the agency under the control and su- mittee Act, as amended, 5 U.S.C., App. pervision of the CMO. Administrator means the Adminis- Discretionary advisory committee trator of General Services. means any advisory committee that is

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00023 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.30 41 CFR Ch. 102 (7–1–11 Edition)

established under the authority of an visory committee is needed may in- agency head or authorized by statute. clude whether: An advisory committee referenced in (1) Advisory committee deliberations general (non-specific) authorizing lan- will result in the creation or elimi- guage or Congressional committee re- nation of (or change in) regulations, port language is discretionary, and its policies, or guidelines affecting agency establishment or termination is within business; the legal discretion of an agency head. (2) The advisory committee will Independent Presidential advisory com- make recommendations resulting in mittee means any Presidential advisory significant improvements in service or committee not assigned by the Con- reductions in cost; or gress in law, or by President or the (3) The advisory committee’s rec- President’s delegate, to an agency for ommendations will provide an impor- administrative and other support. tant additional perspective or view- Non-discretionary advisory committee point affecting agency operations. means any advisory committee either (b) Termination. An advisory com- required by statute or by Presidential mittee must be terminated when: directive. A non-discretionary advisory (1) The stated objectives of the com- committee required by statute generally mittee have been accomplished; is identified specifically in a statute by (2) The subject matter or work of the name, purpose, or functions, and its es- committee has become obsolete by the tablishment or termination is beyond passing of time or the assumption of the legal discretion of an agency head. the committee’s functions by another Presidential advisory committee means entity; any advisory committee authorized by (3) The agency determines that the the Congress or directed by the Presi- cost of operation is excessive in rela- dent to advise the President. tion to the benefits accruing to the Subcommittee means a group, gen- Federal Government; erally not subject to the Act, that reports to an advisory committee and (4) In the case of a discretionary ad- not directly to a Federal officer or visory committee, upon the expiration agency, whether or not its members of a period not to exceed two years, un- are drawn in whole or in part from the less renewed; parent advisory committee. (5) In the case of a non-discretionary Utilized for the purposes of the Act, advisory committee required by Presi- does not have its ordinary meaning. A dential directive, upon the expiration committee that is not established by of a period not to exceed two years, un- the Federal Government is utilized less renewed by authority of the Presi- within the meaning of the Act when dent; or the President or a Federal office or (6) In the case of a non-discretionary agency exercises actual management advisory committee required by stat- or control over its operation. ute, upon the expiration of the time explicitly specified in the statute, or im- § 102–3.30 What policies govern the use plied by operation of the statute. of advisory committees? (c) Balanced membership. An advisory The policies to be followed by Fed- committee must be fairly balanced in eral departments and agencies in estab- its membership in terms of the points lishing and operating advisory commit- of view represented and the functions tees consistent with the Act are as fol- to be performed. lows: (d) Open meetings. Advisory com- (a) Determination of need in the public mittee meetings must be open to the interest. A discretionary advisory com- public except where a closed or par- mittee may be established only when it tially-closed meeting has been deter- is essential to the conduct of agency mined proper and consistent with the business and when the information to exemption(s) of the Government in the be obtained is not already available Sunshine Act, 5 U.S.C. 552b(c), as the through another advisory committee basis for closure. or source within the Federal Govern- (e) Advisory functions only. The func- ment. Reasons for deciding that an ad- tion of advisory committees is advisory

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00024 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–3.40

only, unless specifically provided by basis and not from the group as a statute or Presidential directive. whole; (f) Groups assembled to exchange facts § 102–3.35 What policies govern the use or information. Any group that meets of subcommittees? with a Federal official(s) for the pur- (a) In general, the requirements of pose of exchanging facts or informa- the Act and the policies of this Federal tion; Advisory Committee Management part (g) Intergovernmental committees. Any do not apply to subcommittees of advi- committee composed wholly of full- sory committees that report to a par- time or permanent part-time officers ent advisory committee and not di- or employees of the Federal Govern- rectly to a Federal officer or agency. ment and elected officers of State, However, this section does not preclude local and tribal governments (or their an agency from applying any provision designated employees with authority of the Act and this part to any sub- to act on their behalf), acting in their committee of an advisory committee in official capacities. However, the pur- any particular instance. pose of such a committee must be sole- (b) The creation and operation of sub- ly to exchange views, information, or committees must be approved by the advice relating to the management or agency establishing the parent advi- implementation of Federal programs sory committee. established pursuant to statute, that explicitly or inherently share intergov- § 102–3.40 What types of committees or groups are not covered by the Act ernmental responsibilities or adminis- and this part? tration (see guidelines issued by the Of- fice of Management and Budget (OMB) The following are examples of com- on section 204(b) of the Unfunded Man- mittees or groups that are not covered dates Reform Act of 1995, 2 U.S.C. by the Act or this Federal Advisory 1534(b), OMB Memorandum M–95–20, Committee Management part: dated September 21, 1995, available (a) Committees created by the National from the Committee Management Sec- Academy of Sciences (NAS) or the Na- retariat (MC), General Services Admin- tional Academy of Public Administration istration, 1800 F Street, NW., Wash- (NAPA). Any committee created by ington, DC 20405–0002); NAS or NAPA in accordance with section 15 of the Act, except as otherwise (h) Intragovernmental committees. Any covered by subpart E of this part; committee composed wholly of full- (b) Advisory committees of the Central time or permanent part-time officers Intelligence Agency and the Federal Re- or employees of the Federal Govern- serve System. Any advisory committee ment; established or utilized by the Central (i) Local civic groups. Any local civic Intelligence Agency or the Federal Re- group whose primary function is that serve System; of rendering a public service with re- (c) Committees exempted by statute. spect to a Federal program; Any committee specifically exempted (j) Groups established to advise State or from the Act by law; local officials. Any State or local com- (d) Committees not actually managed or mittee, council, board, commission, or controlled by the executive branch. Any similar group established to advise or committee or group created by non- make recommendations to State or Federal entities (such as a contractor local officials or agencies; and or private organization), provided that (k) Operational committees. Any com- these committees or groups are not ac- mittee established to perform pri- tually managed or controlled by the marily operational as opposed to advi- executive branch; sory functions. Operational functions (e) Groups assembled to provide indi- are those specifically authorized by vidual advice. Any group that meets statute or Presidential directive, such with a Federal official(s), including a as making or implementing Govern- public meeting, where advice is sought ment decisions or policy. A committee from the attendees on an individual designated operational may be covered

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00025 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–3, Subpt. A, App. A 41 CFR Ch. 102 (7–1–11 Edition)

by the Act if it becomes primarily ad- marily operational. If so, it does not visory in nature. It is the responsi- fall under the requirements of the Act bility of the administering agency to and this part. determine whether a committee is pri-

APPENDIX A TO SUBPART A OF PART 102–3—KEY POINTS AND PRINCIPLES

This appendix provides additional guidance in the form of answers to frequently asked questions and identifies key points and principles that may be applied to situations not covered elsewhere in this subpart. The guidance follows:

Key points and principles Section(s) Question(s) Guidance

I. FACA applies to advi- 102–3.25, 102– 1. A local citizens group wants to A. The answer to questions 1, 2, and 3 is sory committees that 3.40(d), 102– meet with a Federal official(s) to yes, if the agency does not either ‘‘es- are either ‘‘established’’ 3.40(f) help improve the condition of a for- tablish’’ or ‘‘utilize’’ (exercise ‘‘actual or ‘‘utilized’’ by an est’s trails and quality of conces- management or control’’ over) the agency. sions. May the Government meet group. (i) Although there is no precise with the group without chartering legal definition of ‘‘actual management the group under the Act? or control,’’ the following factors may 2. May an agency official attend be used by an agency to determine meetings of external groups where whether or not a group is ‘‘utilized’’ advice may be offered to the Gov- within the meaning of the Act: (a) Does ernment during the course of dis- the agency manage or control the cussions? group’s membership or otherwise de- 3. May an agency official participate termine its composition? (b) Does the in meetings of groups or organiza- agency manage or control the group’s tions as a member without char- agenda? (c) Does the agency fund the tering the group under the Act? group’s activities? (ii) Answering ‘‘yes’’ 4. Is the Act applicable to meetings to any or all of questions 1, 2, or 3 between agency officials and their does not automatically mean the group contractors, licensees, or other is ‘‘utilized’’ within the meaning of the ‘‘private sector program partners?’’ Act. However, an agency may need to reconsider the status of the group under the Act if the relationship in question essentially is indistinguishable from an advisory committee established by the agency. B. The answer to question 4 is no. Agen- cies often meet with contractors and licensees, individually and as a group, to discuss specific matters involving a contract’s solicitation, issuance, and implementation, or an agency’s efforts to ensure compliance with its regulations. Such interactions are not subject to the Act because these groups are not ‘‘established’’ or ‘‘utilized’’ for the purpose of obtaining advice or recommendations.

II. The development of 102–3.25, 102– 1. If, during a public meeting of the A. No, the public meeting need not be consensus among all 3.40(d), 102– ‘‘town hall’’ type called by an agen- stopped. (i) A group must either be or some of the 3.40(f) cy, it appears that the audience is ‘‘established’’ or ‘‘utilized’’ by the exec- attendees at a public achieving consensus, or a com- utive branch in order for the Act to meeting or similar mon point of view, is this an indica- apply. (ii) Public meetings represent a forum does not auto- tion that the meeting is subject to chance for individuals to voice their matically invoke FACA. the Act and must be stopped? opinions and/or share information. In that sense, agencies do not either ‘‘establish’’ the assemblage of individuals as an advisory committee or ‘‘utilize’’ the attendees as an advisory committee because there are no elements of either ‘‘management’’ or ‘‘control’’ present or intended.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00026 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–3, Subpt. A, App. A

Key points and principles Section(s) Question(s) Guidance

III. Meetings between a 102–3.40(e) 1. May an agency official meet with a A. The answer to questions 1 and 2 is Federal official(s) and a number of persons collectively to yes. The Act applies only where a collection of individuals obtain their individual views without group is established or utilized to pro- where advice is sought violating the Act? vide advice or recommendations ‘‘as a from the attendees on 2. Does the concept of an ‘‘indi- group.’’ (i) A mere assemblage or col- an individual basis are vidual’’ apply only to ‘‘natural per- lection of individuals where the not subject to the Act. sons?’’ attendees are providing individual advice is not acting ‘‘as a group’’ under the Act. (ii) In this respect, ‘‘individual’’ is not limited to ‘‘natural persons.’’ Where the group consists of representatives of various existing organizations, each representative individually may provide advice on behalf of that person’s organization without violating the Act, if those organizations themselves are not ‘‘managed or controlled’’ by the agency.

IV. Meetings between 102–3.40(g) 1. Is the exclusion from the Act cov- A. Yes. The scope of activities covered Federal, State, local, ering elected officials of State, by the exclusion from the Act for inter- and tribal elected offi- local, and tribal governments act- governmental activities should be con- cials are not subject to ing in their official capacities also strued broadly to facilitate Federal/ the Act. applicable to associations of State State/local/tribal discussions on shared officials? intergovernmental program responsibilities or administration. Pursuant to a Presidential delegation, the Office of Management and Budget (OMB) issued guidelines for this exemption, authorized by section 204(b) of the Un- funded Mandates Reform Act of 1995, 2 U.S.C. 1534(b). (See OMB Memo- randum M–95–20, dated September 21, 1995, published at 60 FR 50651 (September 29, 1995), and which is available from the Committee Manage- ment Secretariat (MC), General Serv- ices Administration, 1800 F Street, NW, Washington, DC 20405–0002).

V. Advisory committees 102–3.30(e), 1. Are ‘‘operational committees’’ sub- A. No, so long as the operational func- established under the 102–3.40(k) ject to the Act, even if they may tions performed by the committee con- Act may perform advi- engage in some advisory activi- stitute the ‘‘primary’’ mission of the sory functions only, un- ties? committee. Only committees estab- less authorized to per- lished or utilized by the executive form ‘‘operational’’ du- branch in the interest of obtaining ad- ties by the Congress or vice or recommendations are subject to by Presidential direc- the Act. However, without specific au- tive. thorization by the Congress or direction by the President, Federal functions (decisionmaking or operations) cannot be delegated to, or assumed by, non- Federal individuals or entities.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00027 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.45 41 CFR Ch. 102 (7–1–11 Edition)

Key points and principles Section(s) Question(s) Guidance

VI. Committees author- 102–3.40(k) 1. What characteristics are common A. In answer to question 1, non-advisory, ized by the Congress to ‘‘operational committees?’’ or ‘‘operational’’ committees generally in law or by Presi- 2. A committee created by the Con- have the following characteristics: (i) dential directive to per- gress by statute is responsible, for Specific functions and/or authorities form primarily ‘‘oper- example, for developing plans and provided by the Congress in law or by ational’’ functions are events to commemorate the con- Presidential directive; (ii) The ability to not subject to the Act. tributions of wildlife to the enjoy- make and implement traditionally Gov- ment of the Nation’s parks. Part of ernmental decisions; and (iii) The au- the committee’s role includes pro- thority to perform specific tasks to im- viding advice to certain Federal plement a Federal program. agencies as may be necessary to B. Agencies are responsible for deter- coordinate these events. Is this mining whether or not a committee pri- committee subject to FACA? marily provides advice or recommendations and is, therefore, subject to the Act, or is primarily ‘‘operational’’ and not covered by FACA. C. The answer to question 2 is no. The committee is not subject to the Act because: (i) Its functions are to plan and implement specific tasks; (ii) The committee has been granted the express authority by the Congress to perform its statutorily required functions; and (iii) Its incidental role of providing advice to other Federal agencies is secondary to its primarily operational role of planning and implementing specific tasks and performing statutory functions.

Subpart B—How Are Advisory (b) Presidential authority. By Execu- Committees Established, Re- tive order of the President or other newed, Reestablished, and Presidential directive (non-discre- Terminated? tionary); (c) Authorized by statute. By law § 102–3.45 What does this subpart where the Congress authorizes, but cover and how does it apply? does not direct the President or an Requirements for establishing and agency to establish it (discretionary); or terminating advisory committees vary (d) Agency authority. By an agency depending on the establishing entity under general authority in title 5 of and the source of authority for the ad- the United States Code or under other visory committee. This subpart covers general agency-authorizing statutes the procedures associated with the es- (discretionary). tablishment, renewal, reestablishment, and termination of advisory commit- § 102–3.55 What rules apply to the du- tees. These procedures include con- ration of an advisory committee? sulting with the Secretariat, preparing (a) An advisory committee automati- and filing an advisory committee char- cally terminates two years after its ter, publishing notice in the FEDERAL date of establishment unless: REGISTER, and amending an advisory committee charter. (1) The statutory authority used to establish the advisory committee pro- § 102–3.50 What are the authorities for vides a different duration; establishing advisory committees? (2) The President or agency head de- FACA identifies four sources of au- termines that the advisory committee thority for establishing an advisory has fulfilled the purpose for which it committee: was established and terminates the ad- (a) Required by statute. By law where visory committee earlier; the Congress establishes an advisory (3) The President or agency head de- committee, or specifically directs the termines that the advisory committee President or an agency to establish it is no longer carrying out the purpose (non-discretionary);

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00028 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–3.70

for which it was established and termi- committee, or other means such as a nates the advisory committee earlier; public hearing; and or (3) Fairly balanced membership. A de- (4) The President or agency head re- scription of the agency’s plan to attain news the committee not later than two fairly balanced membership. The plan years after its date of establishment in will ensure that, in the selection of accordance with § 102–3.60. If an advi- members for the advisory committee, sory committee needed by the Presi- the agency will consider a cross-section dent or an agency terminates because of those directly affected, interested, it was not renewed in a timely manner, and qualified, as appropriate to the na- or if the advisory committee has been ture and functions of the advisory com- terminated under the provisions of mittee. Advisory committees requiring § 102–3.30(b), it can be reestablished in technical expertise should include per- accordance with § 102–3.60. sons with demonstrated professional or (b) When an advisory committee ter- personal qualifications and experience minates, the agency shall notify the relevant to the functions and tasks to Secretariat of the effective date of the be performed. termination. § 102–3.65 What are the public notifica- § 102–3.60 What procedures are re- tion requirements for discretionary quired to establish, renew, or rees- advisory committees? tablish a discretionary advisory A notice to the public in the FEDERAL committee? REGISTER is required when a discre- (a) Consult with the Secretariat. Before tionary advisory committee is estab- establishing, renewing, or reestablished, renewed, or reestablished. lishing a discretionary advisory com- (a) Procedure. Upon receiving notice mittee and filing the charter as ad- from the Secretariat that its review is dressed later in § 102–3.70, the agency complete in accordance with § 102– head must consult with the Secre- 3.60(a), the agency must publish a no- tariat. As part of this consultation, tice in the FEDERAL REGISTER announc- agency heads are encouraged to engage ing that the advisory committee is in constructive dialogue with the Sec- being established, renewed, or reestab- retariat. With a full understanding of lished. For the establishment of a new the background and purpose behind the advisory committee, the notice also proposed advisory committee, the Sec- must describe the nature and purpose retariat may share its knowledge and of the advisory committee and affirm experience with the agency on how best that the advisory committee is nec- to make use of the proposed advisory essary and in the public interest. committee, suggest alternate methods (b) Time required for notices. Notices of of attaining its purpose that the agen- establishment and reestablishment of cy may wish to consider, or inform the advisory committees must appear at agency of a pre-existing advisory com- least 15 calendar days before the char- mittee performing similar functions. ter is filed, except that the Secretariat (b) Include required information in the may approve less than 15 calendar days consultation. Consultations covering when requested by the agency for good the establishment, renewal, and rees- cause. This requirement for advance tablishment of advisory committees notice does not apply to advisory com- must, as a minimum, contain the fol- mittee renewals, notices of which may lowing information: be published concurrently with the fil- (1) Explanation of need. An expla- ing of the charter. nation stating why the advisory committee is essential to the conduct of § 102–3.70 What are the charter filing agency business and in the public in- requirements? terest; No advisory committee may meet or (2) Lack of duplication of resources. An take any action until a charter has explanation stating why the advisory been filed by the Committee Manage- committee’s functions cannot be per- ment Officer (CMO) designated in ac- formed by the agency, another existing cordance with section 8(b) of the Act,

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00029 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.75 41 CFR Ch. 102 (7–1–11 Edition)

or by another agency official des- (3) The period of time necessary to ignated by the agency head. carry out the advisory committee’s (a) Requirement for discretionary advi- purpose(s); sory committees. To establish, renew, or (4) The agency or Federal officer to reestablish a discretionary advisory whom the advisory committee reports; committee, a charter must be filed (5) The agency responsible for pro- with: viding the necessary support to the ad- (1) The agency head; visory committee; (2) The standing committees of the (6) A description of the duties for Senate and the House of Representa- which the advisory committee is re- tives having legislative jurisdiction of sponsible and specification of the au- the agency, the date of filing with thority for any non-advisory functions; which constitutes the official date of (7) The estimated annual costs to op- establishment for the advisory com- erate the advisory committee in dol- mittee; lars and person years; (8) The estimated number and fre- (3) The Library of Congress, Anglo- quency of the advisory committee’s American Acquisitions Division, Gov- meetings; ernment Documents Section, Federal (9) The planned termination date, if Advisory Committee Desk, 101 Inde- less than two years from the date of es- pendence Avenue, SE., Washington, DC tablishment of the advisory com- 20540–4172; and mittee; (4) The Secretariat, indicating the (10) The name of the President’s dele- date the charter was filed in accord- gate, agency, or organization respon- ance with paragraph (a)(2) of this sec- sible for fulfilling the reporting re- tion. quirements of section 6(b) of the Act, if (b) Requirement for non-discretionary appropriate; and advisory committees. Charter filing re- (11) The date the charter is filed in quirements for non-discretionary advi- accordance with § 102–3.70. sory committees are the same as those (b) The provisions of paragraphs in paragraph (a) of this section, except (a)(1) through (11) of this section apply the date of establishment for a Presi- to all subcommittees that report di- dential advisory committee is the date rectly to a Federal officer or agency. the charter is filed with the Secre- tariat. § 102–3.80 How are minor charter (c) Requirement for subcommittees that amendments accomplished? report directly to the Government. Sub- (a) Responsibility and limitation. The committees that report directly to a agency head is responsible for amend- Federal officer or agency must comply ing the charter of an advisory com- with this subpart and include in a char- mittee. Amendments may be either ter the information required by § 102– minor or major. The procedures for 3.75. making changes and filing amended charters will depend upon the author- § 102–3.75 What information must be ity basis for the advisory committee. included in the charter of an advi- Amending any existing advisory com- sory committee? mittee charter does not constitute re- (a) Purpose and contents of an advisory newal of the advisory committee under committee charter. An advisory com- § 102–3.60. mittee charter is intended to provide a (b) Procedures for minor amendments. description of an advisory committee’s To make a minor amendment to an admission, goals, and objectives. It also visory committee charter, such as provides a basis for evaluating an advi- changing the name of the advisory sory committee’s progress and effec- committee or modifying the estimated tiveness. The charter must contain the number or frequency of meetings, the following information: following procedures must be followed: (1) The advisory committee’s official (1) Non-discretionary advisory commit- designation; tees. The agency head must ensure that (2) The objectives and the scope of any minor technical changes made to the advisory committee’s activity; current charters are consistent with

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00030 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–3, Subpt. B, App. A

the relevant authority. When the Con- mittee’s objectives and scope substan- gress by law, or the President by Exec- tially. The agency must amend the utive order, changes the authorizing charter language as necessary and file language that has been the basis for es- the amended charter as specified in tablishing an advisory committee, the § 102–3.70. agency head or the chairperson of an independent Presidential advisory § 102–3.85 How are major charter committee must amend those sections amendments accomplished? of the current charter affected by the Procedures for making major amend- new statute or Executive order, and ments to advisory committee charters, file the amended charter as specified in such as substantial changes in objec- § 102–3.70. tives and scope, duties, and estimated (2) Discretionary advisory committees. costs, are the same as in § 102–3.80, ex- The charter of a discretionary advisory cept that for discretionary advisory committee may be amended when an committees an agency must: agency head determines that technical (a) Consult with the Secretariat on provisions of a filed charter are inac- the amended language, and explain the curate, or specific provisions have purpose of the changes and why they changed or become obsolete with the are necessary; and passing of time, and that these amend- (b) File the amended charter as speci- ments will not alter the advisory com- fied in § 102–3.70.

APPENDIX A TO SUBPART B OF PART 102–3—KEY POINTS AND PRINCIPLES

Key points and principles Section(s) Question(s) Guidance

I. Agency heads must 102–3.60, 102– 1. Can an agency head delegate to A. Yes. Many administrative functions consult with the Secre- 3.115 the Committee Management Offi- performed to implement the Act may tariat prior to estab- cer (CMO) responsibility for con- be delegated. However, those func- lishing a discretionary sulting with the Secretariat regard- tions related to approving the final es- advisory committee. ing the establishment, renewal, or tablishment, renewal, or reestablish- reestablishment of discretionary ment of discretionary advisory commit- advisory committees? tees are reserved for the agency head. Each agency CMO should assure that their internal processes for managing advisory committees include appropriate certifications by the agency head.

II. Agency heads are re- 102–3.60(a), 1. Who retains final authority for es- A. Although agency heads retain final au- sponsible for complying 102–3.105 tablishing or renewing a discre- thority for establishing or renewing dis- with the Act, including tionary advisory committee? cretionary advisory committees, these determining which dis- decisions should be consistent with cretionary advisory § 102–3.105(e) and reflect consultation committees should be with the Secretariat under § 102– established and re- 3.60(a). newed.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00031 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.90 41 CFR Ch. 102 (7–1–11 Edition)

Key points and principles Section(s) Question(s) Guidance

III. An advisory com- 102–3.30(c), 1. What factors should be considered A. The composition of an advisory committee must be fairly 102– in achieving a ‘‘balanced’’ advisory mittee’s membership will depend upon balanced in its mem- 3.60(b)(3) committee membership? several factors, including: (i) The advi- bership in terms of the sory committee’s mission; (ii) The geo- points of view rep- graphic, ethnic, social, economic, or resented and the func- scientific impact of the advisory com- tions to be performed. mittee’s recommendations; (iii) The types of specific perspectives required, for example, such as those of con- sumers, technical experts, the public at-large, academia, business, or other sectors; (iv) The need to obtain diver- gent points of view on the issues before the advisory committee; and (v) The relevance of State, local, or tribal governments to the development of the advisory committee’s recommendations.

IV. Charters for advisory 102–3.70(b) 1. If an advisory committee’s duration A. Yes. Section 14(b)(2) of the Act pro- committees required by exceeds two years, must a charter vides that: Any advisory committee es- statute must be filed be filed with the Congress and tablished by an Act of Congress shall every two years re- GSA every two years? file a charter upon the expiration of gardless of the duration each successive two-year period fol- provided in the statute. lowing the date of enactment of the Act establishing such advisory committee.

Subpart C—How Are Advisory an advisory committee’s tasks and the Committees Managed? more focused its activities are, the higher the likelihood will be that the § 102–3.90 What does this subpart advisory committee will fulfill its mis- cover and how does it apply? sion. This subpart outlines specific respon- (c) Follow plans and procedures. Advi- sibilities and functions to be carried sory committee members and their out by the General Services Adminis- agency sponsors should work together tration (GSA), the agency head, the to assure that a plan and necessary Committee Management Officer (CMO), procedures covering implementation and the Designated Federal Officer are in place to support an advisory (DFO) under the Act. committee’s mission. In particular, agencies should be clear regarding § 102–3.95 What principles apply to the what functions an advisory committee management of advisory commit- can perform legally and those that it tees? cannot perform. Agencies are encouraged to apply the (d) Practice openness. In addition to following principles to the manage- achieving the minimum standards of ment of their advisory committees: public access established by the Act (a) Provide adequate support. Before and this part, agencies should seek to establishing an advisory committee, be as inclusive as possible. For exam- agencies should identify requirements ple, agencies may wish to explore the and assure that adequate resources are use of the Internet to post advisory available to support anticipated activi- committee information and seek ties. Considerations related to support broader input from the public. include office space, necessary supplies (e) Seek feedback. Agencies contin- and equipment, Federal staff support, ually should seek feedback from advi- and access to key decisionmakers. sory committee members and the pub- (b) Focus on mission. Advisory com- lic regarding the effectiveness of the mittee members and staff should be advisory committee’s activities. At fully aware of the advisory commit- regular intervals, agencies should com- tee’s mission, limitations, if any, on its municate to the members how their ad- duties, and the agency’s goals and ob- vice has affected agency programs and jectives. In general, the more specific decisionmaking.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00032 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–3.110

§ 102–3.100 What are the responsibil- lic, in whole or in part, in accordance ities and functions of GSA? with the exemption(s) of the Govern- (a) Under section 7 of the Act, the ment in the Sunshine Act, 5 U.S.C. General Services Administration (GSA) 552b(c), as the basis for closure; prepares regulations on Federal advi- (e) Review, at least annually, the sory committees to be prescribed by need to continue each existing advisory the Administrator of General Services, committee, consistent with the public issues other administrative guidelines interest and the purpose or functions of and management controls for advisory each advisory committee; committees, and assists other agencies (f) Determine that rates of compensa- in implementing and interpreting the tion for members (if they are paid for Act. Responsibility for these activities their services) and staff of, and experts has been delegated by the Adminis- and consultants to advisory commit- trator to the GSA Committee Manage- tees are justified and that levels of ment Secretariat. agency support are adequate; (b) The Secretariat carries out its re- (g) Develop procedures to assure that sponsibilities by: (1) Conducting an annual comprehen- the advice or recommendations of advi- sive review of Governmentwide advisory committees will not be inappro- sory committee accomplishments, priately influenced by the appointing costs, benefits, and other indicators to authority or by any special interest, measure performance; but will instead be the result of the ad- (2) Developing and distributing Gov- visory committee’s independent judg- ernmentwide training regarding the ment; Act and related statutes and principles; (h) Assure that the interests and af- (3) Supporting the Interagency Com- filiations of advisory committee mem- mittee on Federal Advisory Committee bers are reviewed for conformance with Management in its efforts to improve applicable conflict of interest statutes, compliance with the Act; regulations issued by the U.S. Office of (4) Designing and maintaining a Gov- Government Ethics (OGE) including ernmentwide shared Internet-based any supplemental agency require- system to facilitate collection and use ments, and other Federal ethics rules; of information required by the Act; (i) Designate a Designated Federal (5) Identifying performance measures Officer (DFO) for each advisory com- that may be used to evaluate advisory mittee and its subcommittees; and committee accomplishments; and (6) Providing recommendations for (j) Provide the opportunity for rea- transmittal by the Administrator to sonable participation by the public in the Congress and the President regard- advisory committee activities, subject ing proposals to improve accomplish- to § 102–3.140 and the agency’s guide- ment of the objectives of the Act. lines.

§ 102–3.105 What are the responsibil- § 102–3.110 What are the responsibilities of an agency head? ities of a chairperson of an inde- The head of each agency that estab- pendent Presidential advisory com- lishes or utilizes one or more advisory mittee? committees must: The chairperson of an independent (a) Comply with the Act and this Presidential advisory committee must: Federal Advisory Committee Manage- (a) Comply with the Act and this ment part; Federal Advisory Committee Manage- (b) Issue administrative guidelines ment part; and management controls that apply (b) Consult with the Secretariat con- to all of the agency’s advisory commit- cerning the designation of a Com- tees subject to the Act; mittee Management Officer (CMO) and (c) Designate a Committee Manage- Designated Federal Officer (DFO); and ment Officer (CMO); (d) Provide a written determination (c) Consult with the Secretariat in stating the reasons for closing any ad- advance regarding any proposal to visory committee meeting to the pub- close any meeting in whole or in part.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00033 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.115 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–3.115 What are the responsibil- § 102–3.125 How should agencies con- ities and functions of an agency sider the roles of advisory com- Committee Management Officer mittee members and staff? (CMO)? FACA does not assign any specific re- In addition to implementing the pro- sponsibilities to members of advisory visions of section 8(b) of the Act, the committees and staff, although both CMO will carry out all responsibilities perform critical roles in achieving the delegated by the agency head. The goals and objectives assigned to advi- CMO also should ensure that sections sory committees. Agency heads, Com- 10(b), 12(a), and 13 of the Act are imple- mittee Management Officers (CMOs), mented by the agency to provide for and Designated Federal Officers (DFOs) appropriate recordkeeping. Records to should consider the distinctions between these roles and how they relate be kept by the CMO include, but are to each other in the development of not limited to: agency guidelines implementing the (a) Charter and membership documenta- Act and this Federal Advisory Com- tion. A set of filed charters for each ad- mittee Management part. In general, visory committee and membership lists these guidelines should reflect: for each advisory committee and sub- (a) Clear operating procedures. Clear committee; operating procedures should provide for (b) Annual comprehensive review. Cop- the conduct of advisory committee ies of the information provided as the meetings and other activities, and agency’s portion of the annual com- specify the relationship among the ad- prehensive review of Federal advisory visory committee members, the DFO, committees, prepared according to and advisory committee or agency § 102–3.175(b); staff; (c) Agency guidelines. Agency guide- (b) Agency operating policies. In addi- lines maintained and updated on com- tion to compliance with the Act, advi- mittee management operations and sory committee members and staff may procedures; and be required to adhere to additional (d) Closed meeting determinations. agency operating policies; and Agency determinations to close or par- (c) Other applicable statutes. Other tially close advisory committee meet- agency-specific statutes and regulations may affect the agency’s advisory ings required by § 102–3.105. committees directly or indirectly. § 102–3.120 What are the responsibil- Agencies should ensure that advisory ities and functions of a Designated committee members and staff under- Federal Officer (DFO)? stand these requirements. The agency head or, in the case of an § 102–3.130 What policies apply to the independent Presidential advisory appointment, and compensation or committee, the Secretariat, must des- reimbursement of advisory com- ignate a Federal officer or employee mittee members, staff, and experts who must be either full-time or perma- and consultants? nent part-time, to be the DFO for each In developing guidelines to imple- advisory committee and its sub- ment the Act and this Federal Advi- committees, who must: sory Committee Management part at (a) Approve or call the meeting of the the agency level, agency heads must advisory committee or subcommittee; address the following issues concerning advisory committee member and staff (b) Approve the agenda, except that appointments, and considerations with this requirement does not apply to a respect to uniform fair rates of com- Presidential advisory committee; pensation for comparable services, or (c) Attend the meetings; expense reimbursement of members, (d) Adjourn any meeting when he or staff, and experts and consultants: she determines it to be in the public in- (a) Appointment and terms of advisory terest; and committee members. Unless otherwise (e) Chair the meeting when so di- provided by statute, Presidential direc- rected by the agency head. tive, or other establishment authority,

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00034 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–3.130

advisory committee members serve at cable locality payment under 5 U.S.C. the pleasure of the appointing or invit- 5304. The agency must pay advisory ing authority. Membership terms are committee staff on an hourly rate at the sole discretion of the appointing basis. The agency may provide addi- or inviting authority. tional compensation, such as bonuses (b) Compensation guidelines. Each or premium pay, so long as aggregate agency head must establish uniform compensation paid in a calendar year compensation guidelines for members does not exceed the rate for level IV of and staff of, and experts and consult- the Executive Schedule, with appro- ants to an advisory committee. priate proration for a partial calendar (c) Compensation of advisory committee year. members not required. Nothing in this (f) Other compensation considerations. subpart requires an agency head to pro- In establishing rates of pay for advi- vide compensation to any member of sory committee members and staff, the an advisory committee, unless other- agency must comply with any applica- wise required by a specific statute. ble statutes, Executive orders, regula- (d) Compensation of advisory committee tions, or administrative guidelines. In members. When an agency has authority determining an appropriate rate of to set pay administratively for advi- basic pay for advisory committee mem- sory committee members, it may es- bers and staff, an agency must give tablish appropriate rates of pay (in- consideration to the significance, cluding any applicable locality pay au- scope, and technical complexity of the thorized by the President’s Pay Agent matters with which the advisory com- under 5 U.S.C. 5304(h)), not to exceed mittee is concerned, and the qualifica- the rate for level IV of the Executive tions required for the work involved. Schedule under 5 U.S.C. 5315, unless a higher rate expressly is allowed by an- The agency also should take into ac- other statute. However, the agency count the rates of pay applicable to head personally must authorize a rate Federal employees who have duties of basic pay in excess of the maximum that are similar in terms of difficulty rate of basic pay established for the and responsibility. An agency may es- General Schedule under 5 U.S.C. 5332, tablish rates of pay for advisory com- or alternative similar agency committee staff based on the pay these per- pensation system. This maximum rate sons would receive if they were covered includes any applicable locality pay- by the General Schedule in 5 U.S.C. ment under 5 U.S.C. 5304. The agency Chapter 51 and Chapter 53, subchapter may pay advisory committee members III, or by an alternative similar agency on either an hourly or a daily rate compensation system. basis. The agency may not provide ad- (g) Compensation of experts and conditional compensation in any form, sultants. Whether or not an agency has such as bonuses or premium pay. other authority to appoint and com- (e) Compensation of staff. When an pensate advisory committee members agency has authority to set pay admin- or staff, it also may employ experts istratively for advisory committee and consultants under 5 U.S.C. 3109 to staff, it may establish appropriate perform work for an advisory com- rates of pay (including any applicable mittee. Compensation of experts and locality pay authorized by the Presi- consultants may not exceed the max- dent’s Pay Agent under 5 U.S.C. imum rate of basic pay established for 5304(h)), not to exceed the rate for level the General Schedule under 5 U.S.C. IV of the Executive Schedule under 5 5332 (that is, the GS–15, step 10 rate, ex- U.S.C. 5315, unless a higher rate excluding locality pay or any other sup- pressly is allowed by another statute. plement), unless a higher rate ex- However, the agency head personally pressly is allowed by another statute. must authorize a rate of basic pay in The appointment and compensation of excess of the maximum rate of basic experts and consultants by an agency pay established for the General Sched- must be in conformance with applica- ule under 5 U.S.C. 5332, or alternative ble regulations issued by the U. S. Of- similar agency compensation system. fice of Personnel Management (OPM) This maximum rate includes any appli- (See 5 CFR part 304.).

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00035 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–3, Subpt. C, App. A 41 CFR Ch. 102 (7–1–11 Edition)

(h) Federal employees assigned to an (j) Gratuitous services. In the absence advisory committee. Any advisory com- of any special limitations applicable to mittee member or staff person who is a a specific agency, nothing in this sub- Federal employee when assigned duties part prevents an agency from accepting to an advisory committee remains cov- the gratuitous services of an advisory ered during the assignment by the committee member or staff person who compensation system that currently is not a Federal employee, or expert or applies to that employee, unless that consultant, who agrees in advance and person’s current Federal appointment in writing to serve without compensa- is terminated. Any staff person who is tion. a Federal employee must serve with the knowledge of the Designated Fed- (k) Travel expenses. Advisory com- eral Officer (DFO) for the advisory mittee members and staff, while en- committee to which that person is as- gaged in the performance of their du- signed duties, and the approval of the ties away from their homes or regular employee’s direct supervisor. places of business, may be allowed re- (i) Other appointment considerations. imbursement for travel expenses, in- An individual who is appointed as an cluding per diem in lieu of subsistence, advisory committee member or staff as authorized by 5 U.S.C. 5703, for per- person immediately following termi- sons employed intermittently in the nation of another Federal appointment Government service. with a full-time work schedule may re- (l) Services for advisory committee ceive compensation at the rate applica- members with disabilities. While per- ble to the former appointment, if oth- forming advisory committee duties, an erwise allowed by applicable law (with- advisory committee member with dis- out regard to the limitations on pay es- abilities may be provided services by a tablished in paragraphs (d) and (e) of personal assistant for employees with this section). Any advisory committee staff person who is not a current Fed- disabilities, if the member qualifies as eral employee serving under an assign- an individual with disabilities as pro- ment must be appointed in accordance vided in section 501 of the Rehabilita- with applicable agency procedures, and tion Act of 1973, as amended, 29 U.S.C. in consultation with the DFO and the 791, and does not otherwise qualify for members of the advisory committee in- assistance under 5 U.S.C. 3102 by reason volved. of being a Federal employee.

APPENDIX A TO SUBPART C OF PART 102–3—KEY POINTS AND PRINCIPLES

Key points and principles Section Question(s) Guidance

I. FACA does not specify 102–3.105, 1. Does the appointment of an advi- A. No. Each agency head may specify the manner in which 102–3.130(a) sory committee member nec- those policies and procedures, con- advisory committee essarily result in a lengthy proc- sistent with the Act and this part, or members and staff ess? other specific authorizing statute, gov- must be appointed erning the appointment of advisory committee members and staff. B. Some factors that affect how long the appointment process takes include: (i) Solicitation of nominations; (ii) Conflict of interest clearances; (iii) Security or background evaluations; (iv) Availability of candidates; and (v) Other statutory or administrative requirements. C. In addition, the extent to which agency heads have delegated responsibility for selecting members varies from agency to agency and may become an important factor in the time it takes to finalize the advisory committee’s membership.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00036 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–3, Subpt. C, App. A

Key points and principles Section Question(s) Guidance

II. Agency heads retain 102–3.130(a) 1. Can an agency head select for A. The answer to question 1 is yes. Or- the final authority for membership on an advisory com- ganizations may propose for member- selecting advisory committee from among nominations ship individuals to represent them on mittee members, un- submitted by an organization? an advisory committee. However, the less otherwise provided agency head establishing the advisory for by a specific statute committee, or other appointing author- or Presidential directive ity, retains the final authority for selecting all members. 2. If so, can different persons rep- B. The answer to question 2 also is yes. resent the organization at different Alternates may represent an appointed meetings? member with the approval of the establishing agency, where the agency head is the appointing authority. III. An agency may com- 102–3.130(d), 1. May members and staff be com- A. The answer to question 1 is yes. (i) pensate advisory com- 102–3.130(e), pensated for their service or duties However, FACA limits compensation mittee members and 102–3.130(g) on an advisory committee? for advisory committee members and staff, and also employ 2. Are the guidelines the same for staff to the rate for level IV of the Ex- experts and consult- compensating both members and ecutive Schedule, unless higher rates ants staff? expressly are allowed by other stat- 3. May experts and consultants be utes. (ii) Although FACA provides for employed to perform other advi- compensation guidelines, the Act does sory committee work? not require an agency to compensate its advisory committee members. B. The answer to question 2 is no. The guidelines for compensating members and staff are similar, but not identical. For example, the differences are that: (i) An agency ‘‘may’’ pay members on either an hourly or a daily rate basis, and ‘‘may not’’ provide additional compensation in any form, such as bonuses or premium pay; while (ii) An agency ‘‘must’’ pay staff on an hourly rate basis only, and ‘‘may’’ provide additional compensation, so long as aggregate compensation paid in a calendar year does not exceed the rate for level IV of the Executive Schedule, with appropriate proration for a partial calendar year. C. The answer to question 3 is yes. Other work not part of the duties of advisory committee members or staff may be performed by experts and consultants. For additional guidance on the employment of experts and consultants, agencies should consult the applicable regulations issued by the U. S. Office of Personnel Management (OPM). (See 5 CFR part 304.)

IV. Agency heads are re- 102–3.105(h) 1. Are all advisory committee mem- A. The answer to question 1 is no. sponsible for ensuring bers subject to conflict of interest Whether an advisory committee mem- that the interests and statutes and other Federal ethics ber is subject to Federal ethics rules is affiliations of advisory rules? dependent on the member’s status. committee members 2. Who should be consulted for guid- The determination of a member’s sta- are reviewed for con- ance on the proper application of tus on an advisory committee is largely formance with applica- Federal ethics rules to advisory a personnel classification matter for the ble conflict of interest committee members? appointing agency. Most advisory com- statutes and other Fed- mittee members will serve either as a eral ethics rules. ‘‘representative’’ or a ‘‘special Govern- ment employee’’ (SGE), based on the role the member will play. In general, SGEs are covered by regulations issued by the U. S. Office of Govern- ment Ethics (OGE) and certain conflict of interest statutes, while representatives are not subject to these ethics requirements.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00037 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.135 41 CFR Ch. 102 (7–1–11 Edition)

Key points and principles Section Question(s) Guidance

B. The answer to question 2 is the agency’s Designated Agency Ethics Official (DAEO), who should be consulted prior to appointing members to an advisory committee in order to apply Federal ethics rules properly.

V. An agency head may 102–3.105(c), 1. Must an agency’s CMO and each A. The answer to question 1 is no. The delegate responsibility 102–3.105(i) advisory committee DFO be ap- agency head may delegate responsi- for appointing a Com- pointed by the agency head? bility for appointing the CMO and mittee Management Of- DFOs. However, these appointments, ficer (CMO) or Des- including alternate selections, should ignated Federal Officer be documented consistent with the (DFO); however, there agency’s policies and procedures. may be only one CMO for each agency. 2. May an agency have more than B. The answer to question 2 also is no. one CMO? The functions of the CMO are specified in the Act and include oversight responsibility for all advisory committees within the agency. Accordingly, only one CMO may be appointed to perform these functions. The agency may, however, create additional positions, including those in its subcomponents, which are subordinate to the CMO’s agencywide responsibilities and functions.

VI. FACA is the principal 102–3.125(c) 1. Do other statutes or regulations af- A. Yes. While the Act provides a general statute pertaining to fect the way an agency carries out framework for managing advisory com- advisory committees. its advisory committee manage- mittees Governmentwide, other factors However, other stat- ment program? may affect how advisory committees utes may impact their are managed. These include: (i) The use and operations. statutory or Presidential authority used to establish an advisory committee; (ii) A statutory limitation placed on an agency regarding its annual expenditures for advisory committees; (iii) Presidential or agency management directives; (iv) The applicability of conflict of interest statutes and other Federal ethics rules; (v) Agency regulations affecting advisory committees; and (vi) Other requirements imposed by statute or regulation on an agency or its programs, such as those governing the employment of experts and consultants or the management of Federal records.

Subpart D—Advisory Committee § 102–3.140 What policies apply to ad- Meeting and Recordkeeping visory committee meetings? Procedures The agency head, or the chairperson of an independent Presidential advi- § 102–3.135 What does this subpart sory committee, must ensure that: cover and how does it apply? (a) Each advisory committee meeting This subpart establishes policies and is held at a reasonable time and in a procedures relating to meetings and manner or place reasonably accessible other activities undertaken by advi- to the public, to include facilities that sory committees and their subcommit- are readily accessible to and usable by tees. This subpart also outlines what persons with disabilities, consistent records must be kept by Federal agen- with the goals of section 504 of the Re- cies and what other documentation, in- habilitation Act of 1973, as amended, 29 cluding advisory committee minutes U.S.C. 794; and reports, must be prepared and (b) The meeting room or other forum made available to the public. selected is sufficient to accommodate

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00038 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–3.160

advisory committee members, advisory advisory committee may give less than committee or agency staff, and a rea- 15 calendar days notice, provided that sonable number of interested members the reasons for doing so are included in of the public; the advisory committee meeting notice (c) Any member of the public is per- published in the FEDERAL REGISTER. mitted to file a written statement with the advisory committee; § 102–3.155 How are advisory com- (d) Any member of the public may mittee meetings closed to the public? speak to or otherwise address the advisory committee if the agency’s guide- To close all or part of an advisory lines so permit; and committee meeting, the Designated (e) Any advisory committee meeting Federal Officer (DFO) must: conducted in whole or part by a tele- (a) Obtain prior approval. Submit a re- conference, videoconference, the Inter- quest to the agency head, or in the case net, or other electronic medium meets of an independent Presidential advi- the requirements of this subpart. sory committee, the Secretariat, citing the specific exemption(s) of the Gov- § 102–3.145 What policies apply to sub- ernment in the Sunshine Act, 5 U.S.C. committee meetings? 552b(c), that justify the closure. The re- If a subcommittee makes rec- quest must provide the agency head or ommendations directly to a Federal of- the Secretariat sufficient time (gen- ficer or agency, or if its recommenda- erally, 30 calendar days) to review the tions will be adopted by the parent ad- matter in order to make a determination before publication of the meeting visory committee without further de- notice required by § 102–3.150. liberations by the parent advisory com- (b) Seek General Counsel review. The mittee, then the subcommittee’s meet- General Counsel of the agency or, in ings must be conducted in accordance the case of an independent Presidential with all openness requirements of this advisory committee, the General Coun- subpart. sel of GSA should review all requests § 102–3.150 How are advisory com- to close meetings. mittee meetings announced to the (c) Obtain agency determination. If the public? agency head, or in the case of an independent Presidential advisory com- (a) A notice in the FEDERAL REGISTER mittee, the Secretariat, finds that the must be published at least 15 calendar request is consistent with the provi- days prior to an advisory committee sions in the Government in the Sun- meeting, which includes: shine Act and FACA, the appropriate (1) The name of the advisory com- agency official must issue a determina- mittee (or subcommittee, if application that all or part of the meeting be ble); closed. (2) The time, date, place, and purpose (d) Assure public access to determina- of the meeting; tion. The agency head or the chair- (3) A summary of the agenda, and/or person of an independent Presidential topics to be discussed; advisory committee must make a copy (4) A statement whether all or part of of the determination available to the the meeting is open to the public or public upon request. closed; if the meeting is closed state the reasons why, citing the specific ex- § 102–3.160 What activities of an advi- emption(s) of the Government in the sory committee are not subject to Sunshine Act, 5 U.S.C. 552b(c), as the the notice and open meeting re- basis for closure; and quirements of the Act? (5) The name and telephone number The following activities of an advi- of the Designated Federal Officer sory committee are excluded from the (DFO) or other responsible agency offi- procedural requirements contained in cial who may be contacted for addi- this subpart: tional information concerning the (a) Preparatory work. Meetings of two meeting. or more advisory committee or sub- (b) In exceptional circumstances, the committee members convened solely to agency or an independent Presidential gather information, conduct research,

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00039 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.165 41 CFR Ch. 102 (7–1–11 Edition)

or analyze relevant issues and facts in prehend fully the work undertaken by preparation for a meeting of the advi- the advisory committee. Although ad- sory committee, or to draft position visory committee records may be with- papers for deliberation by the advisory held under the provisions of the Free- committee; and dom of Information Act (FOIA), as (b) Administrative work. Meetings of amended, if there is a reasonable expec- two or more advisory committee or tation that the records sought fall with- subcommittee members convened sole- in the exemptions contained in section ly to discuss administrative matters of 552(b) of FOIA, agencies may not re- the advisory committee or to receive quire members of the public or other administrative information from a interested parties to file requests for Federal officer or agency. non-exempt advisory committee records under the request and review § 102–3.165 How are advisory com- process established by section 552(a)(3) mittee meetings documented? of FOIA. (a) The agency head or, in the case of an independent Presidential advisory § 102–3.175 What are the reporting and committee, the chairperson must en- recordkeeping requirements for an sure that detailed minutes of each ad- advisory committee? visory committee meeting, including (a) Presidential advisory committee fol- one that is closed or partially closed to low-up report. Within one year after a the public, are kept. The chairperson of Presidential advisory committee has each advisory committee must certify submitted a public report to the Presi- the accuracy of all minutes of advisory dent, a follow-up report required by committee meetings. section 6(b) of the Act must be pre- (b) The minutes must include: pared and transmitted to the Congress (1) The time, date, and place of the detailing the disposition of the advi- advisory committee meeting; sory committee’s recommendations. (2) A list of the persons who were The Secretariat shall assure that these present at the meeting, including advi- reports are prepared and transmitted sory committee members and staff, to the Congress as directed by the agency employees, and members of the President, either by the President’s public who presented oral or written delegate, by the agency responsible for statements; providing support to a Presidential ad- (3) An accurate description of each visory committee, or by the respon- matter discussed and the resolution, if sible agency or organization designated any, made by the advisory committee in the charter of the Presidential advi- regarding such matter; and sory committee pursuant to § 102– (4) Copies of each report or other doc- 3.75(a)(10). In performing this function, ument received, issued, or approved by GSA may solicit the assistance of the the advisory committee at the meet- President’s delegate, the Office of Man- ing. agement and Budget (OMB), or the re- (c) The Designated Federal Officer sponsible agency Committee Manage- (DFO) must ensure that minutes are ment Officer (CMO), as appropriate. certified within 90 calendar days of the Reports shall be consistent with spe- meeting to which they relate. cific guidance provided periodically by the Secretariat. § 102–3.170 How does an interested (b) Annual comprehensive review of party obtain access to advisory Federal advisory committees. To conduct committee records? an annual comprehensive review of Timely access to advisory committee each advisory committee as specified records is an important element of the in section 7(b) of the Act, GSA requires public access requirements of the Act. Federal agencies to report information Section 10(b) of the Act provides for on each advisory committee for which the contemporaneous availability of a charter has been filed in accordance advisory committee records that, when with § 102–3.70, and which is in exist- taken in conjunction with the ability ence during any part of a Federal fiscal to attend committee meetings, provide year. Committee Management Officers a meaningful opportunity to com- (CMOs), Designated Federal Officers

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00040 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–3, Subpt. D, App. A

(DFOs), and other responsible agency made by an advisory committee, in- officials will provide this information cluding any report of closed or par- by data filed electronically with GSA tially-closed meetings as specified in on a fiscal year basis, using a Govern- paragraph (c) of this section and, where mentwide shared Internet-based sys- appropriate, background papers pre- tem that GSA maintains. This infor- pared by experts or consultants, must mation shall be consistent with spe- be filed with the Library of Congress as cific guidance provided periodically by required by section 13 of the Act for the Secretariat. The preparation of public inspection and use at the loca- these electronic submissions by agen- tion specified § 102–3.70(a)(3). cies has been assigned interagency re- (e) Advisory committee records. Official port control number (IRCN) 0304–GSA- AN. records generated by or for an advisory (c) Annual report of closed or partially- committee must be retained for the du- closed meetings. In accordance with sec- ration of the advisory committee. Upon tion 10(d) of the Act, advisory commit- termination of the advisory com- tees holding closed or partially-closed mittee, the records must be processed meetings must issue reports at least in accordance with the Federal Records annually, setting forth a summary of Act (FRA), 44 U.S.C. Chapters 21, 29–33, activities and such related matters as and regulations issued by the National would be informative to the public con- Archives and Records Administration sistent with the policy of 5 U.S.C. (NARA) (see 36 CFR parts 1220, 1222, 552(b). 1228, and 1234), or in accordance with (d) Advisory committee reports. Subject the Presidential Records Act (PRA), 44 to 5 U.S.C. 552, 8 copies of each report U.S.C. Chapter 22.

APPENDIX A TO SUBPART D OF PART 102–3—KEY POINTS AND PRINCIPLES

Key points and principles Section(s) Question(s) Guidance

I. With some exceptions, 102–3.140, 1. Must all advisory committee and A. No. Advisory committee meetings may advisory committee 102–3.145(a), subcommittee meetings be open to be closed when appropriate, in accord- meetings are open to 102–3.155 the public? ance with the exemption(s) for closure the public contained in the Government in the Sunshine Act, 5 U.S.C. 552b(c). (i) Subcommittees that report to a parent advisory committee, and not directly to a Federal officer or agency, are not required to open their meetings to the public or comply with the procedures in the Act for announcing meetings. (ii) However, agencies are cautioned to avoid excluding the public from attend- ing any meeting where a subcommittee develops advice or recommendations that are not expected to be reviewed and considered by the parent advisory committee before being submitted to a Federal officer or agency. These exclusions may run counter to the provisions of the Act requiring contemporaneous access to the advisory committee de- liberative process.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00041 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–3, Subpt. D, App. A 41 CFR Ch. 102 (7–1–11 Edition)

Key points and principles Section(s) Question(s) Guidance

II. Notices must be pub- 102–3.150 1. Can agencies publish a single A. Yes, agencies may publish a single lished in the FEDERAL FEDERAL REGISTER notice announc- notice announcing multiple meetings so REGISTER announcing ing multiple advisory committee long as these notices contain all of the advisory committee meetings? information required by § 102–3.150. (i) meetings ‘‘Blanket notices’’ should not announce meetings so far in advance as to prevent the public from adequately being informed of an advisory committee’s schedule. (ii) An agency’s Office of General Counsel should be consulted where these notices include meetings that are either closed or partially closed to the public.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00042 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–3, Subpt. D, App. A

Key points and principles Section(s) Question(s) Guidance

III. Although certain advi- 102–3.170 1. May an agency require the use of A. No. Section 10(b) of FACA provides sory committee records its internal FOIA procedures for ac- that: Subject to section 552 of title 5, may be withheld under cess to advisory committee records United States Code, the records, re- the Freedom of Infor- that are not exempt from release ports, transcripts, minutes, appendixes, mation Act (FOIA), as under FOIA? working papers, drafts, studies, agen- amended, 5 U.S.C. da, or other documents which were 552, agencies may not made available to or prepared for or by require the use of FOIA each advisory committee shall be avail- procedures for records able for public inspection and copying available under section at a single location in the offices of the 10(b) of FACA advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist. (i) The purpose of section 10(b) of the Act is to provide for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend advisory committee meetings, provide a meaningful opportunity to comprehend fully the work undertaken by the advisory committee. (ii) Although advisory committee records may be withheld under the provisions of FOIA if there is a reasonable expectation that the records sought fall within the exemptions contained in section 552(b) of FOIA, agencies may not require members of the public or other interested parties to file requests for non-exempt advisory committee records under the request and review process established by section 552(a)(3) of FOIA. (iii) Records covered by the exemptions set forth in section 552(b) of FOIA may be withheld. An opinion of the Office of Legal Counsel (OLC), U.S. Department of Justice concludes that: FACA requires disclosure of written advisory committee documents, including predecisional materials such as drafts, working papers, and studies. The disclosure exemption available to agencies under exemption 5 of FOIA for predecisional documents and other privileged materials is narrowly limited in the context of FACA to privileged ‘‘inter-agency or intra-agency’’ documents prepared by an agency and transmitted to an advisory committee. The language of the FACA statute and its legislative history support this re- strictive application of exemption 5 to requests for public access to advisory committee documents. Moreover, since an advisory committee is not itself an agency, this construction is supported by the express language of exemption 5 which applies only to inter-agency or intra-agency materials. (iv) Agencies first should determine, however, whether or not records being sought by the public fall within the scope of FACA in general, and section 10(b) of the Act in particular, prior to applying the available exemptions under FOIA. (See OLC Opinion 12 Op. O.L.C. 73, dated April 29, 1988, which is available from the Committee Management Secre- tariat (MC), General Services Adminis- tration, 1800 F Street, NW., Wash- ington, DC 20405–0002.)

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00043 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–3.180 41 CFR Ch. 102 (7–1–11 Edition)

Key points and principles Section(s) Question(s) Guidance

IV. Advisory committee 102–175(e) 1. How must advisory committee A. In order to ensure proper records records must be man- records be treated and preserved? management, the Committee Manage- aged in accordance ment Officer (CMO), Designated Fed- with the Federal eral Officer (DFO), or other representa- Records Act (FRA), 44 tive of the advisory committee, in co- U.S.C. Chapters 21, ordination with the agency’s Records 29–33, and regulations Management Officer, should clarify issued by the National upon the establishment of the advisory Archives and Records committee whether its records will be Administration (NARA) managed in accordance with the FRA (see 36 CFR parts or the PRA. 1220, 1222, 1228, and B. Official records generated by or for an 1234), or the Presi- advisory committee must be retained dential Records Act for the duration of the advisory com- (PRA), 44 U.S.C. mittee. Responsible agency officials Chapter 22 are encouraged to contact their agency’s Records Management Officer or NARA as soon as possible after the establishment of the advisory committee to receive guidance on how to establish effective records management practices. Upon termination of the advisory committee, the records must be processed in accordance with the FRA and regulations issued by NARA, or in accordance with the PRA. C. The CMO, DFO, or other representative of an advisory committee governed by the FRA, in coordination with the agency’s Records Management Officer, must contact NARA in sufficient time to review the process for submitting any necessary disposition schedules of the advisory committee’s records upon termination. In order to ensure the proper disposition of the advisory committee’s records, disposition schedules need to be submitted to NARA no later than 6 months before the termination of the advisory committee. D. For Presidential advisory committees governed by the PRA, the CMO, DFO, or other representative of the advisory committee should consult with the White House Counsel on the preservation of any records subject to the PRA, and may also confer with NARA officials.

Subpart E—How Does This Subpart advice or recommendations provided to Apply to Advice or Rec- the agency by the National Academy of ommendations Provided to Sciences (NAS) or the National Acad- emy of Public Administration (NAPA), Agencies by the National if such advice or recommendations Academy of Sciences or the were developed by use of a committee National Academy of Public created by either academy. For pur- Administration? poses of this subpart, NAS also includes the National Academy of Engi- § 102–3.180 What does this subpart neering, the Institute of Medicine, and cover and how does it apply? the National Research Council. Except This subpart provides guidance to with respect to NAS committees that agencies on compliance with section 15 were the subject of judicial actions of the Act. Section 15 establishes re- filed before December 17, 1997, no part quirements that apply only in connec- of the Act other than section 15 applies tion with a funding or other written to any committee created by NAS or agreement involving an agency’s use of NAPA.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00044 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–3, Subpt. E, App. A

§ 102–3.185 What does this subpart re- tion, however, any committee created quire agencies to do? and used by an academy in the develop- (a) Section 15 requirements. An agency ment of any advice or recommendation may not use any advice or rec- to be provided by the academy to an ommendation provided to an agency by agency must be subject to both actual the National Academy of Sciences management and control by that acad- (NAS) or the National Academy of Pub- emy and not by the agency. lic Administration (NAPA) under an (c) Funding agreements. Agencies may agreement between the agency and an enter into contracts, grants, and coop- academy, if such advice or rec- erative agreements with NAS or NAPA ommendation was developed by use of a that are consistent with the require- committee created by either academy, ments of this subpart to obtain advice unless: or recommendations from such acad- (1) The committee was not subject to emy. These funding agreements re- any actual management or control by quire, and agencies may rely upon, a an agency or officer of the Federal written certification by an authorized Government; and representative of the academy provided (2) In the case of NAS, the academy to the agency upon delivery to the certifies that it has complied substan- agency of each report containing ad- tially with the requirements of section vice or recommendations required 15(b) of the Act; or under the agreement that: (3) In the case of NAPA, the academy (1) The academy has adopted policies certifies that it has complied substan- and procedures that comply with the tially with the requirements of sec- applicable requirements of section 15 of tions 15(b) (1), (2), and (5) of the Act. the Act; and (b) No agency management or control. (2) To the best of the authorized rep- Agencies must not manage or control resentative’s knowledge and belief, the specific procedures adopted by each these policies and procedures substan- academy to comply with the require- tially have been complied with in per- ments of section 15 of the Act that are forming the work required under the applicable to that academy. In addi- agreement.

APPENDIX A TO SUBPART E OF PART 102–3—KEY POINTS AND PRINCIPLES

Key points and principles Section(s) Question(s) Guidance

I. Section 15 of the Act 102–3.185(a) 1. May agencies rely upon an acad- A. Yes. NAS and NAPA are completely allows the National emy certification regarding compli- separate organizations. Each is inde- Academy of Sciences ance with section 15 of the Act if pendently chartered by the Congress (NAS) and the National different policies and procedures for different purposes, and Congress Academy of Public Ad- are adopted by NAS and NAPA? has recognized that the two organiza- ministration (NAPA) to tions are structured and operate dif- adopt separate proce- ferently. Agencies should defer to the dures for complying discretion of each academy to adopt with FACA policies and procedures that will enable it to comply substantially with the provisions of section 15 of the Act that apply to that academy. II. Section 15 of the Act 102–3.185(c) 1. Can an agency enter into a fund- A. Yes, if the members of the committee allows agencies to ing agreement with an academy are selected by the academy and if the enter into funding which provides for the preparation committee’s meetings, deliberations, agreements with NAS of one or more academy reports and the preparation of reports are all and NAPA without the containing advice or recommenda- controlled by the academy. Under academies’ committees tions to the agency, to be devel- these circumstances, neither the exist- being ‘‘managed’’ or oped by the academy by use of a ence of the funding agreement nor the ‘‘controlled’’ committee created by the acad- fact that it contemplates use by the emy, without subjecting an acad- academy of an academy committee emy to ‘‘actual management or would constitute actual management or control’’ by the agency? control of the committee by the agency.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00045 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–5 41 CFR Ch. 102 (7–1–11 Edition)

PART 102–4—NONDISCRIMINATION 102–5.105 May others accompany an employee using home-to-work transpor- IN FEDERAL FINANCIAL ASSIST- tation? ANCE PROGRAMS [RESERVED] Subpart C—Documenting and Reporting PART 102–5—HOME-TO-WORK Determinations TRANSPORTATION 102–5.110 Must we report our determinations outside of our agency? Subpart A—General 102–5.115 When must we report our determinations? Sec. 102–5.120 What are our responsibilities for 102–5.5 Preamble. documenting use of home-to-work trans- 102–5.10 What does this part cover? portation? 102–5.15 Who is covered by this part? 102–5.20 Who is not covered by this part? AUTHORITY: 40 U.S.C. 121(c); 31 U.S.C. 102–5.25 What additional guidance con- 1344(e)(1). cerning home-to-work transportation should Federal agencies issue? SOURCE: 65 FR 54966, Sept. 12, 2000, unless 102–5.30 What definitions apply to this part? otherwise noted. Subpart B—Authorizing Home-to-Work Subpart A—General Transportation § 102–5.5 Preamble. 102–5.35 Who is authorized home-to-work transportation? (a) The questions and associated an- 102–5.40 May the agency head delegate the swers in this part are regulatory in ef- authority to make home-to-work deter- fect. Thus compliance with the written minations? text of this part is required by all to 102–5.45 Should determinations be com- whom it applies. pleted before an employee is provided with home-to-work transportation? (b) The terms ‘‘we,’’ ‘‘I,’’ ‘‘our,’’ 102–5.50 May determinations be made in ad- ‘‘you,’’ and ‘‘your,’’ when used in this vance for employees who respond to un- part, mean you as a Federal agency, an usual circumstances when they arise? agency head, or an employee, as appro- 102–5.55 How do we prepare determinations? priate. 102–5.60 How long are initial determinations effective? § 102–5.10 What does this part cover? 102–5.65 What procedures apply when the need for home-to-work transportation This part covers the use of Govern- exceeds the initial period? ment passenger carriers to transport 102–5.70 What considerations apply in mak- employees between their homes and ing a determination to authorize home- places of work. to-work transportation for field work? 102–5.75 What circumstances do not estab- § 102–5.15 Who is covered by this part? lish a basis for authorizing home-to-work transportation for field work? This part covers Federal agency em- 102–5.80 What are some examples of posi- ployees in the executive, judicial, and tions that may involve field work? legislative branches of the Govern- 102–5.85 What information should our deter- ment, with the exception of employees mination for field work include if posi- of the Senate, House of Representa- tions are identified rather than named tives, Architect of the Capitol, and individuals? government of the District of Colum- 102–5.90 Should an agency consider whether bia. to base a Government passenger carrier at a Government facility near the employee’s home or work rather than au- § 102–5.20 Who is not covered by this thorize the employee home-to-work part? transportation? This part does not cover: 102–5.95 Is the comfort and/or convenience (a) Employees who use a passenger of an employee considered sufficient jus- carrier in conjunction with official tification to authorize home-to-work transportation? travel, including temporary duty 102–5.100 May we use home-to-work trans- (TDY) or relocation; portation for other than official pur- (b) Employees who are essential for poses? the safe and efficient performance of

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00046 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–5.30

intelligence, counterintelligence, pro- ment service must be provided, and tective services, or criminal law en- there is no other way to transport forcement duties when designated in those employees.) writing as such by their agency head; Employee means a Federal officer or or employee of a Federal agency, includ- (c) Employees who use a passenger ing an officer or enlisted member of carrier for transportation between the Armed Forces. places of employment and mass transit Federal agency means: facilities (see, e.g., 41 CFR 102–34.210). (1) A department (as defined in section 18 of the Act of August 2, 1946 (41 [65 FR 54966, Sept. 12, 2000, as amended at 75 FR 41995, July 20, 2010] U.S.C. 5a)); (2) An executive department (as de- § 102–5.25 What additional guidance fined in 5 U.S.C. 101); concerning home-to-work transpor- (3) A military department (as defined tation should Federal agencies in 5 U.S.C. 102); issue? (4) A Government corporation (as de- Each Federal agency using Govern- fined in 5 U.S.C. 103(1)); ment passenger carriers to provide (5) A Government controlled corpora- home-to-work transportation for em- tion (as defined in 5 U.S.C. 103(2)); ployees who are essential for the safe (6) A mixed-ownership Government and efficient performance of intel- corporation (as defined in 31 U.S.C. ligence, counterintelligence, protective 9101(2)); services, or criminal law enforcement (7) Any establishment in the execu- duties should issue guidance con- tive branch of the Government (includ- cerning such use. ing the Executive Office of the Presi- dent); § 102–5.30 What definitions apply to (8) Any independent regulatory agen- this part? cy (including an independent regu- The following definitions apply to latory agency specified in 44 U.S.C. this part: 3502(10)); Agency head means the highest offi- (9) The Smithsonian Institution; cial of a Federal agency. (10) Any nonappropriated fund instru- Clear and present danger means highly mentality of the United States; and unusual circumstances that present a (11) The United States Postal Serv- threat to the physical safety of the em- ice. ployee or their property when the dan- Field work means official work re- ger is: quiring the employee’s presence at var- (1) Real; and ious locations other than his/her reg- (2) Immediate or imminent, not ular place of work. (Multiple stops merely potential; and (itinerant-type travel) within the ac- (3) The use of a Government pas- cepted local commuting area, limited senger carrier would provide protection use beyond the local commuting area, not otherwise available. or transportation to remote locations Compelling operational considerations that are only accessible by Govern- means those circumstances where ment-provided transportation are ex- home-to-work transportation is essen- amples of field work.) tial to the conduct of official business Home means the primary place where or would substantially increase a Fed- an employee resides and from which eral agency’s efficiency and economy. the employee commutes to his/her Emergency means circumstances that place of work. exist whenever there is an immediate, Home-to-work transportation means unforeseeable, temporary need to pro- the use of a Government passenger car- vide home-to-work transportation for rier to transport an employee between those employees necessary to the unin- his/her home and place of work. terrupted performance of the agency’s Passenger carrier means a motor vehi- mission. (An emergency may occur cle, aircraft, boat, ship, or other simi- where there is a major disruption of lar means of transportation that is available means of transportation to or owned (including those that have come from a work site, an essential Govern- into the possession of the Government

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00047 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–5.35 41 CFR Ch. 102 (7–1–11 Edition)

by forfeiture or donation), leased, or (c) A compelling operational consid- rented (non-TDY) by the United States eration. Government. NOTE TO § 102–5.50: Implementation of these Work means any place within the ac- determinations is contingent upon one of the cepted commuting area, as determined three circumstances occurring. Thus, these by the Federal agency for the locality may be referred to as ‘‘contingency deter- involved, where an employee performs minations.’’ his/her official duties. § 102–5.55 How do we prepare deter- Subpart B—Authorizing Home-to- minations? Work Transportation Determinations must be in writing and include the: § 102–5.35 Who is authorized home-to- (a) Name and title of the employee work transportation? (or other identification, if confiden- By statute, certain Federal officials tial); are authorized home-to-work transpor- (b) Reason for authorizing home-to- tation, as are employees who meet cer- work transportation; and tain statutory criteria as determined (c) Anticipated duration of the au- by their agency head. The Federal offi- thorization. cials authorized by statute are the President, the Vice-President, and § 102–5.60 How long are initial deter- other principal Federal officials and minations effective? their designees, as provided in 31 U.S.C. Initial determinations are effective 1344(b)(1) through (b)(7). Those employ- for no longer than: ees engaged in field work, or faced with (a) Two years for field work, updated a clear and present danger, an emer- as necessary; and gency, or a compelling operational con- (b) Fifteen days for other cir- sideration may be authorized home-to- cumstances. work transportation as determined by their agency head. No other employees § 102–5.65 What procedures apply are authorized home-to-work transpor- when the need for home-to-work tation. transportation exceeds the initial period? § 102–5.40 May the agency head delegate the authority to make home-to- The agency head may approve unlim- work determinations? ited subsequent determinations, when the need for home-to-work transpor- No, the agency head may not dele- tation exceeds the initial period, for no gate the authority to make home-to- longer than: work determinations. (a) Two years each for field work, up- § 102–5.45 Should determinations be dated as necessary; and completed before an employee is (b) Ninety calendar days each for provided with home-to-work trans- other circumstances. portation? Yes, determinations should be com- § 102–5.70 What considerations apply in making a determination to au- pleted before an employee is provided thorize home-to-work transpor- with home-to-work transportation un- tation for field work? less it is impracticable to do so. Agencies should consider the fol- § 102–5.50 May determinations be lowing when making a determination made in advance for employees who to authorize home-to-work transpor- respond to unusual circumstances tation for field work: when they arise? (a) The location of the employee’s Yes, determinations may be made in home in proximity to his/her work and advance when the Federal agency to the locations where non-TDY travel wants to have employees ready to re- is required; and spond to: (b) The use of home-to-work trans- (a) A clear and present danger; portation for field work should be au- (b) An emergency; or thorized only to the extent that such

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00048 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–5.105

transportation will substantially infor field work should include sufficient crease the efficiency and economy of information to satisfy an audit, if nec- the Government. essary. This information should include the job title, number, and oper- § 102–5.75 What circumstances do not ational level where the work is to be establish a basis for authorizing performed (e.g., five recruiter per- home-to-work transportation for field work? sonnel or, positions at the Detroit Army Recruiting Battalion). The following circumstances do not establish a basis for authorizing home- NOTE TO § 102–5.85: An agency head may to-work transportation for field work: elect to designate positions rather than indi- (a) When an employee assigned to vidual names, especially in positions where rapid turnover occurs. field work is not actually performing field work. § 102–5.90 Should an agency consider (b) When the employee’s workday be- whether to base a Government pas- gins at his/her work; or senger carrier at a Government fa- (c) When the employee normally cility near the employee’s home or commutes to a fixed location, however work rather than authorize the em- far removed from his/her official duty ployee home-to-work transpor- station (for example, auditors or inves- tation? tigators assigned to a defense con- Yes, situations may arise where, for tractor plant). cost or other reasons, it is in the Gov- ernment’s interest to base a Govern- NOTE TO § 102–5.75: For instances where an employee is authorized home-to-work trans- ment passenger carrier at a Govern- portation under the field work provision, but ment facility located near the employ- performs field work only on an intermittent ee’s home or work rather than author- basis, the agency shall establish procedures ize the employee home-to-work trans- to ensure that a Government passenger car- portation. rier is used only when field work is actually being performed. Although some employees’ § 102–5.95 Is the comfort and/or con- daily work station is not located in a Gov- venience of an employee considered ernment office, these employees are not per- sufficient justification to authorize forming field work. Like all Government em- home-to-work transportation? ployees, employees working in a ‘‘field office’’ are responsible for their own com- No, the comfort and/or convenience muting costs. of an employee is not considered sufficient justification to authorize home- § 102–5.80 What are some examples of to-work transportation. positions that may involve field work? § 102–5.100 May we use home-to-work Examples of positions that may in- transportation for other than official purposes? volve field work include, but are not limited to: No, you may not use home-to-work (a) Quality assurance inspectors; transportation for other than official (b) Construction inspectors; purposes. However, if your agency has (c) Dairy inspectors; prescribed rules for the incidental use (d) Mine inspectors; of Government vehicles (as provided in (e) Meat inspectors; and 31 U.S.C. note), you may use the vehi- (f) Medical officers on outpatient cle in accordance with those rules in service. connection with an existing home-to- work authorization. NOTE TO § 102–5.80: The assignment of an employee to such a position does not, of § 102–5.105 May others accompany an itself, entitle an employee to receive daily employee using home-to-work home-to-work transportation. transportation? § 102–5.85 What information should Yes, an employee authorized home- our determination for field work in- to-work transportation may share clude if positions are identified space in a Government passenger car- rather than named individuals? rier with other individuals, provided If positions are identified rather than that the passenger carrier does not named individuals, your determination travel additional distances as a result

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00049 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–5.110 41 CFR Ch. 102 (7–1–11 Edition)

and such sharing is consistent with his/ days after approval. You may consoli- her Federal agency’s policy. When a date any subsequent determinations Federal agency establishes its space into a single report and submit them sharing policy, the Federal agency quarterly. should consider its potential liability for and to those individuals. Home-to- § 102–5.120 What are our responsibil- work transportation does not extend to ities for documenting use of home- the employee’s spouse, other relatives, to-work transportation? or friends unless they travel with the Your responsibilities for docu- employee from the same point of de- menting use of home-to-work transpor- parture to the same destination, and tation are that you must maintain logs this use is consistent with the Federal or other records necessary to verify agency’s policy. that any home-to-work transportation was for official purposes. Each agency Subpart C—Documenting and may decide the organizational level at Reporting Determinations which the logs should be maintained § 102–5.110 Must we report our deter- and kept. The logs or other records minations outside of our agency? should be easily accessible for audit Yes, you must submit your deter- and should contain: minations to the following Congres- (a) Name and title of employee (or sional Committees: other identification, if confidential) (a) Chairman, Committee on Govern- using the passenger carrier; mental Affairs, United States Senate, (b) Name and title of person author- Suite SD–340, Dirksen Senate Office izing use; Building, Washington, DC 20510–6250; (c) Passenger carrier identification; and (d) Date(s) home-to-work transpor- (b) Chairman, Committee on Govern- tation is authorized; mental Reform, United States House of (e) Location of residence; Representatives, Suite 2157, Rayburn (f) Duration; and House Office Building, Washington, DC 20515–6143. (g) Circumstances requiring home-to- work transportation. § 102–5.115 When must we report our determinations? PARTS 102–6—102–30 [RESERVED] You must report your determinations to Congress no later than 60 calendar

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00050 Fmt 8010 Sfmt 8006 Q:\41\41V3.TXT ofr150 PsN: PC150 SUBCHAPTER B—PERSONAL PROPERTY

PART 102–31—GENERAL 102–33.85 Where should we send our OMB [RESERVED] Circular A–76 Cost-Comparison Studies? THE PROCESS FOR BUDGETING TO ACQUIRE PART 102–32—MANAGEMENT OF GOVERNMENT AIRCRAFT PERSONAL PROPERTY [RESERVED] 102–33.90 What is the process for budgeting to acquire a Federal aircraft (including a Federal aircraft transferred from another PART 102–33—MANAGEMENT OF executive agency)? GOVERNMENT AIRCRAFT 102–33.95 What is the process for budgeting to acquire commercial aviation services Subpart A—How These Rules Apply (CAS)?

GENERAL CONTRACTING TO ACQUIRE GOVERNMENT AIRCRAFT Sec. 102–33.5 To whom do these rules apply? 102–33.100 What are our responsibilities 102–33.10 May we request approval to devi- when contracting to purchase or lease- ate from these rules? purchase a Federal aircraft or to award a 102–33.15 How does this part relate to the CAS contract? Federal Aviation Regulations? 102–33.105 What special requirements must we put into our CAS contracts? 102–33.20 What definitions apply to this part? ACQUIRING AIRCRAFT PARTS

RESPONSIBILITIES 102–33.110 What are our responsibilities when acquiring aircraft parts? 102–33.25 What are our responsibilities 102–33.115 Are there special requirements under this part? for acquiring military Flight Safety 102–33.30 What are the duties of an agency’s Critical Aircraft Parts (FSCAP)? Senior Aviation Management Official 102–33.120 Are there special requirements (SAMO)? for acquiring life-limited parts? 102–33.35 How can we get help in carrying out our responsibilities? Subpart C—Managing Government 102–33.40 What are GSA’s responsibilities for Aircraft and Aircraft Parts Federal aviation management? OVERVIEW Subpart B—Acquiring Government Aircraft and Aircraft Parts 102–33.125 If we use Federal aircraft, what are our management responsibilities? OVERVIEW 102–33.130 If we hire CAS, what are our management responsibilities? 102–33.45 What is a Government aircraft? 102–33.135 Do we have to follow the direc- 102–33.50 Under what circumstances may we tion in OMB Circular A–123, ‘‘Manage- acquire Government aircraft? ment Accountability and Control,’’ June 102–33.55 Are there restrictions on acquiring 21, 1995, for establishing management Government aircraft? controls for our aviation program? 102–33.60 What methods may we use to acquire Government aircraft? ESTABLISHING FLIGHT PROGRAM STANDARDS 102–33.65 What is the process for acquiring 102–33.140 What are Flight Program Stand- Government aircraft? ards? 102–33.145 Why must we establish Flight PLANNING TO ACQUIRE GOVERNMENT AIRCRAFT Program Standards? 102–33.70 What directives must we follow 102–33.150 Is any agency exempt from estab- when planning to acquire Government lishing Flight Program Standards under aircraft? this part? 102–33.75 What other guidance is available 102–33.155 How must we establish Flight to us in planning to acquire Government Program Standards? aircraft? MANAGEMENT/ADMINISTRATION OMB CIRCULAR A–76 102–33.160 What standards must we establish 102–33.80 Must we comply with OMB Cir- or require (contractually, where applica- cular A–76 before we acquire Government ble) for management/administration of aircraft? our flight program?

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00051 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–33 41 CFR Ch. 102 (7–1–11 Edition)

OPERATIONS Subpart D—Disposing of Government 102–33.165 What standards must we establish Aircraft and Aircraft Parts or require (contractually, where applica- OVERVIEW ble) for operation of our flight program? 102–33.240 What must we consider before dis- MAINTENANCE posing of aircraft and aircraft parts? 102–33.170 What standards must we establish 102–33.245 May we report as excess, or re- or require (contractually, where applica- place (i.e., by exchange/sale), both operational and non-operational aircraft? ble) for maintenance of our Government aircraft? 102–33.250 May we report as excess, or replace, declassified aircraft? TRAINING 102–33.255 Must we document FSCAP or life- limited parts installed on aircraft that 102–33.175 What standards must we establish we will report as excess or replace? or require (contractually, where applica- 102–33.260 When we report as excess, or re- ble) to train our flight program per- place, an aircraft (including a declas- sonnel? sified aircraft), must we report the change in inventory to the Federal Avia- SAFETY tion Interactive Reporting System 102–33.180 What standards must we establish (FAIRS)? or require (contractually, where applica- REPORTING EXCESS GOVERNMENT AIRCRAFT ble) for flight program safety? 102–33.185 What standards must we establish 102–33.265 What are our options if aircraft or require (contractually, where applica- are excess to our needs? ble) for responding to aircraft accidents 102–33.270 What is the process for reporting and incidents? an excess aircraft?

ACCOUNTING FOR THE COST OF GOVERNMENT REPLACING AIRCRAFT THROUGH EXCHANGE OR AIRCRAFT SALE 102–33.190 What are the aircraft operations 102–33.275 Are there restrictions on replac- and ownership costs for which we must ing aircraft by exchange or sale? account? 102–33.280 What are our options if we need a 102–33.195 Do we need an automated system replacement aircraft? to account for aircraft costs? 102–33.285 Do we need to include any special 102–33.200 Must we periodically justify own- disclaimers in our exchange/sale agreeing and operating Federal aircraft? ments for uncertificated aircraft or air- 102–33.205 When we use our aircraft to sup- craft that we have operated as public aircraft (i.e., not in compliance with the port other executive agencies, must we Federal Aviation Regulations, 14 CFR recover the operating costs? chapter I)? ACCOUNTING FOR THE USE OF GOVERNMENT 102–33.290 What other disclaimers must we AIRCRAFT include in our exchange/sale agreements for aircraft? 102–33.210 How do we account for the use of 102–33.295 May we exchange or sell an air- our Government aircraft? craft through reimbursable transfer to 102–33.215 May we use Government aircraft another executive agency? to carry passengers? 102–33.220 What are the responsibilities of DISPOSING OF AIRCRAFT PARTS an agency’s aviation program in justi- 102–33.300 What must we consider before dis- fying the use of a Government aircraft to posing of aircraft parts? transport passengers? 102–33.305 May we report as excess, or replace, FSCAP and life-limited parts? MANAGING AIRCRAFT PARTS 102–33.310 May we report as excess, or re- 102–33.225 How must we manage aircraft place, unsalvageable aircraft parts? parts? 102–33.315 What are the procedures for muti- 102–33.230 May we use military FSCAP on lating unsalvageable aircraft parts? non-military FAA-type certificated Gov- 102–33.320 What must we do if we are unable ernment aircraft? to perform required mutilation of air- 102–33.235 What documentation must we craft parts? maintain for life-limited parts and 102–33.325 What documentation must we fur- FSCAP? nish with excess/surplus or replaced parts when they are transferred, donated, exchanged, or sold?

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00052 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.5

REPORTING EXCESS AIRCRAFT PARTS FEDERAL AIRCRAFT COST AND UTILIZATION DATA 102–33.330 What must we do with aircraft parts that are excess to our needs? 102–33.425 What Federal aircraft cost and 102–33.335 What are the receiving agency’s utilization data must we report? responsibilities in the transfer or dona- 102–33.430 Who must report Federal aircraft tion of aircraft parts? cost and utilization data? 102–33.340 What are GSA’s responsibilities COMMERCIAL AVIATION SERVICES (CAS) COST in disposing of excess and surplus air- AND UTILIZATION DATA craft parts? 102–33.345 What are a State agency’s respon- 102–33.435 What CAS cost and utilization sibilities in the donation of Federal Gov- data must we report? ernment aircraft parts? 102–33.440 Who must report CAS cost and utilization data? REPLACING AIRCRAFT PARTS THROUGH EXCHANGE OR SALE ACCIDENT AND INCIDENT DATA 102–33.350 Do we need approval from GSA to 102–33.445 What accident and incident data replace aircraft parts by exchange or must we report? 102–33.450 How must we report accident and sale? incident data? 102–33.355 May we do a reimbursable transfer of parts with another executive agen- COMMON AVIATION MANAGEMENT INFORMATION cy? STANDARD (C-AMIS) 102–33.360 What is the process for selling or 102–33.455 What is C-AMIS? exchanging aircraft parts for replace- 102–33.460 What is our responsibility in rela- ment? tion to C-AMIS? 102–33.365 Must we report exchange or sale of parts to FAIRS? AUTHORITY: 40 U.S.C. 121(c); 31 U.S.C. 101 et seq.; Reorganization Plan No. 2 of 1970, 35 FR SPECIAL REQUIREMENTS FOR DISPOSING OF 7959, 3 CFR, 1066–1970 Comp., p. 1070; Execu- FLIGHT SAFETY CRITICAL AIRCRAFT PARTS tive Order 11541, 35 FR 10737, 3 CFR, 1966–1970 (FSCAP) AND LIFE-LIMITED PARTS Comp., p. 939; and OMB Circular No. A–126 (Revised May 22, 1992), 57 FR 22150. 102–33.370 What must we do to dispose of military FSCAP or life-limited parts? SOURCE: 67 FR 67743, Nov. 6, 2002, unless 102–33.375 What is a FSCAP Criticality otherwise noted. Code? Subpart A—How These Rules Subpart E—Reporting Information on Apply Government Aircraft GENERAL OVERVIEW 102–33.380 Who must report information to § 102–33.5 To whom do these rules GSA on Government aircraft? apply? 102–33.385 Is any civilian executive agency The rules in this part apply to all exempt from the requirement to report federally funded aviation activities of information to GSA on Government air- executive agencies of the U.S. Govern- craft? ment, except those listed in paragraphs 102–33.390 What information must we report (a), (b), (c), and (d) of this section, who on Government aircraft? use Government aircraft to accomplish FEDERAL AVIATION INTERACTIVE REPORTING their official business. SYSTEM (FAIRS) (a) The Armed Forces are exempt 102–33.395 What is FAIRS? from all but— 102–33.400 How must we report to FAIRS? (1) Section 102–33.25(e) and (g), which 102–33.405 When must we report to FAIRS? concern responsibilities related to the Interagency Committee for Aviation FEDERAL INVENTORY DATA Policy (ICAP); and 102–33.410 What are Federal inventory data? (2) Subpart D of this part. 102–33.415 When may we declassify an air- (b) The President or Vice President craft and remove it from our Federal air- and their offices are exempt. craft inventory? (c) When an executive agency pro- 102–33.420 How must we declassify an air- vides Government-furnished avionics craft? for commercially owned or privately

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00053 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.10 41 CFR Ch. 102 (7–1–11 Edition)

owned aircraft for the purpose of tech- Contact MTA staff at 1800 F Street, nology demonstration or testing, those NW., Washington, DC 20405, Room 1221; aircraft are exempt. (202) 501–4866; fax (202) 501–6742; Web site (d) Privately owned aircraft that at http://www.gsa.gov/aircraftpolicy. agency personnel use for official travel Aircraft part means an individual (even though such use is federally fund- component or an assembly of compo- ed) are exempt. nents that is primarily designated for and used on aircraft. § 102–33.10 May we request approval Armed Forces means the Army, Navy, to deviate from these rules? Air Force, Marine Corps, and Coast Yes, see §§ 102–2.60 through 102–2.110 of Guard, including their regular and Re- subchapter A of this chapter for guid- serve components and members serving ance on requesting a deviation from without component status. For pur- the requirements in this part. GSA poses of this part, the National Guard may not grant deviations from the re- is also included in the Armed Forces. quirements in OMB Circular A–126, Aviation life support equipment (ALSE) ‘‘Improving the Management of Gov- means equipment that protects flight ernment Aircraft,’’ revised May 22, crewmembers and others aboard an air- 1992. You should consult with GSA’s craft, assisting their safe escape, sur- Aircraft Management Policy Division vival, and recovery during an accident (MTA) before you request a deviation. or other emergency. Also, you should fax a copy of your let- Bailed aircraft means a Federal air- ter of request to MTA at 202–501–6742 at craft that is owned by one executive the same time you mail it to GSA’s agency, but is in the custody of and op- Regulatory Secretariat (see § 102–2.90 of erated by another executive agency subchapter A of this chapter). In most under an agreement that may or may cases, GSA will respond to your writ- not include cost-reimbursement. Bail- ten request within 30 days. ments are executive agency-to-executive agency agreements and involve § 102–33.15 How does this part relate only aircraft, not services. to the Federal Aviation Regula- Borrowed aircraft means an aircraft tions? owned by a non-executive agency and This part does not supersede any of provided to an executive agency for use the regulations in 14 CFR chapter I without compensation. The executive (Federal Aviation Regulations). agency operates and maintains the aircraft. § 102–33.20 What definitions apply to Chartered aircraft means an aircraft this part? that an executive agency hires com- The following definitions apply to mercially under a contractual agree- this part: ment specifying performance and one- Acquisition date means the date that time exclusive use. The commercial the acquiring executive agency took source operates and maintains a char- responsibility for the aircraft, e.g., re- ter aircraft. A charter is one form of a ceived title (through purchase, ex- full service contract. change, or gift), signed a bailment Commercial aviation services (CAS) in- agreement with the Department of De- clude— fense (DOD), took physical custody (in (1) Leasing aircraft for exclusive use the case of reassignment or inter- or lease-purchasing an aircraft with agency transfer), received a court order the intent of taking title; (in the case of forfeiture), put into (2) Chartering or renting aircraft for operational status an aircraft that is exclusive use; newly manufactured by the agency, or (3) Contracting for full services (i.e., otherwise accepted physical transfer aircraft and related aviation services (for example, in the case of a borrowed for exclusive use) or obtaining full aircraft). services through an inter-service sup- Aircraft Management Policy Division port agreement (ISSA); or (MTA) is a division in the Office of (4) Obtaining related aviation serv- Transportation and Personal Property, ices (i.e., services but not aircraft) by Office of Governmentwide Policy, GSA. commercial contract or ISSA, except

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00054 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.20

those services acquired to support a eligible recipient, following the rules Federal aircraft. in part 102–37 of this subchapter. (Some Crewmember means a person assigned agencies, for example DOD, may have to operate or assist in operating an air- independent donation authority.) craft during flight time. Crewmembers Exclusive use means a condition under perform duties directly related to the which— operation of the aircraft (e.g., as pilots, (1) An aircraft is operated for the sole co-pilots, flight engineers, navigators) benefit of the U.S. Government; and or duties assisting in operation of the (2) The executive agency using the aircraft (e.g., as flight directors, crew aircraft has operational control of the chiefs, electronics technicians, me- aircraft and the authority to define de- chanics). For related terms, see Quali- parture times, origins and destinations fied non-crewmember and Passenger else- of flights, and payloads, passengers, where in this section. and cargo. Criticality code means a single digit Executive agency means any executive code that DOD assigns to military department or independent establish- Flight Safety Critical Aircraft Parts ment in the executive branch of the (FSCAP) (see § 102–33.370). United States Government, including Data plate means a fireproof plate any wholly owned Government cor- that is inscribed with certain informa- poration. See 40 U.S.C. 472(a). tion required by the Federal Aviation Federal Acquisition Regulation (48 CFR Regulations (14 CFR part 45) and se- chapter 1, parts 1 through 53) is a codi- cured to an aircraft, aircraft engine, fied regulation of the U.S. Government propeller, or propeller blade. The infor- that provides uniform policies and pro- mation must be marked by etching, cedures for acquisition of personal stamping, engraving, or other approved property and services by executive method of fireproof marking. The plate agencies. must be attached in such a manner Federal aircraft means an aircraft that it is not likely to be defaced or re- that an executive agency owns (i.e., moved during normal service or lost or holds title to) or borrows for any destroyed in an accident. Data plates length of time. When an executive are required only on certificated air- agency loans or bails an aircraft that craft; however, uncertificated aircraft meets the criteria for Federal aircraft, may also have data plates. that loaned or bailed aircraft is still Declassify means to remove a non- considered a Federal aircraft in the operational aircraft from the Federal owning agency’s inventory except when aircraft inventory. Agencies may de- DOD is the owning agency of a bailed classify only non-operational aircraft aircraft. In that case, the aircraft is re- that they will retain for ground use corded in the inventory of the bailee. only. Agencies must declassify an air- Federal Aviation Interactive Reporting craft following the rules in §§ 102–33.415 System (FAIRS). (See §§ 102–33.395 and 102–33.420. through 102–33.440.) Disposal date means the date that the Federal Aviation Regulation (14 CFR disposing executive agency relin- chapter I) is a codified publication of quishes responsibility for an aircraft, the U.S. Government that describes for example, when the agency transfers uniform policies and procedures for title in the case of a sale or exchange; regulating aviation within the national returns the aircraft to the lessor or airspace system. bailer; declassifies it (for FAIRS, de- Federal Supply Service (FSS) is a com- classification is considered a ‘‘dis- ponent of GSA. FSS is organized by posal’’ action, even though the agency geographical regions. The FSS Prop- retains the property); or relinquishes erty Management Division in GSA’s custody to another agency (i.e., in the Region 9, 450 Golden Gate Ave., 9FBP, case of excess (transferred) or surplus San Francisco, CA 94102–3434, (415) 522– (donated or sold) aircraft). 3029, has responsibility for disposing of Donated aircraft means an aircraft excess and surplus aircraft. disposed of as surplus by GSA through Federal Travel Regulation (FTR) (41 donation to a non-federal government, CFR chapters 300–304) is a codified pub- a tax-exempt nonprofit entity, or other lication of the U.S. Government that

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00055 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.20 41 CFR Ch. 102 (7–1–11 Edition)

describes uniform policies and proce- (3) Defense Intelligence Agency. dures for managing travel of the execu- (4) National Reconnaissance Office. tive agencies. (5) The Bureau of Intelligence and Flight Safety Critical Aircraft Part Research of the Department of State. (FSCAP) means any military aircraft (6) Intelligence elements of the part, assembly, or installation con- Army, Navy, Air Force, Marine Corps, taining a critical characteristic whose Department of Justice, Department of failure, malfunction, or absence could the Treasury, and Department of En- cause a catastrophic failure resulting ergy. in loss or serious damage to the air- Inter-service support agreement (ISSA) craft or an uncommanded engine shut- means any agreement between two or down resulting in an unsafe condition. more executive agencies (including the Forfeited aircraft means an aircraft Department of Defense) in which one acquired by the Government either by agency consents to perform aviation summary process or by order of a court support services (i.e., providing an air- of competent jurisdiction pursuant to craft and other aviation services or any law of the United States. providing only services) for another Full service contract means a contrac- agency with or without cost-reimburse- tual agreement through which an exec- ment. An executive agency-to-execu- utive agency acquires an aircraft and tive agency agreement that involves related aviation services (for example, only the use of an aircraft, not serv- pilot, crew, maintenance, catering) for ices, is a bailment, not an ISSA. exclusive use. Aircraft hired under full Leased aircraft means an aircraft service contracts are commercial avia- hired under a commercial contractual tion services (CAS), not Federal air- agreement in which an executive agen- craft, regardless of the length of the cy has exclusive use of the aircraft for contract. an agreed upon period of time. The ac- Government aircraft means an aircraft quiring executive agency operates and that is operated for the exclusive use of maintains the aircraft. Leased aircraft an executive agency and is a— are hired as commercial aviation serv- (1) Federal aircraft, which an execu- ices (CAS). tive agency owns, bails, loans, or bor- Lease-purchase aircraft means a leased rows; or aircraft for which the leasing executive (2) Commercial aircraft hired as com- agency holds an option to purchase. mercial aviation services (CAS), which Life-limited part means any aircraft an executive agency— part that has an established replace- (i) Leases or lease-purchases with the ment time, inspection interval, or intent to take title; other time-related procedure associ- (ii) Charters or rents; or ated with it. For non-military parts, (iii) Hires as part of a full service FAA specifies life-limited parts’ air- contract or an inter-service support worthiness limitations in 14 CFR chap- agreement (ISSA). ter I, §§ 21.50, 23.1529, 25.1529, 27.1529, Government Aircraft Cost Accounting 29.1529, 31.82, 33.4, and 35.5, and on prod- Guide (CAG) means guidance published uct Type Certificate Data Sheets by GSA based on the cost elements de- (TCDS) for products certified before fined in Attachments A and B to OMB airworthiness limitations were added Circular A–126 and in OMB Circular A– to 14 CFR chapter I. Letters author- 76, FAIRS, and the U.S. Government izing Technical Standards Orders (TSO) Standard General Ledger to account must also note or reference mandatory for Government aircraft costs. replacement or inspection of parts. Governmental function means a feder- Loaned aircraft means a Federal air- ally funded activity that an executive craft owned by an executive agency, agency performs in compliance with its but in the custody of a non-executive statutory authorities. agency under an agreement that does Intelligence agencies mean the fol- not include compensation. lowing agencies or organizations with- Military aircraft part means an air- in the U.S. intelligence community: craft part used on an uncertificated (1) Central Intelligence Agency. aircraft that was developed for the (2) National Security Agency. Armed Forces.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.20

Non-operational aircraft means a Fed- not a crewmember or qualified non- eral aircraft that is not safe for flight crewmember. and, in the owning executive agency’s Production approval holder means the determination, cannot economically be person or company who holds a Produc- made safe for flight. This definition re- tion Certificate (PC), Approved Produc- fers to the aircraft’s flight capability, tion Inspection System (APIS), Parts not its mission-support equipment ca- Manufacturer Approval (PMA), or pability. An aircraft that is tempo- Technical Standards Order (TSO) au- rarily out of service for maintenance or thorization, issued under provisions of repair and can economically be made 14 CFR part 21, Certification Proce- safe for flight is considered oper- dures for Products and Parts, and who ational. controls the design and quality of a Official Government business, in rela- specific aircraft part. tion to Government aircraft— Qualified non-crewmember means a (1) Includes, but is not limited to— person flying onboard a Government (i) Carrying crewmembers, qualified aircraft whose skills or expertise are non-crewmembers, and cargo directly required to perform or are associated required for or associated with per- with performing the Governmental forming Governmental functions (in- function for which the aircraft is being cluding travel-related Governmental operated (qualified non-crewmembers functions); may be researchers, law enforcement (ii) Carrying passengers authorized to agents, fire fighters, agricultural engi- travel on Government aircraft (see neers, biologists, etc.). Qualified non- OMB Circular A–126); and crewmembers are not passengers. (iii) Training pilots and other avia- Registration mark means the unique tion personnel. identification mark that is assigned by (2) Does not include— the Federal Aviation Administration (i) Using Government aircraft for and displayed on Government aircraft personal or political purposes, except (including foreign aircraft hired as for required use travel and space avail- CAS). Tail number is commonly used for able travel as defined in OMB Circular registration mark. A–126; or Related aviation services contract (ii) Carrying passengers who are not means a commercial contractual agree- officially authorized to travel on Gov- ment through which an executive agen- ernment aircraft. cy hires aviation services only (not air- Operational aircraft means a Federal craft), e.g., pilot, crew, maintenance, aircraft that is safe for flight or, in the cleaning, dispatching, or catering. owning executive agency’s determination, can economically be made safe for Rental aircraft means an aircraft flight. This definition refers to the air- hired commercially under an agree- craft’s flight capability, not its mis- ment in which the executive agency sion-support capability. An aircraft has exclusive use of the aircraft for an temporarily out of service for mainte- agreed upon period of time. The execu- nance or repair is considered oper- tive agency operates, but does not ational. maintain, a rental aircraft. Original equipment manufacturer Required use means use of a Govern- means the person or company who ment aircraft for the travel of an exec- originally designed, engineered, and utive agency officer or employee to manufactured, or who currently holds meet bona fide communications or se- the data rights to manufacture, a spe- curity needs of the agency or to meet cific aircraft or aircraft part. exceptional scheduling requirements. Owned aircraft means an aircraft for Required use travel must be approved which title or rights of title are vested as described in OMB Circular A–126. in an executive agency. Owned aircraft Risk analysis and management means a are considered Federal aircraft. systematic process for— Passenger means a person flying on- (1) Identifying risks associated with board a Government aircraft who is of- alternative courses of action involved ficially authorized to travel and who is in an aviation operation; and

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.25 41 CFR Ch. 102 (7–1–11 Edition)

(2) Choosing from among these alter- Unapproved Parts,’’ available from natives the course(s) of action that will FAA at http://www.faa.gov. promote optimum aviation safety. Tail number (See registration mark). Safe for flight means approved for Traceable part means an aircraft part flight and refers to an aircraft, aircraft whose original equipment manufac- engine, propeller, appliance, or part turer or production approval holder that has been inspected and certified to can be identified by documentation, meet the requirements of applicable markings/characteristics on the part, regulations, specifications, or stand- or packaging of the part. Non-military ards. When applied to an aircraft that parts are traceable if you can establish an executive agency operates under the that the parts were manufactured Federal Aviation Regulations (14 CFR under rules in 14 CFR part 21 or were chapter I), safe for flight means ‘‘air- previously determined to be airworthy worthy,’’ i.e., the aircraft or related under rules in 14 CFR part 43. Possible parts meet their type designs and are in a condition, relative to wear and de- sources for making a traceability deterioration, for safe operation. When termination could be shipping tickets, applied to an aircraft that an executive bar codes, invoices, parts marking agency uses, but does not operate or re- (e.g., PMA, TSO), data plates, serial/ quire to be operated under the Federal part numbers, manufacturing produc- Aviation Regulations, safe for flight tion numbers, maintenance records, means a state of compliance with mili- work orders, etc. tary specifications or the executive Training means instruction for flight agency’s own Flight Program Stand- program personnel to enable them to ards, and as approved, inspected, and qualify initially for their positions and certified by the agency. to maintain qualification for their po- Senior Aviation Management Official sitions over time. means the person in an executive agen- Travel Management Policy Division cy who will be the agency’s primary (MTT) means GSA’s Office of Transpor- member of the Interagency Committee tation and Personal Property, Office of for Aviation Policy (ICAP). This person Governmentwide Policy. MTT is re- must be of appropriate grade and posi- sponsible for publishing the Federal tion to represent the agency and pro- Travel Regulation (41 CFR chapters 300 mote flight safety and adherence to through 304), which contains policy for standards. management of travel of U.S. Govern- Serviceable aircraft part means a part ment personnel and certain others. that is safe for flight, can fulfill its Contact the MTT staff at 1800 F Street, operational requirements, and is suffi- NW., Washington, DC 20405, Room G– ciently documented to indicate that 219; (202) 501–1538; see their Web site at the part conforms to applicable stand- http://www.gsa.gov/travelpolicy. ards/specifications. Suspected unapproved part means a Unsalvageable aircraft part means an non-military aircraft part, component, aircraft part that cannot be restored to or material that any person suspects of a condition that is safe for flight be- not meeting the requirements of an cause of its age, its physical condition, ‘‘approved part.’’ Approved parts are a non-repairable defect, insufficient those that are produced in compliance documentation, or its non-conformance with the Federal Aviation Regulations with applicable standards/specifica- (14 CFR part 21), are maintained in tions. compliance with 14 CFR parts 43 and 91, and meet applicable design stand- RESPONSIBILITIES ards. A part, component, or material may be suspect because of its question- § 102–33.25 What are our responsibilities under this part? able finish, size, or color; improper (or lack of) identification; incomplete or Under this part, your responsibilities altered paperwork; or any other ques- are to— tionable indication. See detailed guid- (a) Acquire, manage, and dispose of ance in FAA Advisory Circular 21–29, Government aircraft (i.e., Federal air- ‘‘Detecting and Reporting Suspected craft and commercial aviation services

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.40

(CAS); see § 102–33.45) as safely, effi- (a) Represent the agency’s views to ciently, and effectively as possible con- the ICAP and vote on behalf of the sistent with the nature of your agen- agency as needed; contribute technical cy’s aviation missions; and operational policy expertise to (b) Document and report the— ICAP deliberations and activities; and (1) Types and numbers of your Fed- serve as the designated approving offi- eral aircraft; cial for FAIRS when the agency elects (2) Costs of acquiring and operating to have one person serve as both the Government aircraft; SAMO and the designated official for (3) Amount of time that your agency FAIRS (DOD will not have a designated uses Government aircraft; and official for FAIRS); and (4) Accidents and incidents involving (b) Appoint representatives of the Government aircraft; agency as members of ICAP subcommittees and working groups. (c) Ensure that your Government aircraft are used only to accomplish your § 102–33.35 How can we get help in agency’s official Government business; carrying out our responsibilities? (d) Ensure that all passengers trav- To get help in carrying out your re- eling on your agency’s Government air- sponsibilities under this part, you craft are authorized to travel on such may— aircraft (see OMB Circular A–126); (a) Call or write to GSA’s Aircraft (e) Appoint (by letter to the Asso- Management Policy Division (MTA) ciate Administrator, Office of Govern- (see § 102–33.20); or mentwide Policy, GSA) a Senior Avia- (b) Find more information on the tion Management Official (SAMO), who Internet from the following Web sites: will be your agency’s primary member (1) http://www.gsa.gov/aircraftpolicy of the Interagency Committee for (GSA Aircraft Management Policy Di- Aviation Policy (ICAP) (this paragraph vision). (e) applies to all executive agencies (2) http://www.gsa.gov/travelpolicy that use aircraft, including the Depart- (GSA Travel Management Policy Divi- ment of Defense (DOD), the Federal sion). Aviation Administration (FAA), and the National Transportation Safety § 102–33.40 What are GSA’s responsibil- Board (NTSB); ities for Federal aviation manage- (f) Designate an official (by letter to ment? the Associate Administrator, Office of Under OMB Circular A–126, ‘‘Improv- Governmentwide Policy, GSA) to cer- ing the Management and Use of Gov- tify the accuracy and completeness of ernment Aircraft,’’ revised May 22, 1992 information reported by your agency (available from http:// through the Federal Aviation Inter- www.whitehouse.gov/omb), GSA’s chief active Reporting System (FAIRS) (this responsibilities for Federal aviation official may be the SAMO or may be management are to maintain— another individual who has the appro- (a) A single office (i.e., MTA) for de- priate authority). (Armed Forces agen- veloping policy for improving the man- cies, which include DOD and the U.S. agement of Federal aviation, including Coast Guard, are not required to report acquisition, operation, safety, and dis- information to FAIRS.); posal of Government aircraft, and pub- (g) Appoint representatives of the lishing that policy; agency as members of ICAP sub- (b) An interagency committee (i.e., committees and working groups; and the ICAP), whose members represent (h) Ensure that your agency’s inter- the executive agencies that use Gov- nal policies and procedures are con- ernment aircraft to conduct their offi- sistent with the requirements of OMB cial business (including FAA and NTSB Circulars A–126 and A–76 and this part. specifically) and advise GSA on developing policy for managing Government § 102–33.30 What are the duties of an aircraft; and agency’s Senior Aviation Manage- (c) A management information sys- ment Official (SAMO)? tem to collect, analyze, and report in- The SAMO’s duties are to— formation on the inventory, cost,

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00059 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.45 41 CFR Ch. 102 (7–1–11 Edition)

usage, and safety of Government air- operate those aircraft (see 31 U.S.C. craft. 1343). (b) For commercial aviation services NOTE TO § 102–33.40: See OMB Circular A–126 for a complete listing of GSA’s responsibil- (CAS)— ities related to Federal aviation. (1) Aircraft are the optimum means of supporting your agency’s official business; and Subpart B—Acquiring Government (2) Using commercial aircraft and Aircraft and Aircraft Parts services is safe (i.e., conforms to applicable laws, safety standards, and regu- OVERVIEW lations) and is more cost effective than § 102–33.45 What is a Government air- using Federal aircraft, aircraft from craft? any other Governmental source, or scheduled air carriers. A Government aircraft is one that is operated for the exclusive use of an ex- § 102–33.55 Are there restrictions on ecutive agency and is a— acquiring Government aircraft? (a) Federal aircraft, which an execu- Yes, you may not acquire— tive agency owns, bails, loans, or bor- (a) More aircraft than you need to rows; or carry out your official business; (b) Commercial aircraft hired as com- (b) Aircraft of greater size or capac- mercial aviation services (CAS), which ity than you need to perform your Gov- an executive agency— ernmental functions cost-effectively; (1) Leases or lease-purchases with the or intent to take title; (c) Federal aircraft that Congress has (2) Charters or rents; or not authorized your agency to acquire (3) Hires as part of a full service con- or Federal aircraft or commercial air- tract or an inter-service support agree- craft and services for which you have ment (ISSA). not followed the requirements in OMB Circular A–76. § 102–33.50 Under what circumstances may we acquire Government air- § 102–33.60 What methods may we use craft? to acquire Government aircraft? Your agency may acquire Govern- Following the requirements of §§ 102– ment aircraft when you meet the re- 33.50 and 102–33.55, you (or an internal quirements for operating an in-house bureau or sub-agency within your aviation program contained in OMB agency) may acquire Government air- Circular A–76, ‘‘Performance of Com- craft by means including, but not lim- mercial Activities,’’ August 4, 1983 ited to— (available from http:// (a) Purchase; www.whitehouse.gov/omb), and when— (b) Borrowing from a non-federal (a) For Federal aircraft— source; (1) Aircraft are the optimum means (c) Bailment from another executive of supporting your agency’s official agency; business; (d) Exchange/sale (but only with ap- (2) You do not have aircraft that can proval from GSA; see § 102–33.275); support your agency’s official business (e) Reimbursable transfer from an- safely (i.e., in compliance with applica- other executive agency (see §§ 102–36.75 ble safety standards and regulations) through 102–36.85 of this subchapter B); and cost-effectively; (f) Transfer from another executive (3) No commercial or other Govern- agency as approved by GSA; mental source is available to provide (g) Reassignment from one internal aviation services safely (i.e., in compli- bureau or subagency to another within ance with applicable safety standards your agency; and regulations) and cost-effectively; (h) Forfeiture (you must have spe- and cific authority to seize aircraft); (4) Congress has specifically author- (i) Insurance replacement (i.e., re- ized your agency to purchase, lease, or ceiving a replacement aircraft); transfer aircraft and to maintain and (j) Lease or lease-purchase;

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00060 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.90

(k) Rent or charter; OMB CIRCULAR A–76 (l) Contract for full services (i.e., aircraft plus crew and related aviation § 102–33.80 Must we comply with OMB services) from a commercial source; or Circular A–76 before we acquire Government aircraft? (m) Inter-service support agreements with other executive agencies for air- Yes, before you acquire Government craft and services. aircraft, you must comply with OMB Circular A–76 to assure that the private § 102–33.65 What is the process for ac- sector cannot provide Government air- quiring Government aircraft? craft or related aviation services more Acquiring aircraft generally follows a cost-effectively than you can provide three-step process; planning, budg- Federal aircraft and related services eting, and contracting, as described in (see particularly the Circular’s Revised §§ 102–33.70 through 102–33.105. Supplemental Handbook’s Appendix 6, Aviation Competitions). PLANNING TO ACQUIRE GOVERNMENT AIRCRAFT § 102–33.85 Where should we send our OMB Circular A–76 Cost-Compari- § 102–33.70 What directives must we son Studies? follow when planning to acquire You should forward copies of the Government aircraft? completed A–76 Cost-Comparison stud- When planning to acquire aircraft, ies to OMB upon request or as required you must follow the requirements in— by OMB Circular A–11 to justify air- (a) 31 U.S. Code Section 1343, ‘‘Buying craft purchases and to GSA, Aircraft and Leasing Passenger Motor Vehicles Management Policy Division (MTA), and Aircraft’’; 1800 F Street, NW., Washington, DC (b) OMB Circular A–126, ‘‘Improving 20405, upon completion of a study. the Management and Use of Govern- ment Aircraft,’’ revised May 22, 1992; THE PROCESS FOR BUDGETING TO (c) OMB Circular A–11, Part 7, ACQUIRE GOVERNMENT AIRCRAFT ‘‘Planning, Budgeting, Acquisition, and § 102–33.90 What is the process for Management of Capital Assets,’’ re- budgeting to acquire a Federal air- vised June 2002; craft (including a Federal aircraft (d) OMB Circular A–76, ‘‘Performance transferred from another executive of Commercial Activities,’’ revised agency)? June 14, 1999; and (a) The process for budgeting to ac- (e) OMB Circular A–94, ‘‘Guidelines quire a Federal aircraft or to accept a and Discount Rates for Benefit-Cost Federal aircraft transferred from an- Analysis of Federal Programs,’’ revised other executive agency requires that January 22, 2002. you have specific authority from Con- NOTE TO § 102–33.70: OMB Circulars are gress in your appropriation, as called available from http://www.whitehouse.gov/omb. for in 31 U.S.C. 1343, to— (1) Purchase, lease-purchase, or lease § 102–33.75 What other guidance is a Federal aircraft and to operate and available to us in planning to ac- maintain it; or quire Government aircraft? (2) Accept a Federal aircraft trans- You can find guidance for acquisition ferred from another executive agency planning in the ‘‘ICAP Fleet Mod- and to operate and maintain it. ernization Planning Guide,’’ which is (b) For complete information on available from GSA, Aircraft Manage- budgeting to own Government aircraft ment Policy Division (MTA), 1800 F (i.e., large purchase of a capital asset), Street, NW., Washington, DC 20405, and see OMB Circular A–11, Part 7, and the in OMB’s ‘‘Capital Programming ‘‘Capital Programming Guide,’’ Supple- Guide,’’ which is a supplement to OMB ment to Part 7, Appendix 7. Circular A–11.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00061 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.95 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–33.95 What is the process for available from the Federal Aviation budgeting to acquire commercial Administration (FAA)) at http:// aviation services (CAS)? www.faa.gov. Except for leases and lease-pur- (d) Plan for adequate storage and chases, for which you must have spe- protection. cific Congressional authorization as re- (e) Report all Suspected Unapproved quired under 31 U.S.C. 1343, you may Parts (SUP) to the FAA, SUP Program budget to fund your commercial avia- Office, AVR–20, 45005 Aviation Drive, tion services (CAS) hires out of your Suite 214, Dulles, VA 20166–7541, by agency’s operating budget. telephone at 703–661–0580, or by calling the FAA Aviation Safety Hotline at CONTRACTING TO ACQUIRE GOVERNMENT 800–255–1111. AIRCRAFT § 102–33.115 Are there special require- § 102–33.100 What are our responsibil- ments for acquiring military Flight ities when contracting to purchase Safety Critical Aircraft Parts or lease-purchase a Federal aircraft (FSCAP)? or to award a CAS contract? Yes, when you acquire military In contracting to purchase or lease- Flight Safety Critical Aircraft Parts purchase a Federal aircraft or to award (FSCAP), you must— a CAS contract, you must follow the (a) Accept a FSCAP only when it is Federal Acquisition Regulation (48 documented or traceable to its original CFR chapter 1) unless your agency is equipment manufacturer (a FSCAP’s exempt from following the Federal Ac- DOD FSCAP Criticality Code should be quisition Regulation. marked or tagged on the part or appear on its invoice/transfer document; see § 102–33.105 What special requirements must we put into our CAS § 102–33.375 for further explanation of contracts? the FSCAP Criticality Codes); and (b) Not install undocumented, but At a minimum, your contracts and traceable FSCAP until you have the agreements must require that any pro- parts inspected and recertified by the vider of CAS comply with— original equipment manufacturer or (a) Civil standards in the Federal FAA-approved production approval Aviation Regulations (14 CFR chapter holder (see § 102–33.370 on FSCAP). I) applicable to the type of operations you are asking the contractor to con- § 102–33.120 Are there special require- duct; ments for acquiring life-limited (b) Applicable military standards; or parts? (c) Your agency’s Flight Program Yes, when you acquire new or used Standards (see §§ 102–33.140 through 102– life-limited parts, you must— 33.185 for the requirements for Flight (a) Identify and inspect the parts, en- Program Standards). suring that they have civil or military- ACQUIRING AIRCRAFT PARTS certified documentation (i.e., complete life histories); and § 102–33.110 What are our responsibil- (b) Mutilate and dispose of any ex- ities when acquiring aircraft parts? pired life-limited parts (see § 102–33.370 When acquiring aircraft parts, you on handling life-limited parts). must do the following: (a) Acquire the parts cost-effectively Subpart C—Managing Govern- and acquire only what you need. ment Aircraft and Aircraft (b) Inspect and test (as appropriate) Parts all incoming parts and ensure that they are documented as safe for flight OVERVIEW before installing them. (c) Obtain all logbooks and mainte- § 102–33.125 If we use Federal aircraft, nance records (for guidance on main- what are our management respon- taining records for non-military parts, sibilities? see FAA Advisory Circular 43–9C, If you use Federal aircraft, you are ‘‘Maintenance Records,’’ which is responsible for—

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00062 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.150

(a) Establishing agency-specific ESTABLISHING FLIGHT PROGRAM Flight Program Standards, as defined STANDARDS in §§ 102–33.140 through 102–33.185; (b) Accounting for the cost of acquir- § 102–33.140 What are Flight Program ing, operating, and supporting your Standards? aircraft; Flight Program Standards are stand- (c) Accounting for use of your air- ards specific to your agency’s aviation craft; operations, including your commercial (d) Maintaining and accounting for aviation services (CAS) contracts. Your aircraft parts; Flight Program Standards must meet (e) Reporting inventory, cost, and the requirements in §§ 102–33.155 utilization data (for reporting require- through 102–33.185, and they must meet ments, see subpart E of this part); and or exceed applicable civil or military (f) Properly disposing of aircraft and rules. When civil or military rules do parts following this part and FMR sub- not apply, you must use risk manage- chapter B (41 CFR chapter 102, sub- ment techniques to develop Flight Pro- chapter B). gram Standards specifically for your program. In your standards, you must § 102–33.130 If we hire CAS, what are address all aspects of your program, our management responsibilities? e.g., uncertificated aircraft, high-risk If you hire CAS, you are responsible operations, special personnel require- for— ments, that may not be addressed (a) Establishing agency-specific under the rules for civil aircraft in the Flight Program Standards, as defined Federal Aviation Regulations (14 CFR in §§ 102–33.140 through 102–33.185, as ap- chapter I). The requirements for Flight plicable, and requiring compliance Program Standards in §§ 102–33.155 with these standards in your contracts through 102–33.185 incorporate and and agreements; adapt the ICAP’s ‘‘Safety Standards (b) Accounting for the cost of your Guidelines for Federal Flight Pro- aircraft and services hired as CAS; grams,’’ revised December 22, 1999, and (c) Accounting for use of your air- available from GSA, Aircraft Manage- craft hired as CAS; and ment Policy Division (MTA), 1800 F (d) Reporting the cost and usage data Street, NW., Washington, DC 20405. for your CAS hires (for reporting re- § 102–33.145 Why must we establish quirements, see subpart E of this part). Flight Program Standards? § 102–33.135 Do we have to follow the You must establish Flight Program direction in OMB Circular A–123, Standards to ensure that aircraft your ‘‘Management Accountability and agency uses are operated safely, effec- Control,’’ June 21, 1995, for estab- tively, and efficiently. lishing management controls for our aviation program? § 102–33.150 Is any agency exempt Yes, you must follow the direction in from establishing Flight Program OMB Circular A–123, ‘‘Management Ac- Standards under this part? countability and Control,’’ June 21, Yes, in addition to the Armed Forces 1995, for establishing management con- and intelligence agencies, entities out- trols for your aviation program. (See side the executive branch of the Fed- Note to § 102–33.70.) The circular re- eral Government are exempt from es- quires that you establish organiza- tablishing Flight Program Standards tions, policies, and procedures to en- when using aircraft loaned to them by sure that, among other things, your an executive agency (that is, owned by aviation program achieves its intended an executive agency, but operated by results and you use your resources con- and on behalf of the loanee) unless the sistently with your agency’s missions. loanee— (a) Uses the aircraft to conduct official Government business; or

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00063 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.155 41 CFR Ch. 102 (7–1–11 Edition)

(b) Is required to follow §§ 102–33.140 OPERATIONS through 102–33.185 under a Memo- randum of Agreement governing the § 102–33.165 What standards must we loan. establish or require (contractually, where applicable) for operation of our flight program? § 102–33.155 How must we establish Flight Program Standards? For operation of your flight program, you must establish or require (contrac- To establish Flight Program Stand- tually, where applicable) the following: ards, you must write, publish (as ap- (a) Basic qualifications and currency propriate), implement, and comply requirements for your pilots and other with detailed, agency-specific stand- crewmembers, maintenance personnel, ards, which establish or require (con- and other mission-related personnel. tractually, where applicable) policies (b) Limitations on duty time and and procedures for— flight time for pilots and other crew- (a) Management/administration of members. your flight program (in this part, (c) Compliance with owning-agency ‘‘flight program’’ includes CAS con- or military safety of flight notices and tracts); operational bulletins. (b) Operation of your flight program; (d) Flight-following procedures to no- (c) Maintenance of your Government tify management and initiate search aircraft; and rescue operations for lost or downed aircraft. (d) Training for your flight program (e) Dissemination, as your agency de- personnel; and termines appropriate, of a disclosure (e) Safety of your flight program. statement to all crewmembers and qualified non-crewmembers who fly MANAGEMENT/ADMINISTRATION aboard your agency’s Government aircraft, as follows: § 102–33.160 What standards must we establish or require (contractually, Disclosure Statement for Crewmembers and where applicable) for management/ Qualified Non-Crewmembers Flying on Board administration of our flight pro- Government Aircraft Operated as Public Air- gram? craft For management/administration of Generally, an aircraft used exclusively for your flight program, you must estab- the U.S. Government may be considered a lish or require (contractually, where ‘‘public aircraft’’ as defined in Public Law 106–181, provided it is not a Government- applicable) the following: owned aircraft transporting passengers or (a) A management structure respon- operating for commercial purposes. A public sible for the administration, operation, aircraft is not subject to many Federal Avia- safety, training, maintenance, and fi- tion Regulations, including requirements re- nancial needs of your aviation oper- lating to aircraft certification, maintenance, ation (including establishing minimum and pilot certification. If an agency trans- ports passengers on a Government-owned requirements for these items for any aircraft or uses that aircraft for commercial commercial contracts). purposes, the agency must comply with all (b) Guidance describing the roles, re- Federal Aviation Regulations applicable to sponsibilities, and authorities of your civil aircraft. If you have any questions con- flight program personnel, e.g., man- cerning whether a particular flight will be a public aircraft operation or a civil aircraft agers, pilots and other crewmembers, operation, you should contact the agency flight safety personnel, maintenance sponsor of that flight. personnel, and dispatchers. You have certain rights and benefits in the (c) Procedures to record and track unlikely event you are injured or killed flight time, duty time, and training of while working aboard a Government-owned or operated aircraft. Federal employees and crewmembers. some private citizens are eligible for work- (d) Procedures to record and track ers’ compensation benefits under the Federal duty time and training of maintenance Employees’ Compensation Act (FECA). When personnel. FECA applies, it is the sole remedy. For more information about FECA and its coverage, consult with your agency’s benefits

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00064 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.165

office or contact the Branch of Technical As- for nominal pay, you may be defined as a sistance at the Department of Labor’s Office Federal employee for purposes of FECA. If of Workers’ Compensation Programs at (202) that is the case, you and your family are eli- 693–0044. gible to receive workers’ compensation bene- State or foreign laws may provide for prod- fits under FECA, but may not collect in a uct liability or ‘‘third party’’ causes of ac- personal injury or wrongful death lawsuit tions for personal injury or wrongful death. against the United States or its employees. If you have questions about a particular case You and your family may file suit against or believe you have a claim, you should con- potentially liable third parties. Before you sult with an attorney. board a Government aircraft, you may wish Some insurance policies may exclude cov- to consult with the department or agency erage for injuries or death sustained while sponsoring the flight to clarify whether you working or traveling aboard a Government are considered a Federal employee. or military aircraft or while within a combat If the agency determines that you are not area. You may wish to check your policy or a ‘‘Federal employee,’’ you and your family consult with your insurance provider before will not be eligible to receive workers’ com- your flight. The insurance available to Fed- pensation benefits under FECA. If you are eral employees through the Federal Employ- onboard the aircraft for purposes of official ees Group Life Insurance Program does not Government business, you may be eligible contain an exclusion of this type. for workman’s compensation benefits under If you are the victim of an air disaster re- state law. If an accident occurs within the sulting from criminal activity, Victim and United States, or its territories, its airspace, Witness Specialists from the Federal Bureau or over the high seas, you and your family of Investigation (FBI) and/or the local U.S. may claim against the United States under Attorney’s Office will keep you or your fam- the Federal Tort Claims Act or Suits in Ad- ily informed about the status of the criminal miralty Act. If you are killed aboard a mili- investigation(s) and provide you or your tary aircraft, your family may be eligible to family with information about rights and receive compensation under the Military services, such as crisis intervention, coun- Claims Act, or if you are an inhabitant of a seling and emotional support. State crime foreign country, under the Foreign Claims victim compensation may be able to cover Act. crime-related expenses, such as medical costs, mental health counseling, funeral and NOTE: This disclosure statement is not all- burial costs, and lost wages or loss of sup- inclusive. You should contact your agency’s port. The Office for Victims of Crime (an personnel office, or if you are a private cit- agency of the Department of Justice) and the izen, your agency sponsor or point-of-contact U.S. Attorneys Office are authorized by the for further assistance. Antiterrorism Act of 1996 to provide emergency financial assistance to State programs (f) At the origin of each flight, cre- for the benefit of victims of terrorist acts or ation of a manifest containing the full mass violence. names of all persons on board for each If you are a Federal employee. If you are in- leg of flight, a point of contact for each jured or killed on the job during the perform- person, and phone numbers for the ance of duty, including while traveling or points of contact. working aboard a Government aircraft or (g) Documentation of any changes in other Government-owned or operated conveyance for official Government business the manifest by leg, and retention of purposes, you and your family are eligible to manifests for two years from the time collect workers’ compensation benefits of flight. under FECA. You and your family may not (h) Procedures for reconciling flight file a personal injury or wrongful death suit manifests with persons actually on against the United States or its employees. board and a method to test those pro- However, you may have cause of action cedures periodically. against potentially liable third parties. You or your qualifying family member (i) At the origin of each flight, prepa- must normally also choose between FECA ration of a complete weight and bal- disability or death benefits, and those pay- ance computation and a cargo-loading able under your retirement system (either manifest, and retention of this com- the Civil Service Retirement System or the putation and manifest for 30 days from Federal Employees Retirement System). You the time of flight. may choose the benefit that is more favor- (j) Appropriate emergency procedures able to you. and equipment for specific missions. If you are a private citizen not employed by the Federal government. Even if the Federal (k) Procedures to ensure that re- government does not regularly employ you, quired Aviation Life Support Equip- if you are rendering personal service to the ment (ALSE) is inspected and service- Federal government on a voluntary basis or able.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00065 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.170 41 CFR Ch. 102 (7–1–11 Edition)

MAINTENANCE relevant to the types of operations that you conduct. See § 102–33.180(a) for spe- § 102–33.170 What standards must we cific requirements for safety manager establish or require (contractually, training. where applicable) for maintenance of our Government aircraft? SAFETY For maintenance of your Govern- ment aircraft, you must establish or § 102–33.180 What standards must we require (contractually, where applica- establish or require (contractually, ble) the following: where applicable) for flight pro- (a) Aircraft maintenance and inspec- gram safety? tion programs that comply with which- For flight program safety, you must ever is most applicable among— establish or require (contractually, (1) Programs for ex-military aircraft; where applicable) the following: (2) Manufacturers’ programs; (3) FAA-approved programs (i.e., fol- (a) The appointment of qualified lowing the Federal Aviation Regula- aviation safety managers (i.e., those tions); individuals who are responsible for an (4) FAA-accepted programs (i.e., agency’s aviation safety program, re- those following ICAP guides that have gardless of title), who must be— been accepted by the FAA); or (1) Experienced as pilots or crew- (5) Your agency’s self-prescribed pro- members or in aviation operations grams. management/flight program manage- (b) Compliance with owning-agency ment; and or military safety of flight notices, (2) Graduated from an aviation safety FAA airworthiness directives, or man- officer course provided by a recognized datory manufacturers’ bulletins appli- training provider and authority in cable to the types of aircraft, engines, aviation safety before appointment or propellers, and appliances you operate. within one year after appointment. (c) Procedures for operating aircraft (b) Risk analysis and risk manage- with inoperable equipment. ment to identify and mitigate hazards (d) Technical support, including appropriate engineering documentation and provide procedures for managing and testing, for aircraft, powerplant, risk to an optimum level. propeller, or appliance repairs, modi- (c) Use of independent oversight and fications, or equipment installations. assessments (i.e., unbiased inspections) (e) A quality control system for ac- to verify compliance with the stand- quiring replacement parts, ensuring ards called for in this part. that the parts you acquire have the (d) Procedures for reporting unsafe documentation needed to determine operations to senior aviation safety that they are safe for flight and are in- managers. spected and tested, as applicable. (e) A system to collect and report in- (f) Procedures for recording and formation on aircraft accidents and in- tracking maintenance actions; inspec- cidents (as required by 49 CFR part 830 tions; and the flight hours, cycles, and and §§ 102–33.445 and 102–33.450). calendar times of life-limited parts and (f) A program for preventing acci- FSCAP. dents, which includes— TRAINING (1) Measurable accident prevention procedures (e.g., pilot proficiency eval- § 102–33.175 What standards must we uations, fire drills, hazard analyses); establish or require (contractually, (2) A system for disseminating acci- where applicable) to train our flight dent-prevention information; program personnel? (3) Safety training; You must establish or require (con- (4) An aviation safety awards pro- tractually, where applicable) an in- gram; and structional program to train your (5) For Federal aircraft-owning agen- flight program personnel, initially and on a recurrent basis, in their respon- cies, a safety council. sibilities and in the operational skills

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00066 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.205

§ 102–33.185 What standards must we ment aircraft as described in the establish or require (contractually, ‘‘Government Aircraft Cost Accounting where applicable) for responding to Guide’’ (CAG), which follows OMB Cir- aircraft accidents and incidents? cular A–126 and is available from GSA, For responding to aircraft accidents Aircraft Management Policy Division and incidents, you must establish or (MTA), 1800 F Street, NW., Washington, require (contractually, where applica- DC 20405. ble) the following: (a) An aircraft accident/incident re- § 102–33.195 Do we need an automated porting capability to ensure that you system to account for aircraft costs? will comply with the NTSB’s regula- If you own Federal aircraft or oper- tions (in 49 CFR parts 830 and 831), in- ate bailed Federal aircraft, you must cluding notifying NTSB immediately maintain an automated system to ac- when you have an aircraft accident or count for aircraft costs by collecting an incident as defined in 49 CFR 830.5. the cost data elements required by the (b) An accident/incident response Federal Aviation Interactive Reporting plan, modeled on the NTSB’s ‘‘Federal System (FAIRS). The functional speci- Plan for Aviation Accidents Involving fications and data definitions for a Aircraft Operated by or Chartered by FAIRS-compliant system are described Federal Agencies,’’ and periodic dis- in the ‘‘Common Aviation Management aster response exercises to test your Information Standard’’ (C-AMIS), plan. You can see a copy of the NTSB’s which is available from GSA, Aircraft plan on the Web at http://www.ntsb.gov/ Management Policy Division (MTA), publictn/1999/SPC9904.pdf or htm. 1800 F Street, NW., Washington, DC (c) Procedures (see 49 CFR 831.11) for 20405. See §§ 102–33.395 and 102–33.460 for participating as a party in NTSB’s in- more information on FAIRS and C- vestigations of accidents or incidents AMIS. Agencies who use only CAS air- involving aircraft that your agency craft and do not have Federal aircraft owns or hires and for conducting par- must keep records adequate for report- allel investigations, as appropriate. ing information through FAIRS, but (d) Training in investigating acci- are not required to have an automated dents/incidents for your agency’s per- system (see §§ 102–33.435 and 102–33.440 sonnel who may be asked to participate for the information on CAS that you in NTSB investigations. must report through FAIRS). (e) Procedures for disseminating, in the event of an aviation disaster that § 102–33.200 Must we periodically jus- involves one of your Government air- tify owning and operating Federal aircraft? craft, information about eligibility for benefits that is contained in the disclo- Yes, after you have held a Federal sure statement in § 102–33.165(e) to any- aircraft for five years, you must justify one injured, to injured or deceased per- owning and operating the aircraft by sons’ points of contact (listed on the reviewing your operations and estab- manifest), and to the families of in- lishing that you have a continuing jured or deceased crewmembers and need for the aircraft, as required in qualified non-crewmembers. OMB Circular A–76. You must also establish the cost-effectiveness of all NOTE TO § 102–33.185: This part does not su- your aircraft operations following persede any of the regulations in 49 CFR part 830 or part 831. For definitions of terms and OMB-approved cost justification meth- complete regulatory guidance on notifying odologies, which are described in OMB NTSB and reporting aircraft accidents and Circular A–76 every five years. incidents, see 49 CFR parts 830 and 831. § 102–33.205 When we use our aircraft ACCOUNTING FOR THE COST OF to support other executive agencies, GOVERNMENT AIRCRAFT must we recover the operating costs? § 102–33.190 What are the aircraft op- (a) Under 31 U.S.C. 1535 and other erations and ownership costs for statutes, you may be required to re- which we must account? cover the costs of operating aircraft in You must account for the operations support of other agencies. Depending and ownership costs of your Govern- on the statutory authorities under

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00067 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.210 41 CFR Ch. 102 (7–1–11 Edition)

which you acquired and operate your § 102–33.220 What are the responsibil- aircraft, you will use either of two ities of an agency’s aviation pro- methods for establishing the rates gram in justifying the use of a Gov- charged for using your aircraft: ernment aircraft to transport pas- (1) The variable cost recovery rate; or sengers? (2) The full cost recovery rate. (a) Upon request from an agency’s (b) See the Government Aircraft travel approving authority, the agen- CAG, which is available from GSA, Air- cy’s aviation program must provide craft Management Policy Division cost estimates to assist in determining (MTA), 1800 F Street, NW., Washington, whether or not use of a Government DC 20405, for definitions of these terms. aircraft to carry passengers is justified. See OMB Circular A–126 for more infor- ACCOUNTING FOR THE USE OF mation on justifying travel on Govern- GOVERNMENT AIRCRAFT ment aircraft. See also the Govern- ment Aircraft Cost Accounting Guide § 102–33.210 How do we account for (CAG) published by GSA (defined in the use of our Government aircraft? § 102–33.20) for guidance on estimating To account for the use of Govern- the cost of using a Government air- ment aircraft, you must document all craft. The cost of using a Government flights and keep this documentation aircraft is— for two years after the date of the (1) The variable cost of using a Fed- flight. For each flight, record the— eral aircraft; (a) Aircraft’s registration mark; (2) The amount your agency will be (b) Owner and operator (e.g., the charged by a CAS provider; or owner may not be the operator, as is (3) The variable cost of using an air- the case when a CAS aircraft, owned craft owned by another agency as re- commercially, is operated by U.S. Gov- ported by the owning agency if you are ernment personnel); not charged for the use of the aircraft. (c) Purpose of the flight (i.e., the (b) In weighing alternatives for trav- Governmental function that the air- el on Government aircraft, you must craft was dispatched to perform); also consider the following: (d) Departure and destination points; (1) If no follow-on trip is scheduled, (e) Flight date(s) and times; all time required positioning the air- (f) A manifest (see §§ 102–33.165(g) and craft to begin the trip and to return (h)); and the aircraft to its normal base of oper- (g) Name(s) of the pilot(s) and crew- ations. members. (2) If a follow-on trip requires repositioning, the cost for the repositioning § 102–33.215 May we use Government should be charged to the associated fol- aircraft to carry passengers? low-on trip. Yes, you may use Government air- (3) If an aircraft supports a multi-leg craft to carry passengers with the fol- trip (a series of flights scheduled se- lowing restrictions: quentially), the use of the aircraft for (a) You may carry passengers only on the total trip may be justified by com- aircraft that you operate or require paring the total variable cost of the en- contractually to be operated according tire trip to the commercial aircraft to the rules and requirements in Fed- cost (including charter) for all legs of eral Aviation Regulations (14 CFR the trip. chapter I). (4) The use of foreign aircraft as CAS (b) For certain kinds of travel, your is authorized when the agency has de- agency must justify passengers’ pres- termined that an equivalent level of ence on Government aircraft (see OMB safety exists as compared to U.S. oper- Circular A–126 and the Government ations of a like kind. The safety of pas- Aircraft Cost Accounting Guide (CAG) sengers shall be the overriding consid- published by GSA for complete infor- eration for the selection of travel mode mation on authorizing travel and ana- when comparing foreign sources of lyzing costs before authorizing travel scheduled commercial airlines and on Government aircraft). CAS.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00068 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.250

MANAGING AIRCRAFT PARTS § 102–33.235 What documentation must we maintain for life-limited parts § 102–33.225 How must we manage air- and FSCAP? craft parts? For life-limited parts and FSCAP, You must manage your aircraft parts you must hold and update the docu- by maintaining proper storage, protec- mentation that accompanies these tion, maintenance procedures, and parts for as long as you use or store records for the parts throughout their them. When you dispose of life-limited life cycles. parts or FSCAP, the up-to-date documentation must accompany the parts. § 102–33.230 May we use military (See § 102–33.370.) FSCAP on non-military FAA-type certificated Government aircraft? Subpart D—Disposing of Govern- You may use dual-use military ment Aircraft and Aircraft FSCAP on non-military aircraft oper- Parts ated under restricted or standard airworthiness certificates if the parts are OVERVIEW inspected and approved for such instal- § 102–33.240 What must we consider lation by the FAA. See detailed guid- before disposing of aircraft and air- ance in FAA Advisory Circular 20–142, craft parts? ‘‘Eligibility and Evaluation of U.S. Before disposing of aircraft and air- Military Surplus Flight Safety Critical craft parts, you must first determine if Aircraft Parts, Engines, and Propel- the aircraft or parts are excess to your lers.’’ agency’s mission requirements or if you will need replacements (i.e., your aircraft or parts are not excess), as follows:

(a) If your aircraft/parts are ... And ... Then ...

No longer needed to perform, or cannot perform, You will not replace You must report them to GSA as excess property any Governmental function for your agency, i.e., them,. (see part 102–36 of this subchapter B). they are excess to your needs,

(b) If your aircraft/parts are ... But ... Then ...

No longer suitable for performing their mission(s) for You need to replace You are prohibited from exchanging or selling your your agency, them to continue aircraft unless you ask for and receive approval performing your from GSA to deviate from part 102–39 of this mission(s). subchapter B. However, exchange/sale of aircraft parts is permitted.

§ 102–33.245 May we report as excess, § 102–33.250 May we report as excess, or replace (i.e., by exchange/sale), or replace, declassified aircraft? both operational and non-oper- Yes, you may report as excess, or reational aircraft? place, a declassified aircraft (see §§ 102– Yes, you may report as excess both 33.415 through 102–33.420 for informa- operational and non-operational air- tion on declassifying aircraft). How- craft by following the rules governing ever, a declassified aircraft is no longer excess property in part 102–36 of this considered an aircraft, but may be con- subchapter B. Exchange or sale of air- sidered as a group of aircraft parts or craft is prohibited by part 102–39 of this other property for ground use only. subchapter B, so you will need approval You must carry such ‘‘aircraft parts or from GSA to deviate from that part to other property’’ on your property replace operational or non-operational records under the appropriate Federal aircraft by exchange/sale. (See § 102– Supply Classification group(s) (e.g., 33.275 for further guidance on this re- miscellaneous property, but not as an striction).

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00069 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.255 41 CFR Ch. 102 (7–1–11 Edition)

‘‘aircraft’’). For disposal of the prop- property, and finally to selling it to erty remaining after declassification of the public as surplus. an aircraft, you must follow the property disposal regulations in parts 102– § 102–33.270 What is the process for re- 36, 102–37, and 102–39 of this subchapter porting an excess aircraft? B. To report an excess aircraft, you must submit a Standard Form (SF) 120, § 102–33.255 Must we document FSCAP Report of Excess Personal Property or life-limited parts installed on air- (see § 102–2.135 of this chapter), to GSA craft that we will report as excess (Federal Supply Service (FSS) Region or replace? 9, 450 Golden Gate Ave., 9FBP, San Yes, you must comply with the docu- Francisco, CA 94102–3434, (415) 522–3029). mentation procedures described in You may also report electronically to § 102–33.370 if your aircraft and/or en- GSA’s Federal Disposal System gines contain FSCAP or life-limited (FEDS). For information on reporting parts. excess property electronically, contact the FSS Office of Transportation and § 102–33.260 When we report as excess, Personal Property (FBP), 1941 Jeffer- or replace, an aircraft (including a son Davis Highway, Room 812, Arling- declassified aircraft), must we re- ton, VA 22202, (703) 305–7240. port the change in inventory to the Federal Aviation Interactive Re- REPLACING AIRCRAFT THROUGH porting System (FAIRS)? EXCHANGE OR SALE (a) Yes, when you report as excess, or replace, an aircraft, you must report § 102–33.275 Are there restrictions on the change in inventory to the Federal replacing aircraft by exchange or Aviation Interactive Reporting System sale? (FAIRS). For complete information, Yes, because aircraft are on GSA’s see the ‘‘FAIRS User’s Manual,’’ which exchange/sale prohibited list (see part is available from GSA, Aircraft Man- 102–39 of this subchapter B), you may agement Policy Division (MTA), 1800 F not exchange or sell aircraft unless you Street, NW., Washington, DC 20405. obtain approval from GSA to deviate (b) Within 14 calendar days of the from part 102–39 of this subchapter B date you dispose of the aircraft, you (see § 102–33.10 on how to request a devi- must report— ation). In your letter of request to (1) The disposal method (e.g., reas- GSA, you must include the full details signment, inter-agency transfer, dona- of your situation and the proposed tion, sale as surplus or scrap, declas- transaction and certify that— sification, or exchange/sale); (a) Your agency’s mission is depend- (2) The disposal date; and ent upon receiving a replacement air- (3) The identity and type of recipient craft; (e.g., State, educational institution, (b) You will be replacing the aircraft executive agency, commercial vendor). with similar-type property (see § 102– 39.15 of this subchapter B for a defini- REPORTING EXCESS GOVERNMENT tion of ‘‘similar’’); AIRCRAFT (c) Your replacement will be on a one-for-one basis (you must request § 102–33.265 What are our options if and justify a waiver from GSA, Air- aircraft are excess to our needs? craft Management Policy Division If aircraft are excess to your needs, (MTA), 1800 F Street, NW., Washington, your options include first determining DC 20405, to deviate from the one-for- if any of your sub-agencies can use the one rule); and aircraft. If so, you may reassign the (d) The exchange or sale meets all aircraft within your agency. If not, you other requirements in part 102–39 of must report the aircraft as excess prop- this subchapter B. erty to GSA (see parts 102–36 and 102–37 NOTE TO § 102–33.275: The requirement to of this subchapter B). GSA will dispose get GSA’s approval for an exchange/sale does of the property, giving priority first to not apply if a Federal statute specifically transferring it to another Federal authorizes your agency to exchange or sell agency, next to donating it as surplus certain aircraft.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00070 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.310

§ 102–33.280 What are our options if we harmless from any or all debts, liabilities, need a replacement aircraft? judgments, costs, demands, suits, actions, or claims of any nature arising from or incident If you need to replace an aircraft, to purchase, use, or resale of this item. and you have GSA’s prior written approval for a deviation (see § 102–33.275), § 102–33.295 May we exchange or sell your options include— an aircraft through reimbursable (a) Negotiating and conducting an ex- transfer to another executive agen- change transaction directly with an cy? aircraft provider and obtaining credit Yes, you may exchange or sell air- toward the purchase of a replacement craft through reimbursable transfer to aircraft, following the procurement another executive agency if you have rules applicable to your agency; or prior written approval from GSA to de- (b) Selling the aircraft and using the viate from part 102–39 of this sub- proceeds to offset the cost of pur- chapter B (see § 102–33.275). See part chasing a replacement aircraft, fol- 102–39, subpart B, and part 102–36 of this lowing part 102–39 of this subchapter B. subchapter B for more information on The GSA can conduct sales for you; reimbursable transfer of property. Be- contact GSA (Region 9) for more infor- fore offering to the public an aircraft mation. that is eligible for exchange/sale, you should consult with other executive § 102–33.285 Do we need to include any agencies to find out if any agency is in- special disclaimers in our exchange/ terested in taking the aircraft for resale agreements for uncertificated imbursement in funds or in kind (as aircraft or aircraft that we have op- you are directed in part 102–39 of this erated as public aircraft (i.e., not in compliance with the Federal Avia- subchapter B). tion Regulations, 14 CFR chapter NOTE TO § 102–33.295: Some agencies may I)? also have special congressional authoriza- Yes, when you exchange or sell tion to recover costs. uncertificated aircraft or aircraft DISPOSING OF AIRCRAFT PARTS maintained as public aircraft, you must ensure that the exchange or sales § 102–33.300 What must we consider offerings contain the following state- before disposing of aircraft parts? ment: Before disposing of aircraft parts, Warning to purchasers/recipients. The air- you must determine if they are excess craft you have purchased or received in an to your agency’s mission requirements exchange may not be in compliance with ap- or if you will need replacements (i.e., plicable FAA requirements. You are solely they are not excess). The table in § 102– responsible for bringing the aircraft into compliance with 14 CFR chapter I, or other 33.240 shows the differences between ex- applicable standards, by obtaining all nec- cess and replacement parts. essary FAA inspections or modifications. § 102–33.305 May we report as excess, § 102–33.290 What other disclaimers or replace, FSCAP and life-limited must we include in our exchange/ parts? sale agreements for aircraft? Yes, you may report as excess, or re- When you exchange or sell aircraft, place, FSCAP and life-limited parts, you must ensure that the following dis- but they require special handling. See claimer is signed by the purchaser/re- the tables in § 102–33.370. cipient and received by the Govern- ment before releasing the aircraft to § 102–33.310 May we report as excess, or replace, unsalvageable aircraft the purchaser/recipient: parts? The purchaser/recipient agrees that the No, you may not report Government shall not be liable for personal unsalvageable aircraft parts as excess injuries to, disabilities of, or death of the or exchange or sell them for replace- purchaser/recipient, the purchaser’s/recipient’s employees, or to any other persons ments. You must mutilate arising from or incident to the purchase of unsalvageable parts. You may sell the this aircraft, its use, or disposition. The pur- mutilated parts only as scrap or report chaser/recipient shall hold the Government that scrap to GSA for sale.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00071 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.315 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–33.315 What are the procedures REPORTING EXCESS AIRCRAFT PARTS for mutilating unsalvageable aircraft parts? § 102–33.330 What must we do with aircraft parts that are excess to our To mutilate unsalvageable aircraft needs? parts, you must— If you have aircraft parts that are ex- (a) Destroy the data plates, remove cess to your needs, you must first de- the serial/lot/part numbers, and cut, termine if any of your sub-agencies can crush, grind, melt, burn, or use other use the parts. If they can, you may re- means to prevent the parts from being assign them within your agency. If misidentified or used as serviceable they cannot, then you must report the aircraft parts. See detailed guidance in excess parts to the GSA FSS Office in the FAA’s Advisory Circular 21-38, your region, using SF 120, Report of ‘‘Disposition of Unsalvageable Aircraft Excess Personal Property (see § 102– Parts and Materials,’’ available from 2.135 of subchapter A of this chapter). the FAA. Call your regional FAA When reporting excess FSCAP, you Flight Standards District Office for ad- must include the manufacturer’s name, ditional guidance; date of manufacture, part number, se- (b) Ensure that an authorized official rial number, and the appropriate Criti- of your agency witnesses and docu- cality Code on the SF 120. You may re- ments the mutilation; and port electronically using the FEDS (c) Retain a signed certification and system. For information on reporting statement of mutilation. excess property electronically, contact the FSS Office of Transportation and § 102–33.320 What must we do if we are Personal Property (FBP), 1941 Jeffer- unable to perform required mutila- son Davis Highway, Room 812, Arling- tion of aircraft parts? ton, VA 22202, (703) 305–7240. See parts 102–36 and 102–37 of this subchapter B If you are unable to perform the re- on disposing of excess property. quired mutilation of aircraft parts, you must turn in the parts to a Federal or § 102–33.335 What are the receiving federally approved facility for mutila- agency’s responsibilities in the tion and proper disposition. Ensure transfer or donation of aircraft that any contractor follows the provi- parts? sions of § 102–33.315 for mutilating and An agency that receives transferred disposing of the parts. or donated aircraft parts must: (a) Verify that all applicable labels § 102–33.325 What documentation must and tags and historical and modifica- we furnish with excess/surplus or tion records are furnished with service- replaced parts when they are trans- able aircraft parts (i.e., parts that are ferred, donated, exchanged, or sold? intended for flight use). This require- When you transfer, donate, exchange, ment does not apply to parts for or sell excess/surplus or replaced parts, ground use only. See the tables at § 102– you must— 33.370. (a) Furnish all applicable labels, (b) Mutilate all transferred or do- tags, and historical and modification nated parts that you discover to be records for serviceable aircraft parts; unsalvageable, and dispose of them (b) Mark mutilated parts as properly, following the procedures in unsalvageable (mutilated parts may be § 102–33.315. sold only for scrap; see § 102–33.315); and § 102–33.340 What are GSA’s respon- (c) Ensure that all available tags, la- sibilities in disposing of excess and bels, applicable historical data, life- surplus aircraft parts? histories, and maintenance records ac- In disposing of excess aircraft parts, company FSCAP and life-limited parts the GSA Federal Supply Service office and that FSCAP criticality codes (see in your region reviews your SF 120, Re- § 102–33.375) are perpetuated on docu- port of Excess Personal Property (see mentation (see § 102–33.330 for addi- § 102–2.135 of subchapter A of this chap- tional requirements). ter) for completeness and accuracy (of

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00072 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.365

status, condition, and FSCAP and de- authority in part 102–39 of this sub- militarization codes if applicable) and chapter B to another executive agency ensures that the following certification as a way to receive parts in exchange is included on disposal documents (e.g., or money to be used to purchase retransfer orders or purchasers’ receipts): placement parts.

Because of the critical nature of aircraft § 102–33.360 What is the process for parts’ failure and the resulting potential selling or exchanging aircraft parts safety threat, recipients of aircraft parts for replacement? must ensure that any parts installed on an aircraft meet applicable Federal Aviation (a) You or your agent (e.g., another Regulations and must obtain required cer- Federal agency or GSA, Federal Supply tifications. GSA makes no representation as Service (FSS)) may transact an ex- to a part’s conformance with the Federal change or sale directly with a non-fed- Aviation Administration’s requirements. eral source or do a reimbursable trans- § 102–33.345 What are a State agency’s fer with another executive agency as responsibilities in the donation of long as you or your agent— Federal Government aircraft parts? (1) Follow the provisions in this part and in part 102–39 of this subchapter B. When a State agency accepts surplus Federal Government aircraft parts for (2) Ensure that the applicable labels donation, the agency must— and tags, historical data and modifica- (a) Review donation and transfer doc- tion records accompany the parts at uments for completeness and accuracy, the time of sale, and that sales offer- and ensure that the certification in ings on aircraft parts contain the fol- § 102–33.340 is included; lowing statement: (b) Ensure that when the donee deter- Warning to purchasers/recipients. The parts mines the part to be unsalvageable, the you have purchased or received in an ex- donee mutilates the part following the change may not be in compliance with appli- procedures in § 102–33.315; and cable FAA requirements. You are solely re- (c) Ensure that the donee retains, sponsible for bringing the parts into compliance with 14 CFR part 21 or other applicable maintains, and perpetuates all docu- standards, by obtaining all necessary FAA mentation for serviceable parts (i.e., inspections or modifications. parts intended for flight use). (3) Ensure that the following certifi- REPLACING AIRCRAFT PARTS THROUGH cation is signed by the purchaser/re- EXCHANGE OR SALE cipient and received by the Govern- ment before releasing parts to the pur- § 102–33.350 Do we need approval from chaser/recipient: GSA to replace aircraft parts by exchange or sale? The purchaser/recipient agrees that the Government shall not be liable for personal No, you don’t need approval from injuries to, disabilities of, or death of the GSA to replace parts by exchange or purchaser/recipient, the purchaser’s/recipi- sale. However, you must follow the pro- ent’s employees, or to any other persons visions of this subpart and part 102–39 arising from or incident to the purchase of of this subchapter B. Replacement this item, its use, or disposition. The pur- parts do not have to be for the same chaser/recipient shall hold the Government type or design of aircraft, but you must harmless from any or all debts, liabilities, use the exchange allowance or sales judgments, costs, demands, suits, actions, or claims of any nature arising from or incident proceeds to purchase aircraft parts to to purchase, use, or resale of this item. support your aviation program to meet the ‘‘similarity’’ requirement in part (b) GSA, Federal Supply Service 102–39 of this subchapter B. (FSS), can conduct sales of aircraft parts for you. Contact your GSA Re- § 102–33.355 May we do a reimbursable gional Office for more information. transfer of parts with another executive agency? § 102–33.365 Must we report exchange Yes, you may request that the Fed- or sale of parts to FAIRS? eral Supply Service office in your re- No, you don’t have to report ex- gion approve a reimbursable transfer of change or sale of parts to FAIRS. How- aircraft parts under the exchange/sale ever, you must keep records of the

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00073 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.370 41 CFR Ch. 102 (7–1–11 Edition)

transactions, which GSA may request (a) Table 1 for disposing of to see. uninstalled FSCAP and life-limited parts follows: SPECIAL REQUIREMENTS FOR DISPOSING OF FLIGHT SAFETY CRITICAL AIRCRAFT PARTS (FSCAP) AND LIFE-LIMITED PARTS

§ 102–33.370 What must we do to dispose of military FSCAP or life-limited parts? To dispose of military FSCAP or life- limited parts, you must use the following tables:

TABLE 1 FOR DISPOSING OF UNINSTALLED FSCAP AND LIFE-LIMITED PARTS

(1) If an Uninstalled FSCAP (i.e., not installed in an aircraft or engine)— (i) Is documented ...... Then ...... (A) You may exchange or sell it or transfer it to another executive agency under parts 102–36 and 102–39 of this subchapter B and the rules in this part; (B) GSA may donate it for flight use under part 102–37 of this subchapter B; or (C) GSA may donate it for ground use only, after you mutilate and mark it, ‘‘FSCAP—NOT AIRWORTHY’’ (the State Agency for Surplus Property must certify that the part has been mutilated and marked before donation). (ii) Is undocumented, but Then ...... (A) You may exchange or sell it only to the OEM or PAH under part 102–39 of traceable to its original this subchapter B; equipment manufacturer (B) GSA may transfer or donate it for flight use, but only by making it a condi- (OEM) or production ap- tion of the transfer or donation agreement that the recipient will have the part proval holder (PAH)— inspected, repaired, and certified by the OEM or PAH before putting it into service (Note: Mark parts individually to ensure that the recipient is aware of the parts’ service status); or (C) GSA may donate it for ground use only, after you mutilate and mark it, ‘‘FSCAP—NOT AIRWORTHY’’ (the State Agency for Surplus Property must certify that the part has been mutilated and marked before donation). (iii) Is undocumented and Then ...... (A) GSA may transfer or donate it for ground use only, after you mark it, untraceable, you must ‘‘FSCAP—NOT AIRWORTHY’’ (the State Agency for Surplus Property must mutilate it, and— certify that the part has been mutilated and marked before donation); or (B) You may sell it only for scrap under §§ 102–33.310 and 102–33.315. (2) If an uninstalled life- limited part (i.e., not installed in an aircraft or engine)— (i) Is documented with Then ...... (A) You may exchange or sell it or transfer it to another executive agency under service life remaining. parts 102–36 and 102–39 of this subchapter B and the rules in this part; (B) GSA may donate it for flight use under part 102–37 of this subchapter B; or (C) GSA may donate it for ground use only, after you mutilate and mark it, ‘‘EX- PIRED LIFE-LIMITED—NOT AIRWORTHY’’ (the State Agency for Surplus Property must certify that the part has been mutilated and marked before donation). (ii) Is documented with no But ...... (A) GSA may transfer or donate it for ground use only, after you mutilate and service life remaining, or mark it, ‘‘EXPIRED LIFE-LIMITED—NOT AIRWORTHY’’ (the State Agency undocumented, GSA for Surplus Property must certify that the part has been mutilated and marked may not transfer it to an- before donation); or other executive agency (B) You must mutilate it and may sell it only for scrap. for flight use—

(b) Table 2 for disposing of installed life-limited parts follows:

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00074 Fmt 8010 Sfmt 8016 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.385

TABLE 2 FOR DISPOSING OF INSTALLED LIFE-LIMITED PARTS

(1) If a life-limited part is installed in an aircraft or an engine, and it— (i) Is documented with Then ...... (A) You may exchange or sell the aircraft or engine, or GSA may tranfer the air- service life remaining— craft or engine to another executive agency under parts 102–36 and 102–39 of this subchapter B and the rules in this part; (B) GSA may donate the aircraft or engine for flight use; or (C) GSA may donate the aircraft or engine for ground use only, after you remove the part, mutilate it and mark it, ‘‘EXPIRED LIFE-LIMITED—NOT AIR- WORTHY.’’ (Note: An internal engine part may be left installed, if, as a condition of the donation agreement, the receiving donee agrees to remove and mutilate the part, and mark it (the State Agency for Surplus Property must certify that the part has been multilated and marked)). (ii) Is documented with no Then ...... (A) You must remove and mutilate the part before you exchange or sell the air- service life remaining, or craft or engine (see rules for disposing of uninstalled life-limited parts in Table undocumented— 1 of paragraph (a) of this section). (Note: If an aircraft or engine is exchanged or sold to its OEM or PAH, you do not have to remove the expired life-limited part); (B) You must remove and mutilate it before GSA may transfer or donate the aircraft or engine for flight use (see the rules for disposing of uninstalled FSCAP in Table 1 in paragraph (a) of this section). (Note: An internal engine part may be left installed, if you identify the part individually to ensure that the receiving agency is aware of the part’s service status and, as a condition of the transfer or donation agreement, the receiving agency agrees to remove and mutilate the part before the engine is put into service. You must certify mutilation for transfers, and the State Agency for Surplus Property must certify that the part has been mutilated for donations); or (C) GSA may donate the aircraft or engine for ground use only, after you remove the part, mutilate and mark it ‘‘EXPIRED LIFE-LIMITED—NOT AIR- WORTHY.’’ (Note: An internal engine part may be left installed, if, as a condition of the donation agreement, the receiving agency agrees to remove and mutilate the part and mark it (the State Agency for Surplus Property must certify that the part has been mutilated and marked)).

[67 FR 67743, Nov. 6, 2002; 67 FR 70480, Nov. 22, 2002]

§ 102–33.375 What is a FSCAP Criti- Subpart E—Reporting Information cality Code? on Government Aircraft A FSCAP Criticality Code is a code assigned by DOD to indicate the type OVERVIEW of FSCAP: Code ‘‘F’’ indicates a stand- § 102–33.380 Who must report informa- ard FSCAP; Code ‘‘E’’ indicates a nu- tion to GSA on Government air- clear-hardened FSCAP. You must per- craft? petuate a FSCAP’s Criticality Code on You must report information to GSA all property records and reports of ex- on Government aircraft if your agen- cess. If the code is not annotated on cy— the transfer document that you re- (a) Is an executive agency of the ceived when you acquired the part, you United States Government; and may contact the appropriate military (b) Owns, lease-purchases, bails, bor- service or query DOD’s Federal Logis- rows, loans, leases, rents, charters, or tics Information System (FLIS— contracts for (or obtains by inter-serv- FedLog) using the National Stock ice support agreement) Government Number (NSN) or the part number. For aircraft. assistance in subscribing to the FLIS service, contact the FedLog Consumer § 102–33.385 Is any civilian executive Support Office, 800–351–4381. agency exempt from the requirement to report information to GSA on Government aircraft? No civilian executive agency is exempt, however, the Armed Forces (including the U.S. Coast Guard, the Re- serves, and the National Guard) and

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00075 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.390 41 CFR Ch. 102 (7–1–11 Edition)

U.S. intelligence agencies are exempt lect, maintain, analyze, and report in- from the requirement to report to GSA formation on Federal aircraft inven- on Government aircraft. tories and cost and usage of Federal aircraft and CAS aircraft (and related § 102–33.390 What information must aviation services). Users access FAIRS we report on Government aircraft? through a highly-secure Web site. The (a) You must report the following in- ‘‘FAIRS User’s Manual’’ contains the formation to GSA, Aircraft Manage- business rules for using the system and ment Policy Division (MTA), 1800 F is available from GSA, Aircraft Man- Street, NW., Washington, DC 20405: agement Policy Division (MTA), 1800 F (1) Inventory data on Federal aircraft through FAIRS. Street, NW., Washington, DC 20405. (2) Cost and utilization data on Fed- § 102–33.400 How must we report to eral aircraft through FAIRS. FAIRS? (3) Cost and utilization data on CAS aircraft and related aviation services You must report to FAIRS electroni- through FAIRS. cally through a secure Web interface to (4) Accident and incident data the FAIRS application on the Internet. through the ICAP Aircraft Accident In- For information on becoming a FAIRS cident Reporting System (AAIRS). user, call GSA, Aircraft Management (5) The results of cost-comparison Policy Division, (MTA). studies in compliance with OMB Cir- cular A–76 to justify purchasing, leas- § 102–33.405 When must we report to ing, modernizing, replacing, or other- FAIRS? wise acquiring aircraft and related You must report any changes in your aviation services. Federal aircraft inventory within 14 (b) Information on senior Federal officials and others who travel on Gov- calendar days. You must report cost ernment aircraft to GSA, Travel Man- and utilization data to FAIRS at the agement Policy Division (MTT), 1800 F end of every quarter of the fiscal year Street, NW., Washington, DC 20405 (see (December 31, March 31, June 30, and OMB Circular A–126 for specific rules September 30). However, you may sub- and a definition of senior Federal offi- mit your information to FAIRS on a cial). daily, weekly, or monthly basis. To provide enough time to calculate your FEDERAL AVIATION INTERACTIVE cost and utilization data, you may re- REPORTING SYSTEM (FAIRS) port any one quarter’s cost and utilization in the following quarter, as fol- § 102–33.395 What is FAIRS? lows: FAIRS is a management information system operated by GSA (MTA) to col-

Quarter Submit

QTR 1—October 1—December 31 ...... Federal inventory for QTR 1. Federal cost and utilization for previous QTR 4. CAS cost and utilization for previous QTR 4. QTR 2—January 1—March 31 ...... Federal inventory for QTR 2. Federal cost and utilization for QTR 1. CAS cost and utilization for QTR 1. QTR 3—April 1—June 30 ...... Federal inventory for QTR 3. Federal cost and utilization for QTR 2. CAS cost and utilization for QTR 2. QTR 4—July 1—September 30 ...... Federal inventory for QTR 4. Federal cost and utilization for QTR 3. CAS cost and utilization for QTR 3.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00076 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–33.435

FEDERAL INVENTORY DATA (2) Within 14 calendar days of receiving approval from FAA to remove the § 102–33.410 What are Federal inven- data plate, inform GSA (MTA) of tory data? FAA’s approval, send the data plate by Federal inventory data include infor- courier or registered mail to the FAA, mation on each of the operational and as directed by your FSDO, and remove non-operational Federal aircraft that any Certificate of Airworthiness and you own, bail, borrow, or loan. See the the aircraft’s registration form from ‘‘FAIRS User’s Manual,’’ published by the aircraft, complete the reverse side GSA, Aircraft Management Policy Di- of the registration form, and send both vision (MTA), 1800 F Street, NW., documents to the FAA. Washington, DC 20405, for a complete (c) Delete the aircraft from your listing and definitions of the FAIRS FAIRS inventory records and update Federal inventory data elements. your personal property records, delet- ing the declassified aircraft from the § 102–33.415 When may we declassify aircraft category and adding it to an- an aircraft and remove it from our other Federal Supply Classification Federal aircraft inventory? group or groups, as appropriate. When an aircraft is lost or destroyed, or is otherwise non-operational and FEDERAL AIRCRAFT COST AND you want to retain it, you may declas- UTILIZATION DATA sify it and remove it from your Federal § 102–33.425 What Federal aircraft cost aircraft inventory. When you declassify and utilization data must we re- an aircraft, you remove the data plate port? permanently, and the resulting ‘‘air- You must report certain costs for craft parts or other property’’ are no each of your Federal aircraft and the longer considered an aircraft. See number of hours that you flew each §§ 102–33.415 through 102–33.420 for rules aircraft. In reporting the costs of your on declassifying aircraft, and see part Federal aircraft, you must report both 102–36 or 102–37 of this subchapter B on the amounts you paid as Federal costs, reporting declassified aircraft as ex- which are for services the Government cess. provides, and the amounts you paid as commercial costs in support of your § 102–33.420 How must we declassify an aircraft? Federal aircraft. For a list and definitions of the Federal aircraft cost and To declassify an aircraft, you must— utilization data elements, see the (a) Send a letter to GSA, Aircraft ‘‘FAIRS User’s Manual,’’ which is Management Policy Division (MTA), available from GSA, Aircraft Manage- 1800 F Street, NW., Washington, DC ment Policy Division (MTA), 1800 F 20405, requesting approval to declassify Street, NW., Washington, DC 20405. the aircraft and stating that the aircraft is non-operational (which in- § 102–33.430 Who must report Federal cludes lost or destroyed). In this letter, aircraft cost and utilization data? identify the Federal Supply Classifica- Executive agencies, except the tion (FSC) group(s) that the declas- Armed Forces and U.S. intelligence sified aircraft/parts will fall under if agencies, must report Federal cost and applicable, describe the condition of utilization data on all Federal aircraft. the aircraft (crash-damaged, unre- Agencies should report Federal cost coverable, parts unavailable, etc.), and and utilization data for loaned aircraft include photographs as appropriate. only if Federal money was expended on (b) Within 14 calendar days of receiv- the aircraft. ing GSA’s approval to declassify the aircraft— COMMERCIAL AVIATION SERVICES (CAS) (1) Following applicable Federal COST AND UTILIZATION DATA Aviation Regulations (14 CFR 45.13), request approval from your local FAA § 102–33.435 What CAS cost and utili- Flight Standards District Office zation data must we report? (FSDO) to remove the manufacturer’s You must report the costs and flying data plate; hours for each CAS aircraft you hire.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00077 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–33.440 41 CFR Ch. 102 (7–1–11 Edition)

You must also report the costs and the Internet. Instructions for using the contractual periods for related aviation system and the data elements and defi- services that you hire (i.e., by contract nitions for accident/incident reporting or through an inter-service support are available through the system or agreement (ISSA)). Report related from GSA, Aircraft Management Pol- aviation services that you hire com- icy Division (MTA), 1800 F Street, NW., mercially in support of Federal aircraft Washington, DC 20405. as ‘‘paid out’’ Federal aircraft costs— do not report them as CAS. See the COMMON AVIATION MANAGEMENT ‘‘FAIRS User’s Manual,’’ available INFORMATION STANDARD (C-AMIS) from GSA, Aircraft Management Pol- icy Division (MTA), 1800 F Street, NW., § 102–33.455 What is C-AMIS? Washington, DC 20405 for a complete Common Aviation Management In- description of the CAS data elements formation Standard (C-AMIS), jointly reportable to FAIRS. written by the ICAP and GSA and § 102–33.440 Who must report CAS cost available from GSA, Aircraft Manage- and utilization data? ment Policy Division (MTA), 1800 F Executive agencies, except the Street, NW., Washington, DC 20405, is a Armed Forces and U.S. intelligence guide to assist agencies in developing agencies, must report CAS cost and or modernizing their internal aviation utilization data. You must report CAS management information systems. C- cost and utilization data if your agency AMIS includes standard specifications makes payments to— and data definitions related to Federal (a) Charter or rent aircraft; aviation operations. (b) Lease or lease-purchase aircraft; (c) Hire aircraft and related services § 102–33.460 What is our responsibility through an ISSA or a full service con- in relation to C-AMIS? tract; or If you use a management information (d) Obtain related aviation services system to provide data to FAIRS by through an ISSA or by contract except batch upload, you are responsible for when you use the services in support of ensuring that your system is C-AMIS- Federal aircraft. compliant. For more information on compliance with C-AMIS, contact GSA, ACCIDENT AND INCIDENT DATA Aircraft Management Policy Division (MTA), 1800 F Street, NW., Washington, § 102–33.445 What accident and incident data must we report? DC 20405. You must report within 14 calendar days to GSA, Aircraft Management PART 102–34—MOTOR VEHICLE Policy Division (MTA), 1800 F Street, MANAGEMENT NW., Washington, DC 20405, all aviation accidents and incidents that your agen- Subpart A—General Provisions cy is required to report to the NTSB. You may also report other incident in- Sec. formation. The GSA and the ICAP will 102–34.5 What does this part cover? 102–34.10 What are the governing authori- use the collected accident/incident in- ties for this part? formation in conjunction with FAIRS’ 102–34.15 Who must comply with these pro- data, such as flying hours and mis- visions? sions, to calculate safety statistics for 102–34.20 What motor vehicles are not cov- the Federal aviation community and to ered by this part? share safety lessons-learned. 102–34.25 To whom do ‘‘we’’, ‘‘you’’, and their variants refer? § 102–33.450 How must we report acci- 102–34.30 How do we request a deviation dent and incident data? from the provisions of this part? You must report accident and incident data through the ICAP Aviation DEFINITIONS Accident and Incident Reporting Sys- 102–34.35 What definitions apply to this tem (AAIRS), which is accessible from part?

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00078 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–34

Subpart B—Obtaining Fuel Efficient Motor IDENTIFICATION EXEMPTIONS Vehicles 102–34.155 What are the types of motor vehicle identification exemptions? 102–34.40 Who must comply with motor ve- 102–34.160 May we have a limited exemption hicle fuel efficiency requirements? from displaying U.S. Government license 102–34.45 How are passenger automobiles plates and other motor vehicle identi- classified? fication? 102–34.50 What size motor vehicles may we 102–34.165 What information must the lim- obtain? ited exemption certification contain? 102–34.55 Are there fleet average fuel econ- 102–34.170 For how long is a limited exemp- omy standards we must meet? tion valid? 102–34.60 How do we calculate the average 102–34.175 What motor vehicles have an un- fuel economy for Government motor ve- limited exemption from displaying U.S. hicles? Government license plates and motor ve- 102–34.65 How may we request an exemption hicle identification? from the fuel economy standards? 102–34.180 What agencies have a special ex- 102–34.70 What do we do with completed cal- emption from displaying U.S. Govern- culations of our fleet vehicle acquisi- ment license plates and motor vehicle tions? identification on some of their vehicles? 102–34.75 Who is responsible for monitoring 102–34.185 What license plates do we use on our compliance with fuel economy stand- motor vehicles that are exempt from ards for motor vehicles we obtain? motor vehicle identification require- 102–34.80 Where may we obtain help with ments? our motor vehicle acquisition plans? 102–34.190 What special requirements apply to exempted motor vehicles using Dis- Subpart C—Identifying and Registering trict of Columbia or State license plates? Motor Vehicles 102–34.195 Must we submit a report concerning motor vehicles exempted under MOTOR VEHICLE IDENTIFICATION this subpart? 102–34.85 What motor vehicles require motor Subpart D—Official Use of Government vehicle identification? Motor Vehicles 102–34.90 What motor vehicle identification must we display on Government motor 102–34.200 What is official use of Govern- vehicles? ment motor vehicles? 102–34.95 What motor vehicle identification 102–34.205 May I use a Government motor must the Department of Defense (DOD) vehicle for transportation between my display on motor vehicles it owns, or residence and place of employment? leases commercially? 102–34.210 May I use a Government motor 102–34.100 Where is motor vehicle identifica- vehicle for transportation between places tion displayed? of employment and mass transit facili- 102–34.105 Before we sell a motor vehicle, ties? what motor vehicle identification must 102–34.215 May Government contractors use we remove? Government motor vehicles? 102–34.220 What does GSA do if it learns of LICENSE PLATES unofficial use of a Government motor ve- 102–34.110 Must Government motor vehicles hicle? use Government license plates? 102–34.225 How are Federal employees dis- 102–34.115 Can official U.S. Government li- ciplined for misuse of Government motor cense plates be used on motor vehicles vehicles? not owned or leased by the Government? 102–34.230 How am I responsible for pro- 102–34.120 Do we need to register Govern- tecting Government motor vehicles? 102–34.235 Am I bound by State and local ment motor vehicles? traffic laws? 102–34.125 Where may we obtain U.S. Gov- 102–34.240 Who pays for parking fees? ernment license plates? 102–34.245 Who pays for parking fines? 102–34.130 How do we display U.S. Govern- 102–34.250 Do Federal employees in Govern- ment license plates on Government ment motor vehicles have to use all safe- motor vehicles? ty devices and follow all safety guide- 102–34.135 What do we do about a lost or sto- lines? len license plate? 102–34.140 What records do we need to keep Subpart E—Replacement of Motor Vehicles on U.S. Government license plates? 102–34.145 How are U.S. Government license 102–34.255 What are motor vehicle replace- plates coded? ment standards? 102–34.150 How can we get a new license 102–34.260 May we replace a Government- plate code designation? owned motor vehicle sooner?

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00079 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–34.5 41 CFR Ch. 102 (7–1–11 Edition)

102–34.265 May we keep a Government- Subpart A—General Provisions owned motor vehicle even though the standard permits replacement? § 102–34.5 What does this part cover? 102–34.270 How long must we keep a Govern- ment-owned motor vehicle? This part governs the economical and efficient management and control of Subpart F—Scheduled Maintenance of motor vehicles that the Government Motor Vehicles owns, leases commercially or leases through GSA Fleet. Agencies will in- 102–34.275 What kind of maintenance pro- corporate appropriate provisions of grams must we have? this part into contracts offering Gov- 102–34.280 What State inspections must we ernment-furnished equipment in order have for Government motor vehicles? to ensure adequate control over the use 102–34.285 Where can we obtain help in set- of motor vehicles. ting up a maintenance program? § 102–34.10 What are the governing au- Subpart G—Motor Vehicle Crash Reporting thorities for this part? 102–34.290 What forms do I use to report a The authorities for the regulations in crash involving a domestic fleet motor this part are 40 U.S.C. 121(c), 40 U.S.C. vehicle? 17503, 31 U.S.C. 1344, 49 U.S.C. 32917, and 102–34.295 To whom do we send crash re- E.O. 12375. ports? § 102–34.15 Who must comply with Subpart H—Disposal of Motor Vehicles these provisions? All executive agencies must comply 102–34.300 How do we dispose of a domestic with the provisions of this part. The fleet motor vehicle? legislative and judicial branches are 102–34.305 What forms do we use to transfer ownership when selling a motor vehicle? encouraged to follow these provisions. 102–34.310 How do we distribute the com- § 102–34.20 What motor vehicles are pleted Standard Form 97? not covered by this part? Subpart I—Motor Vehicle Fueling Motor vehicles not covered by this part are: 102–34.315 How do we obtain fuel for Govern- (a) Military design motor vehicles; ment motor vehicles? (b) Motor vehicles used for military 102–34.320 What Government-issued charge field training, combat, or tactical pur- cards may I use to purchase fuel and poses; motor vehicle related services? (c) Motor vehicles used principally 102–34.325 What type of fuel do I use in Gov- within the confines of a regularly es- ernment motor vehicles? tablished military post, camp, or depot; and Subpart J—Federal Fleet Report (d) Motor vehicles regularly used by 102–34.330 What is the Federal Fleet Report? an agency to perform investigative, 102–34.335 How do I submit information to law enforcement, or intelligence du- the General Services Administration ties, if the head of the agency deter- (GSA) for the Federal Fleet Report mines that exclusive control of the ve- (FFR)? hicle is essential for effective perform- 102–34.340 Do we need a fleet management ance of duties, although such vehicles information system? are subject to subpart D and subpart J 102–34.345 What records do we need to keep? of this part.

Subpart K—Forms § 102–34.25 To whom do ‘‘we’’, ‘‘you’’, and their variants refer? 102–34.350 How do we obtain the forms prescribed in this part? Unless otherwise indicated, use of pronouns ‘‘we’’, ‘‘you’’, and their AUTHORITY: 40 U.S.C. 121(c); 40 U.S.C. 17503; variants throughout this part refer to 31 U.S.C. 1344; 49 U.S.C. 32917; E.O. 12375. you as an executive agency, as your SOURCE: 74 FR 11871, Mar. 20, 2009, unless agency’s fleet manager, or as a motor otherwise noted. vehicle user or operator, as appropriate.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00080 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–34.35

§ 102–34.30 How do we request a devi- fies as a law enforcement motor vehi- ation from the provisions of this cle only in the following cases: part? (1) A passenger automobile having Refer to §§ 102–2.60 through 102–2.110 heavy duty components for electrical, of this chapter for information on how cooling and suspension systems and at to obtain a deviation from this part. least the next higher cubic inch displacement or more powerful engine DEFINITIONS than is standard for the automobile concerned; § 102–34.35 What definitions apply to (2) A light truck having emergency this part? warning lights and identified with The following definitions apply to markings such as ‘‘police;’’ this part: (3) An unmarked motor vehicle cer- Commercial design motor vehicle means tified by the agency head as essential a motor vehicle procurable from reg- for the safe and efficient performance ular production lines and designed for of intelligence, counterintelligence, use by the general public. protective, or other law enforcement Commercial lease or lease commercially duties; or means obtaining a motor vehicle by (4) A forfeited motor vehicle seized contract or other arrangement from a by a Federal agency that is subse- commercial source for 60 continuous quently used for the purpose of per- days or more. (Procedures for pur- forming law enforcement activities. chasing and leasing motor vehicles Light duty motor vehicle means any through GSA can be found in 41 CFR motor vehicle with a gross motor vehi- subpart 101–26.5.) cle weight rating (GVWR) of 8,500 Domestic fleet means all reportable pounds or less. motor vehicles operated in any State, Commonwealth, territory or possession Light truck means a motor vehicle on of the United States, and the District a truck chassis with a gross motor ve- of Columbia. hicle weight rating (GVWR) of 8,500 pounds or less. Foreign fleet means all reportable motor vehicles operated in areas out- Military design motor vehicle means a side any State, Commonwealth, terri- motor vehicle (excluding commercial tory or possession of the United States, design motor vehicles) designed accord- and the District of Columbia. ing to military specifications to di- Government motor vehicle means any rectly support combat or tactical oper- motor vehicle that the Government ations or training for such operations. owns or leases. This includes motor ve- Motor vehicle means any vehicle, self hicles obtained through purchase, ex- propelled or drawn by mechanical cess, forfeiture, commercial lease, or power, designed and operated prin- GSA Fleet lease. cipally for highway transportation of Government-owned motor vehicle property or passengers, but does not in- means any motor vehicle that the Gov- clude a military design motor vehicle ernment has obtained through pur- or vehicles not covered by this part chase, excess, forfeiture, or otherwise (see § 102–34.20). and for which the Government holds Motor vehicle identification (also re- title. ferred to as ‘‘motor vehicle markings’’) GSA Fleet lease means obtaining a means the legends ‘‘For Official Use motor vehicle from the General Serv- Only’’ and ‘‘U.S. Government’’ placed ices Administration Fleet (GSA Fleet). on a motor vehicle plus other legends Law enforcement motor vehicle means a readily identifying the department, light duty motor vehicle that is spe- agency, establishment, corporation, or cifically approved in an agency’s ap- service by which the motor vehicle is propriation act for use in apprehension, used. surveillance, police or other law en- Motor vehicle markings (see definition forcement work or specifically de- of ‘‘Motor vehicle identification’’ in signed for use in law enforcement. If this section). not identified in an agency’s appropria- Motor vehicle purchase means buying tion language, a motor vehicle quali- a motor vehicle from a commercial

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00081 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–34.40 41 CFR Ch. 102 (7–1–11 Edition)

source, usually a motor vehicle manu- (b) This subpart does not apply to facturer or a motor vehicle manufac- motor vehicles exempted by law or turer’s dealership. (Procedures for pur- other regulations, such as law enforce- chasing and leasing motor vehicles ment or emergency rescue work and through GSA can be found in 41 CFR foreign fleets. Other Federal agencies subpart 101–26.5.) are encouraged to comply so that max- Motor vehicle rental means obtaining imum energy conservation benefits a motor vehicle by contract or other may be realized in obtaining, oper- arrangement from a commercial source ating, and managing Government for less than 60 continuous days. motor vehicles. Motor vehicles transferred from excess means obtaining a motor vehicle re- § 102–34.45 How are passenger auto- ported as excess and transferred with mobiles classified? or without cost. Passenger automobiles are classified Owning agency means the executive in the following table: agency that holds the vehicle title, Station wagon manufacturer’s Certificate of Origin, or Sedan class class Descriptive name is the lessee of a commercial lease. This term does not apply to agencies I ...... I ...... Subcompact. II ...... II ...... Compact. that lease motor vehicles from the III ...... III ...... Midsize. GSA Fleet. IV ...... IV ...... Large. Passenger automobile means a sedan or V ...... Limousine.. station wagon designed primarily to transport people. § 102–34.50 What size motor vehicles Reportable motor vehicles are any Gov- may we obtain? ernment motor vehicles used by an ex- (a) You may only obtain the min- ecutive agency or activity, including imum size of motor vehicle necessary those used by contractors. Also in- to fulfill your agency’s mission in ac- cluded are motor vehicles designed or cordance with the following consider- acquired for a specific or unique pur- ations: pose, including motor vehicles that (1) You must obtain motor vehicles serve as a platform or conveyance for that achieve maximum fuel efficiency. special equipment, such as a trailer. (2) Limit motor vehicle body size, en- Excluded are material handling equip- gine size and optional equipment to ment and construction equipment not what is essential to meet your agency’s designed and used primarily for high- mission. way operation (e.g., if it must be (3) With the exception of motor vehi- trailered or towed to be transported). cles used by the President and Vice Using agency means an executive President and motor vehicles for secu- agency that obtains motor vehicles rity and highly essential needs, you from the GSA Fleet, commercial firms must obtain midsize (class III) or or another executive agency and does smaller sedans. not hold the vehicle title or manufac- (4) Obtain large (class IV) sedans only turer’s Certificate of Origin. However, when such motor vehicles are essential this does not include an executive to your agency’s mission. agency that obtains a motor vehicle by (b) Agencies must establish and docu- motor vehicle rental. ment a structured vehicle allocation methodology to determine the appro- Subpart B—Obtaining Fuel Efficient priate size and number of motor vehi- Motor Vehicles cles (see FMR Bulletin B–9, located at http://www.gsa.gov/bulletin, for guid- § 102–34.40 Who must comply with ance). motor vehicle fuel efficiency requirements? § 102–34.55 Are there fleet average fuel (a) Executive agencies operating do- economy standards we must meet? mestic fleets must comply with motor (a) Yes. 49 U.S.C. 32917 and Executive vehicle fuel efficiency requirements for Order 12375 require that each executive such fleets. agency meet the fleet average fuel

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00082 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–34.65

economy standards in place as of Janu- (b) This calculation is the sum of ary 1 of each fiscal year. The standards such light duty motor vehicles divided for passenger automobiles are pre- by the sum of the fractions rep- scribed in 49 U.S.C. 32902(b). The De- resenting the number of motor vehicles partment of Transportation publishes of each category by model divided by the standards for light trucks and the unadjusted city/highway mile-per- amendments to the standards for pas- gallon ratings for that model. The senger automobiles at http:// unadjusted city/highway mile-per-gal- www.dot.gov. lon ratings for each make and model (b) These standards do not apply to are published by the Environmental Protection Agency (EPA) for each military design motor vehicles, law en- model year and published at http:// forcement motor vehicles, or motor ve- www.fueleconomy.gov. hicles intended for emergency rescue. (c) An example follows: § 102–34.60 How do we calculate the Light trucks: average fuel economy for Govern- (i) 600 light trucks acquired in a specific ment motor vehicles? year. These are broken down into: (A) 200 Six cylinder automatic trans- You must calculate the average fuel mission pick-up trucks, EPA rating: 24.3 economy for Government motor vehi- mpg, plus cles as follows: (B) 150 Six cylinder automatic trans- (a) Because there are so many motor mission mini-vans, EPA rating: 24.8 mpg, vehicle configurations, you must take plus an average of all light duty motor vehi- (C) 150 Eight cylinder automatic transmission pick-up trucks, EPA rating: 20.4 cles by category that your agency ob- mpg, plus tained and operated during the fiscal (D) 100 Eight cylinder automatic trans- year. mission cargo vans, EPA rating: 22.2 mpg.

= 600 200 +++150 150 100 24.... 3 24 8 20 4 22 2

= 600 8... 2305++ 6 0484 7 3530 + 4. 5045 600 ==22. 9565 (Rounded to nearest 0.1 mpg.) 26. 1364

(ii) Fleet average fuel economy for light necessary to permit review of the re- trucks in this case is 23.0 mpg. quest that the vehicles be exempted based on energy conservation, econ- § 102–34.65 How may we request an exemption from the fuel economy omy, efficiency, or service. Exemptions standards? may be sought for individual vehicles or categories of vehicles. You must submit a written request (b) GSA will review the request and for an exemption from the fuel econ- advise you of the determination within omy standards to: Administrator, Gen- eral Services Administration, ATTN: 30 days of receipt. Light duty motor ve- Deputy Associate Administrator, Office hicles exempted under the provisions of of Travel, Transportation and Asset this section must not be included in Management (MT), Washington, DC calculating your fleet average fuel 20405. economy. (a) Your request for an exemption must include all relevant information

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00083 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 ER20MR09.000 § 102–34.70 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–34.70 What do we do with com- § 102–34.95 What motor vehicle identi- pleted calculations of our fleet vehi- fication must the Department of De- cle acquisitions? fense (DOD) display on motor vehicles it owns or leases commercially? You must maintain the average fuel economy data for each year’s vehicle Unless exempted under § 102–34.160, acquisitions on file at your agency § 102–34.175 or § 102–34.180, the following headquarters in accordance with the must appear on motor vehicles that the National Archives and Records Admin- DOD owns or leases commercially: istration, General Records Schedule 10, (a) ‘‘For Official Use Only’’; and Motor Vehicle and Aircraft Mainte- (b) An appropriate title for the DOD nance and Operations Records, Item 4, component responsible for the vehicle. Motor Vehicle Report Files. Exemption requests and their disposition must § 102–34.100 Where is motor vehicle identification displayed? also be maintained with the average fuel economy files. Motor vehicle identification is displayed as follows: § 102–34.75 Who is responsible for (a) For most Government motor vehicles, monitoring our compliance with preferably on the official U.S. Govern- fuel economy standards for motor ment license plate. Some Government vehicles we obtain? motor vehicles may display motor ve- Executive agencies are responsible hicle identification on a decal in the for monitoring their own compliance rear window, or centered on both front with fuel economy standards for motor doors if the vehicle is without a rear vehicles they obtain. window, or where identification on the rear window would not be easily seen. § 102–34.80 Where may we obtain help (b) For trailers, on both sides of the with our motor vehicle acquisition front quarter of the trailer in a con- plans? spicuous location. For help with your motor vehicle ac- NOTE TO § 102–34.100: Each agency or activ- quisition plans, contact the: General ity that uses decals to identify Government motor vehicles is responsible for acquiring Services Administration, ATTN: MT, its own decals and for replacing them when Washington, DC 20405. E-mail: vehi- necessary due to damage or wear. [email protected]. § 102–34.105 Before we sell a motor ve- Subpart C—Identifying and hicle, what motor vehicle identifica- Registering Motor Vehicles tion must we remove? You must remove all motor vehicle MOTOR VEHICLE IDENTIFICATION identification before you transfer the title or deliver the motor vehicle. § 102–34.85 What motor vehicles require motor vehicle identification? LICENSE PLATES All Government motor vehicles must § 102–34.110 Must Government motor display motor vehicle identification vehicles use Government license unless exempted under § 102–34.160, plates? § 102–34.175 or § 102–34.180. Yes, you must use Government li- § 102–34.90 What motor vehicle identi- cense plates on Government motor ve- fication must we display on Govern- hicles, with the exception of motor ve- ment motor vehicles? hicles exempted under § 102–34.160, § 102– 34.175 or § 102–34.180. Unless exempted under § 102–34.160, § 102–34.175 or § 102–34.180, Government § 102–34.115 Can official U.S. Govern- motor vehicles must display the fol- ment license plates be used on lowing identification: motor vehicles not owned or leased (a) ‘‘For Official Use Only’’; by the Government? (b) ‘‘U.S. Government’’; and No, official U.S. Government license (c) Identification that readily identi- plates may only be used on Govern- fies the agency owning the vehicle. ment motor vehicles.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00084 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–34.145

§ 102–34.120 Do we need to register (c) Display the U.S. Government li- Government motor vehicles? cense plates until the Government If the Government motor vehicle dis- motor vehicle is removed from Govern- plays U.S. Government license plates ment service or is transferred outside and motor vehicle identification, you the agency, or until the plates are do not need to register it in the juris- damaged and require replacement. U.S. diction where the vehicle is operated, Government license plates shall only however, you must register it in the be used for one Government motor ve- Federal Government Motor Vehicle hicle and shall not be reissued to an- Registration System. GSA Fleet may other Government motor vehicle. register motor vehicles leased from (d) For motor vehicles owned or com- GSA Fleet. Motor vehicles that have mercially leased by DOD, also follow been exempted from the requirement DOD regulations. to display official U.S. Government license plates under section § 102–34.160, § 102–34.135 What do we do about a § 102–34.175 or § 102–34.180 must be reg- lost or stolen license plate? istered and inspected in accordance You must report the loss or theft of with the laws of the jurisdiction where license plates as follows: the motor vehicle is regularly oper- (a) U.S. Government license plates. Re- ated. port to your local security office (or § 102–34.125 Where may we obtain U.S. equivalent), local police, to GSA Fleet Government license plates? when a GSA Fleet leased motor vehicle You may obtain U.S. Government li- is involved, and to the Federal Govern- cense plates for domestic fleets— ment Motor Vehicle Registration Sys- (a) By contacting: U.S. Department tem. of Justice, UNICOR, Federal Prison In- (b) District of Columbia or State license dustries, Inc., 400 First Street, NW., plates. Report to your local security of- Room 6010, Washington, DC 20534. fice (or equivalent) and either the Dis- (b) For assistance with any issues in- trict of Columbia Department of Trans- volving license plates, contact the fol- portation, or the State Department of lowing office: General Services Admin- Motor Vehicles, as appropriate. istration, ATTN: MT, Washington, DC 20405. E-mail: [email protected]. § 102–34.140 What records do we need to keep on U.S. Government license NOTE TO § 102–34.125: GSA has established a plates? Memorandum of Understanding (MOU) on behalf of all Federal agencies with Federal You must keep a central record of all Prison Industries (UNICOR) for the procure- U.S. Government license plates for ment of official U.S. Government license Government motor vehicles. The GSA plates. Each agency must execute an adden- Fleet must also keep such a record for dum to this MOU providing plate design and GSA Fleet vehicles. The record must: specific ordering and payment information before ordering license plates. Agency field (a) Identify the motor vehicle to activities should contact their national level which each set of plates is assigned; Agency Fleet Manager for assistance. and (b) List lost, stolen, destroyed, and § 102–34.130 How do we display U.S. voided license plate numbers. Government license plates on Gov- ernment motor vehicles? § 102–34.145 How are U.S. Government (a) Display official U.S. Government license plates coded? license plates on the front and rear of U.S. Government license plate num- all Government motor vehicles. The bers will be preceded by a letter code exception is two-wheeled motor vehi- that designates the owning agency for cles and trailers, which require rear li- the motor vehicle. The agency letter cense plates only. codes are listed in GSA Bulletin FMR (b) You must display U.S. Govern- ment license plates on the Government Bulletin B–11. (FMR bulletins are lo- motor vehicle to which the license cated at http://www.gsa.gov/bulletin.) plates were assigned.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00085 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–34.150 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–34.150 How can we get a new li- § 102–34.175 What motor vehicles have cense plate code designation? an unlimited exemption from displaying U.S. Government license To obtain a new license plate code plates and motor vehicle identifica- designation, write to the: General tion? Services Administration, ATTN: MT, Washington, DC 20405. E-mail: vehi- Motor vehicles used primarily for investigative, law enforcement, intel- [email protected]. ligence, or security duties have an un- IDENTIFICATION EXEMPTIONS limited exemption from displaying U.S. Government license plates and motor § 102–34.155 What are the types of vehicle identification when identifying motor vehicle identification exemp- these motor vehicles would interfere tions? with those duties. The types of motor vehicle identi- § 102–34.180 What agencies have a spe- fication exemptions are: cial exemption from displaying U.S. (a) Limited exemption. Government license plates and (b) Unlimited exemption. motor vehicle identification on (c) Special exemption. some of their vehicles? Motor vehicles assigned for the use of § 102–34.160 May we have a limited ex- the President and the heads of execu- emption from displaying U.S. Gov- tive departments specified in 5 U.S.C. ernment license plates and other 101 are exempt from the requirement to motor vehicle identification? display motor vehicle identification. Yes. The head of your agency or designee may authorize a limited exemp- § 102–34.185 What license plates do we tion to the display of U.S. Government use on motor vehicles that are ex- license plates and motor vehicle identi- empt from motor vehicle identifica- fication upon written certification (see tion requirements? § 102–34.165). For motor vehicles leased For motor vehicles that are exempt from the GSA Fleet, send an informa- from motor vehicle identification re- tion copy of this certification to the: quirements, display the regular license General Services Administration, plates of the State, Commonwealth, ATTN: GSA Fleet (QMDB), 2200 Crystal territory or possession of the United Drive, Arlington, VA 22202. States, or the District of Columbia, where the motor vehicle is principally § 102–34.165 What information must operated (see § 102–34.120). the limited exemption certification contain? § 102–34.190 What special requirements apply to exempted motor ve- The certification must state that hicles using District of Columbia or identifying the motor vehicle would State license plates? endanger the security of the vehicle oc- Your agency head must designate an cupants or otherwise compromise the official to authorize the District of Co- agency mission. lumbia (DC) or State motor vehicle department to issue DC license plates or § 102–34.170 For how long is a limited exemption valid? State license plates for motor vehicles exempt from displaying U.S. Govern- An exemption granted in accordance ment license plates and motor vehicle with § 102–34.160 may last from one day identification. The agency head must up to 3 years. If the requirement for ex- provide the name and signature of that emption still exists beyond 3 years, official to the DC Department of Trans- your agency must re-certify the con- portation annually, or to the equiva- tinued exemption. For a motor vehicle lent State vehicle motor vehicle de- leased from the GSA Fleet, send a copy partment, as required. Agencies must of the re-certification to the: General pay DC and the States for these license Services Administration, ATTN: GSA plates in accordance with DC or State Fleet (QMDB), 2200 Crystal Drive, Ar- policy. Also, for motor vehicles leased lington, VA 22202. from the GSA Fleet, send a list of the

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00086 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–34.220

new plates to: General Services Admin- (b) There is no safe and reliable com- istration, ATTN: GSA Fleet (QMDB), mercial or duplicative Federal mass 2200 Crystal Drive, Arlington, VA 22202. transportation service that serves the same route on a regular basis; § 102–34.195 Must we submit a report (c) This transportation is made avail- concerning motor vehicles exempt- able, space provided, to other Federal ed under this subpart? employees; Yes. If asked, the head of each execu- (d) Alternative fuel vehicles should tive agency must submit a report con- be used to the maximum extent prac- cerning motor vehicles exempted under ticable; this subpart. This report, which has (e) This transportation should be pro- been assigned interagency report con- vided in a manner that does not result trol number 1537–GSA–AR, should be in any additional gross income for Fed- submitted to the: General Services Ad- eral income tax purposes; and ministration, ATTN: MT, Washington, (f) Motor vehicle ridership levels DC 20405. E-mail: [email protected]. must be frequently monitored to ensure cost/benefit of providing and Subpart D—Official Use of maintaining this transportation. Government Motor Vehicles § 102–34.215 May Government contractors use Government motor vehi- § 102–34.200 What is official use of cles? Government motor vehicles? Yes, Government contractors may Official use of a Government motor use Government motor vehicles when vehicle is using a Government motor authorized in accordance with the Fed- vehicle to perform your agency’s mis- eral Acquisition Regulation (FAR), sion(s), as authorized by your agency. GSA Fleet procedures, and the following conditions: § 102–34.205 May I use a Government (a) Government motor vehicles are motor vehicle for transportation be- used for official purposes only and sole- tween my residence and place of employment? ly in the performance of the contract; (b) Government motor vehicles can- No, you may not use a Government not be used for transportation between motor vehicle for transportation be- residence and place of employment, un- tween your residence and place of em- less authorized in accordance with 31 ployment unless your agency author- U.S.C. 1344 and part 102–5 of this chap- izes such use after making the nec- ter; and essary determination under 31 U.S.C. (c) Contractors must: 1344 and part 102–5 of this title. Your (1) Establish and enforce suitable agency must keep a copy of the written penalties against employees who use, authorization within the agency and or authorize the use of, Government monitor the use of these motor vehi- motor vehicles for unofficial purposes cles. or for other than in the performance of the contract; and § 102–34.210 May I use a Government (2) Pay any expenses or cost, without motor vehicle for transportation be- Government reimbursement, for using tween places of employment and Government motor vehicles other than mass transit facilities? in the performance of the contract. Yes, you may use a Government motor vehicle for transportation be- § 102–34.220 What does GSA do if it tween places of employment and mass learns of unofficial use of a Govern- transit facilities under the following ment motor vehicle? conditions: GSA reports the matter to the head (a) The head of your agency must of your agency. The agency inves- make a determination in writing, valid tigates and may, if appropriate, take for one year, that such use is appro- disciplinary action under 31 U.S.C. 1349 priate and consistent with sound budg- or may report the violation to the At- et policy, and the determination must torney General for prosecution under be kept on file; 18 U.S.C. 641.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00087 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–34.225 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–34.225 How are Federal employ- § 102–34.250 Do Federal employees in ees disciplined for misuse of Gov- Government motor vehicles have to ernment motor vehicles? use all safety devices and follow all If an employee willfully uses, or au- safety guidelines? thorizes the use of, a Government Yes, Federal employees in Govern- motor vehicle for other than official ment motor vehicles have to use all purposes, the employee is subject to provided safety devices including safe- suspension of at least one month or, up ty belts and follow all appropriate to and including, removal by the head motor vehicle manufacturer safety of the agency (31 U.S.C. 1349). guidelines.

§ 102–34.230 How am I responsible for protecting Government motor vehi- Subpart E—Replacement of Motor cles? Vehicles When a Government motor vehicle is § 102–34.255 What are motor vehicle under your control, you must: replacement standards? (a) Park or store the Government Motor vehicle replacement standards motor vehicle in a manner that reason- specify the minimum number of years ably protects it from theft or damage; and in use or miles traveled at which an executive agency may replace a Govern- (b) Lock the unattended Government ment-owned motor vehicle (see § 102– motor vehicle. (The only exception to this requirement is when fire regula- 34.270). tions or other directives prohibit lock- § 102–34.260 May we replace a Govern- ing motor vehicles in closed buildings ment-owned motor vehicle sooner? or enclosures.) Yes. You may replace a Government- § 102–34.235 Am I bound by State and owned motor vehicle if it needs body or local traffic laws? mechanical repairs that exceed the fair Yes. You must obey all motor vehicle market value of the motor vehicle. De- traffic laws of the State and local juris- termine the fair market value by add- diction, except when the duties of your ing the current market value of the position require otherwise. You are motor vehicle plus any capitalized personally responsible if you violate motor vehicle additions (such as a util- State or local traffic laws. If you are ity body or liftgate) or repairs. Your fined or otherwise penalized for an of- agency head or designee must review fense you commit while performing the replacement in advance. your official duties, but which was not required as part of your official duties, § 102–34.265 May we keep a Govern- payment is your personal responsi- ment-owned motor vehicle even though the standard permits re- bility. placement? § 102–34.240 Who pays for parking Yes. The replacement standard is a fees? minimum only, and therefore, you may You must pay parking fees while op- keep a Government-owned motor vehi- erating a Government motor vehicle. cle longer than shown in § 102–34.270 if However, you can expect to be reim- the motor vehicle can be operated bursed for parking fees incurred while without excessive maintenance costs or performing official duties. substantial reduction in resale value.

§ 102–34.245 Who pays for parking § 102–34.270 How long must we keep a fines? Government-owned motor vehicle? If you are fined for a parking viola- You must keep a Government-owned tion while operating a Government motor vehicle for at least the years or motor vehicle, you are responsible for miles shown in the following table, un- paying the fine and will not be reim- less it is no longer needed and declared bursed. excess:

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00088 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–34.295

TABLE OF MINIMUM REPLACEMENT STANDARDS (b) For motor vehicles that display license plates issued by a State, Com- 1 1 Motor vehicle type Years Or miles monwealth, territory, or possession of Sedans/Station Wagons .... 3 60,000 the United States, motor vehicle safety Ambulances ...... 7 60,000 inspections required by the relevant Buses: Intercity ...... n/a 280,000 motor vehicle administration. Your City ...... n/a 150,000 agency must pay for these inspections School ...... n/a 80,000 Trucks: unless the fee is waived. Payment for Less than 12,500 these inspections for motor vehicles pounds GVWR ...... 6 50,000 leased from GSA Fleet is the responsi- 12,500–23,999 pounds GVWR ...... 7 60,000 bility of the using agency. Government 24,000 pounds GVWR motor vehicles that display official and over ...... 9 80,000 U.S. Government license plates do not 4- or 6-wheel drive motor vehicles ...... 6 40,000 require motor vehicle safety inspections. 1 Minimum standards are stated in both years and miles; use whichever occurs first. § 102–34.285 Where can we obtain help in setting up a maintenance pro- Subpart F—Scheduled gram? Maintenance of Motor Vehicles For help in setting up a maintenance § 102–34.275 What kind of maintenance program, contact the: General Services programs must we have? Administration, Attn: Motor Vehicle You must have a scheduled mainte- Policy, Washington, DC 20405. E-mail: nance program for each motor vehicle [email protected]. you own or lease commercially. This requirement applies to domestic fleets, Subpart G—Motor Vehicle Crash and is recommended for foreign fleets. Reporting The GSA Fleet will develop maintenance programs for GSA Fleet vehicles. § 102–34.290 What forms do I use to re- The scheduled maintenance program port a crash involving a domestic must: fleet motor vehicle? (a) Meet Federal and State emissions Use the following forms to report a and safety standards; domestic fleet crash. The forms should (b) Meet manufacturer warranty requirements; be carried in any domestic fleet motor (c) Ensure the safe and economical vehicle. operating condition of the motor vehi- (a) Standard Form (SF) 91, Motor Vehi- cle throughout its life; and cle Accident Report. The motor vehicle (d) Ensure that inspections and serv- operator should complete this form at icing occur as recommended by the the time and scene of the crash if pos- manufacturer or more often if local op- sible, even if damage to the motor ve- erating conditions require. hicle is not noticeable. (b) SF 94, Statement of Witness. This § 102–34.280 What State inspections form should be completed by any wit- must we have for Government ness to the crash. motor vehicles? You must have the following State § 102–34.295 To whom do we send inspections for Government motor ve- crash reports? hicles: Send crash reports as follows: (a) Federally-mandated emissions in- (a) If the motor vehicle is owned or spections when required by the relevant State motor vehicle administra- commercially leased by your agency, tion or State environmental depart- follow your internal agency directives. ment. Your agency must pay for these (b) If the motor vehicle is leased from inspections if the fee is not waived. GSA Fleet, report the crash to GSA in GSA Fleet will pay the cost of these in- accordance with subpart 101–39.4 of this spections for motor vehicles leased Title. from GSA Fleet; or

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00089 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–34.300 41 CFR Ch. 102 (7–1–11 Edition)

Subpart H—Disposal of Motor § 102–34.310 How do we distribute the Vehicles completed Standard Form 97? SF 97 is a 4-part set printed on con- § 102–34.300 How do we dispose of a tinuous-feed paper. Distribute the form domestic fleet motor vehicle? as follows: After meeting the replacement stand- (a) Original SF 97 to the purchaser or ards under subpart E of this part, you donee; may dispose of a Government-owned (b) One copy to the owning agency; domestic fleet motor vehicle. Detailed (c) One copy to the contracting offi- instructions for the transfer of an ex- cer making the sale or transfer of the cess motor vehicle to another Federal motor vehicle; and agency can be found in part 102–36 of (d) One copy under owning agency di- this subchapter B, information for the rectives. donation of surplus of motor vehicles can be found in part 102–37 of this sub- Subpart I—Motor Vehicle Fueling chapter B, information for the sale of motor vehicles can be found in part § 102–34.315 How do we obtain fuel for 102–38 of this subchapter B, and infor- Government motor vehicles? mation on exchange/sale authority can You may obtain fuel for Government be found in part 102–39 of this sub- motor vehicles by using: chapter B. (a) A Government-issued charge card; (b) A Government agency fueling fa- § 102–34.305 What forms do we use to cility; or transfer ownership when selling a motor vehicle? (c) Personal funds and obtaining reimbursement from your agency, if per- Use the following forms to transfer mitted by your agency. You must use ownership: the method prescribed by GSA Fleet to (a) SF 97, The United States Govern- obtain fuel for vehicles leased from ment Certificate to Obtain Title to a GSA fleet. Motor Vehicle, if both of the following apply: § 102–34.320 What Government-issued (1) The motor vehicle will be retitled charge cards may I use to purchase by a State, Commonwealth, territory fuel and motor vehicle related serv- or possession of the United States or ices? the District of Columbia; and (a) You may use a fleet charge card (2) The purchaser intends to operate specifically issued for this purpose. the motor vehicle on highways. These cards are designed to collect NOTE TO § 102–34.305(a)(2): Do not use SF 97 motor vehicle data at the time of pur- if the Government-owned motor vehicle is ei- chase. Where appropriate, State sales ther not designed or not legal for operation and motor fuel taxes may be deducted on highways. Examples are construction from fuel purchases by the fleet charge equipment, farm machinery, and certain card services contractor before your military-design motor vehicles and motor agency is billed; otherwise you may vehicles that are damaged beyond repair in crashes and intended to be sold as salvage need to request reimbursement from only. Instead, use an appropriate bill of sale each State to which taxes were paid. or award document. Examples are Optional The GSA contractor issued fleet charge Form 16, Sales Slip—Sale of Government card is the only Government-issued Personal Property, and SF 114C, Sale of Gov- charge card that may be used for GSA ernment Property-Bid and Award. Fleet motor vehicles. For further infor- (b) SF 97 is optional for foreign fleet mation on acquiring these fleet charge motor vehicles because foreign govern- cards and their use, contact the: Gen- ments may require the use of other eral Services Administration, ATTN: forms. GSA SmartPay® (QMB), 2200 Crystal Drive, Arlington, VA 22202. NOTE TO § 102–34.305: The original SF 97 is (b) You may use a Government pur- printed on secure paper to identify readily any attempt to alter the form. The form is chase card if you do not have a fleet also pre-numbered to prevent duplicates. charge card or if the use of such a Gov- State motor vehicle agencies may reject cer- ernment purchase card is required by tificates showing erasures or strikeovers. your agency mission. However, the

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00090 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–34.340

Government purchase card does not agencies, including GSA, in evaluating collect motor vehicle data nor does it the effectiveness of the operation and deduct State sales and motor fuel management of individual fleets to de- taxes. termine whether vehicles are being uti- NOTE TO § 102–34.320: OMB Circular A–123, lized properly and to identify high cost Appendix B, contains additional specific areas where fleet expenses can be re- guidance on the management, issuance, and duced. The FFR is posted on GSA’s usage of Government charge cards. The Ap- Motor Vehicle Management Policy pendix B guidance consolidates and updates Internet Web site (http://www.gsa.gov/ current Governmentwide charge card program requirements and guidance issued by vehiclepolicy). the Office of Management and Budget, GSA, Department of the Treasury, and other Fed- § 102–34.335 How do I submit informa- eral agencies. Appendix B provides a single tion to the General Services Admin- document to incorporate changes, new guid- istration (GSA) for the Federal ance, or amendments to existing guidance, Fleet Report (FFR)? and establishes minimum requirements and (a) Annually, agencies must submit suggested best practices for Government to GSA the information needed to charge card programs that may be supple- produce the FFR through the Federal mented by individual agency policy proce- Automotive Statistical Tool (FAST), dures. an Internet-based reporting tool. To § 102–34.325 What type of fuel do I use find out how to submit motor vehicle in Government motor vehicles? data to GSA through FAST, consult (a) Use the minimum grade (octane the instructions from your agency fleet rating) of fuel recommended by the manager and read the documentation motor vehicle manufacturer when fuel- at http://fastweb.inel.gov/. (b) Specific reporting categories, by ing Government motor vehicles, unless agency, included in the FFR are— a higher grade of fuel is all that is (1) Inventory; available locally. (2) Acquisitions; (b) Use unleaded gasoline in all for- (3) Operating costs; eign fleet motor vehicles designed to (4) Miles traveled; and operate on gasoline unless: (5) Fuel used. (1) Such use would be in conflict with NOTE TO § 102–34.335: The FAST system is country-to-country or multi-national also used by agency Fleet Managers to pro- logistics agreements; or vide the Department of Energy with infor- (2) Such gasoline is not available lo- mation required by the Energy Policy Act cally. and related Executive Orders. In addition, (c) You must use alternative fuels in the Office of Management and Budget (OMB) alternative fuel motor vehicles to the requires agency Fleet Managers and budget fullest extent possible as directed by officers to submit annual agency motor vehicle budgeting information to OMB through regulations issued by the Department FAST (see OMB Circular A–11, Preparation, of Energy implementing the Energy Submission, and Execution of the Budget). Policy Act and related Executive Or- ders. § 102–34.340 Do we need a fleet management information system? Subpart J—Federal Fleet Report Yes, you must have a fleet management information system at the de- § 102–34.330 What is the Federal Fleet partment or agency level that — Report? (a) Identifies and collects accurate The Federal Fleet Report (FFR) is an inventory, cost, and use data that cov- annual summary of Federal fleet sta- ers the complete lifecycle of each tistics based upon fleet composition at motor vehicle (acquisition, operation, the end of each fiscal year and vehicle maintenance, and disposal); and use and cost during the fiscal year. The (b) Provides the information nec- FFR is compiled by GSA from informa- essary to satisfy both internal and ex- tion submitted by Federal agencies. ternal reporting requirements, includ- The FFR is designed to provide essen- ing: tial statistical data for worldwide Fed- (1) Cost per mile; eral motor vehicle fleet operations. Re- (2) Fuel costs for each motor vehicle; view of the report assists Government and

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00091 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–34.345 41 CFR Ch. 102 (7–1–11 Edition)

(3) Data required for FAST (see § 102– disposal of personal property under the 34.335). custody and control of executive agencies located in the United States, the § 102–34.345 What records do we need U.S. Virgin Islands, American Samoa, to keep? Guam, Puerto Rico, the Northern Mar- You are responsible for developing iana Islands, the Federated States of and keeping adequate accounting and Micronesia, the Marshall Islands, and reporting procedures for Government Palau. The exceptions to this coverage motor vehicles. These will ensure accu- are part 102–39 of this subchapter B, rate recording of inventory, cost, and which applies to the replacement of all operational data needed to manage and property owned by executive agencies control motor vehicles, and will satisfy worldwide using the exchange/sale au- reporting requirements. You must also thority, and §§ 102–36.380 through 102– comply with the General Records 36.400, which apply to the disposal of Schedules issued by the National Ar- excess property located in countries chives and Records Administration and areas not listed in this subpart, (http://www.archives.gov). i.e., foreign excess personal property. The legislative and judicial branches Subpart K—Forms are encouraged to follow these provisions for property in their custody and § 102–34.350 How do we obtain the control. forms prescribed in this part? See § 102–2.135 of this chapter for how § 102–35.10 How are these regulations to obtain forms prescribed in this part. for the disposal of personal property organized? PART 102–35—DISPOSITION OF The General Services Administration (GSA) has divided its regulations for PERSONAL PROPERTY the disposal of personal property into the following program areas: Sec. 102–35.5 What is the scope of the General (a) Disposition of excess personal Services Administration’s regulations on property (part 102–36 of this subchapter the disposal of personal property? B). 102–35.10 How are these regulations for the (b) Donation of surplus personal disposal of personal property organized? property (part 102–37 of this subchapter 102–35.15 What are the goals of GSA’s per- B). sonal property regulations? (c) Sale of surplus personal property 102–35.20 What definitions apply to GSA’s personal property regulations? (part 102–38 of this subchapter B). 102–35.25 What management reports must (d) Replacement of personal property we provide? pursuant to the exchange/sale author- 102–35.30 What actions must I take or am I ity (part 102–39 of this subchapter B). authorized to take regardless of the prop- (e) Disposition of seized and forfeited, erty disposition method? voluntarily abandoned, and unclaimed AUTHORITY: 40 U.S.C. 121(c). personal property (part 102–41 of this subchapter B). SOURCE: 72 FR 10085, Mar. 7, 2007, unless otherwise noted. (f) Utilization, donation, and disposal of foreign gifts and decorations (part § 102–35.5 What is the scope of the 102–42 of this subchapter B). General Services Administration’s (g) Utilization and disposal of haz- regulations on the disposal of per- ardous materials and certain cat- sonal property? egories of property (part 101–42 of the The General Services Administra- Federal Property Management Regula- tion’s personal property disposal regu- tions (FPMR), 41 CFR part 101–42). lations are contained in this part and in parts 102–36 through 102–42 of this § 102–35.15 What are the goals of GSA’s subchapter B as well as in parts 101–42 personal property regulations? and 101–45 of the Federal Property The goals of GSA’s personal property Management Regulations (FPMR)(41 regulations are to: CFR parts 101–42 and 101–45). With two (a) Improve the identification and re- exceptions, these regulations cover the porting of excess personal property;

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00092 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–35.20

(b) Maximize the use of excess prop- Capitalized Personal Property includes erty as the first source of supply to property that is entered on the agen- minimize expenditures for the purchase cy’s general ledger records as a major of new property, when practicable; investment or asset. An agency must determine its capitalization thresholds NOTE TO § 102–35.15(b): If there are competing requests among Federal agencies for as discussed in Financial Accounting excess property, preference will be given to Standard Advisory Board (FASAB) agencies where the transfer will avoid a new Statement of Federal Financial Ac- Federal procurement. A transfer to an agen- counting Standards No. 6 Accounting cy where the agency will provide the prop- for Property, Plant and Equipment, erty to a non-Federal entity for the non-Fed- Chapter 1, paragraph 13. eral entity’s use will be secondary to Federal Control means the ongoing function use. of maintaining physical oversight and (c) Achieve maximum public benefit surveillance of personal property from the use of Government property throughout its complete life cycle through the donation of surplus per- using various property management sonal property to State and local pub- tools and techniques taking into ac- lic agencies and other eligible non-Fed- count the environment in which the eral recipients; property is located and its vulner- (d) Obtain the optimum monetary re- ability to theft, waste, fraud, or abuse. turn to the Government for surplus Excess personal property (see § 102–36.40 personal property sold and personal of this subchapter B). property sold under the exchange/sale Exchange/sale (see § 102–39.20 of this authority; and subchapter B). (e) Reduce management and inven- Executive agency (see § 102–36.40 of this tory costs by appropriate use of the subchapter B). abandonment/destruction authority to Federal agency (see § 102–36.40 of this dispose of unneeded personal property subchapter B). that has no commercial value or for Foreign gifts and decorations (for the which the estimated cost of continued definition of relevant terms, see § 102– care and handling would exceed the es- 42.10 of this subchapter B). timated sales proceeds (see FMR §§ 102– Forfeited property (see § 102–41.20 of 36.305 through 102–36.330). this subchapter B). Inventory includes a formal listing of § 102–35.20 What definitions apply to all accountable property items as- GSA’s personal property regula- signed to an agency, along with a for- tions? mal process to verify the condition, lo- The following are definitions of, or cation, and quantity of such items. cross-references to, some key terms This term may also be used as a verb to that apply to GSA’s personal property indicate the actions leading to the de- regulations in the FMR (CFR parts 102– velopment of a listing. In this sense, an 36 through 102–42). Other personal prop- inventory must be conducted using an erty terms are defined in the sections actual physical count, electronic or parts to which they primarily apply. means, and/or statistical methods. Accountable Personal Property in- National property management officer cludes nonexpendable personal prop- means an official, designated in accord- erty whose expected useful life is two ance with § 102–36.45(b) of this sub- years or longer and whose acquisition chapter B, who is responsible for ensur- value, as determined by the agency, ing effective acquisition, use, and dis- warrants tracking in the agency’s posal of excess property within your property records, including capitalized agency. and sensitive personal property. Personal property (see § 102–36.40 of Accountability means the ability to this subchapter B). account for personal property by pro- Property management means the sys- viding a complete audit trail for prop- tem of acquiring, maintaining, using erty transactions from receipt to final and disposing of the personal property disposition. of an organization or entity. Acquisition cost means the original Seized property means personal prop- purchase price of an item. erty that has been confiscated by a

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00093 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–35.25 41 CFR Ch. 102 (7–1–11 Edition)

Federal agency, and whose care and (c) You must implement policies and handling will be the responsibility of procedures to remove sensitive or clas- that agency until final ownership is de- sified information from property prior termined by the judicial process. to disposal. Agency-affixed markings Sensitive Personal Property includes should be removed, if at all possible, all items, regardless of value, that re- prior to personal property permanently quire special control and account- leaving your agency’s control. ability due to unusual rates of loss, (d) Government-owned personal prop- theft or misuse, or due to national se- erty may only be used as authorized by curity or export control consider- your agency. Title to Government- ations. Such property includes weap- owned personal property cannot be ons, ammunition, explosives, informa- transferred to a non-Federal entity un- tion technology equipment with mem- less through official procedures specifi- ory capability, cameras, and commu- cally authorized by law. nications equipment. These classifications do not preclude agencies from PART 102–36—DISPOSITION OF specifying additional personal property EXCESS PERSONAL PROPERTY classifications to effectively manage their programs. Subpart A—General Provisions Surplus personal property (see § 102– 37.25 of this subchapter B). Sec. Utilization means the identification, 102–36.5 What is the governing authority for reporting, and transfer of excess per- this part? sonal property among Federal agen- 102–36.10 What does this part cover? 102–36.15 Who must comply with the provi- cies. sions of this part? 102–36.20 To whom do ‘‘we’’, ‘‘you’’, and § 102–35.25 What management reports their variants refer? must we provide? 102–36.25 How do we request a deviation (a) There are three reports that must from these requirements and who can ap- be provided. The report summarizing prove it? the property provided to non-Federal 102–36.30 When is personal property excess? 102–36.35 What is the typical process for dis- recipients and the report summarizing posing of excess personal property? exchange/sale transactions (see §§ 102– 36.295 and 102–39.75 respectively of this DEFINITIONS subchapter B) must be provided every 102–36.40 What definitions apply to this year (negative reports are required). In part? addition, if you conduct negotiated sales of surplus personal property val- RESPONSIBILITY ued over $5,000 in any year, you must 102–36.45 What are our responsibilities in report this transaction in accordance the management of excess personal prop- with § 102–38.115 (negative reports are erty? not required for this report). 102–36.50 May we use a contractor to per- (b) The General Services Administra- form the functions of excess personal property disposal? tion (GSA) may request other reports 102–36.55 What is GSA’s role in the disposi- as authorized by 40 U.S.C. 506(a)(1)(A). tion of excess personal property?

§ 102–35.30 What actions must I take or Subpart B—Acquiring Excess Personal am I authorized to take regardless Property For Our Agency of the property disposition method? Regardless of the disposition method ACQUIRING EXCESS used: 102–36.60 Who is eligible to acquire excess (a) You must maintain property in a personal property as authorized by the safe, secure, and cost-effective manner Property Act? until final disposition. 102–36.65 Why must we use excess personal (b) You have authority to use the property instead of buying new property? 102–36.70 What must we consider when ac- abandonment/ destruction provisions quiring excess personal property? at any stage of the disposal process 102–36.75 Do we pay for excess personal (see §§ 102–36.305 through 102–36.330 and property we acquire from another federal § 102–38.70 of this subchapter B). agency under a transfer?

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00094 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–36

102–36.80 How much do we pay for excess 102–36.170 May we transfer personal prop- personal property on a transfer with re- erty owned by one of our non-appro- imbursement? priated fund activities? 102–36.85 Do we pay for personal property we acquire when it is disposed of by another CONTRACTORS agency under the exchange/sale author- 102–36.175 Are there restrictions to acquir- ity, and how much do we pay? ing excess personal property for use by our contractors? SCREENING OF EXCESS 102–36.90 How do we find out what personal COOPERATIVES property is available as excess? 102–36.180 Is there any limitation/condition 102–36.95 How long is excess personal prop- to acquiring excess personal property for erty available for screening? use by cooperatives? 102–36.100 When does the screening period start for excess personal property? PROJECT GRANTEES 102–36.105 Who is authorized to screen and 102–36.185 What are the requirements for ac- where do we go to screen excess personal quiring excess personal property for use property on-site? by our grantees? 102–36.110 Do we need authorization to 102–36.190 Must we always pay 25 percent of screen excess personal property? the original acquisition cost when fur- 102–36.115 What information must we in- nishing excess personal property to clude in the authorization form for non- project grantees? federal persons to screen excess personal 102–36.195 What type of excess personal property? property may we furnish to our project 102–36.120 What are our responsibilities in grantees? authorizing a non-federal individual to 102–36.200 May we acquire excess personal screen excess personal property? property for cannibalization purposes by the grantee? PROCESSING TRANSFERS 102–36.205 Is there a limit to how much ex- 102–36.125 How do we process a Standard cess personal property we may furnish to Form 122 (SF 122), Transfer Order Excess our grantees? Personal Property, through GSA? 102–36.130 What are our responsibilities in Subpart D—Disposition of Excess Personal processing transfer orders of excess per- Property sonal property? 102–36.135 How much time do we have to 102–36.210 Why must we report excess per- pick up excess personal property that has sonal property to GSA? been approved for transfer? 102–36.140 May we arrange to have the ex- REPORTING EXCESS PERSONAL PROPERTY cess personal property shipped to its 102–36.215 How do we report excess personal final destination? property? 102–36.220 Must we report all excess per- IRECT TRANSFERS D sonal property to GSA? 102–36.145 May we obtain excess personal 102–36.225 Must we report excess related per- property directly from another federal sonal property? agency without GSA approval? 102–36.230 Where do we send the reports of excess personal property? Subpart C—Acquiring Excess Personal 102–36.235 What information do we provide Property for Non-federal Recipients when reporting excess personal property? 102–36.240 What are the disposal condition 102–36.150 For which non-federal activities codes? may we acquire excess personal property? DISPOSING OF EXCESS PERSONAL PROPERTY 102–36.155 What are our responsibilities 102–36.245 Are we accountable for the per- when acquiring excess personal property sonal property that has been reported ex- for use by a non-federal recipient? cess, and who is responsible for the care 102–36.160 What additional information and handling costs? must we provide on the SF 122 when ac- 102–36.250 Does GSA ever take physical cus- quiring excess personal property for non- tody of excess personal property? federal recipients? 102–36.255 What options do we have when unusual circumstances do not allow ade- NON-APPROPRIATED FUND ACTIVITIES quate time for disposal through GSA? 102–36.165 Do we retain title to excess per- 102–36.260 How do we promote the expedi- sonal property furnished to a non-appro- tious transfer of excess personal prop- priated fund activity within our agency? erty?

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00095 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–36 41 CFR Ch. 102 (7–1–11 Edition)

102–36.265 What if there are competing re- 102–36.360 How do we dispose of aircraft quests for the same excess personal prop- parts that are life-limited but have no erty? FSCAP designation? 102–36.270 What if a federal agency requests personal property that is undergoing do- CANINES, LAW ENFORCEMENT nation screening or in the sales process? 102–36.365 May we transfer or donate ca- 102–36.275 May we dispose of excess personal nines that have been used in the perform- property without GSA approval? ance of law enforcement duties? 102–36.280 May we withdraw from the disposal process excess personal property DISASTER RELIEF PROPERTY that we have reported to GSA? 102–36.370 Are there special requirements TRANSFERS WITH REIMBURSEMENT concerning the use of excess personal 102–36.285 May we charge for personal prop- property for disaster relief? erty transferred to another federal agency? FIREARMS 102–36.290 How much do we charge for excess 102–36.375 May we dispose of excess fire- personal property on a transfer with re- arms? imbursement? FOREIGN EXCESS PERSONAL PROPERTY REPORT OF DISPOSAL ACTIVITY 102–36.380 Who is responsible for disposing 102–36.295 Is there any reporting require- of foreign excess personal property? ment on the disposition of excess personal property? 102–36.385 What are our responsibilities in 102–36.300 How do we report the furnishing the disposal of foreign excess personal of personal property to non-federal re- property? cipients? 102–36.390 How may we dispose of foreign excess personal property? ABANDONMENT/DESTRUCTION 102–36.395 How may GSA assist us in dis- 102–36.305 May we abandon or destroy excess posing of foreign excess personal prop- personal property without reporting it to erty? GSA? 102–36.400 Who pays for the transportation 102–36.310 Who makes the determination to costs when foreign excess personal prop- abandon or destroy excess personal property is returned to the United States? erty? 102–36.315 Are there any restrictions to the GIFTS use of the abandonment/destruction au- 102–36.405 May we keep gifts given to us thority? from the public? 102–36.320 May we transfer or donate excess 102–36.410 How do we dispose of a gift in the personal property that has been deter- form of money or intangible personal mined appropriate for abandonment/de- property? struction without GSA approval? 102–36.415 How do we dispose of gifts other 102–36.325 What must be done before the than intangible personal property? abandonment/destruction of excess personal property? 102–36.420 How do we dispose of gifts from 102–36.330 Are there occasions when public foreign governments or entities? notice is not needed regarding abandon- HAZARDOUS PERSONAL PROPERTY ment/destruction of excess personal property? 102–36.425 May we dispose of excess hazardous personal property? Subpart E—Personal Property Whose Disposal Requires Special Handling MUNITIONS LIST ITEMS/COMMERCE CONTROL LIST ITEMS (MLIS/CCLIS) 102–36.335 Are there certain types of excess personal property that must be disposed 102–36.430 May we dispose of excess Muni- of differently from normal disposal pro- tions List Items (MLIs)/Commerce Con- cedures? trol List Items (CCLIs)? 102–36.435 How do we identify Munitions AIRCRAFT AND AIRCRAFT PARTS List Items (MLIs)/Commerce Control List Items (CCLIs) requiring demili- 102–36.340 What must we do when disposing tarization? of excess aircraft? 102–36.345 May we dispose of excess Flight PRINTING EQUIPMENT AND SUPPLIES Safety Critical Aircraft Parts (FSCAP)? 102–36.350 How do we identify a FSCAP? 102–36.440 Are there special procedures for 102–36.355 What are the FSCAP Criticality reporting excess printing and binding Codes? equipment and supplies?

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00096 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.35

RED CROSS PROPERTY § 102–36.15 Who must comply with the 102–36.445 Do we report excess personal provisions of this part? property originally acquired from or All executive agencies must comply through the American National Red with the provisions of this part. The Cross? legislative and judicial branches are SHELF-LIFE ITEMS encouraged to report and transfer excess personal property and fill their 102–36.450 Do we report excess shelf-life personal property requirements from items? 102–36.455 How do we report excess shelf-life excess in accordance with these provi- items? sions. 102–36.460 Do we report excess medical shelf- life items held for national emergency § 102–36.20 To whom do ‘‘we’’, ‘‘you’’, purposes? and their variants refer? 102–36.465 May we transfer or exchange ex- Use of pronouns ‘‘we’’, ‘‘you’’, and cess medical shelf-life items with other their variants throughout this part Federal agencies? refer to the agency. VESSELS § 102–36.25 How do we request a devi- 102–36.470 What must we do when disposing ation from these requirements and of excess vessels? who can approve it? See §§ 102–2.60 through 102–2.110 of Subpart F—Miscellaneous Disposition this chapter to request a deviation 102–36.475 What is the authority for trans- from the requirements of this part. fers under ‘‘Computers for Learning’’? § 102–36.30 When is personal property AUTHORITY: 40 U.S.C. 121(c). excess? SOURCE: 65 FR 31218, May 16, 2000, unless Personal property is excess when it is otherwise noted. no longer needed by the activities within your agency to carry out the Subpart A—General Provisions functions of official programs, as determined by the agency head or designee. § 102–36.5 What is the governing authority for this part? § 102–36.35 What is the typical process Section 121(c) of title 40, United for disposing of excess personal States Code, authorizes the Adminis- property? trator of General Services to prescribe (a) You must ensure personal prop- regulations as he deems necessary to erty not needed by your activity is of- carry out his functions under subtitle I fered for use elsewhere within your of title 40. Section 521 of title 40 au- agency. If the property is no longer thorizes the General Services Adminis- needed by any activity within your tration (GSA) to prescribe policies to agency, your agency declares the prop- promote the maximum use of excess erty excess and reports it to GSA for Government personal property by exec- possible transfer to eligible recipients, utive agencies. including federal agencies for direct use or for use by their contractors, [71 FR 53571, Sept. 12, 2006] project grantees, or cooperative agree- § 102–36.10 What does this part cover? ment recipients. All executive agencies must, to the maximum extent prac- This part covers the acquisition, ticable, fill requirements for personal transfer, and disposal, by executive property by using existing agency agencies, of excess personal property property or by obtaining excess prop- located in the United States, the U.S. erty from other federal agencies in lieu Virgin Islands, American Samoa, of new procurements. Guam, Puerto Rico, the Federated (b) If GSA determines that there are States of Micronesia, the Marshall Is- no federal requirements for your excess lands, Palau, and the Northern Mar- personal property, it becomes surplus iana Islands. property and is available for donation [65 FR 31218, May 16, 2000, as amended at 71 to state and local public agencies and FR 53571, Sept. 12, 2006] other eligible non-federal activities.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00097 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.40 41 CFR Ch. 102 (7–1–11 Edition)

Title 40 of the United States Code re- (1) The purpose of the relationship is quires that surplus personal property the transfer, between a federal agency be distributed to eligible recipients by and a non-federal entity, of money, an agency established by each State for property, services, or anything of value this purpose, the State Agency for Sur- to accomplish a public purpose author- plus Property. ized by law, rather than by purchase, (c) Surplus personal property not se- lease, or barter, for the direct benefit lected for donation is offered for sale to or use of the federal government. the public by competitive offerings (2) Substantial involvement is antici- such as sealed bid sales, spot bid sales, pated between the federal agency and or auctions. You may conduct or con- the cooperative during the perform- tract for the sale of your surplus per- ance of the agreed upon activity. sonal property, or have GSA or another (3) The cooperative is a state or local executive agency conduct the sale on government entity or any person or or- behalf of your agency in accordance ganization authorized to receive fed- with part 102–38 of this chapter. You eral assistance or procurement con- must inform GSA at the time the prop- tracts. erty is reported as excess if you do not Demilitarization means, as defined by want GSA to conduct the sale for you. the Department of Defense, the act of (d) If a written determination is destroying the military capabilities in- made that the property has no com- herent in certain types of equipment or mercial value or the estimated cost of material. Such destruction may in- its continued care and handling would clude deep sea dumping, mutilation, exceed the estimated proceeds from its cutting, crushing, scrapping, melting, sale, you may dispose of the property burning, or alteration so as to prevent by abandonment or destruction, or do- the further use of the item for its origi- nate it to public bodies. nally intended purpose. [65 FR 31218, May 16, 2000, as amended at 71 Excess personal property means any FR 53571, Sept. 12, 2006] personal property under the control of any federal agency that is no longer re- DEFINITIONS quired for that agency’s needs, as determined by the agency head or des- § 102–36.40 What definitions apply to ignee. this part? Exchange/sale property is property not The following definitions apply to excess to the needs of the holding agen- this part: cy but eligible for replacement, which Commerce Control List Items (CCLIs) is exchanged or sold under the provi- are dual use (commercial/military) sions of part 102–39 of this chapter in items that are subject to export con- order to apply the exchange allowance trol by the Bureau of Export Adminis- or proceeds of sale in whole or part tration, Department of Commerce. payment for replacement with a simi- These items have been identified in the lar item. U.S. Export Administration Regula- Executive agency means any executive tions (15 CFR part 774) as export con- department or independent establish- trolled for reasons of national security, ment in the executive branch of the crime control, technology transfer, and Government, including any wholly scarcity of materials. owned government corporation. Cooperative means the organization Fair market value means the best esti- or entity that has a cooperative agree- mate of the gross sales proceeds if the ment with a federal agency. property were to be sold in a public Cooperative agreement means a legal sale. instrument reflecting a relationship Federal agency means any executive between a federal agency and a non- agency or any establishment in the leg- federal recipient, made in accordance islative or judicial branch of the gov- with the Federal Grant and Coopera- ernment (except the Senate, the House tive Agreement Act of 1977 (31 U.S.C. of Representatives, and the Architect 6301–6308), under any or all of the fol- of the Capitol and any activities under lowing circumstances: his/her direction).

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00098 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.40

Flight Safety Critical Aircraft Part Line item means a single line entry, (FSCAP) is any aircraft part, assembly, on a reporting form or transfer order, or installation containing a critical for items of property of the same type characteristic whose failure, malfunc- having the same description, condition tion, or absence could cause a cata- code, and unit cost. strophic failure resulting in engine Munitions List Items (MLIs) are com- shut-down or loss or serious damage to modities (usually defense articles/de- the aircraft resulting in an unsafe con- fense services) listed in the Inter- dition. national Traffic in Arms Regulation (22 Foreign excess personal property is any CFR part 121), published by the U.S. U.S. owned excess personal property lo- Department of State. cated outside the United States (U.S.), Nonappropriated fund activity means the U.S. Virgin Islands, American an activity or entity that is not funded Samoa, Guam, Puerto Rico, the Fed- by money appropriated from the generated States of Micronesia, the Mar- eral fund of the U.S. Treasury, such as shall Islands, Palau, and the Northern post exchanges, ship stores, military Mariana Islands. officers’ clubs, veterans’ canteens, and Grant means a type of assistance similar activities. Such property is not award and a legal instrument which federal property. permits a federal agency to transfer Personal property means any prop- money, property, services or other erty, except real property. For pur- things of value to a grantee when no poses of this part, the term excludes substantial involvement is anticipated records of the federal government, and between the agency and the recipient naval vessels of the following cat- during the performance of the con- egories: battleships, cruisers, aircraft templated activity. carriers, destroyers, and submarines. GSAXcess® is GSA’s website for re- Project grant means a grant made for porting, searching and selecting excess a specific purpose and with a specific personal property. For information on termination date. using GSAXcess®, access http:// Public agency means any State, polit- www.gsaxcess.gov. ical subdivision thereof, including any Hazardous personal property means unit of local government or economic property that is deemed a hazardous development district; any department, material, chemical substance or mix- agency, or instrumentality thereof, in- ture, or hazardous waste under the cluding instrumentalities created by Hazardous Materials Transportation compact or other agreement between Act (HMTA) (49 U.S.C. 5101), the Re- States or political subdivisions; multi- source Conservation and Recovery Act jurisdictional substate districts estab- (RCRA) (42 U.S.C. 6901–6981), or the lished by or pursuant to State law; or Toxic Substances Control Act (TSCA) any Indian tribe, band, group, pueblo, (15 U.S.C. 2601–2609). or community located on a State res- Holding agency means the federal ervation. agency having accountability for, and Related personal property means any generally possession of, the property personal property that is an integral involved. part of real property. It is: Intangible personal property means (1) Related to, designed for, or spe- personal property in which the exist- cifically adapted to the functional ca- ence and value of the property is gen- pacity of the real property and removal erally represented by a descriptive doc- of this personal property would signifi- ument rather than the property itself. cantly diminish the economic value of Some examples are patents, patent the real property; or rights, processes, techniques, inven- (2) Determined by the Administrator tions, copyrights, negotiable instru- of General Services to be related to the ments, money orders, bonds, and shares real property. of stock. Salvage means property that has Life-limited aircraft part is an aircraft value greater than its basic material part that has a finite service life ex- content but for which repair or reha- pressed in either total operating hours, bilitation is clearly impractical and/or total cycles, and/or calendar time. uneconomical.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00099 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.45 41 CFR Ch. 102 (7–1–11 Edition)

Scrap means property that has no (2) Review and approve the acquisi- value except for its basic material con- tion and disposal of excess personal tent. property. Screening period means the period in (3) Ensure that any agency imple- which excess and surplus personal menting procedures comply with this property are made available for excess part. transfer or surplus donation to eligible (c) When acquiring excess personal recipients. property, you must: Shelf-life item is any item that dete- (1) Limit the quantity acquired to riorates over time or has unstable that which is needed to adequately per- characteristics such that a storage pe- form the function necessary to support riod must be assigned to assure the the mission of your agency. item is issued within that period to (2) Establish controls over the proc- provide satisfactory performance. Man- essing of excess personal property agement of such items is governed by transfer orders. part 101–27, subpart 27.2, of this title (3) Facilitate the timely pickup of and by DOD instructions, for executive acquired excess personal property from agencies and DOD respectively. the holding agency. Surplus personal property (surplus) (d) While excess personal property means excess personal property no you have acquired is in your custody, longer required by the Federal agencies or the custody of your non-Federal reas determined by GSA. cipients and the government retains Surplus release date means the date title, you and/or the non-Federal re- when federal screening has been com- cipient must do the following: pleted and the excess property becomes (1) Establish and maintain a system surplus. for property accountability. Transfer with reimbursement means a (2) Protect the property against haz- transfer of excess personal property be- ards including but not limited to fire, tween Federal agencies where the re- theft, vandalism, and weather. cipient is required to pay, i.e. reim- (3) Perform the care and handling of burse the holding agency, for the prop- personal property. ‘‘Care and handling’’ erty. includes completing, repairing, con- Unit cost means the original acquisi- verting, rehabilitating, operating, pre- tion cost of a single item of property. serving, protecting, insuring, packing, United States means all the 50 States storing, handling, conserving, and and the District of Columbia. transporting excess and surplus per- Vessels means ships, boats and craft sonal property, and destroying or ren- designed for navigation in and on the dering innocuous property which is water, propelled by oars or paddles, dangerous to public health or safety. sail, or power. (4) Maintain appropriate inventory [65 FR 31218, May 16, 2000, as amended at 71 levels as set forth in part 101–27 of this FR 53571, Sept. 12, 2006] title. (5) Continuously monitor the per- RESPONSIBILITY sonal property under your control to assure maximum use, and develop and § 102–36.45 What are our responsibil- maintain a system to prevent and de- ities in the management of excess tect nonuse, improper use, unauthor- personal property? ized disposal, or destruction of personal (a) Agency procurement policies property. should require consideration of excess (e) When you no longer need personal personal property before authorizing property to carry out the mission of procurement of new personal property. your program, you must: (b) You are encouraged to designate (1) Offer the property for reassign- national and regional property man- ment to other activities within your agement officials to: agency. (1) Promote the use of available ex- (2) Promptly report excess personal cess personal property to the maximum property to GSA when it is no longer extent practicable by your agency. needed by any activity within your

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00100 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.70

agency for further reuse by eligible re- Subpart B—Acquiring Excess cipients. Personal Property For Our Agency (3) Continue the care and handling of excess personal property while it goes ACQUIRING EXCESS through the disposal process. (4) Facilitate the timely transfer of § 102–36.60 Who is eligible to acquire excess personal property to other fed- excess personal property as author- eral agencies or authorized eligible re- ized by the Property Act? cipients. The following are eligible to acquire (5) Provide reasonable access to au- excess personal property: thorized personnel for inspection and (a) Federal agencies (for their own removal of excess personal property. use or use by their authorized contrac- (6) Ensure that final disposition com- tors, cooperatives, and project grant- plies with applicable environmental, ees). health, safety, and national security (b) The Senate. regulations. (c) The House of Representatives. (d) The Architect of the Capitol and § 102–36.50 May we use a contractor to any activities under his direction. perform the functions of excess per- (e) The DC Government. sonal property disposal? (f) Mixed-ownership government cor- Yes, you may use service contracts porations as defined in 31 U.S.C. 9101. to perform disposal functions that are not inherently governmental, such as § 102–36.65 Why must we use excess warehousing or custodial duties. You personal property instead of buying are responsible for ensuring that the new property? contractor conforms with the require- Using excess personal property to the ments of Title 40 of the United States maximum extent practicable maxi- Code and the Federal Management mizes the return on government dollars Regulation (41 CFR chapter 102), and spent and minimizes expenditures for any other applicable statutes and regu- new procurement. Before purchasing lations when performing these func- new property, check with the appro- tions. priate regional GSA Personal Property [65 FR 31218, May 16, 2000, as amended at 71 Management office or access FR 53571, Sept. 12, 2006] GSAXcess® for any available excess personal property that may be suitable § 102–36.55 What is GSA’s role in the for your needs. You must use excess disposition of excess personal prop- personal property unless it would cause erty? serious hardship, be impractical, or im- In addition to developing and issuing pair your operations. regulations for the management of ex- [65 FR 31218, May 16, 2000, as amended at 71 cess personal property, GSA: FR 53572, Sept. 12, 2006] (a) Screens and offers available excess personal property to Federal agen- § 102–36.70 What must we consider cies and eligible non-federal recipients. when acquiring excess personal (b) Approves and processes transfers property? of excess personal property to eligible Consider the following when acquir- activities. ing excess personal property: (c) Determines the amount of reim- (a) There must be an authorized re- bursement for transfers of excess per- quirement. sonal property when appropriate. (b) The cost of acquiring and main- (d) Conducts sales of surplus and ex- taining the excess personal property change/sale personal property when re- (including packing, shipping, pickup, quested by an agency. and necessary repairs) does not exceed (e) Maintains an automated system, the cost of purchasing and maintaining ® GSAXcess , to facilitate the reporting new material. and transferring of excess personal (c) The sources of spare parts or re- property. pair/maintenance services to support [65 FR 31218, May 16, 2000, as amended at 71 the acquired item are readily acces- FR 53571, Sept. 12, 2006] sible.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00101 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.75 41 CFR Ch. 102 (7–1–11 Edition)

(d) The supply of excess parts ac- § 102–36.80 How much do we pay for quired must not exceed the life expect- excess personal property on a ancy of the equipment supported. transfer with reimbursement? (e) The excess personal property will (a) You may be required to reimburse fulfill the required need with reason- the holding agency the fair market able certainty without sacrificing mis- value when the transfer involves any of sion or schedule. the conditions in § 102–36.75(b)(1) (f) You must not acquire excess per- through (b)(4). sonal property with the intent to sell (b) When acquiring excess personal or trade for other assets. property for your project grantees (§ 102–36.75(b)(5)), you are required to § 102–36.75 Do we pay for excess per- deposit into the miscellaneous receipts sonal property we acquire from an- fund of the U.S. Treasury an amount other federal agency under a trans- equal to 25 percent of the original ac- fer? quisition cost of the property, except (a) No, except for the situations list- for transfers under the conditions cited ed in paragraph (b) of this section, you in § 102–36.190. do not pay for the property. However, (c) When you or the holding agency is you are responsible for shipping and the DC Government or a wholly owned transportation costs. Where applicable, or mixed-ownership Government cor- you may also be required to pay pack- poration (§ 102–36.75(b)(6) or (b)(7)), you ing, loading, and any costs directly re- are required to reimburse the holding lated to the dismantling of the prop- agency using fair value reimbursement. erty when required for the purpose of Fair value reimbursement is 20 percent transporting the property. of the original acquisition cost for new (b) You may be required to reimburse or unused property (i.e., condition code the holding agency for excess personal 1), and zero percent for other personal property transferred to you (i.e., trans- property. Where circumstances war- fer with reimbursement) when: rant, a higher fair value may be used if (1) Reimbursement is directed by the agencies concerned agree. Due to GSA. special circumstances or the unusual (2) The property was originally ac- nature of the property, the holding quired with funds not appropriated agency may use other criteria for es- from the general fund of the Treasury tablishing fair value if approved or di- or appropriated therefrom but by law rected by GSA. You must refer any dis- reimbursable from assessment, tax, or agreements to the appropriate regional other revenue and the holding agency GSA Personal Property Management requests reimbursement. It is executive office. branch policy that working capital fund property shall be transferred § 102–36.85 Do we pay for personal without reimbursement. property we acquire when it is disposed of by another agency under (3) The property was acquired with the exchange/sale authority, and appropriated funds, but reimbursement how much do we pay? is required or authorized by law. Yes, you must pay for personal prop- (4) You or the holding agency is the erty disposed of under the exchange/ U.S. Postal Service (USPS). sale authority, in the amount required (5) You are acquiring excess personal by the holding agency. The amount of property for use by a project grantee reimbursement is normally the fair that is a public agency or a nonprofit market value. organization and exempt from taxation under 26 U.S.C. 501. SCREENING OF EXCESS (6) You or the holding agency is the DC Government. § 102–36.90 How do we find out what (7) You or the holding agency is a personal property is available as ex- wholly owned or mixed-ownership gov- cess? ernment corporation as defined in the You may use the following methods Government Corporation Control Act to find out what excess personal prop- (31 U.S.C. 9101–9110). erty is available:

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00102 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.125

(a) Check GSAXcess®, GSA’s website agency in addition to a valid picture for searching and selecting excess per- identification. sonal property. For information on (b) Entry on some federal and con- GSAXcess®, access http:// tractor facilities may require special www.gsaxcess.gov. authorization from that facility. Per- (b) Contact or submit want lists to sons wishing to screen excess personal regional GSA Personal Property Man- property on such a facility must obtain agement offices. approval from that agency. Contact (c) Check any available holding agen- your regional GSA Personal Property cy websites. Management office for locations and (d) Conduct on-site screening at var- accessibility. ious federal facilities. § 102–36.115 What information must [65 FR 31218, May 16, 2000, as amended at 71 we include in the authorization FR 53572, Sept. 12, 2006] form for non-federal persons to screen excess personal property? § 102–36.95 How long is excess personal property available for screen- (a) For non-federal persons to screen ing? excess personal property, you must The screening period for excess per- provide on the authorization form: sonal property is normally 21 calendar (1) The individual’s name and the or- days. GSA may extend or shorten the ganization he/she represents; screening period in coordination with (2) The period of time and location(s) the holding agency. For screening in which screening will be conducted; timeframes for government property in and the possession of contractors see the (3) The number and completion date Federal Acquisition Regulation (48 of the applicable contract, cooperative CFR part 45). agreement, or grant. (b) An authorized official of your § 102–36.100 When does the screening agency must sign the authorization period start for excess personal form. property? Screening starts when GSA receives § 102–36.120 What are our responsibil- the report of excess personal property ities in authorizing a non-federal (see § 102–36.230). individual to screen excess personal property? § 102–36.105 Who is authorized to You must do the following: screen and where do we go to (a) Ensure that the non-federal screen excess personal property on- screener certifies that any and all site? property requested will be used for au- You may authorize your agency em- thorized official purpose(s). ployees, contractors, or non-federal re- (b) Maintain a record of the author- cipients that you sponsor to screen ex- ized screeners under your authority, to cess personal property. You may visit include names, addresses and telephone Defense Reutilization and Marketing numbers, and any additional identi- Offices (DRMOs) and DOD contractor fying information such as driver’s li- facilities to screen excess personal cense or social security numbers. property generated by the Department (c) Retrieve any expired or invalid of Defense. You may also inspect ex- screener’s authorization forms. cess personal property at various civilian agency facilities throughout the PROCESSING TRANSFERS United States. § 102–36.125 How do we process a § 102–36.110 Do we need authorization Standard Form 122 (SF 122), Trans- to screen excess personal property? fer Order Excess Personal Property, (a) Yes, when entering a federal facil- through GSA? ity, federal agency employees must (a) You must first contact the appro- present a valid Federal ID. Non-federal priate regional GSA Personal Property individuals will need proof of author- Management office to assure the prop- ization from their sponsoring federal erty is available to you. Submit your

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00103 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.130 41 CFR Ch. 102 (7–1–11 Edition)

request on a SF 122, Transfer Order Ex- § 102–36.140 May we arrange to have cess Personal Property, to the region the excess personal property in which the property is located. For shipped to its final destination? the types of property listed in the table Yes, when the holding agency agrees in paragraph (b) of this section, submit to provide assistance in preparing the the SF 122 to the corresponding GSA property for shipping. You may be re- regions. You may submit the SF 122 manually or transmit the required in- quired to pay the holding agency any formation by electronic media direct costs in preparing the property (GSAXcess®) or any other transfer for shipment. You must provide ship- form specified and approved by GSA. ping instructions and the appropriate (b) For the following types of prop- fund code for billing purposes on the erty, you must submit the SF 122 to SF 122. the corresponding GSA regions: DIRECT TRANSFERS Type of property GSA re- Location gion § 102–36.145 May we obtain excess per- Aircraft ...... 9 FBP San Francisco, CA 94102. sonal property directly from an- Firearms ...... 7 FP–8 Denver, CO 80225. other Federal agency without GSA Foreign Gifts ...... FBP Washington, DC 20406. approval? Forfeited Property 3 FP Washington, DC 20407. Standard Forms ... 7 FMP Ft. Worth, TX 76102. Yes, but only under the following sit- Vessels, civilian ... 4 FD Atlanta, GA 30365. uations: Vessels, DOD ...... 3 FPD Philadelphia, PA 19107. (a) You may obtain excess personal property that has not yet been re- [65 FR 31218, May 16, 2000; 65 FR 33889, May 25, 2000, as amended at 71 FR 53572, Sept. 12, ported to GSA, provided the total ac- 2006] quisition cost of the excess property does not exceed $10,000 per line item. § 102–36.130 What are our responsibil- You must ensure that a SF 122 is com- ities in processing transfer orders pleted for the direct transfer and that of excess personal property? an authorized official of your agency Whether the excess is for your use or signs the SF 122. You must provide a for use by a non-federal recipient that copy of the SF 122 to the appropriate you sponsor, you must: regional GSA office within 10 workdays (a) Ensure that only authorized fed- from the date of the transaction. eral officials of your agency sign the (b) You may obtain excess personal SF 122 prior to submission to GSA for property exceeding the $10,000 per line approval. item limitation, provided you first con- (b) Ensure that excess personal prop- tact the appropriate regional GSA Per- erty approved for transfer is used for sonal Property Management office for authorized official purpose(s). verbal approval of a prearranged trans- (c) Advise GSA of names of agency fer. You must annotate the SF 122 with officials that are authorized to approve SF 122s, and notify GSA of any changes the name of the GSA approving official in signatory authority. and the date of the verbal approval, and provide a copy of the SF 122 to § 102–36.135 How much time do we GSA within 10 workdays from the date have to pick up excess personal of transaction. property that has been approved (c) You are subject to the require- for transfer? ment to pay reimbursement for the ex- Normally, you have 15 calendar days cess personal property under a direct from the date of GSA allocation to transfer when any of the conditions in pick up the excess personal property § 102–36.75(b) applies. for transfer, and you are responsible (d) You may obtain excess personal for scheduling and coordinating the property directly from another federal property removal with the holding agency without GSA approval when agency. If additional removal time is that federal agency has statutory au- required, you are responsible for re- thority to dispose of such excess per- questing such additional removal time. sonal property and you are an eligible [74 FR 41060, Aug. 14, 2009] recipient.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00104 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.175

Subpart C—Acquiring Excess Per- § 102–36.160 What additional informa- sonal Property for Non-Fed- tion must we provide on the SF 122 when acquiring excess personal eral Recipients property for non-federal recipients? § 102–36.150 For which non-federal ac- Annotate on the SF 122, the name of tivities may we acquire excess per- the non-federal recipient and the con- sonal property? tract, grant or agreement number, when applicable, and the scheduled Under the Property Act you may ac- completion/expiration date of the con- quire and furnish excess personal prop- tract, grant or agreement. If the re- erty for use by your non-appropriated maining time prior to the expiration fund activities, contractors, coopera- date is less than 60 calendar days, you tives, and project grantees. You may must certify that the contract, grant acquire and furnish excess personal or agreement will be extended or re- property for use by other eligible renewed or provide other written jus- cipients only when you have specific tification for the transfer. statutory authority to do so. NON-APPROPRIATED FUND ACTIVITIES § 102–36.155 What are our responsibilities when acquiring excess per- § 102–36.165 Do we retain title to ex- sonal property for use by a non-fed- cess personal property furnished to eral recipient? a non-appropriated fund activity When acquiring excess personal prop- within our agency? erty for use by a non-federal recipient, Yes, title to excess personal property your authorized agency official must: furnished to a non-appropriated fund (a) Ensure the use of excess personal activity remains with the Federal Gov- property by the non-federal recipient is ernment and you are accountable for authorized and complies with applica- establishing controls over the use of ble federal regulations and agency such excess property in accordance guidelines. with § 102–36.45(d). When such property (b) Determine that the use of excess is no longer required by the non-appro- personal property will reduce the costs priated fund activity, you must reuse to the government and/or that it is in or dispose of the property in accord- the government’s best interest to fur- ance with this part. nish excess personal property. § 102–36.170 May we transfer personal (c) Review and approve transfer docu- property owned by one of our non- ments for excess personal property as appropriated fund activities? the sponsoring Federal agency. Property purchased by a non-appro- (d) Ensure the non-federal recipient priated fund activity is not federal is aware of his obligations under the property. A non-appropriated fund ac- FMR and your agency regulations re- tivity has the option of making its pri- garding the management of excess per- vately owned personal property avail- sonal property. able for transfer to a federal agency, (e) Ensure the non-federal recipient usually with reimbursement. If such does not stockpile the property but reimbursable personal property is not places the property into use within a transferred to another federal agency, reasonable period of time, and has a it may be offered for sale. Such prop- system to prevent nonuse, improper erty is not available for donation. use, or unauthorized disposal or destruction of excess personal property [65 FR 31218, May 16, 2000, as amended at 65 furnished. FR 33778, May 25, 2000] (f) Establish provisions and proce- CONTRACTORS dures for property accountability and disposition in situations when the gov- § 102–36.175 Are there restrictions to ernment retains title. acquiring excess personal property (g) Report annually to GSA excess for use by our contractors? personal property furnished to non-fed- Yes, you may acquire and furnish ex- eral recipients during the year (see cess personal property for use by your § 102–36.295). contractors subject to the criteria and

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00105 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.180 41 CFR Ch. 102 (7–1–11 Edition)

restrictions in the Federal Acquisition without paying the 25 percent fee when Regulation (48 CFR part 45). When such any of the following conditions apply: property is no longer needed by your (a) The personal property was origi- contractors or your agency, you must nally acquired from excess sources by dispose of the excess personal property your agency and has been placed into in accordance with the provisions of official use by your agency for at least this part. one year. The federal government retains title to such property. COOPERATIVES (b) The property is furnished under section 203 of the Department of Agri- § 102–36.180 Is there any limitation/ condition to acquiring excess per- culture Organic Act of 1944 (16 U.S.C. sonal property for use by coopera- 580a) through the U.S. Forest Service tives? in connection with cooperative state forest fire control programs. The fed- Yes, you must limit the total dollar eral government retains title to such amount of property transfers (in terms property. of original acquisition cost) to the dollar value of the cooperative agreement. (c) The property is furnished by the For any transfers in excess of such U.S. Department of Agriculture to amount, you must ensure that an offi- state or county extension services or cial of your agency at a level higher agricultural research cooperatives than the officer administering the under 40 U.S.C. 483(d)(2)(E). The federal agreement approves the transfer. The government retains title to such prop- federal government retains title to erty. such property, except when provided by (d) The property is not needed for do- specific statutory authority. nation under part 102–37 of this chapter, and is transferred under section 608 PROJECT GRANTEES of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2358). Title to § 102–36.185 What are the require- such property transfers to the grantee. ments for acquiring excess personal (You need not wait until after the do- property for use by our grantees? nation screening period when fur- You may furnish excess personal nishing excess personal property to re- property for use by your grantees only cipients under the Agency for Inter- when: national Development (AID) Develop- (a) The grantee holds a federally ment Loan Program.) sponsored project grant; (e) The property is scientific equip- (b) The grantee is a public agency or ment transferred under section 11(e) of a nonprofit tax-exempt organization the National Science Foundation (NSF) under section 501 of the Internal Rev- Act of 1950, as amended (42 U.S.C. enue Code of 1986 (26 U.S.C. 501); 1870(e)). GSA will limit such transfers (c) The property is for use in connec- to property within Federal Supply tion with the grant; and Classification (FSC) groups 12, 14, 43, (d) You pay 25 percent of the original 48, 58, 59, 65, 66, 67, 68 and 70. GSA may acquisition cost of the excess personal approve transfers without reimburse- property, such funds to be deposited ment for property under other FSC into the miscellaneous receipts fund of groups when NSF certifies the item is the U.S. Treasury. Exceptions to pay- a component of or related to a piece of ing this 25 percent are provided in § 102– scientific equipment or is a difficult- 36.190. Title to property vests in the to-acquire item needed for scientific grantee when your agency pays 25 per- research. Regardless of FSC, GSA will cent of the original acquisition cost. not approve transfers of common-use or general-purpose items without reim- § 102–36.190 Must we always pay 25 bursement. Title to such property percent of the original acquisition transfers to the grantee. cost when furnishing excess per- (f) The property is furnished in con- sonal property to project grantees? nection with grants to Indian tribes, as No, you may acquire excess personal defined in section 3(c) of the Indian Fi- property for use by a project grantee nancing Act (24 U.S.C. 1452(c)). Title

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00106 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.220

passage is determined under the au- benefit from the continued use of prop- thorities of the administering agency. erty already paid for with taxpayers’ money, thus minimizing new procure- [65 FR 31218, May 16, 2000, as amended at 71 FR 53572, Sept. 12, 2006] ment costs. Reporting excess personal property to GSA helps assure that the § 102–36.195 What type of excess per- information on available excess personal property may we furnish to sonal property is accessible and dis- our project grantees? seminated to the widest range of reuse You may furnish to your project customers. grantees any property, except for consumable items, determined to be REPORTING EXCESS PERSONAL necessary and usable for the purpose of PROPERTY the grant. Consumable items are generally not transferable to project § 102–36.215 How do we report excess personal property? grantees. GSA may approve transfers of excess consumable items when ade- Report excess personal property as quate justification for the transfer ac- follows: companies such requests. For the pur- (a) Electronically submit the data pose of this section, ‘‘consumable elements required on the Standard items’’ are items which are intended Form 120 (SF 120), Report of Excess for one-time use and are actually con- Personal Property, in a format speci- sumed in that one time; e.g., drugs, fied and approved by GSA; or medicines, surgical dressings, cleaning (b) Submit a paper SF 120 to the re- and preserving materials, and fuels. gional GSA Personal Property Manage- ment office. § 102–36.200 May we acquire excess personal property for cannibaliza- § 102–36.220 Must we report all excess tion purposes by the grantees? personal property to GSA? Yes, subject to GSA approval, you (a) Generally yes, regardless of the may acquire excess personal property condition code, except as authorized in for cannibalization purposes. You may § 102–36.145 for direct transfers or as ex- be required to provide a supporting empted in paragraph (b) of this section. statement that indicates disassembly Report all excess personal property, in- of the item for secondary use has cluding excess personal property to greater benefit than utilization of the which the government holds title but is item in its existing form and cost sav- in the custody of your contractors, co- ings to the government will result. operatives, or project grantees. (b) You are not required to report the § 102–36.205 Is there a limit to how following types of excess personal prop- much excess personal property we erty to GSA for screening: may furnish to our grantees? (1) Property determined appropriate Yes, you must monitor transfers of for abandonment/destruction (see § 102– excess personal property so the total 36.305). dollar amount of property transferred (2) Non-appropriated fund property (in original acquisition cost) does not (see § 102–36.165). exceed the dollar value of the grant. (3) Foreign excess personal property Any transfers above the grant amount (see § 102–36.380). must be approved by an official at an (4) Scrap, except aircraft in scrap administrative level higher than the condition. officer administering the grant. (5) Perishables, defined for the purposes of this section as any personal Subpart D—Disposition of Excess property subject to spoilage or decay. Personal Property (6) Trading stamps and bonus goods. (7) Hazardous waste. § 102–36.210 Why must we report ex- (8) Controlled substances. cess personal property to GSA? (9) Nuclear Regulatory Commission- You must report excess personal controlled materials. property to promote reuse by the gov- (10) Property dangerous to public ernment to enable federal agencies to health and safety.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00107 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.225 41 CFR Ch. 102 (7–1–11 Edition)

(11) Classified items or property de- (b) In addition, provide the following termined to be sensitive for reasons of information on your report of excess, national security. when applicable: (c) Refer to part 101–42 of this title (1) Major parts/components that are for additional guidance on the disposi- missing. tion of classes of property under para- (2) If repairs are needed, the type of graphs (b)(7) through (b)(11) of this sec- repairs. tion. (3) Special requirements for handling, storage, or transportation. § 102–36.225 Must we report excess re- (4) The required date of removal due lated personal property? to moving or space restrictions. Yes, you must report excess related (5) If reimbursement is required, the personal property to the Office of Real authority under which the reimburse- Property, GSA, in accordance with ment is requested, the amount of reim- part 102–75 of this chapter. bursement and the appropriate fund code to which money is to be deposited. [65 FR 31218, May 16, 2000, as amended at 71 (6) If you will conduct the sale of per- FR 53572, Sept. 12, 2006] sonal property that is not transferred § 102–36.230 Where do we send the re- or donated. ports of excess personal property? § 102–36.240 What are the disposal con- (a) You must direct electronic sub- dition codes? missions of excess personal property to The disposal condition codes are con- GSAXcess® maintained by the Prop- tained in the following table: erty Management Division (FBP), GSA, Washington, DC 20406. Dis- (b) For paper submissions, you must posal send the SF 120 to the regional GSA condi- Definition tion Personal Property Management office code for the region in which the property is located. For the categories of property 1 ...... New. Property which is in new condition listed in § 102–36.125(b), forward the SF or unused condition and can be used immediately without modifications or re- 120 to the corresponding regions. pairs. 4 ...... Usable. Property which shows some wear, [65 FR 31218, May 16, 2000, as amended at 71 but can be used without significant re- FR 53572, Sept. 12, 2006] pair. 7 ...... Repairable. Property which is unusable in § 102–36.235 What information do we its current condition but can be eco- provide when reporting excess per- nomically repaired. sonal property? X ...... Salvage. Property which has value in excess of its basic material content, but (a) You must provide the following repair or rehabilitation is impractical data on excess personal property: and/or uneconomical. S ...... Scrap. Property which has no value ex- (1) The reporting agency and the cept for its basic material content. property location. (2) A report number (6-digit activity DISPOSING OF EXCESS PERSONAL address code and 4-digit Julian date). PROPERTY (3) 4-digit Federal Supply Class (use National Stock Number whenever § 102–36.245 Are we accountable for available). the personal property that has been (4) Description of item, in sufficient reported excess, and who is respon- detail. sible for the care and handling (5) Quantity and unit of issue. costs? (6) Disposal Condition Code (see § 102– Yes, you are accountable for the ex- 36.240). cess personal property until the time it (7) Original acquisition cost per unit is picked up by the designated recipi- and total cost (use estimate if original ent or its agent. You are responsible cost not available). for all care and handling charges while (8) Manufacturer, date of manufac- the excess personal property is going ture, part and serial number, when re- through the screening and disposal quired by GSA. process.

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00108 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.280

§ 102–36.250 Does GSA ever take phys- When more than one federal agency re- ical custody of excess personal quests the same item, and the quantity property? available is not sufficient to meet the Generally you retain physical cus- demand of all interested agencies, GSA tody of the excess personal property will consider factors such as national prior to its final disposition. Very rare- defense requirements, emergency ly GSA may consider accepting phys- needs, avoiding the necessity of a new ical custody of excess personal prop- procurement, energy conservation, erty. Under special circumstances, transportation costs, and retention of GSA may take custody or may direct title in the government. GSA will nor- the transfer of partial or total custody mally give preference to the agency to other executive agencies, with their that will retain title in the Govern- consent. ment. (b) Requests for property for the pur- § 102–36.255 What options do we have pose of cannibalization will normally when unusual circumstances do not be subordinate to requests for use of allow adequate time for disposal through GSA? the property in its existing form. Contact your regional GSA Personal § 102–36.270 What if a federal agency Property Management office for any requests personal property that is existing interagency agreements that undergoing donation screening or would allow you to turn in excess per- in the sales process? sonal property to a federal facility. Prior to final disposition, GSA will You are responsible for any turn in consider requests from authorized fed- costs and all costs related to trans- eral activities for excess personal prop- porting the excess personal property to erty undergoing donation screening or these facilities. in the sales process. Federal transfers § 102–36.260 How do we promote the may be authorized prior to removal of expeditious transfer of excess per- the property under a donation or sales sonal property? action. For expeditious transfer of excess § 102–36.275 May we dispose of excess personal property you should: personal property without GSA ap- (a) Provide complete and accurate proval? property descriptions and condition codes on the report of excess to facili- No, you may not dispose of excess tate the selection of usable property by personal property without GSA ap- potential users. proval except under the following lim- (b) Ensure that any available oper- ited situations: ating manual, parts list, diagram, (a) You may transfer to another fed- maintenance log, or other instruc- eral agency excess personal property tional publication is made available that has not yet been reported to GSA, with the property at the time of trans- under direct transfer procedures confer. tained in § 102–36.145. (c) Advise the designated recipient of (b) You may dispose of excess per- any special requirements for disman- sonal property that is not required to tling, shipping/transportation. be reported to GSA (see § 102–36.220(b)). (d) When the excess personal prop- (c) You may dispose of excess per- erty is located at a facility due to be sonal property without going through closed, provide advance notice of the GSA when such disposal is authorized scheduled date of closing, and ensure by law. there is sufficient time for screening and removal of property. § 102–36.280 May we withdraw from the disposal process excess per- § 102–36.265 What if there are com- sonal property that we have re- peting requests for the same excess ported to GSA? personal property? Yes, you may withdraw excess per- (a) GSA will generally approve trans- sonal property from the disposal proc- fers on a first-come, first-served basis. ess, but only with the approval of GSA

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00109 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.285 41 CFR Ch. 102 (7–1–11 Edition)

and to satisfy an internal agency re- tion (§ 102–36.285(a)(5) and (a)(6)), you quirement. Property that has been ap- may only require fair value reimburse- proved for transfer or donation or of- ment. Fair value reimbursement is 20 fered for sale by GSA may be returned percent of the original acquisition cost to your control with proper justifica- for new or unused property (i.e., condition. tion code 1), and zero percent for other personal property. A higher fair value TRANSFERS WITH REIMBURSEMENT may be used if you and the recipient § 102–36.285 May we charge for per- agency agree. Due to special cir- sonal property transferred to an- cumstances or the nature of the prop- other federal agency? erty, you may use other criteria for es- (a) When any one of the following tablishing fair value if approved or di- conditions applies, you may require rected by GSA. You must refer any dis- and retain reimbursement for the ex- agreements to the appropriate regional cess personal property from the recipi- GSA Personal Property Management ent: office. (1) Your agency has the statutory authority to require and retain reim- REPORT OF DISPOSAL ACTIVITY bursement for the property. § 102–36.295 Is there any reporting re- (2) You are transferring the property quirement on the disposition of ex- under the exchange/sale authority. cess personal property? (3) You had originally acquired the property with funds not appropriated Yes, you must report annually to from the general fund of the Treasury GSA personal property furnished in or appropriated therefrom but by law any manner in that year to any non- reimbursable from assessment, tax, or federal recipients, with respect to prop- other revenue. It is current executive erty obtained as excess or as property branch policy that working capital determined to be no longer required for fund property shall be transferred the purposes of the appropriation from without reimbursement. which it was purchased. (4) You or the recipient is the U.S. [65 FR 31218, May 16, 2000, as amended at 71 Postal Service. FR 53572, Sept. 12, 2006] (5) You or the recipient is the DC Government. § 102–36.300 How do we report the fur- (6) You or the recipient is a wholly nishing of personal property to owned or mixed-ownership government non-federal recipients? corporation. (a) Submit your annual report of per- (b) You may charge for direct costs sonal property furnished to non-federal you incurred incident to the transfer, recipients, in letter form, to GSA, Of- such as packing, loading and shipping of the property. The recipient is re- fice of Travel, Transportation, and sponsible for such charges unless you Asset Management (MT), 1800 F Street, waive the amount involved. NW, Washington, DC 20405, within 90 (c) You may not charge for overhead calendar days after the close of each or administrative expenses or the costs fiscal year. The report must cover per- for care and handling of the property sonal property disposed during the fis- pending disposition. cal year in all areas within the United States, the U.S. Virgin Islands, Amer- § 102–36.290 How much do we charge ican Samoa, Guam, Puerto Rico, the for excess personal property on a Federated States of Micronesia, the transfer with reimbursement? Marshall Islands, Palau, and the North- (a) You may require reimbursement ern Mariana Islands. Negative reports in an amount up to the fair market are required. value of the property when the transfer (b) The report (interagency report involves property meeting conditions control number 0154—GSA—AN) must in § 102–36.285(a)(1) through (a)(4). reference this part and contain the fol- (b) When you or the recipient is the lowing: DC Government or a wholly owned or (1) Names of the non-federal recipi- mixed-ownership Government corpora- ents.

100

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00110 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.330

(2) Status of the recipients (con- property only to a public body without tractor, cooperative, project grantee, going through GSA. A public body is etc.). any department, agency, special pur- (3) Total original acquisition cost of pose district, or other instrumentality excess personal property furnished to of a state or local government; any In- each type of recipient, by type of prop- dian tribe; or any agency of the federal erty (two-digit FSC groups). government. If you become aware of an [65 FR 31218, May 16, 2000, as amended at 71 interest from an eligible non-profit or- FR 53572, Sept. 12, 2006] ganization (see part 102–37 of this chapter) that is not a public body in acquir- ABANDONMENT/DESTRUCTION ing the property, you must contact the § 102–36.305 May we abandon or de- regional GSA Personal Property Man- stroy excess personal property agement office and implement dona- without reporting it to GSA? tion procedures in accordance with Yes, you may abandon or destroy ex- part 102–37 of this chapter. cess personal property when you have [65 FR 31218, May 16, 2000, as amended at 71 made a written determination that the FR 53572, Sept. 12, 2006] property has no commercial value or the estimated cost of its continued § 102–36.325 What must be done before care and handling would exceed the es- the abandonment/destruction of ex- timated proceeds from its sale. An item cess personal property? has no commercial value when it has Except as provided in § 102–36.330, you neither utility nor monetary value (either as an item or as scrap). must provide public notice of intent to abandon or destroy excess personal § 102–36.310 Who makes the deter- property, in a format and timeframe mination to abandon or destroy ex- specified by your agency regulations cess personal property? (such as publishing a notice in a local To abandon or destroy excess per- newspaper, posting of signs in common sonal property, an authorized official use facilities available to the public, or of your agency makes a written finding providing bulletins on your website that must be approved by a reviewing through the internet). You must also official who is not directly accountable include in the notice an offer to sell in for the property. accordance with part 102–38 of this chapter. § 102–36.315 Are there any restrictions to the use of the abandonment/de- § 102–36.330 Are there occasions when struction authority? public notice is not needed regard- Yes, the following restrictions apply: ing abandonment/destruction of ex- (a) You must not abandon or destroy cess personal property? property in a manner which is detri- Yes, you are not required to provide mental or dangerous to public health public notice when: or safety. Additional guidelines for the abandonment/destruction of hazardous (a) The value of the property is so lit- materials are prescribed in part 101–42 tle or the cost of its care and handling, of this title. pending abandonment/destruction, is so (b) If you become aware of an inter- great that its retention for advertising est from an entity in purchasing the for sale, even as scrap, is clearly not property, you must implement sales economical; procedures in lieu of abandonment/de- (b) Abandonment or destruction is re- struction. quired because of health, safety, or security reasons; or § 102–36.320 May we transfer or donate (c) When the original acquisition cost excess personal property that has been determined appropriate for of the item (estimated if unknown) is abandonment/destruction without less than $500. GSA approval? [65 FR 31218, May 16, 2000, as amended at 65 In lieu of abandonment/destruction, FR 34983, June 1, 2000] you may donate such excess personal

101

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00111 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.335 41 CFR Ch. 102 (7–1–11 Edition)

Subpart E—Personal Property Materiel Disposition Manual, DOD 4160.21-M, accessible at www.drms.dla.mil under ‘‘Publi- Whose Disposal Requires Spe- cations.’’ cial Handling (b) When the designated transfer or § 102–36.335 Are there certain types of donation recipient’s intended use is for excess personal property that must non-flight purposes, you must remove be disposed of differently from nor- and return the data plate to GSA Prop- mal disposal procedures? erty Management Branch (9FBP), San Yes, you must comply with the addi- Francisco, CA 94102–3434 prior to re- tional provisions in this subpart when leasing the aircraft to the authorized disposing of the types of personal prop- recipient. GSA will forward the data erty listed in this subpart. plates to FAA. (c) You must also submit a report of AIRCRAFT AND AIRCRAFT PARTS the final disposition of the aircraft to the Federal Aviation Interactive Re- § 102–36.340 What must we do when porting System (FAIRS) maintained by disposing of excess aircraft? the Office of Travel, Transportation, (a) You must report to GSA all ex- and Asset Management (MT), GSA, 1800 cess aircraft, regardless of condition or F Street, NW, Washington, DC 20405. dollar value, and provide the following For additional instructions on report- information on the SF 120: ing to FAIRS, see part 102–33 of this (1) Manufacturer, date of manufac- chapter. ture, model, serial number. [65 FR 31218, May 16, 2000, as amended at 71 (2) Major components missing from FR 53572, Sept. 12, 2006] the aircraft, such as engines, electronics. § 102–36.345 May we dispose of excess (3) Whether or not the: Flight Safety Critical Aircraft Parts (i) Aircraft is operational; (FSCAP)? (ii) Data plate is available; Yes, you may dispose of excess (iii) Historical and maintenance FSCAP, but first you must determine records are available; whether the documentation available (iv) Aircraft has been previously cer- is adequate to allow transfer, donation, tificated by the Federal Aviation Ad- or sale of the part in accordance with ministration (FAA) and/or has been part 102–33, subpart D, of this chapter. maintained to FAA airworthiness Otherwise, you must mutilate undocu- standards; mented FSCAP that has no (v) Aircraft was previously used for traceability to its original equipment non-flight purposes (i.e., ground train- manufacturer and dispose of it as ing or static display), and has been sub- scrap. When reporting excess FSCAP, jected to extensive disassembly and re- annotate the manufacturer, date of assembly procedures for ground train- manufacture, part number, serial num- ing, or repeated burning for fire-fight- ber, and the appropriate Criticality ing training purposes. Code on the SF 120, and ensure that all (4) For military aircraft, indicate available historical and maintenance Category A, B, or C as designated by records accompany the part at the the Department of Defense (DOD), as time of issue. follows: [65 FR 31218, May 16, 2000, as amended at 71 FR 53572, Sept. 12, 2006] Cat- egory of air- Description § 102–36.350 How do we identify a craft FSCAP? Any aircraft part designated as A ...... Aircraft authorized for sale and exchange for commercial use. FSCAP is assigned an alpha Criticality B ...... Aircraft previously used for ground in- Code, and the code is annotated on the struction and/or static display. original transfer document when you C ...... Aircraft that are combat configured as determined by DOD. acquire the part. You must perpetuate the appropriate FSCAP Criticality NOTE TO § 102–36.340(a)(4): For additional in- Code on all personal property records. formation on military aircraft see Defense You may contact the Federal agency or

102

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00112 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.375

Military service that originally owned DISASTER RELIEF PROPERTY the part for assistance in making this determination, or query DOD’s Federal § 102–36.370 Are there special require- Logistics Information System (FLIS) ments concerning the use of excess using the National Stock Number personal property for disaster relief? (NSN) for the part. For assistance in subscribing to the FLIS service contact Yes, upon declaration by the Presi- the FedLog Consumer Support Office, dent of an emergency or a major dis- 800–351–4381. aster, you may loan excess personal property to state and local govern- § 102–36.355 What are the FSCAP Criti- ments, with or without compensation cality Codes? and prior to reporting it as excess to The FSCAP Criticality Codes are GSA, to alleviate suffering and damage contained in the following table: resulting from any emergency or major disaster (Robert T. Stafford Disaster FSCAP Description Relief and Emergency Assistance Act code (42 U.S.C. 5121–5206) and Executive E ...... FSCAP specially designed to be or se- Order 12148 (3 CFR, 1979 Comp., p. 412), lected as being nuclear hardened. as amended). If the loan involves prop- F ...... Flight Safety Critical Aircraft Part. erty that has already been reported excess to GSA, you may withdraw the § 102–36.360 How do we dispose of air- item from the disposal process subject craft parts that are life-limited but to approval by GSA. You may also have no FSCAP designation? withdraw excess personal property for When disposing of life-limited air- use by your agency in providing assist- craft parts that have no FSCAP des- ance in disaster relief. You are still ac- ignation, you must ensure that tags countable for this property and your and labels, historical data, and mainte- agency is responsible for developing nance records accompany the part on agencywide procedures for recovery of any transfers, donations or sales. For such property. additional information regarding the [65 FR 31218, May 16, 2000, as amended at 71 disposal of life-limited parts with or FR 53572, Sept. 12, 2006] without tags or documentation, refer to part 102–33 of this chapter. FIREARMS

[65 FR 31218, May 16, 2000, as amended at 71 § 102–36.375 May we dispose of excess FR 53572, Sept. 12, 2006] firearms?

CANINES, LAW ENFORCEMENT Yes, unless you have specific statutory authority to do otherwise, excess § 102–36.365 May we transfer or donate firearms may be transferred only to canines that have been used in the those Federal agencies authorized to performance of law enforcement acquire firearms for official use. GSA duties? may donate certain classes of surplus Yes, under 40 U.S.C. 555, when the ca- firearms to State and local government nine is no longer needed for law en- activities whose primary function is forcement duties, you may donate the the enforcement of applicable federal, canine to an individual who has experi- state, and/or local laws and whose com- ence handling canines in the perform- pensated law enforcement officers have ance of those official duties. the authority to apprehend and arrest. Firearms not transferred or donated [65 FR 31218, May 16, 2000, as amended at 71 FR 53572, Sept. 12, 2006] must be destroyed and sold as scrap. For additional guidance on the disposition of firearms refer to part 101–42 of this title.

103

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00113 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.380 41 CFR Ch. 102 (7–1–11 Edition)

FOREIGN EXCESS PERSONAL PROPERTY mated cost of care and handling would exceed the estimated proceeds from its § 102–36.380 Who is responsible for dis- sale, in accordance with 40 U.S.C. 527. posing of foreign excess personal Abandonment, destruction or donation property? actions must also comply with the laws Your agency is responsible for dis- of the country in which the property is posing of your foreign excess personal located. property, as provided by chapter 7 of [65 FR 31218, May 16, 2000, as amended at 71 title 40 of the United States Code. FR 53572, Sept. 12, 2006] [65 FR 31218, May 16, 2000, as amended at 71 FR 53572, Sept. 12, 2006] § 102–36.395 How may GSA assist us in disposing of foreign excess personal § 102–36.385 What are our responsibil- property? ities in the disposal of foreign ex- You may request GSA’s assistance in cess personal property? the screening of foreign excess personal When disposing of foreign excess per- property for possible re-use by eligible sonal property you must: recipients within the U.S. GSA may, (a) Determine whether it is in the in- after consultation with you, designate terest of the U.S. Government to re- property for return to the United turn foreign excess personal property States for transfer or donation pur- to the U.S. for further re-use or to dis- poses. pose of the property overseas. (b) Ensure that any disposal of prop- § 102–36.400 Who pays for the trans- erty overseas conforms to the foreign portation costs when foreign excess policy of the United States and the personal property is returned to the United States? terms and conditions of any applicable Host Nation Agreement. When foreign excess property is to be (c) Ensure that, when foreign excess returned to the U.S. for the purpose of personal property is donated or sold an approved transfer or donation under overseas, donation/sales conditions in- the provisions of 40 U.S.C. 521–529, 549, clude a requirement for compliance and 551, the Federal agency, State with U.S. Department of Commerce agency, or donee receiving the property and Department of Agriculture regula- is responsible for all direct costs in- tions when transporting any personal volved in the transfer, which include property back to the U.S. packing, handling, crating, and trans- (d) Inform the U.S. State Department portation. of any disposal of property to any for- [65 FR 31218, May 16, 2000, as amended at 71 eign governments or entities. FR 53572, Sept. 12, 2006]

§ 102–36.390 How may we dispose of GIFTS foreign excess personal property? To dispose of foreign excess personal § 102–36.405 May we keep gifts given property, you may: to us from the public? (a) Offer the property for re-use by If your agency has gift retention au- U.S. Federal agencies overseas; thority, you may retain gifts from the (b) Return the property to the U.S. public. Otherwise, you must report for re-use by eligible recipients; gifts you receive on a SF 120 to GSA. (c) Sell, exchange, lease, or transfer You must report gifts received from a such property for cash, credit, or other foreign government in accordance with property; part 102–42 of this chapter. (d) Donate medical materials or sup- [65 FR 31218, May 16, 2000, as amended at 71 plies to nonprofit medical or health or- FR 53572, Sept. 12, 2006] ganizations, including those qualified under sections 214(b) and 607 of the For- § 102–36.410 How do we dispose of a eign Assistance Act of 1961, as amended gift in the form of money or intan- (22 U.S.C. 2174, 2357); or gible personal property? (e) Abandon, destroy or donate such Report intangible personal property property when you determine that it to GSA, Personal Property Manage- has no commercial value or the esti- ment Division (FBP), Washington, DC

104

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00114 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–36.440

20406. You must not transfer or dispose HAZARDOUS PERSONAL PROPERTY of this property without prior approval of GSA. The Secretary of the Treasury § 102–36.425 May we dispose of excess will dispose of money and negotiable hazardous personal property? instruments such as bonds, notes, or Yes, but only in accordance with part other securities under the authority of 101–42 of this title. When reporting ex- 31 U.S.C. 324. cess hazardous property to GSA, certify on the SF 120 that the property has § 102–36.415 How do we dispose of gifts been packaged and labeled as required. other than intangible personal Annotate any special requirements for property? handling, storage, or use, and provide a (a) When the gift is offered with the description of the actual or potential condition that the property be sold and hazard. the proceeds used to reduce the public debt, report the gift to the regional MUNITIONS LIST ITEMS/COMMERCE GSA Personal Property Management CONTROL LIST ITEMS (MLIS/CCLIS) office in which the property is located. § 102–36.430 May we dispose of excess GSA will convert the gift to money Munitions List Items (MLIs)/Com- upon acceptance and deposit the pro- merce Control List Items (CCLIs)? ceeds into a special account of the U.S. You may dispose of excess MLIs/ Treasury. CCLIs only when you comply with the (b) When the gift is offered with no additional disposal and demilitariza- conditions or restrictions, and your tion (DEMIL) requirements contained agency has gift retention authority, in part 101–42 of this title. MLIs may you may use the gift for an authorized require demilitarization when issued to official purpose without reporting to any non-DoD entity, and will require GSA. The property will then lose its appropriate licensing when exported identity as a gift and you must account from the U.S. CCLIs usually require ex- for it in the same manner as Federal port licensing when transported from personal property acquired from au- the U.S. thorized sources. When the property is no longer needed, you must report it as § 102–36.435 How do we identify Muni- excess personal property to GSA. tions List Items (MLIs)/Commerce (c) When the gift is offered with no Control List Items (CCLIs) requir- conditions or restrictions, but your ing demilitarization? agency does not have gift retention au- You identify MLIs/CCLIs requiring thority, you must report it to the re- demilitarization by the demilitariza- gional GSA Personal Property Manage- tion code that is assigned to each MLI ment office. GSA will offer the prop- or CCLI. The code indicates the type erty for screening for possible transfer and scope of demilitarization and/or ex- to a federal agency or convert the gift port controls that must be accom- to money and deposit the funds with plished, when required, before issue to U.S. Treasury. If your agency is inter- any non-DOD activity. For a listing of ested in keeping the gift for an official the codes and additional guidance on purpose, you must annotate your inter- DEMIL procedures see DOD Demili- est on the SF 120 and also submit a SF tarization and Trade Security Control 122. Manual, DOD 4160.21–M–1.

§ 102–36.420 How do we dispose of gifts PRINTING EQUIPMENT AND SUPPLIES from foreign governments or entities? § 102–36.440 Are there special procedures for reporting excess printing Report foreign gifts on a SF 120 to and binding equipment and sup- GSA, Property Management Division plies? (FBP), Washington, DC 20406, for pos- Yes, in accordance with 44 U.S.C. 312, sible transfer, donation or sale in ac- you must submit reports of excess cordance with the provisions of part printing and binding machinery, equip- 102–42 of this chapter. ment, materials, and supplies to the [71 FR 53572, Sept. 12, 2006] Public Printer, Government Printing

105

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00115 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–36.445 41 CFR Ch. 102 (7–1–11 Edition)

Office (GPO), Customer Service Man- § 102–36.460 Do we report excess med- ager, 732 North Capitol Street, NW, ical shelf-life items held for na- Washington, DC 20401. If GPO has no tional emergency purposes? requirement for the property, you must When the remaining shelf life of any then submit the report to GSA. medical materials or supplies held for national emergency purposes is of too [65 FR 31218, May 16, 2000, as amended at 71 short a period to justify their contin- FR 53572, Sept. 12, 2006] ued retention, you should report such RED CROSS PROPERTY property excess for possible transfer and disposal. You must make such ex- § 102–36.445 Do we report excess per- cess determinations at such time as to sonal property originally acquired ensure that sufficient time remains to from or through the American Na- permit their use before their shelf-life tional Red Cross? expires and the items are unfit for Yes, when reporting excess personal human use. You must identify such items with ‘‘MSL’’ and the expiration property which was processed, pro- date, and indicate any specialized stor- duced, or donated by the American Na- age requirements. tional Red Cross, note ‘‘RED CROSS PROPERTY’’ on the SF 120 or report § 102–36.465 May we transfer or ex- document. GSA will offer to return this change excess medical shelf-life property to the Red Cross if no other items with other federal agencies? federal agency has a need for it. If the Yes, you may transfer or exchange Red Cross has no requirement, the excess medical shelf-life items held for property continues in the disposal national emergency purposes with any process and is available for donation. other federal agency for other medical materials or supplies, without GSA ap- SHELF-LIFE ITEMS proval and without regard to part 102– 39 of this chapter. You and the trans- § 102–36.450 Do we report excess shelf- feree agency will agree to the terms life items? and prices. You may credit any pro- (a) When there are quantities on ceeds derived from such transactions to hand, that would not be utilized by the your agency’s current applicable appro- expiration date and cannot be returned priation and use the funds only for the to the vendor for credit, you must re- purchase of medical materials or support such expected overage as excess plies for national emergency purposes. for possible transfer and disposal to en- [65 FR 31218, May 16, 2000, as amended at 71 sure maximum use prior to deteriora- FR 53572, Sept. 12, 2006] tion. (b) You need not report expired shelf- VESSELS life items. You may dispose of property § 102–36.470 What must we do when with expired shelf-life by abandonment/ disposing of excess vessels? destruction in accordance with § 102– (a) When you dispose of excess ves- 36.305 and in compliance with Federal, sels, you must indicate on the SF 120 State, and local waste disposal and air the following information: and water pollution control standards. (1) Whether the vessel has been inspected by the Coast Guard. § 102–36.455 How do we report excess (2) Whether testing for hazardous ma- shelf-life items? terials has been done. And if so, the re- You must identify the property as sult of the testing, specifically the shelf-life items by ‘‘SL’’, indicate the presence or absence of PCB’s and asbes- expiration date, whether the date is tos and level of contamination. the original or an extended date, and if (3) Whether hazardous materials the date is further extendable. GSA clean up is required, and when it will may adjust the screening period based be accomplished by your agency. on re-use potential and the remaining (b) In accordance with 40 U.S.C. 548, useful shelf life. the Federal Maritime Administration (FMA), Department of Transportation,

106

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00116 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–37

is responsible for disposing of surplus PART 102–37—DONATION OF vessels determined to be merchant ves- SURPLUS PERSONAL PROPERTY sels or capable of conversion to merchant use and weighing 1,500 gross tons Subpart A—General Provisions or more. The SF 120 for such vessels shall be forwarded to GSA for submis- Sec. sion to FMA. 102–37.5 What does this part cover? (c) Disposal instructions regarding 102–37.10 What is the primary governing au- vessels in this part do not apply to bat- thority for this part? tleships, cruisers, aircraft carriers, de- 102–37.15 Who must comply with the provisions of this part? stroyers, or submarines. 102–37.20 How do we request a deviation [65 FR 31218, May 16, 2000, as amended at 71 from this part and who can approve it? FR 53572, Sept. 12, 2006] DEFINITIONS Subpart F—Miscellaneous 102–37.25 What definitions apply to this Disposition part? DONATION OVERVIEW § 102–36.475 What is the authority for transfers under ‘‘Computers for 102–37.30 When does property become avail- Learning’’? able for donation? 102–37.35 Who handles the donation of sur- (a) The Stevenson-Wydler Tech- plus property? nology Innovation Act of 1980, as 102–37.40 What type of surplus property is amended (15 U.S.C. 3710(i)), authorizes available for donation? federal agencies to transfer excess edu- 102–37.45 How long is property available for cation-related federal equipment to donation screening? educational institutions or nonprofit 102–37.50 What is the general process for re- organizations for educational and requesting surplus property for donation? search activities. Executive Order 12999 102–37.55 Who pays for transportation and other costs associated with a donation? (3 CFR, 1996 Comp., p. 180) requires, to 102–37.60 How much time does a transferee the extent permitted by law and where have to pick up or remove surplus prop- appropriate, the transfer of computer erty from holding agency premises? equipment for use by schools or non- 102–37.65 What happens to surplus property profit organizations. that has been approved for transfer when (b) Each federal agency is required to the prospective transferee decides it can- identify a point of contact within the not use the property and declines to pick agency to assist eligible recipients, and it up? to publicize the availability of such 102–37.70 How should a transferee account for the receipt of a larger or smaller property to eligible communities. Ex- number of items than approved by GSA cess education-related equipment may on the SF 123? be transferred directly under estab- 102–37.75 What should be included in a lished agency procedures, or reported shortage report? to GSA as excess for subsequent trans- 102–37.80 What happens to surplus property fer to potential eligible recipients as that isn’t transferred for donation? appropriate. You must include trans- 102–37.85 Can surplus property being offered fers under this authority in the annual for sale be withdrawn and approved for Non-federal Recipients Report (See donation? § 102–36.295) to GSA. Subpart B—General Services (c) The ‘‘Computers for Learning’’ Administration (GSA) website has been developed to streamline the transfer of excess and surplus 102–37.90 What are GSA’s responsibilities in Federal computer equipment to schools the donation of surplus property? and nonprofit educational organiza- 102–37.95 How will GSA resolve competing tions. For additional information requests? about this program access the ‘‘Com- 102–37.100 What factors will GSA consider in puters for Learning’’ website, http:// allocating surplus property among www.computers.fed.gov. SASPs?

107

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00117 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–37 41 CFR Ch. 102 (7–1–11 Edition)

Subpart C—Holding Agency 102–37.225 What information or documentation must a SASP provide when request- 102–37.110 What are a holding agency’s re- ing a surplus aircraft or vessel? sponsibilities in the donation of surplus 102–37.230 What must a letter of intent for property? obtaining surplus aircraft or vessels in- 102–37.115 May a holding agency be reim- clude? bursed for costs incurred incident to a 102–37.235 What type of information must a donation? SASP provide when requesting surplus 102–37.120 May a holding agency donate sur- property for cannibalization? plus property directly to eligible non- 102–37.240 How must a transfer request for Federal recipients without going through surplus firearms be justified? GSA? CUSTODY, CARE, AND SAFEKEEPING 102–37.125 What are some donations that do not require GSA’s approval? 102–37.245 What must a SASP do to safeguard surplus property in its custody? Subpart D—State Agency for Surplus 102–37.250 What actions must a SASP take Property (SASP) when it learns of damage to or loss of surplus property in its custody? 102–37.130 What are a SASP’s responsibil- 102–37.255 Must a SASP insure surplus prop- ities in the donation of surplus property? erty against loss or damage? 102–37.135 How does a SASP become eligible to distribute surplus property to donees? DISTRIBUTION OF PROPERTY 102–37.260 How must a SASP document the STATE PLAN OF OPERATION distribution of surplus property? 102–37.140 What is a State plan of operation? 102–37.265 May a SASP distribute surplus 102–37.145 Who is responsible for developing, property to eligible donees of another certifying, and submitting the plan? State? 102–37.150 What must a State legislature in- 102–37.270 May a SASP retain surplus prop- clude in the plan? erty for its own use? 102–37.155 When does a plan take effect? SERVICE AND HANDLING CHARGES 102–37.160 Must GSA approve amendments or modifications to the plan? 102–37.275 May a SASP accept personal 102–37.165 Do plans or major amendments checks and non-official payment meth- require public notice? ods in payment of service charges? 102–37.170 What happens if a SASP does not 102–37.280 How may a SASP use service operate in accordance with its plan? charge funds? 102–37.285 May a SASP use service charge SCREENING AND REQUESTING PROPERTY funds to support non-SASP State activities and programs? 102–37.175 How does a SASP find out what property is potentially available for do- DISPOSING OF UNDISTRIBUTED PROPERTY nation? 102–37.290 What must a SASP do with sur- 102–37.180 Does a SASP need special author- plus property it cannot donate? ization to screen property at Federal fa- 102–37.295 Must GSA approve a transfer be- cilities? tween SASPs? 102–37.185 How does a SASP obtain screen- 102–37.300 What information must a SASP ing authorization for itself or its donees? provide GSA when reporting unneeded 102–37.190 What records must a SASP main- usable property for disposal? tain on authorized screeners? 102–37.305 May a SASP act as GSA’s agent 102–37.195 Does a SASP have to have a donee in selling undistributed surplus property in mind to request surplus property? (either as usable property or scrap)? 102–37.200 What certifications must a SASP 102–37.310 What must a proposal to sell un- make when requesting surplus property distributed surplus property include? for donation? 102–37.315 What costs may a SASP recover if 102–37.205 What agreements must a SASP undistributed surplus property is re- make? transferred or sold? 102–37.210 Must a SASP make a drug-free 102–37.320 Under what conditions may a workplace certification when requesting SASP abandon or destroy undistributed surplus property for donation? surplus property? 102–37.215 When must a SASP make a certification regarding lobbying? COOPERATIVE AGREEMENTS 102–37.325 With whom and for what pur- JUSTIFYING SPECIAL TRANSFER REQUESTS pose(s) may a SASP enter into a coopera- 102–37.220 Are there special types of surplus tive agreement? property that require written justifica- 102–37.330 Must the costs of providing sup- tion when submitting a transfer request? port under a cooperative agreement be

108

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00118 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–37

reimbursed by the parties receiving such nized or their facilities are not yet con- support? structed? 102–37.335 May a SASP enter into a coopera- 102–37.425 May a SASP grant conditional tive agreement with another SASP? eligibility to a not-for-profit organiza- 102–37.340 When may a SASP terminate a tion whose tax-exempt status is pending? cooperative agreement? 102–37.430 What property can a SASP make available to a donee with conditional eli- AUDITS AND REVIEWS gibility? 102–37.345 When must a SASP be audited? TERMS AND CONDITIONS OF DONATION 102–37.350 Does coverage under the single audit process in OMB Circular A–133 ex- 102–37.435 For what purposes may donees ac- empt a SASP from other reviews of its quire and use surplus property? program? 102–37.440 May donees acquire property for 102–37.355 What obligations does a SASP exchange? have to ensure that donees meet Circular 102–37.445 What certifications must a donee A–133 requirements? make before receiving property? 102–37.450 What agreements must a donee REPORTS make?

102–37.360 What reports must a SASP pro- SPECIAL HANDLING OR USE CONDITIONS vide to GSA? 102–37.455 On what categories of surplus LIQUIDATING A SASP property has GSA imposed special handling conditions or use limitations? 102–37.365 What steps must a SASP take if 102–37.460 What special terms and condi- the State decides to liquidate the agen- tions apply to the donation of aircraft cy? and vessels? 102–37.370 Do liquidation plans require public notice? RELEASE OF RESTRICTIONS Subpart E—Donations to Public Agencies, 102–37.465 May a SASP modify or release Service Educational Activities (SEAs), any of the terms and conditions of dona- and Eligible Nonprofit Organizations tion? 102–37.470 At what point may restrictions be 102–37.375 How is the pronoun ‘‘you’’ used in released on property that has been au- this subpart? thorized for cannibalization? 102–37.380 What is the statutory authority 102–37.475 What are the requirements for re- for donations of surplus Federal property leasing restrictions on property being made under this subpart? considered for exchange?

DONEE ELIGIBILITY COMPLIANCE AND UTILIZATION 102–37.385 Who determines if a prospective 102–37.480 What must a SASP do to ensure donee applicant is eligible to receive sur- that property is used for the purpose(s) plus property under this subpart? for which it was donated? 102–37.390 What basic criteria must an ac- 102–37.485 What actions must a SASP take tivity meet before a SASP can qualify it if a review or other information indicates for eligibility? noncompliance with donation terms and 102–37.395 How can a SASP determine conditions? whether an applicant meets any required 102–37.490 When must a SASP coordinate approval, accreditation, or licensing re- with GSA on compliance actions? quirements? 102–37.495 How must a SASP handle funds 102–37.400 What type of eligibility informa- derived from compliance actions? tion must a SASP maintain on donees? RETURNS AND REIMBURSEMENT 102–37.405 How often must a SASP update donee eligibility records? 102–37.500 May a donee receive reimburse- 102–37.410 What must a SASP do if a donee ment for its donation expenses when fails to maintain its eligibility status? unneeded property is returned to the 102–37.415 What should a SASP do if an ap- SASP? plicant appeals a negative eligibility de- 102–37.505 How does a donee apply for and cision? receive reimbursement for unneeded property returned to a SASP? CONDITIONAL ELIGIBILITY SPECIAL PROVISIONS PERTAINING TO SEAS 102–37.420 May a SASP grant conditional eligibility to applicants who would oth- 102–37.510 Are there special requirements erwise qualify as eligible donees, but are for donating property to SEAs? unable to obtain approval, accreditation, 102–37.515 Do SEAs have a priority over or licensing because they are newly orga- other SASP donees for DOD property?

109

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00119 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.5 41 CFR Ch. 102 (7–1–11 Edition)

Subpart F—Donations to Public Airports includes any of the 50 States, as well as the District of Columbia, the U.S. Vir- 102–37.520 What is the authority for public gin Islands, Guam, American Samoa, airport donations? 102–37.525 What should a holding agency do the Commonwealth of Puerto Rico, and if it wants a public airport to receive pri- the Commonwealth of the Northern ority consideration for excess personal Mariana Islands. property it has reported to GSA? 102–37.530 What are FAA’s responsibilities § 102–37.10 What is the primary gov- in the donation of surplus property to erning authority for this part? public airports? 102–37.535 What information must FAA pro- Section 549 of title 40, United States vide to GSA on its administration of the Code, gives the General Services Ad- public airport donation program? ministration (GSA) discretionary authority to prescribe the necessary reg- Subpart G—Donations to the American ulations for, and to execute the surplus National Red Cross personal property donation program. 102–37.540 What is the authority for dona- [67 FR 2584, Jan. 18, 2002, as amended at 71 tions to the American National Red FR 23868, Apr. 25, 2006] Cross? 102–37.545 What type of property may the § 102–37.15 Who must comply with the American National Red Cross receive? provisions of this part? 102–37.550 What steps must the American National Red Cross take to acquire prop- You must comply with this part if erty? you are a holding agency or a recipient 102–37.555 What happens to property the of Federal surplus personal property American National Red Cross does not approved by GSA for donation (e.g., a request? State agency for surplus property (SASP) or a public airport). Subpart H—Donations to Public Bodies in Lieu of Abandonment/Destruction § 102–37.20 How do we request a devi- 102–37.560 What is a public body? ation from this part and who can 102–37.565 What is the authority for dona- approve it? tions to public bodies? See §§ 102–2.60 through 102–2.110 of 102–37.570 What type of property may a this chapter to request a deviation holding agency donate under this sub- from the requirements of this part. part? 102–37.575 Is there a special form for holding agencies to process donations? DEFINITIONS 102–37.580 Who is responsible for costs associated with the donation? § 102–37.25 What definitions apply to this part? APPENDIX A TO PART 102–37—MISCELLANEOUS DONATION STATUTES The following definitions apply to APPENDIX B TO PART 102–37—ELEMENTS OF A this part: STATE PLAN OF OPERATION Cannibalization means to remove APPENDIX C TO PART 102–37—GLOSSARY OF serviceable parts from one item of TERMS FOR DETERMINING ELIGIBILITY OF equipment in order to install them on PUBLIC AGENCIES AND NONPROFIT ORGANI- ZATIONS another item of equipment. Donee means any of the following en- AUTHORITY: 40 U.S.C. 549 and 121(c). tities that receive Federal surplus per- SOURCE: 67 FR 2584, Jan. 18, 2002, unless sonal property through a SASP: otherwise noted. (1) A service educational activity (SEA). Subpart A—General Provisions (2) A public agency (as defined in appendix C of this part) which uses sur- § 102–37.5 What does this part cover? plus personal property to carry out or This part covers the donation of sur- promote one or more public purposes. plus Federal personal property located (Public airports are an exception and within a State, including foreign excess are only considered donees when they personal property returned to a State elect to receive surplus property for handling as surplus property. For through a SASP, but not when they purposes of this part, the term State elect to receive surplus property

110

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00120 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.40

through the Federal Aviation Adminis- excess personal property has been com- tration as discussed in subpart F of pleted, and the property is available for this part.) donation. (3) An eligible nonprofit tax-exempt Transferee means a public airport re- educational or public health institu- ceiving surplus property from a holding tion (including a provider of assistance agency through the Federal Aviation to homeless or impoverished families Administration, or a SASP. or individuals). You, when used in subparts D and E (4) A State or local government agen- of this part, means SASP, unless other- cy, or a nonprofit organization or insti- wise specified. tution, that receives funds appro- [67 FR 2584, Jan. 18, 2002, as amended at 71 priated for a program for older individ- FR 23868, Apr. 25, 2006] uals. Holding agency means the executive DONATION OVERVIEW agency having accountability for, and generally possession of, the property § 102–37.30 When does property be- involved. come available for donation? Period of restriction means the period Excess personal property becomes of time for keeping donated property in available for donation the day fol- use for the purpose for which it was do- lowing the surplus release date. This is nated. the point at which the screening period Screening means the process of phys- has been completed without transfer to ically inspecting property or reviewing a Federal agency or other eligible re- lists or reports of property to deter- cipient, and the GSA has determined mine whether property is usable or the property to be surplus. needed for donation purposes. Service educational activity (SEA) § 102–37.35 Who handles the donation means any educational activity des- of surplus property? ignated by the Secretary of Defense as (a) The SASPs handle the donation of being of special interest to the armed most surplus property to eligible forces; e.g., maritime academies or donees in their States in accordance military, naval, Air Force, or Coast with this part. Guard preparatory schools. (b) The GSA handles the donation of Standard Form (SF) 123, Transfer Order surplus property to public airports Surplus Personal Property means the under a program administered by the document used to request and docu- Federal Aviation Administration ment the transfer of Federal surplus (FAA) (see subpart F of this part). The personal property for donation pur- GSA may also donate to the American poses. National Red Cross surplus property State means one of the 50 States, the that was originally derived from or District of Columbia, the U.S. Virgin through the Red Cross (see subpart G of Islands, Guam, American Samoa, the this part). Commonwealth of Puerto Rico, and the (c) Holding agencies may donate sur- Commonwealth of the Northern Mar- plus property that they would other- iana Islands. wise abandon or destroy directly to State agency for surplus property public bodies in accordance with sub- (SASP) means the agency designated part H of this part. under State law to receive Federal surplus personal property for distribution § 102–37.40 What type of surplus prop- to eligible donees within the State as erty is available for donation? provided for in 40 U.S.C. 549. All surplus property (including prop- Surplus personal property (surplus erty held by working capital funds es- property) means excess personal prop- tablished under 10 U.S.C. 2208 or in erty (as defined in § 102–36.40 of this similar funds) is available for donation chapter) not required for the needs of to eligible recipients, except for prop- any Federal agency, as determined by erty in the following categories: GSA. (a) Agricultural commodities, food, Surplus release date means the date on and cotton or woolen goods determined which Federal utilization screening of from time to time by the Secretary of

111

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00121 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.45 41 CFR Ch. 102 (7–1–11 Edition)

Agriculture to be commodities requir- submit any additional information re- ing special handling with respect to quired to support and justify transfer price support or stabilization. of the property. (b) Property acquired with trust (c) The American National Red Cross funds (e.g., Social Security Trust should submit requests to GSA as de- Funds). scribed in subpart G of this part. (c) Non-appropriated fund property. (d) Public bodies, when seeking to ac- (d) Naval vessels of the following cat- quire property that is being abandoned egories: Battleships, cruisers, aircraft or destroyed, should follow rules and carriers, destroyers, and submarines. procedures established by the donor (e) Vessels of 1500 gross tons or more agency (see subpart H of this part). which the Maritime Administration determines to be merchant vessels or ca- § 102–37.55 Who pays for transpor- pable of conversion to merchant use. tation and other costs associated (f) Records of the Federal Govern- with a donation? ment. (g) Property that requires reimburse- The receiving organization (the ment upon transfer (such as abandoned transferee) is responsible for any pack- or other unclaimed property that is ing, shipping, or transportation found on premises owned or leased by charges associated with the transfer of the Government). surplus property for donation. Those (h) Controlled substances. costs, in the case of SASPs, may be (i) Items as may be specified from passed on to donees that receive the time to time by the GSA Office of Gov- property. ernmentwide Policy. § 102–37.60 How much time does a § 102–37.45 How long is property avail- transferee have to pick up or re- able for donation screening? move surplus property from holding agency premises? Entities authorized to participate in the donation program may screen prop- The transferee (or the transferee’s erty, concurrently with Federal agen- agent) must remove property from the cies, as soon as the property is reported holding agency premises within 15 cal- as excess up until the surplus release endar days after being notified that the date. The screening period is normally property is available for pickup, unless 21 calendar days, except as noted in otherwise coordinated with the holding § 102–36.95 of this chapter. agency. If the transferee decides prior to pickup or removal that it no longer § 102–37.50 What is the general process needs the property, it must notify the for requesting surplus property for GSA regional office that approved the donation? transfer request. The process for requesting surplus property for donation varies, depending § 102–37.65 What happens to surplus on who is making the request. property that has been approved (a) Donees should submit their re- for transfer when the prospective quests for property directly to the ap- transferee decides it cannot use the propriate SASP. property and declines to pick it up? (b) SASPs and public airports should When a prospective transferee de- submit their requests to the appro- cides it cannot use surplus property priate GSA regional office. Requests that has already been approved for must be submitted on a Standard Form transfer and declines to pick it up, the (SF) 123, Transfer Order Surplus Per- GSA regional office will advise any sonal Property, or its electronic equiv- other SASP or public airport known to alent. Public airports must have FAA be interested in the property to submit certify their transfer requests prior to a transfer request. If there is no trans- submission to GSA for approval. GSA fer interest, GSA will release the prop- may ask SASPs or public airports to erty for other disposal.

112

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00122 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.90

§ 102–37.70 How should a transferee account for the receipt of a larger or smaller number of items than approved by GSA on the SF 123? When the quantity of property received doesn’t agree with that approved by GSA on the SF 123, the transferee should handle the overage or shortage as follows:

If . . . And . . . Then . . .

(a) More property is received than The known or estimated acquisi- Submit a SF 123 for the difference was approved by GSA for trans- tion cost of the line item(s) in- to GSA (Identify the property as fer. volved is $500 or more. an overage and include the original transfer order number.) 1

(b) Less property is received than The acquisition cost of the missing Submit a shortage report to GSA, was approved by GSA for trans- item(s) is $500 or more. with a copy to the holding agen- fer. cy.1

(c) The known or estimated acquisi- Annotate on your receiving and in- tion cost of the property is less ventory records, a description of than $500 the property, its known or estimated acquisition cost, and the name of the holding agency. 1 Submit the SF 123 or shortage report to the GSA approving office within 30 calendar days of the date of transfer.

§ 102–37.75 What should be included in listed on a sales offering if that with- a shortage report? drawal would be harmful to the overall The shortage report should include: outcome of the sale. GSA will only (a) The name and address of the hold- grant such requests prior to sales ing agency; award, since an award is binding. (b) All pertinent GSA and holding agency control numbers, in addition to Subpart B—General Services the original transfer order number; and Administration (GSA) (c) A description of each line item of property, the condition code, the quan- § 102–37.90 What are GSA’s responsibil- tity and unit of issue, and the unit and ities in the donation of surplus total acquisition cost. property? The General Services Administration § 102–37.80 What happens to surplus property that isn’t transferred for (GSA) is responsible for supervising donation? and directing the disposal of surplus personal property. In addition to Surplus property not transferred for issuing regulatory guidance for the do- donation is generally offered for sale under the provisions of part 102–38 of nation of such property, GSA: this chapter. Under the appropriate cir- (a) Determines when property is sur- cumstances (see § 102–36.305 of this plus to the needs of the Government; chapter), such property might be aban- (b) Allocates and transfers surplus doned or destroyed. property on a fair and equitable basis to State agencies for surplus property [67 FR 2584, Jan. 18, 2002, as amended at 71 (SASPs) for further distribution to eli- FR 23868, Apr. 25, 2006] gible donees; § 102–37.85 Can surplus property being (c) Oversees the care and handling of offered for sale be withdrawn and surplus property while it is in the cus- approved for donation? tody of a SASP; Yes, surplus property being offered (d) Approves all transfers of surplus for sale may be withdrawn for donation property to public airports, pursuant if approved by GSA. GSA will not ap- to the appropriate determinations prove requests for the withdrawal of made by the Federal Aviation Adminis- property that has been advertised or tration (see subpart F of this part);

113

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00123 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.95 41 CFR Ch. 102 (7–1–11 Edition)

(e) Donates to the American National (d) States in greatest need of the Red Cross property (generally blood type of property to be allocated where plasma and related medical materials) the need is evidenced by a letter of jus- originally provided by the Red Cross to tification from the intended donee. a Federal agency, but that has subse- (e) Whether a SASP has already re- quently been determined surplus to ceived similar property in the past, and Federal needs (see subpart G of this how much. part); (f) Past performance of a SASP in ef- (f) Approves, after consultation with fecting timely pickup or removal of the holding agency, foreign excess per- property approved for transfer and sonal property to be returned to the making prompt distribution of prop- United States for donation purposes; erty to eligible donees. (g) Coordinates and controls the level (g) The property’s condition and its of SASP and donee screening at Fed- original acquisition cost. eral installations; (h) Relative neediness of each State (h) Imposes appropriate conditions on based on the State’s population and per the donation of surplus property hav- capita income. ing characteristics that require special handling or use limitations (see § 102– Subpart C—Holding Agency 37.455); and (i) Keeps track of and reports on Fed- § 102–37.110 What are a holding agen- eral donation programs (see § 102– cy’s responsibilities in the donation 37.105). of surplus property? Your donation responsibilities as a § 102–37.95 How will GSA resolve com- holding agency begin when you deter- peting transfer requests? mine that property is to be declared ex- In case of requests from two or more cess. You must then: SASPs, GSA will use the allocating cri- (a) Let GSA know if you have a donee teria in § 102–37.100. When competing re- in mind for foreign gift items or air- quests are received from public airport property, as provided for in § 102– ports and SASPs, GSA will transfer 37.525 and § 102–42.95(h) of this chapter; property fairly and equitably, based on (b) Cooperate with all entities au- such factors as need, proposed use, and thorized to participate in the donation interest of the holding agency in hav- program and their authorized rep- ing the property donated to a specific resentatives in locating, screening, and public airport. inspecting excess or surplus property for possible donation; § 102–37.100 What factors will GSA (c) Set aside or hold surplus property consider in allocating surplus prop- from further disposal upon notification erty among SASPs? of a pending transfer for donation; (If GSA allocates property among the GSA does not notify you of a pending SASPs on a fair and equitable basis transfer within 5 calendar days fol- using the following factors: lowing the surplus release date, you (a) Extraordinary needs caused by may proceed with the sale or other au- disasters or emergency situations. thorized disposal of the property.) (b) Requests from the Department of (d) Upon receipt of a GSA-approved Defense (DOD) for DOD-generated prop- transfer document, promptly ship or erty to be allocated through a SASP release property to the transferee (or for donation to a specific service edu- the transferee’s designated agent) in cational activity. accordance with pickup or shipping in- (c) Need and usability of property, as structions on the transfer document; reflected by requests from SASPs. GSA (e) Notify the approving GSA re- will also give special consideration to gional office if surplus property to be requests transmitted through the picked up is not removed within 15 cal- SASPs by eligible donees for specific endar days after you notify the trans- items of property. (Requests for prop- feree (or its agent) of its availability. erty to be used as is will be given pref- (GSA will advise you of further dis- erence over cannibalization requests.) posal instructions.); and

114

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00124 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.145

(f) Perform and bear the cost of care your annual report to GSA under § 102– and handling of surplus property pend- 36.300 of this chapter. ing its disposal, except as provided in [67 FR 2584, Jan. 18, 2002, as amended at 71 § 102–37.115. FR 23868, Apr. 25, 2006] [67 FR 2584, Jan. 18, 2002, as amended at 67 FR 78732, Dec. 26, 2002] Subpart D—State Agency for § 102–37.115 May a holding agency be Surplus Property (SASP) reimbursed for costs incurred inci- § 102–37.130 What are a SASP’s respon- dent to a donation? sibilities in the donation of surplus Yes, you, as a holding agency, may property? charge the transferee for the direct As a SASP, your responsibilities in costs you incurred incident to a dona- the donation of surplus property are to: tion transfer, such as your packing, (a) Determine whether or not an enti- handling, crating, and transportation ty seeking to obtain surplus property expenses. However, you may not in- is eligible for donation as a: clude overhead or administrative costs (1) Public agency; in these charges. (2) Nonprofit educational or public health institution; or § 102–37.120 May a holding agency do- (3) Program for older individuals. nate surplus property directly to eligible non-Federal recipients with- (b) Distribute surplus property fairly, out going through GSA? equitably, and promptly to eligible donees in your State based on their rel- Generally, a holding agency may not ative needs and resources, and ability donate surplus property directly to eli- to use the property, and as provided in gible non-Federal recipients without your State plan of operation. going through GSA, except for the situ- (c) Enforce compliance with the ations listed in § 102–37.125. terms and conditions imposed on do- § 102–37.125 What are some donations nated property. that do not require GSA’s approval? § 102–37.135 How does a SASP become (a) Some donations of surplus prop- eligible to distribute surplus property that do not require GSA’s ap- erty to donees? proval are: In order to receive transfers of sur- (1) Donations of condemned, obsolete, plus property, a SASP must: or other specified material by a mili- (a) Have a GSA-approved State plan tary department or the Coast Guard to of operation; and recipients eligible under 10 U.S.C. 2572, (b) Provide the certifications and 10 U.S.C. 7306, 10 U.S.C. 7541, 10 U.S.C. agreements as set forth in §§ 102–37.200 7545, and 14 U.S.C. 641a (see Appendix A and 102–37.205. of this part for details). However, such property must first undergo excess STATE PLAN OF OPERATION Federal and surplus donation screening as required in this part and part 102–36 § 102–37.140 What is a State plan of op- of this chapter; eration? (2) Donations by holding agencies to A State plan of operation is a docu- public bodies under subpart H of this ment developed under State law and part; approved by GSA in which the State (3) Donations by the Small Business sets forth a plan for the management Administration to small disadvantaged and administration of the SASP in the businesses under 13 CFR part 124; and donation of property. (4) Donations by holding agencies of law enforcement canines to their han- § 102–37.145 Who is responsible for de- dlers under 40 U.S.C. 555. veloping, certifying, and submitting (b) You may also donate property di- the plan? rectly to eligible non-Federal recipi- The State legislature must develop ents under other circumstances if you the plan. The chief executive officer of have statutory authority to do so. All the State must submit the plan to the such donations must be included on Administrator of General Services for

115

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00125 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.150 41 CFR Ch. 102 (7–1–11 Edition)

acceptance and certify that the SASP SCREENING AND REQUESTING PROPERTY is authorized to: (a) Acquire and distribute property § 102–37.175 How does a SASP find out to eligible donees in the State; what property is potentially avail- (b) Enter into cooperative agreeable for donation? ments; and A SASP may conduct onsite screen- (c) Undertake other actions and pro- ing at various Federal facilities, con- vide other assurances as are required tact or submit want lists to GSA, or by 40 U.S.C. 549(e) and set forth in the use GSA’s or other agencies’ computer- plan. ized inventory system to electronically [67 FR 2584, Jan. 18, 2002, as amended at 71 search for property that is potentially FR 23868, Apr. 25, 2006] available for donation (see § 102–36.90 for information on GSA’s system, § 102–37.150 What must a State legislature include in the plan? FEDS). The State legislature must ensure § 102–37.180 Does a SASP need special the plan conforms to the provisions of authorization to screen property at 40 U.S.C. 549(e) and includes the infor- Federal facilities? mation and assurances set forth in Ap- pendix B of this part. It may also in- Yes, SASP personnel or donee per- clude in the plan other provisions not sonnel representing a SASP must have inconsistent with the purposes of title a valid screener-identification card 40 of the United States Code and the re- (GSA Optional Form 92, Screener’s quirements of this part. Identification, or other suitable identification approved by GSA) before [67 FR 2584, Jan. 18, 2002, as amended at 71 FR 23868, Apr. 25, 2006] screening and selecting property at holding agencies. However, SASP or § 102–37.155 When does a plan take ef- donee personnel do not need a screener- fect? ID card to inspect or remove property The plan takes effect on the date previously set aside or approved by GSA notifies the chief executive officer GSA for transfer. of the State that the plan is approved. § 102–37.185 How does a SASP obtain § 102–37.160 Must GSA approve amend- screening authorization for itself or ments or modifications to the plan? its donees? Yes, GSA must approve amendments (a) To obtain screening authorization or modifications to the plan. for itself or donees, a SASP must submit an Optional Form 92 (with the sig- § 102–37.165 Do plans or major amend- nature and an affixed passport-style ments require public notice? photograph of the screener applicant) Yes, proposed plans and major and a written request to the GSA re- amendments to existing plans require gional office serving the area in which general notice to the public for com- the intended screener is located. The ment. A State must publish a general request must: notice of the plan or amendment at least 60 calendar days in advance of fil- (1) State the prospective screener’s ing the proposal with GSA and provide name and the name and address of the interested parties at least 30 calendar organization he or she represents; days to submit comments before filing (2) Specify the period of time and lo- the proposal. cation(s) in which screening will be conducted; and § 102–37.170 What happens if a SASP (3) Certify that the applicant is quali- does not operate in accordance fied to screen property. with its plan? (b) If the request is approved, GSA If a SASP does not operate in accord- will complete the Optional Form 92 and ance with its plan, GSA may withhold return it to the SASP for issuance to allocation and transfer of surplus prop- the screener. erty until the nonconformance is corrected.

116

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00126 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.205

§ 102–37.190 What records must a and personnel to provide account- SASP maintain on authorized ability, warehousing, proper mainte- screeners? nance, and distribution of the property. You must maintain a current record (e) When property is distributed by of all individuals authorized to screen your SASP to a donee, or when deliv- for your SASP, including their names, ery is made directly from a holding addresses, telephone numbers, quali- agency to a donee pursuant to a State fications to screen, and any additional distribution document, you have deter- identifying information such as driv- mined that the donee acquiring the er’s license or social security numbers. property is eligible within the meaning In the case of donee screeners, you of the Property Act and GSA regula- should place such records in the tions, and that the property is usable donee’s eligibility file and review for and needed by the donee. currency each time a periodic review of the donee’s file is undertaken. [67 FR 2584, Jan. 18, 2002, as amended at 71 FR 23868, Apr. 25, 2006] § 102–37.195 Does a SASP have to have a donee in mind to request surplus § 102–37.205 What agreements must a property? SASP make? Generally yes, you should have a With respect to surplus property firm requirement or an anticipated de- picked up by or shipped to your SASP, mand for any property that you re- you must agree to the following: quest. (a) You will make prompt statewide distribution of such property, on a fair § 102–37.200 What certifications must a and equitable basis, to donees eligible SASP make when requesting sur- to acquire property under 40 U.S.C. 549 plus property for donation? and GSA regulations. You will dis- When requesting or applying for tribute property only after such eligi- property, you must certify that: ble donees have properly executed the (a) You are the agency of the State appropriate certifications and agree- designated under State law that has ments established by your SASP and/or legal authority under 40 U.S.C. 549 and GSA. GSA regulations, to receive property (b) Title to the property remains in for distribution within the State to eli- the United States Government al- gible donees as defined in this part. though you have taken possession of it. (b) No person with supervisory or Conditional title to the property will managerial duties in your State’s do- pass to the eligible donee when the nation program is debarred, suspended, donee executes the required certifi- ineligible, or voluntarily excluded from cations and agreements and takes pos- participating in the donation program. session of the property. (c) The property is usable and needed within the State by: (c) You will: (1) A public agency for one or more (1) Promptly pay the cost of care, public purposes. handling, and shipping incident to tak- (2) An eligible nonprofit organization ing possession of the property. or institution which is exempt from (2) During the time that title re- taxation under section 501 of the Inter- mains in the United States Govern- nal Revenue Code (26 U.S.C. 501), for ment, be responsible as a bailee for the the purpose of education or public property from the time it is released to health (including research for any such you or to the transportation agent you purpose). have designated. (3) An eligible nonprofit activity for (3) In the event of any loss of or dam- programs for older individuals. age to any or all of the property during (4) A service educational activity transportation or storage at a place (SEA), for DOD-generated property other than a place under your control, only. take the necessary action to obtain (d) When property is picked up by, or restitution (fair market value) for the shipped to, your SASP, you have ade- Government. In the event of loss or quate and available funds, facilities, damage due to negligence or willful

117

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00127 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.210 41 CFR Ch. 102 (7–1–11 Edition)

misconduct on your part, repair, re- § 102–37.215 When must a SASP make place, or pay to the GSA the fair mar- a certification regarding lobbying? ket value of any such property, or take You are subject to the anti-lobbying such other action as the GSA may di- certification and disclosure require- rect. ments in part 105–69 of this title when (d) You may retain property to per- all of the following conditions apply: form your donation program functions, (a) You have entered into a coopera- but only when authorized by GSA in tive agreement with GSA that provides accordance with the provisions of a co- for your SASP to retain surplus prop- operative agreement entered into with erty for use in performing donation GSA. functions or any other cooperative (e) When acting under an interstate agreement. (b) The cooperative agreement was cooperative distribution agreement executed after December 23, 1989. (see § 102–37.335) as an agent and au- (c) The fair market value of the prop- thorized representative of an adjacent erty requested under the cooperative State, you will: agreement is more than $100,000. (1) Make the certifications and agreements required in § 102–37.200 and this JUSTIFYING SPECIAL TRANSFER section on behalf of the adjacent SASP. REQUESTS (2) Require the donee to execute the distribution documents of the State in § 102–37.220 Are there special types of surplus property that require writ- which the donee is located. ten justification when submitting a (3) Forward copies of the distribution transfer request? documents to the corresponding SASP. Yes, a SASP must obtain written jus- (f) You will not discriminate on the tification from the intended donee, and basis of race, color, national origin, submit it to GSA along with the trans- sex, age, or handicap in the distribu- fer request, prior to allocation of: tion of property, and will comply with (a) Aircraft and vessels covered by GSA regulations on nondiscrimination § 102–37.455; as set forth in parts 101–4, subparts 101– (b) Items requested specifically for 6.2, and 101–8.3 of this title. cannibalization; (g) You will not seek to hold the (c) Foreign gifts and decorations (see United States Government liable for part 102–42 of this chapter); consequential or incidental damages or (d) Items containing 50 parts per mil- the personal injuries, disabilities, or lion or greater of polychlorinated biphenyl (see part 101–42 of this title); death to any person arising from the (e) Firearms as described in part 101– transfer, donation, use, processing, or 42 of this title; and final disposition of this property. The (f) Any item on which written jus- Government’s liability in any event is tification will assist GSA in making al- limited in scope to that provided for by location to States with the greatest the Federal Tort Claims Act (28 U.S.C. need. 2671, et seq.). § 102–37.225 What information or docu- [67 FR 2584, Jan. 18, 2002, as amended at 71 mentation must a SASP provide FR 23868, Apr. 25, 2006] when requesting a surplus aircraft or vessel? § 102–37.210 Must a SASP make a drug- free workplace certification when (a) For each SF 123 that you submit requesting surplus property for do- to GSA for transfer of a surplus air- nation? craft or vessel covered by § 102–37.455 include: No, you must certify that you will (1) A letter of intent, signed and provide a drug-free workplace only as a dated by the authorized representative condition for retaining surplus prop- of the proposed donee setting forth a erty for SASP use. Drug-free workplace detailed plan of utilization for the certification requirements are found at property (see § 102–37.230 for informa- part 105–68, subpart 105–68.6, of this tion a donee has to include in the let- title. ter of intent); and

118

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00128 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.240

(2) A letter, signed and dated by you, (d) Any supplemental information confirming and certifying the appli- (such as geographical area and popu- cant’s eligibility and containing an lation served, number of students en- evaluation of the applicant’s ability to rolled in educational programs, etc.) use the aircraft or vessel for the pur- supporting the donee’s need for the air- pose stated in its letter of intent and craft or vessel. any other supplemental information concerning the needs of the donee § 102–37.235 What type of information which supports making the allocation. must a SASP provide when request- (b) For each SF 123 that GSA ap- ing surplus property for cannibal- proves, you must include: ization? (1) Your distribution document, When a donee wants surplus property signed and dated by the authorized to cannibalize, include the following donee representative; and statement on the SF 123: ‘‘Line Item (2) A conditional transfer document, Number(s)lllrequested for cannibal- signed by you and the intended donee, ization.’’. In addition to including this and containing the special terms and statement, provide a detailed justifica- conditions prescribed by GSA. tion concerning the need for the com- § 102–37.230 What must a letter of in- ponents or accessories and an expla- tent for obtaining surplus aircraft nation of the effect removal will have or vessels include? on the item. GSA will approve requests A letter of intent for obtaining sur- for cannibalization only when it is plus aircraft or vessels must provide: clear from the justification that dis- (a) A description of the aircraft or assembly of the item for use of its com- vessel requested. If the item is an air- ponent parts will provide greater po- craft, the description must include the tential benefit than use of the item in manufacturer, date of manufacture, its existing form. model, and serial number. If the item is a vessel, it must include the type, § 102–37.240 How must a transfer re- name, class, size, displacement, length, quest for surplus firearms be justi- beam, draft, lift capacity, and the hull fied? or registry number, if known; To justify a transfer request for sur- (b) A detailed description of the plus firearms, the requesting SASP donee’s program and the number and must obtain and submit to GSA a let- types of aircraft or vessels it currently ter of intent from the intended donee owns; that provides: (c) A detailed description of how the (a) Identification of the donee appli- aircraft or vessel will be used, its pur- cant, including its legal name and com- pose, how often and for how long. If an plete address and the name, title, and aircraft is requested for flight pur- telephone number of its authorized rep- poses, the donee must specify a source of pilot(s) and where the aircraft will resentative; be housed. If an aircraft is requested (b) The number of compensated offi- for cannibalization, the donee must cers with the power to apprehend and provide details of the cannibalization to arrest; process (time to complete the cannibal- (c) A description of the firearm(s) re- ization process, how recovered parts quested; are to be used, method of accounting (d) Details on the planned use of the for usable parts, disposition of firearm(s); and unsalvageable parts, etc.) If a vessel is (e) The number and types of donated requested for waterway purposes, the firearms received during the previous donee must specify a source of pilot(s) 12 months through any other Federal and where the vessel will be docked. If program. a vessel is requested for permanent docking on water or land, the donee must provide details of the process, including the time to complete the process; and

119

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00129 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.245 41 CFR Ch. 102 (7–1–11 Edition)

CUSTODY, CARE, AND SAFEKEEPING of mutual benefit to you and the donees concerned. Where such deter- § 102–37.245 What must a SASP do to minations are made, an interstate dis- safeguard surplus property in its tribution cooperative agreement must custody? be prepared as prescribed in § 102–37.335 To safeguard surplus property in and submitted to the appropriate GSA your custody, you must provide ade- regional office for approval. When act- quate protection of property in your ing under an interstate distribution co- custody, including protection against operative agreement, you must: the hazards of fire, theft, vandalism, and weather. (a) Require the donee recipient to execute the distribution documents of § 102–37.250 What actions must a SASP its home SASP; and take when it learns of damage to or (b) Forward copies of executed dis- loss of surplus property in its cus- tribution documents to the donee’s tody? home SASP. If you learn that surplus property in your custody has been damaged or lost, § 102–37.270 May a SASP retain sur- you must always notify GSA and notify plus property for its own use? the appropriate law enforcement offi- Yes, you can retain surplus property cials if a crime has been committed. for use in operating the donation pro- § 102–37.255 Must a SASP insure sur- gram, but only if you have a coopera- plus property against loss or dam- tive agreement with GSA that allows age? you to do so. You must obtain prior No, you are not required to carry in- GSA approval before using any surplus surance on Federal surplus property in property in the operation of the SASP. your custody. However, if you elect to Make your needs known by submitting carry insurance and the insured prop- a listing of needed property to the ap- erty is lost or damaged, you must sub- propriate GSA regional office for ap- mit a check made payable to GSA for proval. GSA will review the list to en- any insurance proceeds received in ex- sure that it is of the type and quantity cess of your actual costs of acquiring of property that is reasonably needed and rehabilitating the property prior and useful in performing SASP oper- to its loss, damage, or destruction. ations. GSA will notify you within 30 calendar days whether you may retain DISTRIBUTION OF PROPERTY the property for use in your operations. § 102–37.260 How must a SASP docu- Title to any surplus property GSA ap- ment the distribution of surplus proves for your retention will vest in property? your SASP. You must maintain sepa- All SASPs must document the dis- rate records for such property. tribution of Federal surplus property on forms that are prenumbered, pro- SERVICE AND HANDLING CHARGES vide for donees to indicate the primary § 102–37.275 May a SASP accept per- purposes for which they are acquiring sonal checks and non-official pay- property, and include the: ment methods in payment of serv- (a) Certifications and agreements in ice charges? §§ 102–37.200 and 102–37.205; and (b) Period of restriction during which No, service charge payments must the donee must use the property for readily identify the donee institution the purpose for which it was acquired. as the payer (or the name of the parent organization when that organization § 102–37.265 May a SASP distribute pays the operational expenses of the surplus property to eligible donees donee). Personal checks, personal cash- of another State? ier checks, personal money orders, and Yes, you may distribute surplus prop- personal credit cards are not accept- erty to eligible donees of another able. State, if you and the other SASP determine that such an arrangement will be

120

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00130 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.310

§ 102–37.280 How may a SASP use serv- § 102–37.295 Must GSA approve a ice charge funds? transfer between SASPs? Funds accumulated from service Yes, the requesting SASP must sub- charges may be deposited, invested, or mit a SF 123, Transfer Order Surplus used in accordance with State law to: Personal Property, to the GSA regional (a) Cover direct and reasonable indi- office in which the releasing SASP is rect costs of operating the SASP; located. GSA will approve or dis- (b) Purchase necessary equipment for approve the request within 30 calendar days of receipt of the transfer order. the SASP; (c) Maintain a reasonable working § 102–37.300 What information must a capital reserve; SASP provide GSA when reporting (d) Rehabilitate surplus property, in- unneeded usable property for dis- cluding the purchase of replacement posal? parts; When reporting unneeded usable (e) Acquire or improve office or dis- property that is not required for trans- tribution center facilities; or fer to another SASP, provide GSA with (f) Pay for the costs of internal and the: external audits. (a) Best possible description of each line item of property, its current condi- § 102–37.285 May a SASP use service tion code, quantity, unit and total ac- charge funds to support non-SASP quisition cost, State serial number, de- State activities and programs? militarization code, and any special No, except as provided in § 102–37.495, handling conditions; you must use funds collected from (b) Date you received each line item service charges, or from other sources of property listed; and (c) Certification of reimbursement such as proceeds from sale of undistrib- requested under § 102–37.315. uted property or funds collected from compliance cases, solely for the oper- § 102–37.305 May a SASP act as GSA’s ation of the SASP and the benefit of agent in selling undistributed sur- participating donees. plus property (either as usable property or scrap)? DISPOSING OF UNDISTRIBUTED PROPERTY Yes, you may act as GSA’s agent in selling undistributed surplus property § 102–37.290 What must a SASP do (either as usable property or scrap) if with surplus property it cannot do- an established cooperative agreement nate? with GSA permits such an action. You (a) As soon as it becomes clear that must notify GSA each time you pro- you cannot donate the surplus prop- pose to conduct a sale under the coop- erty, you should first determine wheth- erative agreement. You may request er or not the property is usable. approval to conduct a sale when report- (1) If you determine that the undis- ing the property to GSA for disposal tributed surplus property is not usable, instructions. If no formal agreement you should seek GSA approval to aban- exists, you may submit such an agree- don or destroy the property in accord- ment at that time for approval. ance with § 102–37.320. § 102–37.310 What must a proposal to (2) If you determine that the undis- sell undistributed surplus property tributed surplus property is usable, you include? should immediately offer it to other (a) Your request to sell undistributed SASPs. If other SASPs cannot use the surplus property must include: property, you should promptly report (1) The proposed sale date; it to GSA for redisposal (i.e., disposi- (2) A listing of the property; tion through retransfer, sale, or other (3) Location of the sale; means). (4) Method of sale; and (b) Normally, any property not do- (5) Proposed advertising to be used. nated within a 1-year period should be (b) If the request is approved, the processed in this manner. GSA regional sales office will provide

121

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00131 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.315 41 CFR Ch. 102 (7–1–11 Edition)

the necessary forms and instructions care and handling would exceed the es- for you to use in conducting the sale. timated proceeds from its sale. The abandonment or destruction finding § 102–37.315 What costs may a SASP must be sent to the appropriate GSA recover if undistributed surplus regional office for approval. You must property is retransferred or sold? include in the finding: (a) When undistributed surplus prop- (1) The basis for the abandonment or erty is transferred to a Federal agency destruction; or another SASP, or disposed of by (2) A detailed description of the prop- public sale, you are entitled to recoup: erty, its condition, and total acquisi- (1) Direct costs you initially paid to tion cost; the Federal holding agency, including (3) The proposed method of destruc- but not limited to, packing, preparation (burning, burying, etc.) or the tion for shipment, and loading. You abandonment location; will not be reimbursed for actions fol- (4) A statement confirming that the lowing receipt of the property, includ- proposed abandonment or destruction ing unloading, moving, repairing, pre- will not be detrimental or dangerous to serving, or storage. public health or safety and will not in- (2) Transportation costs you in- fringe on the rights of other persons; curred, but were not reimbursed by a and donee, for initially moving the prop- (5) The signature of the SASP direc- erty from the Federal holding agency tor requesting approval for the aban- to your distribution facility or other donment or destruction. point of receipt. You must document (b) GSA will notify you within 30 cal- and certify the amount of reimburse- endar days whether you may abandon ment requested for these costs. or destroy the property. GSA will pro- (b) Reimbursable arrangements vide alternate disposition instructions should be made prior to transfer of the if it disapproves your request for aban- property. In the case of a Federal donment or destruction. If GSA doesn’t transfer, GSA will secure agreement of reply to you within 30 calendar days of the Federal agency to reimburse your notification, the property may be aban- authorized costs, and annotate the doned or destroyed. amount of reimbursement on the transfer document. You must coordinate and COOPERATIVE AGREEMENTS make arrangements for reimbursement when property is transferred to an- § 102–37.325 With whom and for what other SASP. If you and the receiving purpose(s) may a SASP enter into a SASP cannot agree on an appropriate cooperative agreement? reimbursement charge, GSA will deter- Section 549(f) of title 40, United mine appropriate reimbursement. The States Code allows GSA, or Federal receiving SASP must annotate the re- agencies designated by GSA, to enter imbursement amount on the transfer into cooperative agreements with document prior to its being forwarded SASPs to carry out the surplus prop- to GSA for approval. erty donation program. Such agree- (c) When undistributed property is ments allow GSA, or the designated disposed of by public sale, GSA must Federal agencies, to use the SASP’s approve the amount of sales proceeds property, facilities, personnel, or serv- you may receive to cover your costs. ices or to furnish such resources to the Generally, this will not exceed 50 per- SASP. For example: cent of the total sales proceeds. (a) Regional GSA personal property management offices, or designated § 102–37.320 Under what conditions Federal agencies, may enter into a co- may a SASP abandon or destroy un- operative agreement to assist a SASP distributed surplus property? in distributing surplus property for do- (a) You may abandon or destroy un- nation. Assistance may include: distributed surplus property when you (1) Furnishing the SASP with avail- have made a written finding that the able GSA or agency office space and re- property has no commercial value or lated support such as office furniture the estimated cost of its continued and information technology equipment

122

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00132 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.350

needed to screen and process property cooperative agreements may be consid- for donation. ered when donees, because of their geo- (2) Permitting the SASP to retain graphic proximity to the property dis- items of surplus property transferred tribution centers of the adjoining to the SASP that are needed by the State, could be more efficiently and SASP in performing its donation func- economically serviced by surplus prop- tions (see § 102–37.270). erty facilities in the adjacent State. (b) Regional GSA personal property You and the other SASP must agree to management offices may help the the payment or reimbursement of serv- SASP to enter into agreements with ice charges by the donee and you also other GSA or Federal activities for the must agree to the requirements of use of Federal telecommunications § 102–37.205(e). service or federally-owned real property and related personal property. § 102–37.340 When may a SASP termi- (c) A SASP may enter into a coopera- nate a cooperative agreement? tive agreement with GSA to conduct You may terminate a cooperative sales of undistributed property on be- agreement with GSA 60-calendar days half of GSA (see § 102–37.305). after providing GSA with written no- [67 FR 2584, Jan. 18, 2002, as amended at 71 tice. For other cooperative agreements FR 23868, Apr. 25, 2006] with other authorized parties, you or the other party may terminate the § 102–37.330 Must the costs of pro- agreement as mutually agreed. You viding support under a cooperative must promptly notify GSA when such agreement be reimbursed by the other agreements are terminated. parties receiving such support? The parties to a cooperative agree- AUDITS AND REVIEWS ment must decide among themselves the extent to which the costs of the § 102–37.345 When must a SASP be audited? services they provide must be reimbursed. Their decision should be re- For each year in which a SASP reflected in the cooperative agreement ceives $500,000 or more a year in sur- itself. As a general rule, the Economy plus property or other Federal assist- Act (31 U.S.C. 1535) would require a ance, it must be audited in accordance Federal agency receiving services from with the Single Audit Act (31 U.S.C. a SASP to reimburse the SASP for 7501–7507) as implemented by Office of those services. Since SASPs are not Management and Budget (OMB) Cir- Federal agencies, the Economy Act cular A–133, ‘‘Audits of States, Local would not require them to reimburse Governments, and Non-Profit Organi- Federal agencies for services provided zations’’ (for availability see 5 CFR by such agencies. In this situation, the 1310.3). GSA’s donation program should Federal agencies would have to deter- be identified by Catalog of Federal Do- mine whether or not their own authori- mestic Assistance number 39.003 when ties would permit them to provide serv- completing the required schedule of ices to SASPs without reimbursement. Federal assistance. If a Federal agency is reimbursed by a [67 FR 2584, Jan. 18, 2002, as amended at 71 SASP for services provided under a co- FR 23868, Apr. 25, 2006] operative agreement, it must credit that payment to the fund or appropria- § 102–37.350 Does coverage under the tion that incurred the related costs. single audit process in OMB Cir- cular A–133 exempt a SASP from § 102–37.335 May a SASP enter into a other reviews of its program? cooperative agreement with an- No, although SASPs are covered other SASP? under the single audit process in OMB Yes, with GSA’s concurrence and Circular A–133, from time to time the where authorized by State law, a SASP Government Accountability Office may enter into an agreement with an (GAO), GSA, or other authorized Fed- adjacent State to act as its agent and eral activities may audit or review the authorized representative in disposing operations of a SASP. GSA will notify of surplus Federal property. Interstate the chief executive officer of the State

123

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00133 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.355 41 CFR Ch. 102 (7–1–11 Edition)

of the reasons for a GSA audit. When LIQUIDATING A SASP requested, you must make available financial records and all other records of § 102–37.365 What steps must a SASP the SASP for inspection by representa- take if the State decides to liquidate the agency? tives of GSA, GAO, or other authorized Federal activities. Before suspending operations, a SASP must submit to GSA a liquida- [67 FR 2584, Jan. 18, 2002, as amended at 71 tion plan that includes: FR 23868, Apr. 25, 2006] (a) Reasons for the liquidation; (b) A schedule for liquidating the § 102–37.355 What obligations does a agency and the estimated date of ter- SASP have to ensure that donees meet Circular A–133 requirements? mination; (c) Method of disposing of property SASPs, if they donate $500,000 or on hand under the requirements of this more in Federal property to a donee in part; a fiscal year, must ensure that the (d) Method of disposing of the agen- donee has an audit performed in ac- cy’s physical and financial assets; cordance with Circular A–133. If a (e) Retention of all available records donee receives less than $500,000 in do- of the SASP for a 2-year period fol- nated property, the SASP is not ex- lowing liquidation; and pected to assume responsibility for en- (f) Designation of another govern- suring the donee meets audit require- mental entity to serve as the agency’s ments, beyond making sure the donee successor in function until continuing is aware that the requirements do obligations on property donated prior exist. It is the donee’s responsibility to to the closing of the agency are ful- identify and determine the amount of filled. Federal assistance it has received and to arrange for audit coverage. § 102–37.370 Do liquidation plans require public notice? [67 FR 2584, Jan. 18, 2002, as amended at 71 Yes, a liquidation plan constitutes a FR 23868, Apr. 25, 2006] major amendment of a SASP’s plan of operation and, as such, requires public REPORTS notice. § 102–37.360 What reports must a SASP provide to GSA? Subpart E—Donations to Public (a) Quarterly report on donations. Sub- Agencies, Service Edu- mit a GSA Form 3040, State Agency cational Activities (SEAs), and Monthly Donation Report of Surplus Eligible Nonprofit Organiza- Personal Property, to the appropriate tions GSA regional office by the 25th day of the month following the quarter being § 102–37.375 How is the pronoun ‘‘you’’ used in this subpart? reported. (OMB Control Number 3090– 0112 has been assigned to this form.) The pronoun ‘‘you,’’ when used in Forms and instructions for completing this subpart, refers to the State agency the form are available from your serv- for surplus property (SASP). icing GSA office. § 102–37.380 What is the statutory au- (b) Additional reports. Make other re- thority for donations of surplus ports GSA may require to carry out its Federal property made under this discretionary authority to transfer sur- subpart? plus personal property for donation and The following statutes provide the to report to the Congress on the status authority to donate surplus Federal and progress of the donation program. property to different types of recipients: (a) Section 549(d) of title 40, United States Code authorizes surplus property under the control of the Depart- ment of Defense (DOD) to be donated,

124

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00134 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.395

through SASPs, to educational activi- DONEE ELIGIBILITY ties which are of special interest to the armed services (referred to in this part § 102–37.385 Who determines if a prospective donee applicant is eligible 102–37 as service educational activities to receive surplus property under or SEAs). this subpart? (b) Section 549(c)(3) of title 40, United (a) For most public and nonprofit ac- States Code authorizes SASPs to do- tivities, the SASP determines if an ap- nate surplus property to public agen- plicant is eligible to receive property cies and to nonprofit educational or as a public agency, a nonprofit edu- public health institutions, such as: cational or public health institution, (1) Medical institutions. or for a program for older individuals. (2) Hospitals. A SASP may request GSA assistance (3) Clinics. or guidance in making such determina- (4) Health centers. tions. (5) Drug abuse or alcohol treatment (b) For applicants that offer courses centers. of instruction devoted to the military arts and sciences, the Defense Depart- (6) Providers of assistance to home- ment will determine eligibility to re- less individuals. ceive surplus property through the (7) Providers of assistance to impov- SASP as a service educational activity erished families and individuals. or SEA. (8) Schools. (9) Colleges. § 102–37.390 What basic criteria must (10) Universities. an applicant meet before a SASP (11) Schools for the mentally dis- can qualify it for eligibility? abled. To qualify for donation program eli- (12) Schools for the physically dis- gibility through a SASP, an applicant abled. must: (a) Conform to the definition of one (13) Child care centers. of the categories of eligible entities (14) Radio and television stations li- listed in § 102–37.380 (see appendix C of censed by the Federal Communications this part for definitions); Commission as educational radio or (b) Demonstrate that it meets any educational television stations. approval, accreditation, or licensing (15) Museums attended by the public. requirements for operation of its pro- (16) Libraries, serving free all resi- gram; dents of a community, district, State (c) Prove that it is a public agency or or region. a nonprofit and tax-exempt organiza- (17) Historic light stations as defined tion under section 501 of the Internal under section 308(e)(2) of the National Revenue Code; Historic Preservation Act (16 U.S.C. (d) Certify that it is not debarred, 470w–7(e)(2)), including a historic light suspended, or excluded from any Fed- station conveyed under subsection (b) eral program, including procurement of that section, notwithstanding the programs; and number of hours that the historic light (e) Operate in compliance with appli- station is open to the public. cable Federal nondiscrimination statutes. (c) Section 213 of the Older Ameri- cans Act of 1965, as amended (42 U.S.C. § 102–37.395 How can a SASP deter- 3020d), authorizes donations of surplus mine whether an applicant meets property to State or local government any required approval, accredita- agencies, or nonprofit organizations or tion, or licensing requirements? institutions, that receive Federal fund- A SASP may accept the following ing to conduct programs for older indi- documentation as evidence that an ap- viduals. plicant has met established standards for the operation of its educational or [67 FR 2584, Jan. 18, 2002, as amended at 71 health program: FR 23868, Apr. 25, 2006; 72 FR 12572, Mar. 16, (a) A certificate or letter from a na- 2007] tionally recognized accrediting agency

125

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00135 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.400 41 CFR Ch. 102 (7–1–11 Edition)

affirming the applicant meets the bility is current and accurate. Annu- agency’s standards and requirements. ally, you must update files for non- (b) The applicant’s appearance on a profit organizations whose eligibility list with other similarly approved or depends on annual appropriations, an- accredited institutions or programs nual licensing, or annual certification. when that list is published by a State, Particular care must be taken to en- regional, or national accrediting au- sure that all records relating to the authority. thority of donee representatives to re- (c) Letters from State or local au- ceive and receipt for property, or to thorities (such as a board of health or screen property at Federal facilities, a board of education) stating that the are current. applicant meets the standards prescribed for approved or accredited in- § 102–37.410 What must a SASP do if a stitutions and organizations. donee fails to maintain its eligi- (d) In the case of educational activi- bility status? ties, letters from three accredited or If you determine that a donee has State-approved institutions that stu- failed to maintain its eligibility status, dents from the applicant institution you must terminate distribution of have been and are being accepted. property to that donee, recover any us- (e) In the case of public health insti- able property still under Federal re- tutions, licensing may be accepted as striction (as outlined in § 102–37.465), evidence of approval, provided the li- and take any other required compli- censing authority prescribes the med- ance actions. ical requirements and standards for the professional and technical services of § 102–37.415 What should a SASP do if the institution. an applicant appeals a negative eli- (f) The awarding of research grants gibility determination? to the institution by a recognized au- If an applicant appeals a negative eli- thority such as the National Institutes gibility determination, forward com- of Health, the National Institute of plete documentation on the appeal re- Education, or by similar national advi- quest, including your comments and sory council or organization. recommendations, to the applicable GSA regional office for review and co- § 102–37.400 What type of eligibility in- ordination with GSA headquarters. formation must a SASP maintain on GSA’s decision will be final. donees? In general, you must maintain the CONDITIONAL ELIGIBILITY records required by your State plan to document donee eligibility (see appen- § 102–37.420 May a SASP grant conditional eligibility to applicants who dix B of this part). For SEAs, you must would otherwise qualify as eligible maintain separate records that include: donees, but have been unable to ob- (a) Documentation verifying that the tain approval, accreditation, or li- activity has been designated as eligible censing because they are newly or- by DOD to receive surplus DOD prop- ganized or their facilities are not erty. yet constructed? (b) A statement designating one or You may grant conditional eligibility more donee representative(s) to act for to such an applicant provided it sub- the SEA in acquiring property. mits a statement from any required ap- (c) A listing of the types of property proving, accrediting, or licensing au- that are needed or have been author- thority confirming it will be approved, ized by DOD for use in the SEA’s pro- accredited, or licensed. gram. § 102–37.425 May a SASP grant condi- § 102–37.405 How often must a SASP tional eligibility to a not-for-profit update donee eligibility records? organization whose tax-exempt sta- You must update donee eligibility tus is pending? records as needed, but no less than No, under no circumstances may you every 3 years, to ensure that all docu- grant conditional eligibility prior to mentation supporting the donee’s eligi- receiving from the applicant a copy of

126

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00136 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.450

a letter of determination by the Inter- § 102–37.445 What certifications must a nal Revenue Service stating that the donee make before receiving prop- applicant is exempt from Federal tax- erty? ation under section 501 of the Internal Prior to a SASP releasing property Revenue Code. to a donee, the donee must certify that: § 102–37.430 What property can a SASP (a) It is a public agency or a non- make available to a donee with con- profit organization meeting the re- ditional eligibility? quirements of the Property Act and/or You may only make available surplus regulations of GSA; property that the donee can use imme- (b) It is acquiring the property for its diately. You may not make available own use and will use the property for property that will only be used at a authorized purposes; later date, for example, after the con- (c) Funds are available to pay all struction of the donee’s facility has costs and charges incident to the dona- been completed. tion; (d) It will comply with the non- TERMS AND CONDITIONS OF DONATION discrimination regulations issued under title VI of the Civil Rights Act of § 102–37.435 For what purposes may 1964 (42 U.S.C. 2000d–2000d–4), section donees acquire and use surplus 122 of title 40, United States Code, sec- property? tion 504 of the Rehabilitation Act of A donee may acquire and use surplus 1973 (29 U.S.C. 794), as amended, title IX property only for the following author- of the Education Amendments of 1972 ized purposes: (20 U.S.C. 1681–1688), as amended, and section 303 of the Age Discrimination (a) Public purposes. A public agency Act of 1975 (42 U.S.C. 6101–6107); and that acquires surplus property through (e) It isn’t currently debarred, sus- a SASP must use such property to pended, declared ineligible, or other- carry out or to promote one or more wise excluded from receiving the prop- public purposes for the people it serves. erty. (b) Educational and public health purposes, including related research. A non- [67 FR 2584, Jan. 18, 2002, as amended at 71 profit educational or public health in- FR 23868, Apr. 25, 2006] stitution must use surplus property for § 102–37.450 What agreements must a education or public health, including donee make? research for either purpose and assistance to the homeless or impoverished. Before a SASP may release property to a donee, the donee must agree to the While this does not preclude the use of following conditions: donated surplus property for a related (a) The property is acquired on an or subsidiary purpose incident to the ‘‘as is, where is’’ basis, without war- institution’s overall program, the prop- ranty of any kind, and it will hold the erty may not be used for a nonrelated Government harmless from any or all or commercial purpose. debts, liabilities, judgments, costs, de- (c) Programs for older individuals. An mands, suits, actions, or claims of any entity that conducts a program for nature arising from or incident to the older individuals must use donated sur- donation of the property, its use, or plus property to provide services that final disposition. are necessary for the general welfare of (b) It will return to the SASP, at its older individuals, such as social serv- own expense, any donated property: ices, transportation services, nutrition (1) That is not placed in use for the services, legal services, and multipur- purposes for which it was donated pose senior centers. within 1 year of donation; or (2) Which ceases to be used for such § 102–37.440 May donees acquire prop- purposes within 1 year after being erty for exchange? placed in use. No, a donee may not acquire property (c) It will comply with the terms and with the intent to sell or trade it for conditions imposed by the SASP on the other assets. use of any item of property having a

127

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00137 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.455 41 CFR Ch. 102 (7–1–11 Edition)

unit acquisition cost of $5,000 or more acquisition cost of $5,000 or more, re- and any passenger motor vehicle or gardless of the purpose for which do- other donated item. (Not applicable to nated. Such aircraft or vessels may be SEAs.) donated to public agencies and eligible (d) It agrees that, upon execution of nonprofit activities provided the air- the SASP distribution document, it craft or vessel is not classified for rea- has conditional title only to the prop- sons of national security and any le- erty during the applicable period of re- thal characteristics are removed. The striction. Full title to the property will following table provides locations of vest in the donee only after the donee other policies and procedures gov- has met all of the requirements of this part. erning aircraft and vessels: (e) It will comply with conditions imposed by GSA, if any, requiring special For. . . See. . . handling or use limitations on donated (1) Policies and procedures governing Part 102–33, property. the donation of aircraft parts. subpart D, (f) It will use the property for an au- of this thorized purpose during the period of chapter. restriction. (g) It will obtain permission from the (2) Documentation needed by GSA to § 102– SASP before selling, trading, leasing, process requests for aircraft or ves- 37.225. loaning, bailing, cannibalizing, encum- sels. bering or otherwise disposing of property during the period of restriction, or (3) Special terms, conditions, and re- § 102– strictions imposed on aircraft and 37.460. removing it permanently for use out- vessels. side the State. (h) It will report to the SASP on the (4) Guidelines on preparing letters of § 102– use, condition, and location of donated intent for aircraft or vessels. 37.230. property, and on other pertinent matters as the SASP may require from (b) Alcohol. (1) When tax-free or spe- time to time. cially denatured alcohol is requested (i) If an insured loss of the property for donation, the donee must have a occurs during the period of restriction, special permit issued by the Assistant GSA or the SASP (depending on which Regional Commissioner of the appro- agency has imposed the restriction) priate regional office, Bureau of Alco- will be entitled to reimbursement out hol, Tobacco, Firearms and Explosives of the insurance proceeds of an amount (ATF), Department of the Justice, in equal to the unamortized portion of the order to acquire the property. Include fair market value of the damaged or destroyed item. the ATF use-permit number on the SF 123, Transfer Order Surplus Personal SPECIAL HANDLING OR USE CONDITIONS Property. (2) You may not store tax-free or spe- § 102–37.455 On what categories of sur- cially denatured alcohol in SASP fa- plus property has GSA imposed spe- cilities. You must make arrangements cial handling conditions or use limitations? for this property to be shipped or transported directly from the holding GSA has imposed special handling or agency to the designated donee. processing requirements on the property discussed in this section. GSA (c) Hazardous materials, firearms, and may, on a case-by-case basis, prescribe property with unsafe or dangerous char- additional restrictions for handling or acteristics. For hazardous materials, using these items or prescribe special firearms, and property with unsafe or processing requirements on items in dangerous characteristics, see part 101– addition to those listed in this section. 42 of this title. (a) Aircraft and vessels. The require- (d) Franked and penalty mail envelopes ments of this section apply to the do- and official letterhead. Franked and pen- nation of any fixed- or rotary-wing air- alty mail envelopes and official letter- craft and donable vessels that are 50 head may not be donated without the feet or more in length, having a unit

128

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00138 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.465

SASP certifying that all Federal Gov- (e) If, during the period of restric- ernment markings will be obliterated tion, the aircraft or vessel is no longer before use. needed by the donee, the donee must promptly notify the SASP and request [67 FR 2584, Jan. 18, 2002, as amended at 71 disposal instructions. A SASP may not FR 23868, Apr. 25, 2006] issue disposal instructions without the § 102–37.460 What special terms and prior written concurrence of GSA. conditions apply to the donation of (f) Military aircraft previously used aircraft and vessels? for ground instruction and/or static display (Category B aircraft, as des- The following special terms and con- ignated by DOD) or that are combat- ditions apply to the donation of air- configured (Category C aircraft) may craft and vessels: not be donated for flight purposes. (a) There must be a period of restric- (g) For all aircraft donated for non- tion which will expire after the aircraft flight use, the donee must, within 30 or vessel has been used for the purpose calendar days of receipt of the aircraft, stated in the letter of intent (see § 102– turn over to the SASP the remaining 37.230) for a period of 5 years, except aircraft historical records (except the that the period of restriction for a records of the major components/life combat-configured aircraft is in per- limited parts; e.g., engines, trans- petuity. missions, rotor blades, etc., necessary (b) The donee of an aircraft must to substantiate their reuse). The SASP apply to the FAA for registration of an in turn must transmit the records to aircraft intended for flight use within GSA for forwarding to the FAA. 30 calendar days of receipt of the aircraft. The donee of a vessel must, with- RELEASE OF RESTRICTIONS in 30 calendar days of receipt of the § 102–37.465 May a SASP modify or re- vessel, apply for documentation of the lease any of the terms and condi- vessel under applicable Federal, State, tions of donation? and local laws and must record each You may alter or grant releases from document with the U.S. Coast Guard at State-imposed restrictions, provided the port of documentation. The donee’s your State plan of operation sets forth application for registration or docu- the standards by which such actions mentation must include a fully exe- will be taken. You may not grant re- cuted copy of the conditional transfer leases from, or amendments or correc- document and a copy of its letter of in- tions to: tent. The donee must provide the SASP (a) The terms and conditions you are and GSA with a copy of the FAA reg- required by the Property Act to impose istration (and a copy of its FAA Stand- on the use of passenger motor vehicles ard Airworthiness Certificate if the air- and any item of property having a unit craft is to be flown as a civil aircraft) acquisition cost of $5,000 or more. or Coast Guard documentation. (b) Any special handling condition or (c) The aircraft or vessel must be use limitation imposed by GSA, except used solely in accordance with the exe- with the prior written approval of cuted conditional transfer document GSA. and the plan of utilization set forth in (c) The statutory requirement that the donee’s letter of intent, unless the usable property be returned by the donee has amended the letter, and it donee to the SASP if the property has has been approved in writing by the not been placed in use for the purposes SASP and GSA and a copy of the for which it was donated within 1 year amendment recorded with FAA or the of donation or ceases to be used by the U.S. Coast Guard, as applicable. donee for those purposes within 1 year (d) In the event any of the terms and of being placed in use, except that: conditions imposed by the conditional (1) You may grant authority to the transfer document are breached, title donee to cannibalize property items may revert to the Government. GSA subject to this requirement when you may require the donee to return the determine that such action will result aircraft or vessel or pay for any unau- in increased use of the property and thorized disposal, transaction, or use. that the proposed action meets the

129

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00139 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.470 41 CFR Ch. 102 (7–1–11 Edition)

standards prescribed in your plan of op- COMPLIANCE AND UTILIZATION eration. (2) You may, with the written con- § 102–37.480 What must a SASP do to currence of GSA, grant donees: ensure that property is used for the (i) A time extension to place property purpose(s) for which it was do- into use if the delay in putting the nated? property into use was beyond the con- You must conduct utilization re- trol and without the fault or neg- views, as provided in your plan of oper- ligence of the donee. ation, to ensure that donees are using (ii) Authority to trade in one donated surplus property during the period of item for one like item having similar restriction for the purposes for which use potential. it was donated. You must fully document your efforts and report all in- § 102–37.470 At what point may restric- stances of noncompliance (misuse or tions be released on property that mishandling of property) to GSA. has been authorized for cannibalization? § 102–37.485 What actions must a SASP Property authorized for cannibaliza- take if a review or other information must remain under the period of tion indicates noncompliance with restriction imposed by the transfer/dis- donation terms and conditions? tribution document until the proposed If a review or other information indi- cannibalization is completed. Compo- cates noncompliance with donation nents resulting from the cannibaliza- terms and conditions, you must: tion, which have a unit acquisition (a) Promptly investigate any sus- cost of $5,000 or more, must remain pected failure to comply with the con- under the restrictions imposed by the ditions of donated property; transfer/distribution document. Com- (b) Notify GSA immediately where ponents with a unit acquisition cost of there is evidence or allegation of fraud, less than $5,000 may be released upon wrongdoing by a screener, or nonuse, cannibalization from the additional re- misuse, or unauthorized disposal or de- strictions imposed by the State. How- struction of donated property; ever, these components must continue (c) Temporarily defer any further do- to be used or be otherwise disposed of nations of property to any donee to be in accordance with this part. investigated for noncompliance allega- § 102–37.475 What are the require- tions until such time as the investiga- ments for releasing restrictions on tion has been completed and: property being considered for ex- (1) A determination made that the al- change? legations are unfounded and the GSA must consent to the exchange of deferment is removed. donated property under Federal re- (2) The allegations are substantiated strictions or special handling condi- and the donee is proposed for suspen- tions. The donee must have used the sion or debarment; and donated item for its acquired purpose (d) Take steps to correct the non- for a minimum of 6 months prior to compliance or otherwise enforce the being considered for exchange, and it conditions imposed on use of the prop- must be demonstrated that the ex- erty if a donee is found to be in non- change will result in increased utiliza- compliance. Enforcement of compli- tion value to the donee. As a condition ance may involve: of approval of the exchange, the item (1) Ensuring the property is used by being exchanged must have remained the present donee for the purpose for in compliance with the terms and con- which it was donated. ditions of the donation. Otherwise, (2) Recovering the property from the § 102–37.485 applies. The item acquired donee for: by the donee must be: (i) Redistribution to another donee (a) Made subject to the period of re- within the State; striction remaining on the item ex- (ii) Transfer through GSA to another changed; and SASP; or (b) Of equal or greater value than the (iii) Transfer through GSA to a Fed- item exchanged. eral agency.

130

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00140 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–37.515

(3) Recovering fair market value or (a) The property is transferred to a the proceeds of disposal in cases of un- Federal agency or sold for the benefit authorized disposal or destruction. of the U.S. Government; (4) Recovering fair rental value for (b) No breach of the terms and condi- property in cases where the property tions of donation has occurred; and has been loaned or leased to an ineli- (c) GSA authorizes the reimburse- gible user or used for an unauthorized ment. purpose. (5) Disposing of by public sale prop- § 102–37.505 How does a donee apply erty no longer suitable, usable, or nec- for and receive reimbursement for essary for donation. unneeded property returned to a SASP? § 102–37.490 When must a SASP coordinate with GSA on compliance ac- If the donee has incurred repair ex- tions? penses for property it is returning to a You must coordinate with GSA be- SASP and wishes to be reimbursed for fore selling or demanding payment of them, it will inform the SASP of this. the fair market or fair rental value of The SASP will recommend for GSA ap- donated property that is: proval a reimbursement amount, tak- (a) Subject to any special handling ing into consideration the benefit the condition or use limitation imposed by donee has received from the use of the GSA (see § 102–37.455); or property and making appropriate de- (b) Not properly used within 1 year of ductions for that use. donation or which ceases to be properly (a) If this property is subsequently used within 1 year of being placed in transferred to a Federal agency, the reuse. ceiving agency will be required to reimburse the donee as a condition of the § 102–37.495 How must a SASP handle funds derived from compliance ac- transfer. tions? (b) If the property is sold, the donee You must handle funds derived from will be reimbursed from the sales pro- compliance actions as follows: ceeds. (a) Enforcement of Federal restrictions. You must promptly remit to GSA any SPECIAL PROVISIONS PERTAINING TO funds derived from the enforcement of SEAS compliance involving a violation of any Federal restriction, for deposit in § 102–37.510 Are there special requirements for donating property to the Treasury of the United States. You SEAs? must also submit any supporting documentation indicating the source of the Yes, only DOD-generated property funds and essential background infor- may be donated to SEAs. When donat- mation. ing DOD property to an eligible SEA, (b) Enforcement of State restrictions. SASPs must observe any restrictions You may retain any funds derived from the sponsoring Military Service may a compliance action involving viola- have imposed on the types of property tion of any State-imposed restriction the SEA may receive. and use such funds as provided in your State plan of operation. § 102–37.515 Do SEAs have a priority over other SASP donees for DOD RETURNS AND REIMBURSEMENT property? § 102–37.500 May a donee receive reim- Yes, SEAs have a priority over other bursement for its donation ex- SASP donees for DOD property, but penses when unneeded property is only if DOD requests GSA to allocate returned to the SASP? surplus DOD property through a SASP When a donee returns unneeded prop- for donation to a specific SEA. In such erty to a SASP, the donee may be re- cases, DOD would be expected to clear- imbursed for all or part of the initial ly identify the items in question and cost of any repairs required to make briefly justify the request. the property usable if:

131

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–37.520 41 CFR Ch. 102 (7–1–11 Edition)

Subpart F—Donations to Public is transferred for public airport use; Airports and (f) Authorizing public airports to § 102–37.520 What is the authority for visit holding agencies for the purpose public airport donations? of screening and selecting property for transfer. This responsibility includes: The authority for public airport do- (1) Issuing a screening pass or letter nations is 49 U.S.C. 47151. 49 U.S.C. of authorization to only those persons 47151 authorizes executive agencies to who are qualified to screen. give priority consideration to requests (2) Maintaining a current record (to from a public airport (as defined in 49 include names, addresses, and tele- U.S.C. 47102) for the donation of surplus phone numbers, and additional identi- property if the Department of Trans- fying information such as driver’s li- portation (DOT) considers the property cense or social security numbers) of appropriate for airport purposes and screeners operating under FAA author- GSA approves the donation. ity and making such records available [67 FR 2584, Jan. 18, 2002, as amended at 71 to GSA upon request. FR 23868, Apr. 25, 2006] (3) Recovering any expired or invalid screener authorizations. § 102–37.525 What should a holding agency do if it wants a public air- § 102–37.535 What information must port to receive priority consider- FAA provide to GSA on its adminis- ation for excess personal property tration of the public airport dona- it has reported to GSA? tion program? A holding agency interested in giving So that GSA has information on priority consideration to a public air- which to base its discretionary author- port should annotate its reporting doc- ity to approve the donation of surplus ument to make GSA aware of this in- personal property, FAA must: terest. In an addendum to the docu- (a) Provide copies of internal instruc- ment, include the name of the request- tions that outline the scope of FAA’s ing airport, specific property re- oversight program for enforcing com- quested, and a brief description of how pliance with the terms and conditions the airport intends to use the property. of transfer; and (b) Report any compliance actions in- § 102–37.530 What are FAA’s respon- volving donations to public airports. sibilities in the donation of surplus property to public airports? Subpart G—Donations to the In the donation of surplus property American National Red Cross to public airports, the Federal Aviation Administration (FAA), acting under § 102–37.540 What is the authority for delegation from the DOT, is responsible donations to the American National for: Red Cross? (a) Determining the property require- Section 551 of title 40, United States ments of any State, political subdivi- Code authorizes GSA to donate to the sion of a State, or tax-supported orga- Red Cross, for charitable use, such nization for public airport use; property as was originally derived from (b) Setting eligibility requirements or through the Red Cross. for public airports and making deter- [67 FR 2584, Jan. 18, 2002, as amended at 71 minations of eligibility; FR 23868, Apr. 25, 2006] (c) Certifying that property listed on a transfer request is desirable or nec- § 102–37.545 What type of property essary for public airport use; may the American National Red (d) Advising GSA of FAA officials au- Cross receive? thorized to certify transfer requests The Red Cross may receive surplus and notifying GSA of any changes in gamma globulin, dried plasma, albu- signatory authority; min, antihemophilic globulin, fibrin (e) Determining and enforcing com- foam, surgical dressings, or other prod- pliance with the terms and conditions ucts or materials it processed, pro- under which surplus personal property duced, or donated to a Federal agency.

132

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00142 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–37, App. A

§ 102–37.550 What steps must the may not donate property that requires American National Red Cross take destruction for health, safety, or secu- to acquire surplus property? rity reasons. When disposing of haz- Upon receipt of information from ardous materials and other dangerous GSA regarding the availability of sur- property, a holding agency must com- plus property for donation, the Red ply with all applicable laws and regula- Cross will: tions and any special disposal require- (a) Have 21 calendar days to inspect ments in part 101–42 of this title. the property or request it without inspection; and § 102–37.575 Is there a special form for holding agencies to process dona- (b) Be responsible for picking up tions? property donated to it or arranging and paying for its shipment. There is no special form for holding agencies to process donations. A hold- § 102–37.555 What happens to property ing agency may use any document that the American National Red Cross meets its agency’s needs for maintain- does not request? ing an audit trail of the transaction. Property the Red Cross declines to § 102–37.580 Who is responsible for request will be offered to SASPs for costs associated with the donation? distribution to eligible donees. If such property is transferred, GSA will re- The recipient public body is respon- quire the SASP to ensure that all Red sible for paying the disposal costs inci- Cross labels or other Red Cross identi- dent to the donation, such as packing, fications are obliterated or removed preparation for shipment, demilitariza- from the property before it is used. tion (as defined in § 102–36.40 of this chapter), loading, and transportation Subpart H—Donations to Public to its site. Bodies in Lieu of Abandon- APPENDIX A TO PART 102–37— ment/Destruction MISCELLANEOUS DONATION STATUTES § 102–37.560 What is a public body? The following is a listing of statutes which authorize donations which do not require A public body is any department, GSA’s approval: agency, special purpose district, or Statute: 10 U.S.C. 2572. other instrumentality of a State or Donor Agency: Any military department local government; any Indian tribe; or (Army, Navy, and Air Force) or the Coast any agency of the Federal Government. Guard. Type of Property: Books, manuscripts, § 102–37.565 What is the authority for works of art, historical artifacts, drawings, donations to public bodies? plans, models, and condemned or obsolete combat material. Section 527 of title 40, United States Eligible Recipients: Municipal corporations; Code authorizes the abandonment, de- soldiers’ monument associations; museums, struction, or donation to public bodies historical societies, or historical institutions of property which has no commercial of a State or foreign nation; incorporated value or for which the estimated cost museums that are operated and maintained of continued care and handling would for educational purposes only and the char- exceed the estimated proceeds from its ters of which denies them the right to operate for profit; posts of the Veterans of For- sale. eign Wars of the United States or of the [67 FR 2584, Jan. 18, 2002, as amended at 71 American Legion or a unit of any other rec- FR 23868, Apr. 25, 2006] ognized war veterans’ association; local or national units of any war veterans’ associa- § 102–37.570 What type of property tion of a foreign nation which is recognized may a holding agency donate under by the national government of that nation or this subpart? a principal subdivision of that nation; and posts of the Sons of Veterans Reserve. Only that property a holding agency Statute: 10 U.S.C. 7306. has made a written determination to Donor Agency: Department of the Navy. abandon or destroy (see process in part Type of Property: Any vessel stricken from 102–36 of this chapter) may be donated the Naval Vessel Register or any captured under this subpart. A holding agency vessel in the possession of the Navy.

133

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00143 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–37, App. B 41 CFR Ch. 102 (7–1–11 Edition)

Eligible Recipients: States, Commonwealths, States, or political subdivisions or municipal or possessions of the United States; the Dis- corporations thereof; the District of Colum- trict of Columbia; and not-for-profit or non- bia; libraries; historical societies; edu- profit entities. cational institutions whose graduates or stu- Statute: 10 U.S.C. 7541. dents fought in World War I or World War II; Donor Agency: Department of the Navy. soldiers’ monument associations; State mu- Type of Property: Obsolete material not seums; museums operated and maintained needed for naval purposes. for educational purposes only, whose charter Eligible Recipients: Sea scouts of the Boy denies it the right to operate for profit; posts Scouts of America; Naval Sea Cadet Corps; of the Veterans of Foreign Wars of the and the Young Marines of the Marine Corps United States; American Legion posts; rec- League. ognized war veterans’ associations; or posts Statute: 10 U.S.C. 7545. of the Sons of Veterans Reserve. Donor Agency: Department of the Navy. Statute: 14 U.S.C. 641(a). Type of Property: Captured, condemned, or obsolete ordnance material, books, manu- Donor Agency: Coast Guard. scripts, works of art, drawings, plans, and Type of Property: Obsolete or other mate- models; other condemned or obsolete material not needed for the Coast Guard. rial, trophies, and flags; and other material Eligible Recipients: Coast Guard Auxiliary; of historic interest not needed by the Navy. sea scout service of the Boy Scouts of Amer- Eligible Recipients: States, territories, com- ica; and public bodies or private organiza- monwealths, or possessions of the United tions not organized for profit.

APPENDIX B TO PART 102–37—ELEMENTS OF A STATE PLAN OF OPERATION

The following is the information and assurances that must be included in a SASP’s plan of operation:

STATE PLAN REQUIREMENTS

Regarding . . . The plan must . . .

(a) Designation of a SASP ...... (1) Name the State agency that will be responsible for administering the plan. (2) Describe the responsibilities vested in the agency which must include the authorities to acquire, warehouse and distribute surplus property to eligible donees, carry out other requirements of the State plan, and provide details concerning the organization of the agency, including supervision, staffing, structure, and physical facilities. (3) Indicate the organizational status of the agency within the State governmental structure and the title of the State official who directly supervises the State agent.

(b) Operational authority ...... Include copies of existing State statutes and/or executive orders relative to the operational authority of the SASP. Where express statutory authority does not exist or is ambig- uous, or where authority exists by virtue of executive order, the plan must include also the opinion of the State’s Attorney General regarding the existence of such authority.

(c) Inventory control and accounting (1) Require the SASP to use a management control and accounting system that effectively system. governs the utilization, inventory control, accountability, and disposal of property. (2) Provide a detailed explanation of the inventory control and accounting system that the SASP will use. (3) Provide that property retained by the SASP to perform its functions be maintained on separate records from those of donable property.

(d) Return of donated property ...... (1) Require the SASP to provide for the return of donated property from the donee, at the donee’s expense, if the property is still usable as determined by the SASP; and (i) The donee has not placed the property into use for the purpose for which it was donated within 1 year of donation; or (ii) The donee ceases to use the property within 1 year after placing it in use. (2) Specify that return of property can be accomplished by: (i) Physical return to the SASP facility, if required by the SASP. (ii) Retransfer directly to another donee, SASP, or Federal agency, as required by the SASP. (iii) Disposal (by sale or other means) as directed by the SASP. (3) Set forth procedures to accomplish property returns to the SASP, retransfers to other organizations, or disposition by sale, abandonment, or destruction.

(e) Financing and service charges (1) Set forth the means and methods for financing the SASP. When the State authorizes the SASP to assess and collect service charges from participating donees to cover direct and reasonable indirect costs of its activities, the method of establishing the charges must be set forth in the plan.

134

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00144 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–37, App. B

STATE PLAN REQUIREMENTS—Continued

Regarding . . . The plan must . . .

(2) Affirm that service charges, if assessed, are fair and equitable and based on services performed (or paid for) by the SASP, such as screening, packing, crating, removal, and transportation. When the SASP provides minimal services in connection with the acquisition of property, except for document processing and other administrative actions, the State plan must provide for minimal charges to be assessed in such cases and include the bases of computation. (3) Provide that property made available to nonprofit providers of assistance to homeless individuals be distributed at a nominal cost for care and handling of the property. (4) Set forth how funds accumulated from service charges, or from other sources such as sales or compliance proceeds are to be used for the operation of the SASP and the benefit of participating donees. (5) Affirm, if service charge funds are to be deposited or invested, that such deposits or in- vestments are permitted by State law and set forth the types of depositories and/or in- vestments contemplated. (6) Cite State authority to use service charges to acquire or improve SASP facilities and set forth disposition to be made of any financial assets realized upon the sale or other disposal of the facilities. (7) Indicate if the SASP intends to maintain a working capital reserve. If one is to be maintained, the plan should provide the provisions and limitations for it. (8) State if refunds of service charges are to be made to donees when there is an excess in the SASP’s working capital reserve and provide details of how such refunds are to be made, such as a reduction in service charges or a cash refund, prorated in an equitable manner.

(f) Terms and conditions on do- (1) Require the SASP to identify terms and conditions that will be imposed on the donee nated property. for any item of donated property with a unit acquisition cost of $5,000 or more and any passenger motor vehicle. (2) Provide that the SASP may impose reasonable terms and conditions on the use of other donated property. If the SASP elects to impose additional terms and conditions, it should list them in the plan. If the SASP wishes to provide for amending, modifying, or releasing any terms or conditions it has elected to impose, it must state in the plan the standards it will use to grant such amendments, modifications or releases. (3) Provide that the SASP will impose on the donation of property, regardless of unit acquisition cost, such conditions involving special handling or use limitations as GSA may determine necessary because of the characteristics of the property.

(g) Nonutilized or undistributed Provide that, subject to GSA approval, property in the possession of the SASP which property. donees in the State cannot use will be disposed of by: (1) Transfer to another SASP or Federal agency. (2) Sale. (3) Abandonment or destruction. (4) Other arrangements.

(h) Fair and equitable distribution ... (1) Provide that the SASP will make fair and equitable distribution of property to eligible donees in the State based on their relative needs and resources and ability to use the property. (2) Set forth the policies and detailed procedures for effecting a prompt, fair, and equitable distribution. (3) Require that the SASP, insofar as practicable, select property requested by eligible donees and, if requested by the donee, arrange for shipment of the property directly to the donee.

(i) Eligibility ...... (1) Set forth procedures for the SASP to determine the eligibility of applicants for the donation of surplus personal property. (2) Provide for donee eligibility records to include at a minimum: (i) Legal name and address of the donee. (ii) Status of the donee as a public agency or as an eligible nonprofit activity. (iii) Details on the scope of the donee’s program. (iv) Proof of tax exemption under section 501 of the Internal Revenue Code if the donee is nonprofit. (v) Proof that the donee is approved, accredited, licensed, or meets any other legal requirement for operation of its program(s). (vi) Financial information. (vii) Written authorization by the donee’s governing body or chief administrative officer designating at least one person to act for the donee in acquiring property. (viii) Assurance that the donee will comply with GSA’s regulations on nondiscrimination. (ix) Types of property needed.

135

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00145 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–37, App. C 41 CFR Ch. 102 (7–1–11 Edition)

STATE PLAN REQUIREMENTS—Continued

Regarding . . . The plan must . . .

(j) Compliance and utilization ...... (1) Provide that the SASP conduct utilization reviews for donee compliance with the terms, conditions, reservations, and restrictions imposed by GSA and the SASP on property having a unit acquisition cost of $5,000 or more and any passenger motor vehicle. (2) Provide for the reviews to include a survey of donee compliance with any special handling conditions or use limitations imposed on items of property by GSA. (3) Set forth the proposed frequency of such reviews and provide adequate assurances that the SASP will take effective action to correct noncompliance or otherwise enforce such terms, conditions, reservations, and restrictions. (4) Require the SASP to prepare reports on utilization reviews and compliance actions and provide assurance that the SASP will initiate appropriate investigations of alleged fraud in the acquisition of donated property or misuse of such property.

(k) Consultation with advisory bod- (1) Provide for consultation with advisory bodies and public and private groups which can ies and public and private groups. assist the SASP in determining the relative needs and resources of donees, the proposed utilization of surplus property by eligible donees, and how distribution of surplus property can be effected to fill existing needs of donees. (2) Provide details of how the SASP will accomplish such consultation.

(l) Audit ...... (1) Provide for periodic internal audits of the operations and financial affairs of the SASP. (2) Provide for compliance with the external audit requirements of Office of Management and Budget Circular No. A–133, ‘‘Audits of States, Local Governments, and Non-Profit Organizations’’ (available at www.whitehouse.gov/OMB), and make provisions for the SASP to furnish GSA with: (i) Two copies of any audit report made pursuant to the Circular, or with two copies of those sections that pertain to the Federal donation program. (ii) An outline of all corrective actions and scheduled completion dates for the actions. (3) Provide for cooperation in GSA or Comptroller General conducted audits.

(m) Cooperative agreements ...... If the SASP wishes to enter into, renew, or revise cooperative agreements with GSA or other Federal agencies: (1) Affirm the SASP’s intentions to enter into cooperative agreements. (2) Cite the authority for entering into such agreements.

(n) Liquidation ...... Provide for the SASP to submit a liquidation plan prior to termination of the SASP activities if the State decides to dissolve the SASP.

(o) Forms ...... Include copies of distribution documents used by the SASP.

(p) Records ...... Affirm that all official records of the SASP will be retained for a minimum of 3 years, except that: (1) Records involving property subject to restrictions for more than 2 years must be kept 1 year beyond the specified period of restriction. (2) Records involving property with perpetual restriction must be retained in perpetuity. (3) Records involving property in noncompliance status must be retained for at least 1 year after the noncompliance case is closed.

APPENDIX C TO PART 102–37—GLOSSARY sities, colleges, or secondary schools; or an- OF TERMS FOR DETERMINING ELIGI- other recognized accrediting association. Approved means recognition and approval BILITY OF PUBLIC AGENCIES AND by the State department of education, State NONPROFIT ORGANIZATIONS department of health, or other appropriate authority where no recognized accrediting The following is a glossary of terms for de- board, association, or other authority exists termining eligibility of public agencies and for the purpose of making an accreditation. nonprofit organizations: For an educational institution or an edu- Accreditation means the status of public cational program, approval must relate to recognition that an accrediting agency academic or instructional standards estab- grants to an institution or program that lished by the appropriate authority. For a meets the agency’s standards and require- public health institution or program, ap- ments. proval must relate to the medical require- Accredited means approval by a recognized ments and standards for the professional and accrediting board or association on a re- technical services of the institution estab- gional, State, or national level, such as a lished by the appropriate authority. State board of education or health; the Child care center means a public or non- American Hospital Association; a regional or profit facility where educational, social, national accrediting association for univer- health, and nutritional services are provided to children through age 14 (or as prescribed

136

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00146 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–37, App. C

by State law) and that is approved or li- services, including related facilities such as censed by the State or other appropriate au- diagnostic and laboratory facilities and clin- thority as a child day care center or child ics. care center. Historic light station means a historic light Clinic means an approved public or non- station as defined under section 308(e)(2) of profit facility organized and operated for the the National Historic Preservation Act 16 primary purpose of providing outpatient pub- U.S.C. 470w–7(e)2), including a historic light lic health services and includes customary station conveyed under subsection (b) of that related services such as laboratories and section, notwithstanding the number of treatment rooms. hours that the historic light station is open College means an approved or accredited to the public. public or nonprofit institution of higher Homeless individual means: learning offering organized study courses (1) An individual who lacks a fixed, reg- and credits leading to a baccalaureate or ular, and adequate nighttime residence, or higher degree. who has a primary nighttime residence that Conservation means a program or programs is: carried out or promoted by a public agency (i) A supervised publicly or privately oper- for public purposes involving directly or in- ated shelter designed to provide temporary directly the protection, maintenance, devel- living accommodations (including welfare opment, and restoration of the natural re- hotels, congregate shelters, and transitional sources of a given political area. These re- housing for the mentally ill); sources include but are not limited to the (ii) An institution that provides a tem- air, land, forests, water, rivers, streams, porary residence for individuals intended to lakes and ponds, minerals, and animals, fish be institutionalized; or and other wildlife. (iii) A public or private place not designed Drug abuse or alcohol treatment center means for, or ordinarily used as, a regular sleeping a clinic or medical institution that provides accommodation for human beings. for the diagnosis, treatment, or rehabilita- (2) For purposes of this part, the term tion of alcoholics or drug addicts. These cen- homeless individual does not include any indi- ters must have on their staffs, or available vidual imprisoned or otherwise detained pur- on a regular visiting basis, qualified profes- suant to an Act of the Congress or a State sionals in the fields of medicine, psychology, law. psychiatry, or rehabilitation. Hospital means an approved or accredited Economic development means a program(s) public or nonprofit institution providing carried out or promoted by a public agency public health services primarily for inpa- for public purposes to improve the opportu- tient medical or surgical care of the sick and nities of a given political area for the estab- injured and includes related facilities such lishment or expansion of industrial, commer- as laboratories, outpatient departments, cial, or agricultural plants or facilities and training facilities, and staff offices. which otherwise assist in the creation of Library means a public or nonprofit facility long-term employment opportunities in the providing library services free to all resi- area or primarily benefit the unemployed or dents of a community, district, State, or re- those with low incomes. gion. Education means a program(s) to develop Licensed means recognition and approval and promote the training, general knowl- by the appropriate State or local authority edge, or academic, technical, and vocational approving institutions or programs in spe- skills and cultural attainments of individ- cialized areas. Licensing generally relates to uals in a community or given political area. established minimum public standards of Public educational programs may include safety, sanitation, staffing, and equipment public school systems and supporting facili- as they relate to the construction, mainte- ties such as centralized administrative or nance, and operation of a health or edu- service facilities. cational facility, rather than to the aca- Educational institution means an approved, demic, instructional, or medical standards accredited, or licensed public or nonprofit infor these institutions. stitution, facility, entity, or organization Medical institution means an approved, ac- conducting educational programs or research credited, or licensed public or nonprofit infor educational purposes, such as a child care stitution, facility, or organization whose pri- center, school, college, university, school for mary function is the furnishing of public the mentally or physically disabled, or an health and medical services to the public or educational radio or television station. promoting public health through the conduct Educational radio or television station means of research, experiments, training, or dem- a public or nonprofit radio or television sta- onstrations related to cause, prevention, and tion licensed by the Federal Communica- methods of diagnosis and treatment of dis- tions Commission and operated exclusively eases and injuries. The term includes, but is for noncommercial educational purposes. not limited to, hospitals, clinics, alcohol and Health center means an approved public or drug abuse treatment centers, public health nonprofit facility that provides public health or treatment centers, research and health

137

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00147 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–37, App. C 41 CFR Ch. 102 (7–1–11 Edition)

centers, geriatric centers, laboratories, med- ter, or other services to homeless individ- ical schools, dental schools, nursing schools, uals. and similar institutions. The term does not Provider of assistance to impoverished families include institutions primarily engaged in and individuals means a public or nonprofit domiciliary care, although a separate med- organization whose primary function is to ical facility within such a domiciliary insti- provide money, goods, or services to families tution may qualify as a medical institution. or individuals whose annual incomes are Museum means a public or nonprofit insti- below the poverty line (as defined in section tution that is organized on a permanent 673 of the Community Services Block Grant basis for essentially educational or aesthetic Act) (42 U.S.C. 9902). Providers include food purposes and which, using a professional banks, self-help housing groups, and organi- staff, owns or uses tangible objects, either zations providing services such as the fol- animate or inanimate; cares for these ob- lowing: Health care; medical transportation; jects; and exhibits them to the public on a regular basis (at least 1000 hours a year). As scholarships and tuition assistance; tutoring used in this part, the term museum includes, and literacy instruction; job training and but is not limited to, the following institu- placement; employment counseling; child tions if they satisfy all other provisions of care assistance; meals or other nutritional this definition: Aquariums and zoological support; clothing distribution; home con- parks; botanical gardens and arboretums; na- struction or repairs; utility or rental assist- ture centers; museums relating to art, his- ance; and legal counsel. tory (including historic buildings), natural Public agency means any State; political history, science, and technology; and plan- subdivision thereof, including any unit of etariums. For the purposes of this definition, local government or economic development an institution uses a professional staff if it district; any department, agency, or instru- employs at least one fulltime staff member mentality thereof, including instrumental- or the equivalent, whether paid or unpaid, ities created by compact or other agreement primarily engaged in the acquisition, care, between States or political subdivisions; or public exhibition of objects owned or used multijurisdictional substate districts estab- by the institution. This definition of museum lished by or pursuant to State law; or any In- does not include any institution that exhib- dian tribe, band, group, pueblo, or commu- its objects to the public if the display or use nity located on a State reservation. of the objects is only incidental to the pri- Public health means a program(s) to pro- mary function of the institution. mote, maintain, and conserve the public’s Nationally recognized accrediting agency health by providing health services to indi- means an accrediting agency that the De- viduals and/or by conducting research, inves- partment of Education recognizes under 34 tigations, examinations, training, and dem- CFR part 600. (For a list of accrediting agen- onstrations. Public health services may in- cies, see the Department’s web site at http:// clude but are not limited to the control of www.ed.gov/admins/finaid/accred) communicable diseases, immunization, ma- Nonprofit means not organized for profit ternal and child health programs, sanitary and exempt from Federal income tax under engineering, sewage treatment and disposal, section 501 of the Internal Revenue Code (26 sanitation inspection and supervision, water U.S.C. 501). purification and distribution, air pollution Parks and recreation means a program(s) control, garbage and trash disposal, and the carried out or promoted by a public agency control and elimination of disease-carrying for public purposes that involve directly or animals and insects. indirectly the acquisition, development, improvement, maintenance, and protection of Public health institution means an approved, park and recreational facilities for the resi- accredited, or licensed public or nonprofit in- dents of a given political area. stitution, facility, or organization con- Program for older individuals means a pro- ducting a public health program(s) such as a gram conducted by a State or local govern- hospital, clinic, health center, or medical in- ment agency or nonprofit activity that restitution, including research for such pro- ceives funds appropriated for services or programs, the services of which are available to grams for older individuals under the Older the public. Americans Act of 1965, as amended, under Public purpose means a program(s) carried title IV or title XX of the Social Security out by a public agency that is legally au- Act (42 U.S.C. 601 et seq.), or under titles VIII thorized in accordance with the laws of the and X of the Economic Opportunity Act of State or political subdivision thereof and for 1964 (42 U.S.C. 2991 et seq.) and the Commu- which public funds may be expended. Public nity Services Block Grant Act (42 U.S.C. 9901 purposes include but are not limited to pro- et seq.). grams such as conservation, economic devel- Provider of assistance to homeless individuals opment, education, parks and recreation, means a public agency or a nonprofit institu- public health, public safety, programs of as- tion or organization that operates a program sistance to the homeless or impoverished, which provides assistance such as food, shel- and programs for older individuals.

138

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00148 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–38

Public safety means a program(s) carried 102–38.30 How does an executive agency re- out or promoted by a public agency for pub- quest a deviation from the provisions of lic purposes involving, directly or indirectly, this part? the protection, safety, law enforcement activities, and criminal justice system of a DEFINITIONS given political area. Public safety programs 102–38.35 What definitions apply to this may include, but are not limited to those part? carried out by: (1) Public police departments. RESPONSIBILITIES (2) Sheriffs’ offices. 102–38.40 Who may sell personal property? (3) The courts. 102–38.45 What are an executive agency’s re- (4) Penal and correctional institutions (in- sponsibilities in selling personal prop- cluding juvenile facilities). erty? (5) State and local civil defense organiza- 102–38.50 What must we do when an execu- tions. tive agency suspects violations of 40 (6) Fire departments and rescue squads (in- U.S.C. 559, fraud, bribery, or criminal cluding volunteer fire departments and res- collusion in connection with the disposal cue squads supported in whole or in part of personal property? with public funds). 102–38.55 What must we do when selling per- School (except schools for the mentally or sonal property? physically disabled) means a public or non- 102–38.60 Who is responsible for the costs of profit approved or accredited organizational care and handling of the personal prop- entity devoted primarily to approved aca- erty before it is sold? demic, vocational, or professional study and 102–38.65 What if we are or the holding agen- instruction, that operates primarily for edu- cy is notified of a Federal requirement cational purposes on a full-time basis for a for surplus personal property before the minimum school year and employs a full- sale is complete? time staff of qualified instructors. 102–38.70 May the holding agency abandon School for the mentally or physically disabled or destroy personal property either prior means a facility or institution operated pri- to or after trying to sell it? marily to provide specialized instruction to students of limited mental or physical ca- Subpart B—Sales Process pacity. It must be public or nonprofit and must operate on a full-time basis for the METHODS OF SALE equivalent of a minimum school year pre- 102–38.75 How may we sell personal prop- scribed for public school instruction for the erty? mentally or physically disabled, have a staff 102–38.80 Which method of sale should we of qualified instructors, and demonstrate use? that the facility meets the health and safety standards of the State or local government. COMPETITIVE SALES University means a public or nonprofit approved or accredited institution for instruc- 102–38.85 What is a sealed bid sale? tion and study in the higher branches of 102–38.90 What is a spot bid sale? learning and empowered to confer degrees in 102–38.95 What is an auction? special departments or colleges. NEGOTIATED SALES [67 FR 2584, Jan. 18, 2002, as amended at 71 102–38.100 What is a negotiated sale? FR 23868, Apr. 25, 2006; 72 FR 12572, Mar. 16, 102–38.105 Under what conditions may we 2007] negotiate sales of personal property? 102–38.110 Who approves our determinations PART 102–38—SALE OF PERSONAL to conduct negotiated sales? PROPERTY 102–38.115 What are the specific reporting requirements for negotiated sales? Subpart A—General Provisions 102–38.120 When may we conduct negotiated sales of personal property at fixed prices Sec. (fixed price sale)? 102–38.5 What does this part cover? 102–38.125 May we sell personal property at 102–38.10 What is the governing authority fixed prices to State agencies? for this part? ADVERTISING 102–38.15 Who must comply with these sales provisions? 102–38.130 Must we publicly advertise sales 102–38.20 Must an executive agency follow of Federal personal property? the regulations of this part when selling 102–38.135 What constitutes a public adver- all personal property? tisement? 102–38.25 To whom do ‘‘we’’, ‘‘you’’, and 102–38.140 What must we include in the pub- their variants refer? lic notice on sale of personal property?

139

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00149 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–38 41 CFR Ch. 102 (7–1–11 Edition)

PRE-SALE ACTIVITIES MISTAKES IN BIDS 102–38.145 Must we allow for inspection of 102–38.260 Who makes the administrative the personal property to be sold? determinations regarding mistakes in 102–38.150 How long is the inspection period? bids? 102–38.265 Must we keep records on adminis- OFFER TO SELL trative determinations? 102–38.270 May a bidder protest the deter- 102–38.155 What is an offer to sell? minations made on sales of personal 102–38.160 What must be included in the property? offer to sell? 102–38.165 Are the terms and conditions in Subpart D—Completion of Sale the offer to sell binding? AWARDS Subpart C—Bids 102–38.275 To whom do we award the sales contract? BUYER ELIGIBILITY 102–38.280 What happens when there is no 102–38.170 May we sell Federal personal award? property to anyone? 102–38.175 How do we find out if a person or TRANSFER OF TITLE entity has been suspended or debarred 102–38.285 How do we transfer title from the from doing business with the Govern- Government to the buyer for personal ment? property sold? 102–38.180 May we sell Federal personal property to a Federal employee? PAYMENTS 102–38.185 May we sell Federal personal 102–38.290 What types of payment may we property to State or local governments? accept?

ACCEPTANCE OF BIDS DISPOSITION OF PROCEEDS 102–38.190 What is considered a responsive 102–38.295 May we retain sales proceeds? bid? 102–38.300 What happens to sales proceeds 102–38.195 Must bidders use authorized bid that neither we nor the holding agency forms? are authorized to retain, or that are un- 102–38.200 Who may accept bids? used? 102–38.205 Must we accept all bids? DISPUTES 102–38.210 What happens when bids have been rejected? 102–38.305 How do we handle disputes in- 102–38.215 When may we disclose the bid re- volved in the sale of Federal personal sults to the public? property? 102–38.220 What must we do when the high- 102–38.310 Are we required to use the Dis- est bids received have the same bid putes clause in the sale of personal prop- amount? erty? 102–38.225 What are the additional require- 102–38.315 Are we required to use Alter- ments in the bid process? native Disputes Resolution for sales contracts? BID DEPOSITS Subpart E—Other Governing Statutes 102–38.230 Is a bid deposit required to buy personal property? 102–38.320 Are there other statutory require- 102–38.235 What types of payment may we ments governing the sale of Federal per- accept as bid deposits? sonal property? 102–38.240 What happens to the deposit bond if the bidder defaults or wants to with- ANTITRUST REQUIREMENTS draw his/her bid? 102–38.325 What are the requirements pertaining to antitrust laws? LATE BIDS 102–38.245 Do we consider late bids for Subpart F—Reporting Requirements award? 102–38.330 Are there any reports that we 102–38.250 How do we handle late bids that must submit to the General Services Ad- are not considered? ministration? 102–38.335 Is there any additional personal MODIFICATION OR WITHDRAWAL OF BIDS property sales information that we must 102–38.255 May we allow a bidder to modify submit to the General Services Adminis- or withdraw a bid? tration?

140

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00150 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–38.30

Subpart G—Provisions for State and Local § 102–38.15 Who must comply with Governments these sales provisions?

102–38.340 How may we sell personal prop- All executive agencies must comply erty to State and local governments? with the provisions of this part. The 102–38.345 Do we have to withdraw personal legislative and judicial branches are property advertised for public sale if a encouraged to follow these provisions. State Agency for Surplus Property wants to buy it? § 102–38.20 Must an executive agency 102–38.350 Are there special provisions for follow the regulations of this part State and local governments regarding when selling all personal property? negotiated sales? Generally, yes, an executive agency 102–38.355 Do the regulations of this part must follow the regulations of this part apply to State Agencies for Surplus when selling all personal property; Property (SASPs) when conducting however— sales? (a) Materials acquired for the na- Subpart H—Implementation of the Federal tional stockpile or supplemental stock- Asset Sales Program pile, or materials or equipment acquired under section 303 of the Defense 102–38.360 What must an executive agency Production Act of 1950, as amended (50 do to implement the eFAS program? U.S.C. App. 2093) are excepted from this 102–38.365 Is a holding agency required to part; report property in ‘‘scrap’’ condition to (b) The Maritime Administration, its selected SC? Department of Transportation, has ju- 102–38.370 What does a holding agency do risdiction over the disposal of vessels with property which cannot be sold by its SC? of 1,500 gross tons or more and determined by the Secretary to be merchant AUTHORITY: 40 U.S.C. 545 and 40 U.S.C. vessels or capable of conversion to 121(c). merchant use; SOURCE: 68 FR 51421, Aug. 26, 2003, unless (c) Sales made by the Secretary of otherwise noted. Defense pursuant to 10 U.S.C. 2576 (Sale of Surplus Military Equipment to Subpart A—General Provisions State and Local Law Enforcement and Firefighting Agencies) are exempt from § 102–38.5 What does this part cover? these provisions; (d) Foreign excess personal property This part prescribes the policies gov- is exempt from these provisions; and erning the sale of Federal personal (e) Agency sales procedures which are property, including— mandated or authorized under laws (a) Surplus personal property that other than Title 40 United States Code has completed all required Federal and/ are exempt from this part. or donation screening; and (b) Personal property to be sold [73 FR 20802, Apr. 17, 2008] under the exchange/sale authority. § 102–38.25 To whom do ‘‘we’’, ‘‘you’’, NOTE TO § 102–38.5: You must follow addi- and their variants refer? tional guidelines in 41 CFR parts 101–42 and Unless otherwise indicated, use of 101–45 of the Federal Property Management pronouns ‘‘we’’, ‘‘you’’, and their Regulations (FPMR) for the sale of personal variants throughout this part refer to property that has special handling requirements or property containing hazardous ma- the Sales Center responsible for the terials. Additional requirements for the sale sale of the property. of aircraft and aircraft parts are provided in [68 FR 51421, Aug. 26, 2003, as amended at 73 part 102–33 of this chapter. FR 20802, Apr. 17, 2008]

§ 102–38.10 What is the governing au- § 102–38.30 How does an executive thority for this part? agency request a deviation from the The authority for the regulations in provisions of this part? this part governing the sale of Federal Refer to §§ 102–2.60 through 102–2.110 personal property is 40 U.S.C. 541 of this chapter for information on how through 548, 571, 573 and 574. to obtain a deviation from this part.

141

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00151 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–38.35 41 CFR Ch. 102 (7–1–11 Edition)

However, waivers which are distinct and naval vessels of the following cat- from the standard deviation process egories: and specific to the requirements of the (1) Battleships; Federal Asset Sales (eFAS) initiative (2) Cruisers; milestones (see subpart H of this part) (3) Aircraft carriers; are addressed in § 102–38.360. (4) Destroyers; and (5) Submarines. [73 FR 20802, Apr. 17, 2008] Sales Center (SC) means an agency DEFINITIONS that has been nominated, designated, and approved by the eFAS ESC and the § 102–38.35 What definitions apply to Office of Management and Budget this part? (OMB) as an official sales solution for The following definitions apply to Federal property. The criteria for be- this part: coming an SC, the selection process, Bid means a response to an offer to and the ongoing SC requirements for sell that, if accepted, would bind the posting property for sale to the eFAS bidder to the terms and conditions of portal and reporting sales activity and the contract (including the bid price). performance data are established by Bidder means any entity that is re- the eFAS ESC and can be obtained sponding to or has responded to an from the eFAS Planning Office at GSA. offer to sell. The eFAS Planning Office may be con- Estimated fair market value means the tacted via e-mail at selling agency’s best estimate of what [email protected]. SCs may the property would be sold for if offered utilize (and should consider) private for public sale. sector entities as well as Government Federal Asset Sales (eFAS) refers to activities and are expected to provide the e-Government initiative to im- exemplary asset management solutions prove the way the Federal Government in one or more of the following areas: manages and sells its real and personal on-line sales; off-line sales; and sales- property assets. Under this initiative, related value added services. SCs will only an agency designated as a Sales enter into agreements with holding Center (SC) may sell Federal property, agencies to sell property belonging to unless a waiver has been granted by these holding agencies. A holding agen- the eFAS Planning Office in accordance cy may employ the services of multiple with § 102–38.360. The eFAS initiative is SCs to maximize efficiencies. governed and given direction by the State Agency for Surplus Property eFAS Executive Steering Committee (SASP) means the agency designated (ESC), with GSA as the managing part- under State law to receive Federal sur- ner agency. plus personal property for distribution Federal Asset Sales Planning Office to eligible donees within the State as (eFAS Planning Office) refers to the of- provided for in 40 U.S.C. 549. fice within GSA assigned responsibility State or local government means a for managing the eFAS initiative. State, territory, possession, political Holding Agency refers to the agency subdivision thereof, or tax-supported in possession of personal property eligi- agency therein. ble for sale under this part. [68 FR 51421, Aug. 26, 2003, as amended at 73 Identical bids means bids for the same FR 20802, Apr. 17, 2008] item of property having the same total price. RESPONSIBILITIES Migration Plan refers to the document a holding agency prepares to summa- § 102–38.40 Who may sell personal rize its choice of SC(s) and its plan for property? migrating agency sales to the SC(s). An executive agency may sell per- The format for this document is deter- sonal property (including on behalf of mined by the eFAS ESC. another agency when so requested) Personal property means any prop- only if it is a designated Sales Center erty, except real property. For pur- (SC), or if the agency has received a poses of this part, the term excludes waiver from the eFAS Planning Office. records of the Federal Government, An SC may engage contractor support

142

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00152 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–38.65

to sell personal property. Only a duly and, for cases referred to the Depart- authorized agency official may execute ment of Justice, a copy of the trans- the sale award documents and bind the mittal letter. A copy of each report United States. must be submitted also to GSA, Per- sonal Property Management Policy Di- [73 FR 20802, Apr. 17, 2008] vision (MTP), 1800 F Street, NW., § 102–38.45 What are an executive Washington, DC 20405. agency’s responsibilities in selling [68 FR 51421, Aug. 26, 2003, as amended at 73 personal property? FR 20803, Apr. 17, 2008] An executive agency’s responsibilities in selling personal property are § 102–38.55 What must we do when to— selling personal property? (a) Ensure the sale complies with the When selling personal property, you provisions of Title 40 of the U.S. Code, must ensure that— the regulations of this part, and any (a) All sales are made after publicly other applicable laws; advertising for bids, except as provided (b) Issue internal guidance to pro- for negotiated sales in §§ 102–38.100 mote uniformity of sales procedures; through 102–38.125; and (c) Assure that officials designated to (b) Advertising for bids must permit conduct and finalize sales are ade- full and free competition consistent quately trained; with the value and nature of the prop- (d) Be accountable for the care and erty involved. handling of the personal property prior to its removal by the buyer; and § 102–38.60 Who is responsible for the (e) Adjust your property and finan- costs of care and handling of the cial records to reflect the final disposi- personal property before it is sold? tion. The holding agency is responsible for [68 FR 51421, Aug. 26, 2003, as amended at 73 the care and handling costs of the per- FR 20803, Apr. 17, 2008] sonal property until it is removed by the buyer, the buyer’s designee, or an § 102–38.50 What must we do when an SC. The holding agency may request executive agency suspects violations of 40 U.S.C. 559, fraud, brib- the SC to perform care and handling ery, or criminal collusion in connec- services in accordance with their tion with the disposal of personal agreement. When specified in the terms property? and conditions of sale, the SC may If an executive agency suspects viola- charge the buyer costs for storage tions of 40 U.S.C. 559, fraud, bribery, or when the buyer is delinquent in remov- criminal collusion in connection with ing the property. The amount so the disposal of personal property, the charged may only be retained by the agency must— holding agency performing the care (a) Refer the violations to the Inspec- and handling in accordance with § 102– tor General of your agency and/or the 38.295. Attorney General, Department of Jus- [73 FR 20803, Apr. 17, 2008] tice, Washington, DC 20530, for further investigation. You must cooperate § 102–38.65 What if we are or the hold- with and provide evidence concerning ing agency is notified of a Federal the suspected violation or crime to the requirement for surplus personal investigating agency assuming juris- property before the sale is com- diction of the matter; and plete? (b) Submit to the General Services Federal agencies have first claim to Administration (GSA), Property Man- excess or surplus personal property re- agement Division (FBP), 1800 F Street, ported to the General Services Admin- NW., Washington, DC 20406, a report of istration. When a bona fide need for the any compliance investigations con- property exists and is expressed by a cerning such violations. The report Federal agency, and when no like must contain information concerning item(s) are located elsewhere, you or the noncompliance, including the cor- the holding agency must make the rective action taken or contemplated, property available for transfer to the

143

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00153 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–38.70 41 CFR Ch. 102 (7–1–11 Edition)

maximum extent practicable and prior (6) Submission of bids. to transfer of title to the property. (7) Bid price determination. [68 FR 51421, Aug. 26, 2003, as amended at 73 (8) Title. FR 20803, Apr. 17, 2008] (9) Delivery, loading, and removal of property. § 102–38.70 May the holding agency (10) Default, returns, or refunds. abandon or destroy personal prop- (11) Modifications, withdrawals, or erty either prior to or after trying late bids. to sell it? (12) Requirements to comply with ap- (a) Yes, the holding agency may plicable laws and regulations. 41 CFR abandon or destroy personal property part 101–42 contains useful guidance ad- either prior to or after trying to sell it, dressing many of these requirements. but only when an authorized agency of- You should also contact your agency’s ficial has made a written determina- Office of General Counsel or environ- tion that— mental office to identify applicable (1) The personal property has no com- Federal, State, or local environmental mercial value; or laws and regulations. (2) The estimated cost of continued (13) Certificate of independent price care and handling would exceed the es- determinations. timated sales proceeds. (14) Covenant against contingent (b) In addition to the provisions in fees. paragraph (a) of this section, see the (15) Limitation on Government’s li- regulations at §§ 102–36.305 through 102– ability. 36.330 of this subchapter B that are ap- (16) Award of contract. plicable to the abandonment or de- (b) Standard government forms (e.g., struction of personal property in gen- Standard Form 114 series) may be used eral, and excess personal property in to document terms and conditions of particular. the sale. [68 FR 51421, Aug. 26, 2003, as amended at 73 (c) When conducting and completing FR 20803, Apr. 17, 2008] a sale through electronic media, the required terms and conditions must be Subpart B—Sales Process included in your electronic sales documentation. METHODS OF SALE [68 FR 51421, Aug. 26, 2003, as amended at 73 § 102–38.75 How may we sell personal FR 20803, Apr. 17, 2008] property? § 102–38.80 Which method of sale (a) You will sell personal property should we use? upon such terms and conditions as the head of your agency or designee deems (a) You may use any method of sale proper to promote the fairness, open- provided the sale is publicly advertised ness, and timeliness necessary for the and the personal property is sold with sale to be conducted in a manner most full and open competition. Exceptions advantageous to the Government. to the requirement for competitive When you are selling property on be- bids for negotiated sales (including half of another agency, you must con- fixed price sales) are contained in sult with the holding agency to deter- §§ 102–38.100 through 102–38.125. You mine any special or unique sales terms must select the method of sale that and conditions. You must also docu- will bring maximum return at min- ment the required terms and condi- imum cost, considering factors such tions of each sale, including, but not as— limited to, the following terms and (1) Type and quantity of property; conditions, as applicable: (2) Location of property; (1) Inspection. (3) Potential market; (2) Condition and location of prop- (4) Cost to prepare and conduct the erty. sale; (3) Eligibility of bidders. (5) Available facilities; and (4) Consideration of bids. (6) Sales experience of the selling ac- (5) Bid deposits and payments. tivity.

144

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00154 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–38.115

(b) Methods of sale may include (b) The disposal will be to a State, sealed bid sales, spot bid sales, auc- territory, possession, political subdivi- tions, or negotiated sales and may be sion thereof, or tax-supported agency conducted at a physical location or therein, and the estimated fair market through any electronic media that is value of the property and other satis- publicly accessible. factory terms of disposal are obtained by negotiation; COMPETITIVE SALES (c) Bid prices after advertising are not reasonable and re-advertising § 102–38.85 What is a sealed bid sale? would serve no useful purpose; A sealed bid sale is a sale in which (d) Public exigency does not permit bid prices are kept confidential until any delay such as that caused by the bid opening. Bids are submitted either time required to advertise a sale; electronically or in writing according (e) The sale promotes public health, to formats specified by the selling safety, or national security; agency, and all bids are held for public (f) The sale is in the public interest disclosure at a designated time and under a national emergency declared place. by the President or the Congress. This authority may be used only with spe- § 102–38.90 What is a spot bid sale? cific lot(s) of property or for categories A spot bid sale is a sale where imme- determined by the Administrator of diately following the offering of the General Services for a designated pe- item or lot of property, bids are exam- riod but not in excess of three months; ined, and awards are made or bids re- (g) Selling the property competi- jected on the spot. Bids are either sub- tively would have an adverse impact on mitted electronically or in writing ac- the national economy, provided that cording to formats specified by the the estimated fair market value of the selling agency, and must not be dis- property and other satisfactory terms closed prior to announcement of award. of disposal can be obtained by negotiation, e.g., sale of large quantities of an § 102–38.95 What is an auction? agricultural product that impact do- An auction is a sale where the bid mestic markets; or amounts of different bidders are dis- (h) Otherwise authorized by Title 40 closed as they are submitted, providing of the U.S. Code or other law. bidders the option to increase their bids if they choose. Bids are submitted § 102–38.110 Who approves our deter- electronically and/or by those phys- minations to conduct negotiated ically present at the sale. Normally, sales? the bidder with the highest bid at the The head of your agency (or his/her close of each bidding process is award- designee) must approve all negotiated ed the property. sales of personal property.

NEGOTIATED SALES § 102–38.115 What are the specific reporting requirements for negotiated § 102–38.100 What is a negotiated sale? sales? A negotiated sale is a sale where the For negotiated sales of personal prop- selling price is arrived at between the erty, you must— seller and the buyer, subject to obtain- (a) In accordance with 40 U.S.C. ing such competition as is feasible 545(e), and in advance of the sale, sub- under the circumstances. mit to the oversight committees for the General Services Administration § 102–38.105 Under what conditions (GSA) in the Senate and House, explan- may we negotiate sales of personal atory statements for each sale by nego- property? tiation of any personal property with You may negotiate sales of personal an estimated fair market value in ex- property when— cess of $15,000. You must maintain cop- (a) The personal property has an esti- ies of the explanatory statements in mated fair market value that does not your disposal files. No statement is exceed $15,000; needed for negotiated sales at fixed

145

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00155 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–38.120 41 CFR Ch. 102 (7–1–11 Edition)

price or for any sale made without ad- sions thereof, or tax-supported agen- vertising when authorized by law other cies therein, which have expressed an than 40 U.S.C. 545; and interest in obtaining the property. For (b) Report annually to GSA, Personal additional information, see subpart G Property Management Policy Division of this part. (MTP), 1800 F Street, NW., Washington, DC, 20405, within 60 calendar days after ADVERTISING the close of each fiscal year, a listing and description of all negotiated sales § 102–38.130 Must we publicly adver- of personal property with an estimated tise sales of Federal personal prop- fair market value in excess of $5,000. erty? You may submit the report electroni- Yes, you must provide public notice cally or manually (see § 102–38.330). of your sale of personal property to permit full and open competition. § 102–38.120 When may we conduct negotiated sales of personal property § 102–38.135 What constitutes a public at fixed prices (fixed price sale)? advertisement? You may conduct negotiated sales of Announcement of the sale using any personal property at fixed prices (fixed media that reaches the public and is price sale) under this section when: appropriate to the type and value of (a) The items are authorized to be personal property to be sold is consid- sold at fixed price by the Adminis- ered public advertising. You may also trator of General Services, as reflected distribute mailings or flyers of your in GSA Bulletin FMR B–10 (located at offer to sell to prospective purchasers http://www.gsa.gov/fmrbulletin). You may on mailing lists. Public notice should also contact the GSA Office of Travel, be made far enough in advance of the Transportation, and Asset Manage- sale to ensure adequate notice, and to ment (MT) at the address listed in target your advertising efforts toward § 102–38.115 to determine which items are on this list of authorized items; the market that will provide the best (b) The head of your agency, or des- return at the lowest cost. ignee, determines in writing that such § 102–38.140 What must we include in sales serve the best interest of the Gov- the public notice on sale of per- ernment. When you are selling prop- sonal property? erty on behalf of a holding agency, you must consult with the holding agency In the public notice, you must pro- in determining whether a fixed price vide information necessary for poten- sale meets this criterion; and tial buyers to participate in the sale, (c) You must publicize such sales to such as— the extent consistent with the value (a) Date, time and location of sale; and nature of the property involved, (b) General categories of property and the prices established must reflect being offered for sale; the estimated fair market value of the (c) Inspection period; property. Property is sold on a first- (d) Method of sale (i.e., spot bid, come, first-served basis. You or the sealed bid, auction); holding agency may also establish ad- (e) Selling agency; and ditional terms and conditions that (f) Who to contact for additional in- must be met by the successful pur- formation. chaser in accordance with § 102–38.75. [73 FR 20803, Apr. 17, 2008] PRE-SALE ACTIVITIES

§ 102–38.125 May we sell personal § 102–38.145 Must we allow for inspec- property at fixed prices to State tion of the personal property to be agencies? sold? Yes, before offering to the public, you Yes, you must allow for an electronic may offer the property at fixed prices or physical inspection of the personal (through the State Agencies for Sur- property to be sold. You must allow plus Property) to any States, terri- prospective bidders sufficient time for tories, possessions, political subdivi- inspection. If inspection is restricted to

146

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00156 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–38.180

electronic inspections only, due to un- Subpart C—Bids usual circumstances prohibiting physical inspection, you must notify your BUYER ELIGIBILITY General Services Administration Re- gional Personal Property Office in § 102–38.170 May we sell Federal per- writing, with the circumstances sur- sonal property to anyone? rounding this restriction at least 3 Generally, you may sell Federal per- days prior to the start of the screening sonal property to anyone of legal age. period. However, certain persons or entities § 102–38.150 How long is the inspection are debarred or suspended from pur- period? chasing Federal property. You must not enter into a contract with such a The length of the inspection period person or entity unless your agency allowed depends upon whether the inspection is done electronically or phys- head or designee responsible for the ically. You should also consider such disposal action determines that there factors as the circumstances of sale, is a compelling reason for such an ac- volume of property, type of property, tion. location of the property, and accessibility of the sales facility. Normally, § 102–38.175 How do we find out if a you should provide at least 7 calendar person or entity has been suspended or debarred from doing days to ensure potential buyers have business with the Government? the opportunity to perform needed inspections. Refer to the List of Parties Excluded from Federal Procurement and Non- OFFER TO SELL procurement Programs to ensure you do not solicit from or award contracts § 102–38.155 What is an offer to sell? to these persons or entities. The list is An offer to sell is a notice listing the available through subscription from terms and conditions for bidding on an the U.S. Government Printing Office, upcoming sale of personal property, or electronically on the Internet at where prospective purchasers are ad- http://epls.arnet.gov. For policies, proce- vised of the requirements for a respon- dures, and requirements for debarring/ sive bid and the contractual obliga- suspending a person or entity from the tions once a bid is accepted. purchase of Federal personal property, § 102–38.160 What must be included in follow the procedures in the Federal the offer to sell? Acquisition Regulation (FAR) subpart 9.4 (48 CFR part 9, subpart 9.4). The offer to sell must include— (a) Sale date and time; [68 FR 51421, Aug. 26, 2003; 68 FR 53219, Sept. (b) Method of sale; 9, 2003] (c) Description of property being offered for sale; § 102–38.180 May we sell Federal per- (d) Selling agency; sonal property to a Federal em- (e) Location of property; ployee? (f) Time and place for receipt of bids; Yes, you may sell Federal personal (g) Acceptable forms of bid deposits property to any Federal employee and payments; and whose agency does not prohibit their (h) Terms and conditions of sale, in- employees from purchasing such prop- cluding any specific restrictions and erty. However, unless allowed by Fed- limitations. eral or agency regulations, employees having nonpublic information regard- § 102–38.165 Are the terms and conditions in the offer to sell binding? ing property offered for sale may not participate in that sale (see 5 CFR Yes, the terms and conditions in the 2635.703). For purposes of this section, offer to sell are normally incorporated the term ‘‘Federal employee’’ also ap- into the sales contract, and therefore binding upon both the buyer and the plies to an immediate member of the seller once a bid is accepted. employee’s household.

147

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00157 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–38.185 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–38.185 May we sell Federal per- disclosed as they are submitted. No in- sonal property to State or local gov- formation other than names may be ernments? disclosed regarding the bidder(s). Yes, you may sell Federal personal property to State or local govern- § 102–38.220 What must we do when ments. Additional guidelines on sales the highest bids received have the same bid amount? to State or local governments are contained in subpart G of this part. When the highest bids received have the same bid amount, you must con- ACCEPTANCE OF BIDS sider other factors of the sale (e.g., timely removal of the property, terms § 102–38.190 What is considered a re- of payment, etc.) that would make one sponsive bid? offer more advantageous to the Gov- A responsive bid is a bid that com- ernment. However, if you are unable to plies with the terms and conditions of make a determination based on avail- the sales offering, and satisfies the re- able information, and the Government quirements as to the method and time- has an acceptable offer, you may re- liness of the submission. Only respon- offer the property for sale, or you may sive bids may be considered for award. utilize random tiebreakers to avoid the expense of reselling the property. § 102–38.195 Must bidders use authorized bid forms? § 102–38.225 What are the additional No, bidders do not have to use au- requirements in the bid process? thorized bid forms; however if a bidder All sales except fixed price sales uses his/her own bid form to submit a must contain a certification of inde- bid, the bid may be considered only if— pendent price determination. If there is (a) The bidder accepts all the terms suspicion of false certification or an in- and conditions of the offer to sell; and dication of collusion, you must refer (b) Award of the bid would result in a the matter to the Department of Jus- binding contract. tice or your agency’s Office of the In- spector General. § 102–38.200 Who may accept bids? Authorized agency representatives BID DEPOSITS may accept bids for your agency. These individuals should meet your agency’s § 102–38.230 Is a bid deposit required requirements for approval of Govern- to buy personal property? ment contracts. No, a bid deposit is not required to buy personal property. However, should § 102–38.205 Must we accept all bids? you require a bid deposit to protect the No, the Government reserves the Government’s interest, a deposit of 20 right to accept or reject any or all bids. percent of the total amount of the bid You may reject any or all bids when is generally considered reasonable. such action is advantageous to the Government, or when it is in the public § 102–38.235 What types of payment interest to do so. may we accept as bid deposits? In addition to the acceptable types of § 102–38.210 What happens when bids payments in § 102–38.290, you may also have been rejected? accept a deposit bond. A deposit bond You may re-offer items for which all may be used in lieu of cash or other ac- bids have been rejected at the same ceptable form of deposit when per- sale, if possible, or another sale. mitted by the offer to sell, such as the Standard Form (SF) 150, Deposit § 102–38.215 When may we disclose the Bond—Individual Invitation, Sale of bid results to the public? Government Personal Property, SF 151, You may disclose bid results to the Deposit Bond—Annual, Sale of Govern- public after the sales award of any ment Personal Property, and SF 28, Af- item or lot of property. On occasions fidavit of Individual Surety. For infor- when there is open bidding, usually at mation on how to obtain these forms, a spot bid sale or auction, all bids are see § 102–2.135 of subchapter A.

148

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00158 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–38.285

§ 102–38.240 What happens to the de- of authorities in your agency, who posit bond if the bidder defaults or must not re-delegate this authority. wants to withdraw his/her bid? (a) When a bid deposit is secured by a § 102–38.265 Must we keep records on deposit bond and the bidder defaults, administrative determinations? you must issue a notice of default to Yes, you must— the bidder and the surety company. (a) Maintain records of all adminis- (b) When a bid deposit is secured by a trative determinations made, to in- deposit bond and the bidder wants to clude the pertinent facts and the ac- withdraw his/her bid, you should return tion taken in each case. A copy of the the deposit bond to the bidder. determination must be attached to its corresponding contract; and LATE BIDS (b) Provide a signed copy of any related determination with the copy of § 102–38.245 Do we consider late bids for award? the contract you file with the Comp- troller General when requested. Consider late bids for award only when the bids were delivered timely to § 102–38.270 May a bidder protest the the address specified and your agency determinations made on sales of caused the delay in delivering the bids personal property? to the official designated to accept the Yes, protests regarding the validity bids. or the determinations made on the sale of personal property may be submitted § 102–38.250 How do we handle late bids that are not considered? to the Comptroller General. Late bids that are not considered must be returned to the bidder prompt- Subpart D—Completion of Sale ly. You must not disclose information AWARDS contained in returned bids. § 102–38.275 To whom do we award the MODIFICATION OR WITHDRAWAL OF BIDS sales contract? § 102–38.255 May we allow a bidder to You must award the sales contract to modify or withdraw a bid? the bidder with the highest responsive (a) Yes, a bidder may modify or with- bid, unless a determination is made to draw a bid prior to the start of the sale reject the bid under § 102–38.205. or the time set for the opening of the bids. After the start of the sale, or the § 102–38.280 What happens when there is no award? time set for opening the bids, the bidder will not be allowed to withdraw his/ When there is no award made, you her bid. may sell the personal property at an- (b) You may consider late modifica- other sale, or you may abandon or de- tions to an otherwise successful bid at stroy it pursuant to § 102–36.305 of this any time, but only when it makes the subchapter B. terms of the bid more favorable to the Government. TRANSFER OF TITLE

MISTAKES IN BIDS § 102–38.285 How do we transfer title from the Government to the buyer § 102–38.260 Who makes the adminis- for personal property sold? trative determinations regarding (a) Generally, no specific form or for- mistakes in bids? mat is designated for transferring title The administrative procedures for from the Government to the buyer for handling mistakes in bids are con- personal property sold. For internal tained in FAR 14.407, Mistakes in Bids control and accountability, you must (48 CFR 14.407). Your agency head, or execute a bill of sale or another docu- his/her designee, may delegate the au- ment as evidence of transfer of title or thority to make administrative deci- any other interest in Government per- sions regarding mistakes in bids to a sonal property. You must also ensure central authority, or a limited number that the buyer submits any additional

149

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00159 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–38.290 41 CFR Ch. 102 (7–1–11 Edition)

certifications to comply with specific ceeds from the sale of its agency’s per- conditions and restrictions of the sale. sonal property when— (b) For sales of vehicles, you must (1) It has the statutory authority to issue to the purchaser a Standard retain all proceeds from sales of per- Form (SF) 97, the United States Gov- sonal property; ernment Certificate to Obtain Title to (2) The property sold was acquired a Vehicle, or a SF 97A, the United with non-appropriated funds as defined States Government Certificate to Ob- in § 102–36.40 of this subchapter B; tain a Non-Repairable or Salvage Cer- (3) The property sold was surplus tificate, as appropriate, as evidence of Government property that was in the transfer of title. For information on custody of a contractor or subcon- how to obtain these forms, see § 102– tractor, and the contract or sub- 2.135 of this chapter. contract provisions authorize the proceeds of sale to be credited to the price PAYMENTS or cost of the contract or subcontract; § 102–38.290 What types of payment (4) The property was sold to obtain may we accept? replacement property under the exchange/sale authority pursuant to part You must adopt a payment policy 102–39 of this subchapter B; or that protects the Government against fraud. Acceptable payments include, (5) The property sold was related to but are not limited to, the following: waste prevention and recycling pro- (a) U.S. currency or any form of cred- grams, under the authority of Section it instrument made payable on demand 607 of Public Law 107–67 (Omnibus Con- in U.S. currency, e.g., cashier’s check, solidated and Emergency Supplemental money order. Promissory notes and Appropriations Act, 1999, Pub. L. 107– postdated credit instruments are not 67, 115 Stat. 514). Consult your General acceptable. Counsel or Chief Financial Officer for (b) Irrevocable commercial letters of guidance on use of this authority. credit issued by a United States bank [73 FR 20803, Apr. 17, 2008] payable to the Treasurer of the United States or to the Government agency § 102–38.300 What happens to sales conducting the sale. proceeds that neither we nor the (c) Credit or debit cards. holding agency are authorized to retain, or that are unused? DISPOSITION OF PROCEEDS Any sales proceeds that are not retained pursuant to the authorities in § 102–38.295 May we retain sales proceeds? § 102–38.295 must be deposited as miscellaneous receipts in the U.S. Treas- (a) You may retain that portion of ury. the sales proceeds, in accordance with your agreement with the holding agen- DISPUTES cy, equal to your direct costs and reasonably related indirect costs (includ- § 102–38.305 How do we handle dis- ing your share of the Governmentwide putes involved in the sale of Fed- costs to support the eFAS Internet por- eral personal property? tal and Governmentwide reporting re- First contact your Office of General quirements) incurred in selling per- Counsel. Further guidance can be found sonal property. in the Contract Disputes Act of 1978, as (b) A holding agency may retain that amended (41 U.S.C. 601–613), and the portion of the sales proceeds equal to Federal Acquisition Regulation (FAR) its costs of care and handling directly at 48 CFR part 33. related to the sale of personal property by the SC (e.g., shipment to the SC, § 102–38.310 Are we required to use storage pending sale, and inspection by the Disputes clause in the sale of prospective buyers). personal property? (c) After accounting for amounts re- Yes, you must ensure the Disputes tained under paragraphs (a) and (b) of clause contained in Federal Acquisi- this section, as applicable, a holding tion Regulation (FAR) 52.233–1 (48 CFR agency may retain the balance of pro- part 52) is included in all offers to sell

150

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00160 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–38.335

and contracts for the sale of personal Subpart F—Reporting property. Requirements

§ 102–38.315 Are we required to use Al- § 102–38.330 Are there any reports that ternative Disputes Resolution for we must submit to the General sales contracts? Services Administration? No, you are not required to use Alter- Yes, there are two sales reports you native Disputes Resolution (ADR) for must submit to the General Services sales contracts. However, you are en- Administration (GSA), Personal Prop- couraged to use ADR procedures in ac- erty Management Policy Division cordance with the authority and the (MTP), 1800 F Street, NW., Washington, requirements of the Alternative Dis- DC 20405— putes Resolution Act of 1998 (28 U.S.C. (a) Negotiated sales report. Within 60 651–658). calendar days after the close of each fiscal year, you must provide GSA with Subpart E—Other Governing a listing and description of all nego- Statutes tiated sales with an estimated fair market value in excess of $5,000 (see § 102–38.320 Are there other statutory § 102–38.115). For each negotiated sale requirements governing the sale of that meets this criterion, provide the Federal personal property? following: Yes, in addition to Title 40 of the (1) Description of the property (in- U.S. Code the sale of Federal personal cluding quantity and condition). property is governed by other statu- (2) Acquisition cost and date (if not tory requirements, such as the Debt known, estimate and so indicate). Collection Improvement Act of 1996 (3) Estimated fair market value (in- (Public Law 104–134, sec. 31001, 110 Stat. cluding date of estimate and name of 1321–358) and antitrust requirements estimator). that are discussed in § 102–38.325. (4) Name and address of purchaser. (5) Date of sale. ANTITRUST REQUIREMENTS (6) Gross and net sales proceeds. § 102–38.325 What are the require- (7) Justification for conducting a ne- ments pertaining to antitrust laws? gotiated sale. When the sale of personal property (b) Exchange/sale report. Within 90 cal- has an estimated fair market value of endar days after the close of each fiscal $3 million or more or if the sale in- year, you must provide a summary re- volves a patent, process, technique, or port to GSA of transactions conducted invention, you must notify the Attor- under the exchange/sale authority ney General of the Department of Jus- under part 102–39 of this subchapter B tice (DOJ) and get DOJ’s opinion as to (see § 102–39.75). whether the sale would give the buyer § 102–38.335 Is there any additional an unfair advantage in the market- personal property sales information place and violate any antitrust laws. that we must submit to the General Include in the notification the descrip- Services Administration? tion and location of the property, Yes, you must report to the General method of sale and proposed selling Services Administration’s (GSA’s) price, and information on the proposed Asset Disposition Management System purchaser and intended use of the prop- (ADMS), once that capability is estab- erty. You must not complete the sale lished, any sales information that GSA until you have received confirmation deems necessary. from the Attorney General that the proposed transaction would not violate any antitrust laws. [68 FR 51421, Aug. 26, 2003; 68 FR 53219, Sept. 9, 2003]

151

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00161 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–38.340 41 CFR Ch. 102 (7–1–11 Edition)

Subpart G—Provisions for State § 102–38.360 What must an executive and Local Governments agency do to implement the eFAS program? § 102–38.340 How may we sell personal (a) An executive agency must review property to State and local govern- the effectiveness of all sales solutions, ments? and compare them to the effectiveness You may sell Government personal (e.g., cost, level of service, and value property to State and local govern- added services) of the eFAS SCs. Agen- ments through— cies should give full consideration to (a) Competitive sale to the public; sales solutions utilizing private sector (b) Negotiated sale, through the ap- entities, including small businesses, propriate State Agency for Surplus that are more effective than the solu- Property (SASP); or tions provided by any eFAS-approved (c) Negotiated sale at fixed price SC. If the agency decides that there are (fixed price sale), through the appro- more effective sales solutions than priate SASP. (This method of sale can those solutions offered by the eFAS be used prior to a competitive sale to SCs, the agency must request a waiver the public, if desired.) from the milestones using the procedures and forms provided by the eFAS § 102–38.345 Do we have to withdraw Planning Office. Waivers will be ap- personal property advertised for proved by the eFAS Planning Office public sale if a State Agency for upon presentation of a business case Surplus Property wants to buy it? showing that complying with an eFAS No, you are not required to withdraw milestone is either impracticable or in- the item from public sale if the prop- efficient. Waiver approval will be co- erty has been advertised. ordinated with GSA’s Office of Travel, Transportation, and Asset Manage- § 102–38.350 Are there special provi- ment. Contact the eFAS Planning Of- sions for State and local govern- fice at [email protected] to ments regarding negotiated sales? obtain these procedures and forms. Yes, you must waive the requirement (b) An approved waiver for meeting for bid deposits and payment prior to one of the eFAS milestones does not removal of the property. However, pay- automatically waive all milestone re- ment must be made within 30 calendar quirements. For example, if an agency days after purchase. If payment is not receives a waiver to the migration made within 30 days, you may charge milestone, the agency must still (1) simple interest at the rate established post asset information on the eFAS by the Secretary of the Treasury as Web site and (2) provide post-sales data provided in section 12 of the Contract to the eFAS Planning Office in accord- Disputes Act of 1978 (41 U.S.C. 611), ance with the content and format re- from the date of written demand for quirements developed by the eFAS payment. ESC, unless waivers to these milestones are also requested and approved. § 102–38.355 Do the regulations of this Waivers to the eFAS milestones will part apply to State Agencies for Surplus Property (SASPs) when not be permanent. Upon expiration of conducting sales? the waiver to the migration milestone, an agency must either migrate to an Yes, State Agencies for Surplus Prop- approved SC, or serve as a fully func- erty (SASPs) must follow the regula- tioning SC, as soon as practicable. See tions in this part when conducting the definition of a ‘‘Sales Center’’ at sales on behalf of the General Services § 102–38.35 for an overview of how agen- Administration of Government per- cy sales solutions become SCs. sonal property in their custody. (c) An agency which receives a waiver from the eFAS milestones must Subpart H—Implementation of the comply with subparts A through G of Federal Asset Sales Program this part as if it were an SC. (d) An executive agency must comply SOURCE: 73 FR 20803, Apr. 17, 2008, unless with all eFAS milestones approved by otherwise noted. OMB including those regarding the

152

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00162 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–39.10

completion of an agency-wide sales mi- 102–39.20 What definitions apply to this gration plan, the reporting of pre- and part? post-sales data, and the migration to 102–39.25 Which exchange/sale provisions are approved SCs unless a waiver has been subject to deviation? 102–39.30 How do I request a deviation from submitted by the agency and approved this part? by the eFAS Planning Office. The eFAS milestones are available for Subpart B—Exchange/Sale Considerations viewing at http://www.gsa.gov/ govsalesmilestones. 102–39.35 When should I consider using the exchange/sale authority? § 102–38.365 Is a holding agency re- 102–39.40 Why should I consider using the quired to report property in ‘‘scrap’’ exchange/sale authority? condition to its selected SC? 102–39.45 When should I not use the exchange/sale authority? No. Property which has no value ex- 102–39.50 How do I determine whether to do cept for its basic material content an exchange or a sale? (scrap material) may be disposed of by 102–39.55 When should I offer property I am the holding agency by sale or as other- exchanging or selling under the ex- wise provided in § 102–38.70. However, change/sale authority to other Federal agencies or State Agencies for Surplus the holding agency should consult the Property (SASP)? SC(s) selected by the holding agency as 102–39.60 What restrictions and prohibitions to the feasibility of selling the scrap apply to the exchange/sale of personal material. Agencies selling scrap prop- property? erty under authority of this subpart 102–39.65 What conditions apply to the ex- are still required to report sales change/sale of personal property? metrics in accordance with eFAS ESC- approved format and content. Subpart C—Exchange/Sale Methods and Reports § 102–38.370 What does a holding agen- 102–39.70 What are the exchange methods? cy do with property which cannot 102–39.75 What are the sales methods? be sold by its SC? 102–39.80 What are the accounting require- All reasonable efforts must be af- ments for the proceeds of sale? forded the SC to sell the property. If 102–39.85 What information am I required to the property remains unsold after the report? time frame agreed to between the SC AUTHORITY: 40 U.S.C. 121(c); 40 U.S.C. 503. and the holding agency, the holding SOURCE: 66 FR 48614, Sept. 21, 2001, unless agency may dispose of the property by otherwise noted. sale or as otherwise provided in § 102– 38.70. The lack of public interest in Subpart A—General buying the property is evidence that the sales proceeds would be minimal. § 102–39.5 What is the exchange/sale Agencies selling property under au- authority? thority of this subpart are still re- The exchange/sale authority is a quired to report sales metrics in ac- statutory provision, (40 U.S.C. 503), cordance with eFAS ESC-approved for- which states in part: ‘‘In acquiring per- mat and content. sonal property, an executive agency may exchange or sell similar items and PART 102–39—REPLACEMENT OF may apply the exchange allowance or PERSONAL PROPERTY PURSUANT proceeds of sale in whole or in part TO THE EXCHANGE/SALE AU- payment for the property acquired.’’ THORITY [73 FR 50880, Aug. 29, 2008]

Subpart A—General § 102–39.10 What does this part cover?

Sec. This part covers the exchange/sale 102–39.5 What is the exchange/sale author- authority, and applies to all personal ity? property owned by executive agencies 102–39.10 What does this part cover? worldwide. For the exchange/sale of 102–39.15 How are the terms ‘‘I’’ and ‘‘you’’ aircraft parts and hazardous materials, used in this part? you must meet the requirements in

153

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00163 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–39.15 41 CFR Ch. 102 (7–1–11 Edition)

this part and in parts 101–33 and 101–42 tary aircraft still in use by active or of this title. reserve units, are not historic items. [66 FR 48614, Sept. 21, 2001, as amended at 69 Replacement means the process of ac- FR 11539, Mar. 11, 2004] quiring personal property to be used in place of personal property that is still § 102–39.15 How are the terms ‘‘I’’ and needed but: ‘‘you’’ used in this part? (1) No longer adequately performs the Use of pronouns ‘‘I’’ and ‘‘you’’ tasks for which it is used; or throughout this part refer to executive (2) Does not meet the agency’s need agencies. as well as the personal property to be [66 FR 48614, Sept. 21, 2001. Redesignated at acquired. 73 FR 50880, Aug. 29, 2008] Service Life Extension Program (SLEP) means the modification of a personal § 102–39.20 What definitions apply to this part? property item undertaken to extend the life of the item beyond that which The following definitions apply to was previously planned. SLEPs extend this part: capital asset life by retrofit, major Acquire means to procure or other- modification, remanufacturing, better- wise obtain personal property, including by lease (sometimes known as ment, or enhancement. rent). Similar means the acquired item(s) Combat material means arms, ammu- and replaced item(s): nition, and implements of war listed in (1) Are identical; or the U.S. munitions list (22 CFR part (2) Fall within a single Federal Sup- 121). ply Classification (FSC) Group of prop- Excess property means any personal erty (includes any and all forms of property under the control of any Fed- property within a single FSC Group); eral agency that is no longer required or for that agency’s needs or responsibil- (3) Are parts or containers for similar ities, as determined by the agency head end items; or or designee. (4) Are designed or constructed for Exchange means to replace personal the same purpose (includes any and all property by trade or trade-in with the supplier of the replacement property. forms of property regardless of the FSC Exchange/sale means to exchange or Group to which they are assigned). sell non-excess, non-surplus personal Surplus property means excess per- property and apply the exchange allow- sonal property not required for the ance or proceeds of sale in whole or in needs of any Federal agency, as deter- part payment for the acquisition of mined by GSA under part 102–37 of this similar property. chapter. Executive agency means any executive department or independent establish- [66 FR 48614, Sept. 21, 2001, as amended at 73 FR 50880, Aug. 29, 2008] ment in the executive branch of the Government, including any wholly § 102–39.25 Which exchange/sale provi- owned Government corporation. sions are subject to deviation? Federal agency means any executive agency or any establishment in the leg- All of the provisions in this part are islative or judicial branch of the Gov- subject to deviation (upon presentation ernment (except the Senate, the House of adequate justification) except those of Representatives, and the Architect mandated by statute. See the link on of the Capitol and any activities under ‘‘Exchange/Sale’’ at www.gsa.gov/ his/her direction). personalpropertypolicy for additional in- Historic item means property having formation on requesting deviations added value for display purposes be- from this part. cause its historical significance is greater than its fair market value for [73 FR 50880, Aug. 29, 2008] continued use. Items that are commonly available and remain in use for their intended purpose, such as mili-

154

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00164 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–39.55

§ 102–39.30 How do I request a devi- estimated sales proceeds for the prop- ation from this part? erty will be unreasonably low. You See part 102–2 of this chapter (41 CFR must either abandon or destroy such part 102–2) to request a deviation from property, or declare the property ex- the requirements of this part. cess, in accordance with part 102–36 of this chapter. Further, you must not [73 FR 50880, Aug. 29, 2008] use the exchange/sale authority if the transaction(s) would violate any other Subpart B—Exchange/Sale applicable statute or regulation. Considerations [66 FR 48614, Sept. 21, 2001, as amended at 69 FR 11539, Mar. 11, 2004. Redesignated at 73 FR § 102–39.35 When should I consider 50880, Aug. 29, 2008] using the exchange/sale authority? You should consider using the ex- § 102–39.50 How do I determine wheth- change/sale authority when replacing er to do an exchange or a sale? personal property. You must determine whether an ex- [73 FR 50880, Aug. 29, 2008] change or sale will provide the greater return for the Government. When esti- § 102–39.40 Why should I consider mating the return under each method, using the exchange/sale authority? consider all related administrative and You should consider using the ex- overhead costs. change/sale authority to reduce the [66 FR 48614, Sept. 21, 2001. Redesignated at cost of replacement personal property. 73 FR 50880, Aug. 29, 2008] When you have personal property that is wearing out or obsolete and must be § 102–39.55 When should I offer prop- replaced, you should consider either ex- erty I am exchanging or selling changing or selling that property and under the exchange/sale authority using the exchange allowance or sales to other Federal agencies or State proceeds to offset the cost of the re- Agencies for Surplus Property placement personal property. Con- (SASP)? versely, if you choose not to replace If you have property to replace which the property using the exchange/sale is eligible for exchange/sale, you should authority, you may declare it as excess first, to the maximum extent prac- and dispose of it through the normal ticable, solicit: disposal process as addressed in part (a) Federal agencies known to use or 102–36 of this chapter. Keep in mind, distribute such property. If a Federal however, that any net proceeds from agency is interested in acquiring and the eventual sale of that property as paying for the property, you should ar- surplus generally must be forwarded to range for a reimbursable transfer. Re- the miscellaneous receipts account at imbursable transfers may also be con- the United States Treasury and thus ducted with the Senate, the House of would not be available to you. You Representatives, the Architect of the may use the exchange/sale authority in Capitol and any activities under the the acquisition of personal property Architect’s direction, the District of even if the acquisition is under a serv- Columbia, and mixed-ownership Gov- ices contract, as long as the property ernment corporations. When con- acquired under the services contract is ducting a reimbursable transfer, you similar to the property exchanged or must: sold (e.g., for a SLEP, exchange allow- (1) Do so under terms mutually ances or sales proceeds would be avail- agreeable to you and the recipient. able for replacement of similar items, (2) Not require reimbursement of an but not for services). amount greater than the estimated fair [73 FR 50880, Aug. 29, 2008] market value of the transferred property. § 102–39.45 When should I not use the (3) Apply the transfer proceeds in exchange/sale authority? whole or part payment for property ac- You should not use the exchange/sale quired to replace the transferred prop- authority if the exchange allowance or erty; and

155

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00165 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–39.60 41 CFR Ch. 102 (7–1–11 Edition)

(b) State Agencies for Surplus Prop- fense Production Act inventory (50 erty (SASPs) known to have an inter- U.S.C. App. 2093). est in acquiring such property. If a (c) Nuclear Regulatory Commission- SASP is interested in acquiring the controlled materials unless you meet property, you should consider selling it the requirements of § 101–42.1102–4 of to the SASP by negotiated sale at fixed this title. price under the conditions specified at (d) Controlled substances, unless you § 102–38.125 of this title. The sales pro- meet the requirements of § 101–42.1102–3 ceeds must be applied in whole or part of this title. payment for property acquired to re- (e) Property with a condition code of place the transferred property. scrap, as defined at FMR 102–36.40, except: [66 FR 48614, Sept. 21, 2001, as amended at 69 FR 11539, Mar. 11, 2004. Redesignated at 73 FR (1) Property that had utility and 50880, Aug. 29, 2008] value at the point in time when a determination was made to use the ex- § 102–39.60 What restrictions and pro- change/sale authority; hibitions apply to the exchange/sale (2) Property that was otherwise eligi- of personal property? ble for exchange/sale, but was coded as Unless a deviation is requested of and scrap due to damage (e.g., accident or approved by GSA as addressed in part natural disaster); or 102–2 of this chapter and the provisions (3) Scrap gold for fine gold. of §§ 102–39.25 and 102–39.30, you must (f) Property that was originally ac- not use the exchange/sale authority quired as excess or forfeited property for: or from another source other than new (a) The following FSC groups of per- procurement, unless such property has sonal property: been in official use by the acquiring 10 Weapons. agency for at least 1 year. You may ex- 11 Nuclear ordnance. change or sell forfeited property in of- 12 Fire control equipment. ficial use for less than 1 year if the 14 Guided missiles. head of your agency determines that a 15 Aircraft and airframe structural continuing valid requirement exists, components (except FSC Class 1560 Air- but the specific item in use no longer frame Structural Components). meets that requirement, and that ex- 42 Firefighting, rescue, and safety change or sale meets all other require- equipment. ments of this part. 44 Nuclear reactors (FSC Class 4470 (g) Property that is dangerous to only). public health or safety without first 51 Hand tools. rendering such property innocuous or 54 Prefabricated structure and scaf- providing for adequate safeguards as folding (FSC Class 5410 Prefabricated part of the exchange/sale. and Portable Buildings, FSC Class 5411 (h) Combat material without demili- Rigid Wall Shelters, and FSC Class 5419 tarizing it or obtaining a demilitariza- Collective Modular Support System tion waiver or other necessary clear- only). ances from the Department of Defense 68 Chemicals and chemical products, Demilitarization Office. except medicinal chemicals. (i) Flight Safety Critical Aircraft 84 Clothing, individual equipment, Parts (FSCAP) and Critical Safety and insignia. Items (CSI) unless you meet the provisions of § 102–33.370 of this title. NOTE TO § 102–39.60(a): Under no circumstances will deviations be granted for (j) Acquisition of unauthorized re- FSC Class 1005, Guns through 30mm. Devi- placement property. ations are not required for Department of (k) Acquisition of replacement prop- Defense (DoD) property in FSC Groups 10 (for erty that violates any: classes other than FSC Class 1005), 12 and 14 (1) Restriction on procurement of a for which the applicable DoD demilitariza- commodity or commodities; tion requirements, and any other applicable (2) Replacement policy or standard regulations and statutes are met. prescribed by the President, the Con- (b) Materials in the National Defense gress, or the Administrator of General Stockpile (50 U.S.C. 98–98h) or the De- Services; or

156

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00166 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–39.75

(3) Contractual obligation. tion that the item exchanged and the item (l) Vessels subject to 40 U.S.C. 584. acquired are historic items. [66 FR 48614, Sept. 21, 2001; 66 FR 51095, Oct. [73 FR 50881, Aug. 29, 2008] 5, 2001, as amended at 69 FR 11539, Mar. 11, 2004; 71 FR 20900, Apr. 24, 2006. Redesignated Subpart C—Exchange/Sale at 73 FR 50880, Aug. 29, 2008; 75 FR 24820, May Methods and Reports 6, 2010] § 102–39.70 What are the exchange § 102–39.65 What conditions apply to methods? the exchange/sale of personal property? Exchange of property may be accom- You may use the exchange/sale au- plished by either of the following meth- thority only if you meet all of the fol- ods: lowing conditions: (a) The supplier (e.g., a Government (a) The property exchanged or sold is agency, commercial or private organi- similar to the property acquired; zation, or an individual) delivers the (b) The property exchanged or sold is replacement property to one of your not excess or surplus and you have a organizational units and removes the continuing need for similar property; property being replaced from that same (c) The property exchanged or sold organizational unit. was not acquired for the principal pur- (b) The supplier delivers the replace- pose of exchange or sale; ment property to one of your organiza- (d) When replacing personal property, tional units and removes the property the exchange allowance or sales pro- being replaced from a different organi- ceeds from the disposition of that prop- zational unit. erty may only be used to offset the [66 FR 48614, Sept. 21, 2001. Redesignated at cost of the replacement property, not 73 FR 50880, Aug. 29, 2008] services; and (e) Except for transactions involving § 102–39.75 What are the sales meth- books and periodicals in your libraries, ods? you document the basic facts associ- (a) You must use the methods, terms, ated with each exchange/sale trans- and conditions of sale, and the forms action. At a minimum, the documenta- prescribed in part 102–38 of this title, in tion must include: the sale of property being replaced, ex- (1) The FSC Group of the items except for the provisions of §§ 102–38.100 changed or sold, and the items ac- through 102–38.115 of this title regard- quired; ing negotiated sales. Section 3709, Re- (2) The number of items exchanged or vised Statutes (41 U.S.C. 5), specifies sold, and the number of items acquired; the following conditions under which (3) The acquisition cost and exchange property being replaced can be sold by allowance or net sales proceeds of the negotiation, subject to obtaining such items exchanged or sold, and the acqui- competition as is feasible: sition cost of the items acquired; (1) The reasonable value involved in (4) The date of the transaction(s); the contract does not exceed $500; or (5) The parties involved; and (2) Otherwise authorized by law. (6) A statement that the transactions (b) You may sell property being re- comply with the requirements of this placed by negotiation at fixed prices in part 102–39. accordance with the provisions of § 102– NOTE TO § 102–39.65: In acquiring items for 38.120 and 102–38.125 of this title. historical preservation or display at Federal museums, you may exchange historic items [66 FR 48614, Sept. 21, 2001, as amended at 69 in the museum property account without re- FR 11539, Mar. 11, 2004. Redesignated at 73 FR gard to the FSC group, provided the ex- 50880, Aug. 29, 2008] change 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 determina-

157

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00167 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–39.80 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–39.80 What are the accounting PART 102–40 [RESERVED] requirements for exchange allowances or proceeds of sale? PART 102–41—DISPOSITION OF You must account for exchange al- SEIZED, FORFEITED, VOLUNTARILY lowances or proceeds of sale in accord- ABANDONED, AND UNCLAIMED ance with the general finance and accounting rules applicable to you. Ex- PERSONAL PROPERTY cept as otherwise authorized by law, all exchange allowances or proceeds of Sec. sale under this part will be available Subpart A—General Provisions during the fiscal year in which the property was exchanged or sold and for 102–41.5 What does this part cover? one fiscal year thereafter for the pur- 102–41.10 To whom do ‘‘we’’, ‘‘you’’, and chase of replacement property. Any their variants refer? proceeds of sale not applied to replace- 102–41.15 How do we request a deviation ment purchases during this time must from these requirements and who can approve it? be deposited in the United States Treasury as miscellaneous receipts. DEFINITIONS [73 FR 50881, Aug. 29, 2008, as amended at 75 102–41.20 What definitions apply to this FR 24820, May 6, 2010] part?

§ 102–39.85 What information am I re- RESPONSIBILITY quired to report? 102–41.25 Who retains custody and is respon- (a) You must submit, within 90 cal- sible for the reporting, care, and han- endar days after the close of each fiscal dling of property covered by this part? 102–41.30 What is GSA’s role in the disposi- year, a summary report in a format of tion of property covered by this part? your choice on the exchange/sale trans- 102–41.35 Do we report to GSA all seized per- actions made under this part during sonal property subject to judicial for- the fiscal year (except for transactions feiture as well as forfeited, voluntarily involving books and periodicals in your abandoned, or unclaimed personal prop- libraries). The report must include: erty not retained for official use? (1) A list by Federal Supply Classi- fication Group of property sold under Subpart B—Seized or Forfeited Personal this part showing the: Property (i) Number of items sold; 102–41.40 How is personal property forfeited? (ii) Acquisition cost; and 102–41.45 May we place seized personal prop- (iii) Net proceeds. erty into official use before the forfeiture (2) A list by Federal Supply Classi- process is completed? fication Group of property exchanged 102–41.50 May we retain forfeited personal under this part showing the: property for official use? (i) Number of items exchanged; 102–41.55 Where do we send the reports for seized or forfeited personal property? (ii) Acquisition cost; and 102–41.60 Are there special requirements in (iii) Exchange allowance. reporting seized or forfeited personal (b) Submit your report electronically property to GSA? or by mail to the General Services Ad- 102–41.65 What happens to forfeited personal ministration, Office of Travel, Trans- property that is transferred or retained portation and Asset Management (MT), for official use? 1800 F Street, NW., Washington, DC 102–41.70 Are transfers of forfeited personal 20405. property reimbursable? 102–41.75 May we retain the proceeds from (c) Report control number: 1528–GSA- the sale of forfeited personal property? AN. (d) If you make no transactions Subpart C—Voluntarily Abandoned under this part during a fiscal year, Personal Property you must submit a report stating that no transactions occurred. 102–41.80 When is personal property voluntarily abandoned? [66 FR 48614, Sept. 21, 2001, as amended at 71 102–41.85 What choices do I have for retain- FR 20900, Apr. 24, 2006. Redesignated at 73 FR ing or disposing of voluntarily abandoned 50880, Aug. 29, 2008] personal property?

158

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00168 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–41.5

102–41.90 What happens to voluntarily aban- FIREARMS doned personal property retained for offi- 102–41.190 May we retain forfeited, volun- cial use? tarily abandoned, or unclaimed firearms 102–41.95 Where do we send the reports for for official use? voluntarily abandoned personal prop- 102–41.195 How do we dispose of forfeited, erty? voluntarily abandoned, or unclaimed 102–41.100 What information do we provide firearms not retained for official use? when reporting voluntarily abandoned 102–41.200 Are there special disposal provi- personal property to GSA? sions for firearms that are seized and for- 102–41.105 What happens to voluntarily feited for a violation of the National abandoned personal property when re- Firearms Act? ported to GSA? FORFEITED DISTILLED SPIRITS, WINE, AND 102–41.110 Are transfers of voluntarily aban- BEER doned personal property reimbursable? 102–41.115 May we retain the proceeds re- 102–41.205 Do we report all forfeited distilled ceived from the sale of voluntarily aban- spirits, wine, and beer to GSA for dis- doned personal property? posal? DRUG PARAPHERNALIA Subpart D—Unclaimed Personal Property 102–41.210 What are some examples of drug 102–41.120 How long must we hold unclaimed paraphernalia? personal property before disposition? 102–41.215 Do we report to GSA all forfeited, 102–41.125 What choices do I have for retain- voluntarily abandoned, or unclaimed ing or disposing of unclaimed personal drug paraphernalia not required for offi- property? cial use? 102–41.130 What must we do when we retain 102–41.220 Is drug paraphernalia forfeited unclaimed personal property for official under 21 U.S.C. 863 available for transfer to other Federal agencies or donation use? through a State agency for surplus prop- 102–41.135 How much reimbursement do we erty (SASP)? pay the former owner when he or she 102–41.225 Are there special provisions to re- files a claim for unclaimed personal porting and transferring drug para- property that we no longer have? phernalia forfeited under 21 U.S.C. 863? 102–41.140 When do we report to GSA un- 102–41.230 May SASPs pick up or store do- claimed personal property not retained nated drug paraphernalia in their dis- for official use? tribution centers? 102–41.145 Where do we send the reports for 102–41.235 May we sell forfeited drug para- unclaimed personal property? phernalia? 102–41.150 What special information do we AUTHORITY: 40 U.S.C. 121(c). provide on reports of unclaimed personal property? SOURCE: 71 FR 41370, July 21, 2006, unless 102–41.155 Is unclaimed personal property otherwise noted. available for transfer to another Federal agency? Subpart A—General Provisions 102–41.160 May we retain the reimbursement from transfers of unclaimed personal § 102–41.5 What does this part cover? property? (a) This part covers the disposition of 102–41.165 May we require reimbursement for the costs incurred in the transfer of seized, forfeited, voluntarily aban- unclaimed personal property? doned, and unclaimed personal prop- 102–41.170 Is unclaimed personal property erty under the custody of any Federal available for donation? agency located in the United States, 102–41.175 May we sell unclaimed personal the U.S. Virgin Islands, American property? Samoa, Guam, the Commonwealth of 102–41.180 May we retain the proceeds from Puerto Rico, the Northern Mariana Is- the sale of unclaimed personal property? lands, the Federated States of Micro- nesia, the Marshall Islands, and Palau. Subpart E—Personal Property Requiring Disposition of such personal property Special Handling located elsewhere must be in accord- 102–41.185 Are there certain types of for- ance with holding agency regulations. feited, voluntarily abandoned, or un- Please see § 102–36.380 of this sub- claimed property that must be handled chapter B regarding the disposal of for- differently than other property addressed eign excess. The General Services Ad- in this part? ministration (GSA) does not normally

159

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00169 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–41.10 41 CFR Ch. 102 (7–1–11 Edition)

accept responsibility for disposal of Drug paraphernalia means any equip- property located outside the United ment, product, or material primarily States and its territories. Additional intended or designed for use in manu- guidance on disposition of seized, for- facturing, compounding, converting, feited, voluntarily abandoned, and un- concealing, processing, preparing, or claimed personal property that re- introducing into the human body a quires special handling (e.g., firearms, controlled substance in violation of the hazardous materials) is contained in Controlled Substances Act (see 21 part 101–42 of this title. Additional U.S.C. 863). It includes items primarily guidance on the disposition of firearms for use in injecting, ingesting, inhal- (as scrap only), distilled spirits, wine, beer, and drug paraphernalia is pro- ing, or otherwise introducing mari- vided in subpart E of this part. juana, cocaine, hashish, hashish oil, (b) These regulations do not include PCP, or amphetamines into the human disposal of seized, forfeited, voluntarily body. abandoned, and unclaimed personal Eleemosynary institution means any property covered under authorities nonprofit health or medical institution outside of the following statutes: that is organized and operated for char- (1) 40 U.S.C. 552, Abandoned or Un- itable purposes. claimed Property on Government Firearms means any weapon, silencer, Premises. or destructive device designed to, or (2) 40 U.S.C. 1306, Disposition of readily convertible to, expel a projec- Abandoned or Forfeited Property. tile by the action of an explosive, as (3) 26 U.S.C. 5688, Forfeited Distilled defined in the Internal Revenue Code Spirits, Wines, and Beer. (26 U.S.C. 5845). Excludes antique fire- (4) 26 U.S.C. 5872, Forfeited Firearms. arms as defined in 26 U.S.C. 5845(g). (5) 21 U.S.C. 863, Drug Paraphernalia. Forfeited property means personal § 102–41.10 To whom do ‘‘we’’, ‘‘you’’, property that the Government has ac- and their variants refer? quired ownership of through a sum- Use of pronouns ‘‘we’’, ‘‘you’’, and mary process or court order pursuant their variants throughout this part to any law of the United States. refer to the agency having custody of Seized property means personal prop- the personal property. erty that has been confiscated by a Federal agency, and whose care and § 102–41.15 How do we request a devi- handling will be the responsibility of ation from these requirements and who can approve it? the agency until final ownership is determined by the judicial process. See §§ 102–2.60 through 102–2.110 of Unclaimed property means personal this chapter to request a deviation property unknowingly abandoned and from the requirements of this part. found on premises owned or leased by DEFINITIONS the Government, i.e., lost and found property. § 102–41.20 What definitions apply to Voluntarily abandoned property means this part? personal property abandoned to any The following definitions apply to Federal agency in a way that imme- this part: diately vests title to the property in Beer means an alcoholic beverage the Government. There must be writ- made from malted cereal grain, fla- ten or circumstantial evidence that the vored with hops, and brewed by slow property was intentionally and volun- fermentation. tarily abandoned. This evidence should Distilled spirits, as defined in the Fed- be clear that the property was not sim- eral Alcohol Administration Act (27 ply lost by the owner. U.S.C. 211), means ethyl alcohol; hy- drated oxide of ethyl; or spirits of wine, Wine means the fermented juice of a whiskey, rum, brandy, gin, and other plant product, as defined in 27 U.S.C. distilled spirits, including all dilutions 211. and mixtures thereof, for non-industrial use.

160

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00170 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–41.35

RESPONSIBILITY ments for reimbursement to satisfy the claims of owners, lien holders, or other § 102–41.25 Who retains custody and is lawful claimants; responsible for the reporting, care, (3) Sale; or and handling of property covered (4) Abandonment and destruction in by this part? accordance with § 102–36.305 of this sub- You, the holding agency, normally chapter B. retain physical custody of the property and are responsible for its care and § 102–41.35 Do we report to GSA all handling pending final disposition. seized personal property subject to With the exception of property listed in judicial forfeiture as well as for- § 102–41.35, you must report promptly to feited, voluntarily abandoned, or the GSA forfeited, voluntarily aban- unclaimed personal property not retained for official use? doned, or unclaimed personal property not being retained for official use and Yes, send GSA reports of excess (see seized property on which proceedings § 102–36.125 of this subchapter B) for all for forfeiture by court decree are being seized personal property subject to ju- started or have begun. In general, the dicial forfeiture as well as forfeited, procedures for reporting such property voluntarily abandoned, or unclaimed parallel those for reporting excess per- personal property not required for offi- sonal property under part 102–36 of this cial use, except the following, whose subchapter B. disposition is covered under other statutes and authorities: § 102–41.30 What is GSA’s role in the (a) Forfeited firearms or munitions disposition of property covered by of war seized by the Department of this part? Commerce and transferred to the De- (a) Seized property subject to court pro- partment of Defense (DOD) pursuant to ceedings for forfeiture. (1) If the seizing 22 U.S.C. 401. agency files a request for the property (b) Forfeited firearms directly trans- for its official use, the GSA Region 3/ ferable to DOD by law. National Capital Region will apply to (c) Seeds, plants, or misbranded the court for an order to turn the prop- packages seized by the Department of erty over to the agency should for- Agriculture. feiture be decreed. If no such request (d) Game animals and equipment has been filed, GSA will determine (other than vessels, including cargo) whether retention of the property for seized by the Department of the Inte- Federal official use is in the Govern- rior. ment’s best interest, and, if so, will (e) Files of papers and undeliverable apply to the court to order delivery of mail in the custody of the United the property to— States Postal Service. (i) Any other Federal agency that re- (f) Articles in the custody of the De- quests it; or partment of Commerce Patent and (ii) The seizing agency to be retained Trademark Office that are in violation for a reasonable time in case the prop- of laws governing trademarks or pat- erty may later become necessary to ents. any agency for official use. (g) Unclaimed and voluntarily aban- (2) In the event that the property is doned personal property subject to not ordered by competent authority to laws and regulations of the U.S. Cus- be forfeited to the United States, it toms and Border Protection, Depart- may be returned to the claimant. ment of Homeland Security. (b) Forfeited, voluntarily abandoned, or (h) Property seized in payment of or unclaimed property. When forfeited, vol- as security for debts arising under the untarily abandoned, or unclaimed prop- internal revenue laws. erty is reported to GSA for disposal, (i) Lost, abandoned, or unclaimed GSA will direct its disposition by— personal property the Coast Guard or (1) Transfer to another Federal agen- the military services are authorized to cy; dispose of under 10 U.S.C. 2575. (2) Donation to an eligible recipient, (j) Property of deceased veterans left if the property is not needed by a Fed- on a Government facility subject to 38 eral agency and there are no require- U.S.C. 8501.

161

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00171 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–41.40 41 CFR Ch. 102 (7–1–11 Edition)

(k) Controlled substances reportable § 102–41.55 Where do we send the re- to the Drug Enforcement Administra- ports for seized or forfeited per- tion, Department of Justice, Wash- sonal property? ington, DC 20537. (a) Except for the items noted in (l) Forfeited, condemned, or volun- paragraph (b) of this section, report tarily abandoned tobacco, snuff, cigars, seized or forfeited personal property or cigarettes which, if offered for sale, not retained for official use to the Gen- will not bring a price equal to the in- eral Services Administration, Property ternal revenue tax due and payable Management Branch (3FPD), Wash- thereon; and which is subject to de- ington, DC 20407. struction or delivery without payment (b) Report aircraft, firearms, and ves- of any tax to any hospital maintained sels to the regional GSA Property Man- by the Federal Government for the use agement Branch office specified in of present or former members of the § 102–36.125 of this subchapter B. military. § 102–41.60 Are there special require- (m) Property determined appropriate ments in reporting seized or for- for abandonment/destruction (see § 102– feited personal property to GSA? 36.305 of this subchapter B). Yes, in addition to the information (n) Personal property where handling required in § 102–36.235 of this sub- and disposal is governed by specific chapter B for reporting excess, you legislative authority notwithstanding must indicate— Title 40 of the United States Code. (a) Whether the property— (1) Was forfeited in a judicial pro- Subpart B—Seized or Forfeited ceeding or administratively (without Personal Property going through a court); (2) Is subject to pending court pro- § 102–41.40 How is personal property ceedings for forfeiture, and, if so, the forfeited? name of the defendant, the place and Personal property that has been judicial district of the court from seized by a Federal agency may be for- which the decree will be issued, and feited through court decree (judicial whether you wish to retain the prop- forfeiture) or administratively for- erty for official use; feited if the agency has specific author- (b) The report or case number under ity without going through the courts. which the property is listed; and (c) The existence or probability of a § 102–41.45 May we place seized per- lien, or other accrued or accruing sonal property into official use be- charges, and the amount involved. fore the forfeiture process is completed? § 102–41.65 What happens to forfeited personal property that is trans- No, property under seizure and pend- ferred or retained for official use? ing forfeiture cannot be placed into of- Except for drug paraphernalia (see ficial use until a final determination is §§ 102–41.210 through 102–41.235), for- made to vest title in the Government. feited personal property retained for official use or transferred to another § 102–41.50 May we retain forfeited personal property for official use? Federal agency under this subpart loses its identity as forfeited property. Yes, you may retain for official use When no longer required for official personal property forfeited to your use, you must report it to GSA as ex- agency, except for property you are re- cess for disposal in accordance with quired by law to sell. Retention of part 102–36 of this subchapter B. You large sedans and limousines for official must follow the additional provisions use is only authorized under the provi- of subpart E of this part and part 101– sions of part 102–34 of this subchapter 42 of Chapter 101, Federal Property B. Except for the items noted in § 102– Management Regulations in this title 41.35, report to GSA all forfeited per- when disposing of firearms, distilled sonal property not being retained for spirits, wine, beer, and drug para- official use. phernalia.

162

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00172 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–41.100

§ 102–41.70 Are transfers of forfeited (b) If your agency doesn’t need the personal property reimbursable? property, you should determine wheth- Recipient agencies do not pay for the er it may be abandoned or destroyed in property. However, you may charge the accordance with the provisions at FMR recipient agency all costs you incurred 102–36.305 through 102–36.330. Further- in storing, packing, loading, preparing more, in addition to the circumstances for shipment, and transporting the when property may be abandoned or property. If there are commercial destroyed without public notice at charges incident to forfeiture prior to FMR 102–36.330, voluntarily abandoned the transfer, the recipient agency must property may also be abandoned or de- pay these charges when billed by the stroyed without public notice when the commercial organization. Any pay- estimated resale value of the property ment due to lien holders or other law- is less than $500. ful claimants under a judicial for- (c) If the property is not retained for feiture must be made in accordance official use or abandoned or destroyed, with provisions of the court decree. you must report it to GSA as excess in accordance with § 102–41.95. § 102–41.75 May we retain the proceeds from the sale of forfeited personal property? § 102–41.90 What happens to voluntarily abandoned personal property No, you must deposit the sales pro- retained for official use? ceeds in the U.S. Treasury as miscella- Voluntarily abandoned personal neous receipts, unless otherwise di- property retained for official use or rected by court decree or specifically transferred to another Federal agency authorized by statute. under this subpart loses its identity as voluntarily abandoned property. When Subpart C—Voluntarily no longer required for official use, you Abandoned Personal Property must report it to GSA as excess, or abandon/destroy the property, in ac- § 102–41.80 When is personal property voluntarily abandoned? cordance with part 102–36 of this subchapter B. Personal property is voluntarily abandoned when the owner of the prop- § 102–41.95 Where do we send the re- erty intentionally and voluntarily ports for voluntarily abandoned gives up title to such property and title personal property? vests in the Government. The receiving Except for aircraft, firearms, and ves- agency ordinarily documents receipt of sels, report voluntarily abandoned per- the property to evidence its voluntary sonal property to the regional GSA relinquishment. Evidence of the voluntary abandonment may be cir- Property Management Branch office cumstantial. for the region in which the property is located. Report aircraft, firearms, and § 102–41.85 What choices do I have for vessels to the regional GSA Property retaining or disposing of volun- Management Branch office specified in tarily abandoned personal prop- § 102–36.125 of this subchapter B. erty? You may either retain or dispose of § 102–41.100 What information do we voluntarily abandoned personal prop- provide when reporting voluntarily erty based on the following cir- abandoned personal property to cumstances: GSA? (a) If your agency has a need for the When reporting voluntarily aban- property, you may retain it for official doned personal property to GSA, you use, except for large sedans and lim- must provide a description and loca- ousines which may only be retained for tion of the property, and annotate that official use as authorized under part the property was voluntarily aban- 102–34 of this subchapter B. See § 102– doned. 41.90 for how retained property must be handled.

163

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00173 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–41.105 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–41.105 What happens to volun- § 102–41.125 What choices do I have for tarily abandoned personal property retaining or disposing of unclaimed when reported to GSA? personal property? Voluntarily abandoned personal You may either retain or dispose of property reported to GSA will be made unclaimed abandoned personal prop- available for transfer, donation, sale, erty based on the following cir- or abandonment/destruction in accord- cumstances: ance with parts 102–36, 102–37, 102–38, (a) If your agency has a need for the property, you may retain it for official and §§ 102–36.305 through 102–36.330 of use if you have held the unclaimed this subchapter B, respectively. You property for 30 calendar days and the must follow the additional provisions former owner has not filed a claim. of §§ 102–41.190 through 102–41.235 and After 30 days, title vests in the Govern- part 101–42 of Chapter 101, Federal ment and you may retain the un- Property Management Regulations in claimed property for official use. Large this title when disposing of firearms sedans and limousines which may only and other property requiring special be retained for official use as author- handling. ized under part 102–34 of this subchapter B. See § 102–41.130 for how re- § 102–41.110 Are transfers of volun- tained property must be handled. tarily abandoned personal property (b) If your agency doesn’t need the reimbursable? property, you should determine wheth- No, all transfers of voluntarily aban- er it may be immediately abandoned or doned personal property will be with- destroyed in accordance with the provi- out reimbursement. However, you may sions at FMR 102–36.305 through 102– charge the recipient agency all costs 36.330. You are not required to hold un- you incurred in storing, packing, load- claimed property for 30 days, if you de- ing, preparing for shipment, and trans- cide to abandon or destroy it. Title to porting the property. the property immediately vests in the Government in these circumstances. In § 102–41.115 May we retain the pro- addition to the circumstances when ceeds received from the sale of vol- property may be abandoned or de- untarily abandoned personal prop- stroyed without public notice at FMR erty? 102–36.330, unclaimed personal property No, you must deposit the sales pro- may also be abandoned or destroyed ceeds in the U.S. Treasury as miscella- without public notice when the esti- neous receipts unless your agency has mated resale value of the property is less than $500. See § 102–41.135 for proce- specific statutory authority to do oth- dures to be followed if a claim is filed. erwise. (c) If the property is not retained for official use or abandoned or destroyed, Subpart D—Unclaimed Personal you must report it to GSA as excess in Property accordance with § 102–41.140.

§ 102–41.120 How long must we hold § 102–41.130 What must we do when we unclaimed personal property before retain unclaimed personal property disposition? for official use? You must generally hold unclaimed (a) You must maintain records of un- personal property for 30 calendar days claimed personal property retained for from the date it was found. Unless the official use for 3 years after title vests previous owner files a claim, title to in the Government to permit identification of the property should the the property vests in the Government former owner file a claim for the prop- after 30 days, and you may retain or erty. You must also deposit funds re- dispose of the property in accordance ceived from disposal of such property with this part. However, see the fol- in a special account to cover any valid lowing sections for handling of un- claim filed within this 3-year period. claimed personal property under spe- (b) When you no longer need the un- cific circumstances. claimed property which you have

164

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00174 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–41.175

placed in official use, report it as ex- and indicate the property as unclaimed cess in the same manner as other ex- and the estimated fair market value. cess property under part 102–36 of this subchapter B. § 102–41.155 Is unclaimed personal property available for transfer to § 102–41.135 How much reimbursement another Federal agency? do we pay the former owner when Yes, unclaimed personal property is he or she files a claim for unavailable for transfer to another Fed- claimed personal property that we eral agency, but only after 30 calendar no longer have? days from the date of finding such If the property was sold, reimburse- property and no claim has been filed by ment of the property to the former the former owner, and with fair market owner must not exceed any proceeds value reimbursement from the recipi- from the disposal of such property, less ent agency. The transferred property the costs of the Government’s care and then loses its identity as unclaimed handling of the property. If the prop- property and becomes property of the erty was abandoned or destroyed in ac- Government, and when no longer need- cordance with § 102–41.125, or otherwise ed it must be reported excess in accord- used or transferred, reimbursement of ance with part 102–36 of this subchapter the property to the former owner must B. not exceed the estimated resale value of the property at the time of the vest- § 102–41.160 May we retain the reimbursement from transfers of un- ing of the property with the Govern- claimed personal property? ment, less costs incident to the care and handling of the property, as deter- No, you must deposit the reimburse- mined by the General Services Admin- ment from transfers of unclaimed per- istration, Office of Travel, Transpor- sonal property in a special account for tation, and Asset Management (MT), a period of 3 years pending a claim Washington DC, 20405. from the former owner. After 3 years, you must deposit these funds into mis- § 102–41.140 When do we report to GSA cellaneous receipts of the U.S. Treas- unclaimed personal property not ury unless your agency has statutory retained for official use? authority to do otherwise. After you have held the property for § 102–41.165 May we require reim- 30 calendar days and no one has filed a bursement for the costs incurred in claim for it, the title to the property the transfer of unclaimed personal vests in the Government. If you decide property? not to retain the property for official Yes, you may require reimbursement use, report it as excess to GSA in ac- from the recipient agency of any direct cordance with part 102–36 of this sub- costs you incur in the transfer of the chapter B. unclaimed property (e.g., storage, packing, preparation for shipping, load- § 102–41.145 Where do we send the re- ing, and transportation). ports for unclaimed personal property? § 102–41.170 Is unclaimed personal Except for the items noted in § 102– property available for donation? 36.125 of this subchapter B, report un- No, unclaimed personal property is claimed personal property to the re- not available for donation because regional GSA Property Management imbursement at fair market value is Branch office for the region in which required. the property is located. § 102–41.175 May we sell unclaimed § 102–41.150 What special information personal property? do we provide on reports of un- Yes, you may sell unclaimed personal claimed personal property? property after title vests in the Gov- On reports of unclaimed personal ernment (as provided for in § 102–41.120) property, you must provide the report and when there is no Federal interest. or case number assigned by your agen- You may sell unclaimed personal prop- cy, property description and location, erty subject to the same terms and

165

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00175 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–41.180 41 CFR Ch. 102 (7–1–11 Edition)

conditions as applicable to surplus per- § 102–41.200 Are there special disposal sonal property and in accordance with provisions for firearms that are part 102–38 of this subchapter B. seized and forfeited for a violation of the National Firearms Act? § 102–41.180 May we retain the pro- Yes, firearms seized and forfeited for ceeds from the sale of unclaimed a violation of the National Firearms personal property? Act (26 U.S.C. 5801—5872) are subject to No, you must deposit proceeds from the disposal provisions of 26 U.S.C. the sale of unclaimed personal property 5872(b). When there is no contrary judg- in a special account to be maintained ment or action under such forfeiture, for a period of 3 years pending a pos- GSA will direct the disposition of the sible claim by the former owner. After firearms. GSA may— the 3-year period, you must deposit the (a) Authorize retention for official funds in the U.S. Treasury as miscella- use by the Treasury Department; neous receipts or in such other agency (b) Transfer to an executive agency accounts when specifically authorized for use by it; or by statute. (c) Order the firearms destroyed. FORFEITED DISTILLED SPIRITS, WINE, Subpart E—Personal Property AND BEER Requiring Special Handling § 102–41.205 Do we report all forfeited § 102–41.185 Are there certain types of distilled spirits, wine, and beer to forfeited, voluntarily abandoned, or GSA for disposal? unclaimed property that must be (a) Yes, except do not report distilled handled differently than other spirits, wine, and beer not fit for property addressed in this part? human consumption or for medicinal, Yes, you must comply with the addi- scientific, or mechanical purposes. tional provisions in this subpart when When reporting, indicate quantities disposing of the types of property list- and kinds, proof rating, and condition ed here. for shipping. GSA (3FPD) may transfer such property to another Federal agen- FIREARMS cy for official purposes, or donate it to eligible eleemosynary institutions for § 102–41.190 May we retain forfeited, medicinal purposes only. voluntarily abandoned, or un- (b) Forfeited distilled spirits, wine, claimed firearms for official use? and beer that are not retained for offi- Generally, no; you may retain for- cial use by the seizing agency or trans- feited, voluntarily abandoned, or un- ferred or donated to eligible recipients claimed firearms only when you are by GSA must be destroyed. You must statutorily authorized to use firearms document the destruction with a for official purposes. record of the time and location, property description, and quantities de- § 102–41.195 How do we dispose of for- stroyed. feited, voluntarily abandoned, or unclaimed firearms not retained for DRUG PARAPHERNALIA official use? § 102–41.210 What are some examples Report forfeited, voluntarily aban- of drug paraphernalia? doned, or unclaimed firearms not re- Some examples of drug paraphernalia tained for official use to the General are— Services Administration, Property (a) Metal, wooden, acrylic, glass, Management Branch (7FP–8), Denver, stone, plastic or ceramic pipes with or CO 80225–0506 for disposal in accordance without screens, permanent screens, with § 101–42.1102–10 of the Federal hashish heads, or punctured metal Property Management Regulations in bowls; this title. (b) Water pipes; (c) Carburetion tubes and devices; (d) Smoking and carburetion masks;

166

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00176 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–42

(e) Roach clips (objects used to hold as forfeited property. Reports of excess burning material, such as a marijuana and transfer documents for such drug cigarette, that has become too small or paraphernalia must include the anno- too short to be held in the hand); tation that the property was seized and (f) Miniature spoons with level capac- forfeited under 21 U.S.C. 863. ities of one-tenth cubic centimeter or less; § 102–41.230 May SASPs pick up or (g) Chamber pipes; store donated drug paraphernalia (h) Carburetor pipes; in their distribution centers? (i) Electric pipes; No, you must release donated drug (j) Air-driven pipes; paraphernalia directly to the donee as (k) Chillums; designated on the transfer document. (l) Bongs; (m) Ice pipes or chillers; § 102–41.235 May we sell forfeited drug (n) Wired cigarette papers; or paraphernalia? (o) Cocaine freebase kits. No, you must destroy any forfeited § 102–41.215 Do we report to GSA all drug paraphernalia not needed for forfeited, voluntarily abandoned, or transfer or donation and document the unclaimed drug paraphernalia not destruction as specified in § 102–41.215. required for official use? No, only report drug paraphernalia PART 102–42—UTILIZATION, DONA- that has been seized and forfeited for a violation of 21 U.S.C. 863. Unless statu- TION, AND DISPOSAL OF FOR- torily authorized to do otherwise, de- EIGN GIFTS AND DECORATIONS stroy all other forfeited, voluntarily abandoned, or unclaimed drug para- Subpart A—General Provisions phernalia. You must ensure the de- Sec. struction is performed in the presence 102–42.5 What does this part cover? of two witnesses (employees of your agency), and retain in your records a DEFINITIONS signed certification of destruction. 102–42.10 What definitions apply to this § 102–41.220 Is drug paraphernalia for- part? feited under 21 U.S.C. 863 available CARE, HANDLING AND DISPOSITION for transfer to other Federal agencies or donation through a State 102–42.15 Under what circumstances may an Agency for Surplus Property employee retain a foreign gift or decora- (SASP)? tion? Yes, but GSA will only transfer or 102–42.20 What is the typical disposition donate forfeited drug paraphernalia for process for gifts and decorations that law enforcement or educational pur- employees are not authorized to retain? poses and only for use by Federal, 102–42.25 Who retains custody of gifts and State, or local authorities. Federal or decorations pending disposal? 102–42.30 Who is responsible for the secu- State Agencies for Surplus Property rity, care and handling, and delivery of (SASP) requests for such items must be gifts and decorations to GSA, and all processed through the General Services costs associated with such functions? Administration, Property Management 102–42.35 Can the employing agency be reim- Branch (3FPD), Washington, DC 20407. bursed for transfers of gifts and decora- The recipient must certify on the tions? transfer document that the drug paraphernalia will be used for law enforce- APPRAISALS ment or educational purposes only. 102–42.40 When is a commercial necessary? 102–42.45 What is my agency’s responsibility § 102–41.225 Are there special provi- for establishing procedures for obtaining sions to reporting and transferring an appraisal? drug paraphernalia forfeited under 102–42.50 What types of appraisals may my 21 U.S.C. 863? agency consider? Yes, you must ensure that such drug 102–42.55 What does the employing agency paraphernalia does not lose its identity do with the appraisal?

167

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00177 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–42.5 41 CFR Ch. 102 (7–1–11 Edition)

SPECIAL DISPOSALS Subpart A—General Provisions 102–42.60 Who is responsible for gifts and decorations received by Senators and § 102–42.5 What does this part cover? Senate employees? This part covers the acceptance and 102–42.65 What happens if the Commission disposition of gifts of more than mini- on Art and Antiquities does not dispose mal value and decorations from foreign of a gift or decoration? governments under 5 U.S.C. 7342. If you 102–42.70 Who handles gifts and decorations receive gifts other than from a foreign received by the President or Vice Presi- dent or a member of their family? government, you should refer to § 102– 102–42.75 How are gifts containing hazardous 36.405 of this subchapter B. materials handled? [71 FR 28778, May 18, 2006]

Subpart B—Utilization of Foreign Gifts and DEFINITIONS Decorations § 102–42.10 What definitions apply to 102–42.80 To whom do ‘‘we’’, ‘‘you’’, and this part? their variants refer? The following definitions apply to 102–42.85 What gifts or decorations must we report to GSA? this part: 102–42.90 What is the requirement for re- Decoration means an order, device, porting gifts or decorations that were re- medal, badge, insignia, emblem, or tained for official use but are no longer award offered by or received from a for- needed? eign government. 102–42.95 How do we report gifts and decora- Employee means: tions as excess personal property? (1) An employee as defined by 5 102–42.100 How can we obtain an excess gift U.S.C. 2105 and an officer or employee or decoration from another agency? of the United States Postal Service or 102–42.105 What special information must be of the Postal Rate Commission; included on the transfer request (SF 122)? (2) An expert or consultant who is 102–42.110 How must we justify a transfer re- under contract under 5 U.S.C. 3109 with quest? the United States or any agency, de- 102–42.115 What must we do when the trans- partment, or establishment thereof, in- ferred gifts and decorations are no longer required for official use? cluding, in the case of an organization performing services under that section, Subpart C—Donation of Foreign Gifts and any individual involved in the perform- Decorations ance of such services; (3) An individual employed by or oc- 102–42.120 When may gifts or decorations be cupying an office or position in the donated to State agencies? government of a territory or possession 102–42.125 How is donation of gifts or deco- of the United States or the government rations accomplished? of the District of Columbia; 102–42.130 Are there special requirements (4) A member of a uniformed service for the donation of gifts and decorations? as specified in 10 U.S.C 101; Subpart D—Sale or Destruction of Foreign (5) The President and the Vice Presi- Gifts and Decorations dent; (6) A Member of Congress as defined 102–42.135 Whose approval must be obtained by 5 U.S.C. 2106 (except the Vice Presi- before a foreign gift or decoration is of- dent) and any Delegate to the Con- fered for public sale? gress; and 102–42.140 How is a sale of a foreign gift or (7) The spouse of an individual de- decoration to an employee conducted? scribed in paragraphs (1) through (6) of 102–42.145 When is public sale of a foreign this definition of employee (unless this gift or decoration authorized? individual and his or her spouse are 102–42.150 What happens to proceeds from separated) or a dependent (within the sales? 102–42.155 Can foreign gifts or decorations meaning of section 152 of the Internal be destroyed? Revenue Code of 1986 (26 U.S.C. 152)) of this individual, other than a spouse or AUTHORITY: 40 U.S.C. 121(c); 5 U.S.C. 7342. dependent who is an employee under SOURCE: 65 FR 45539, July 24, 2000, unless paragraphs (1) through (6) of this defi- otherwise noted. nition of employee.

168

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00178 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–42.20

Employing agency means: for the immediately preceding 3-year (1) The department, agency, office, or period. other entity in which an employee is [65 FR 45539, July 24, 2000, as amended at 68 employed, for other legislative branch FR 56496, Sept. 4, 2002; 70 FR 2318, Jan. 12, employees and for all executive branch 2005; 71 FR 28778, May 18, 2006; 73 FR 7475, employees; Feb. 8, 2008; 76 FR 30551, May 26, 2011] (2) The Committee on Standards of CARE, HANDLING AND DISPOSITION Official Conduct of the House of Rep- resentatives, for Members and employ- § 102–42.15 Under what circumstances ees of the House of Representatives, ex- may an employee retain a foreign cept that those responsibilities speci- gift or decoration? fied in 5 U.S.C. 7342(c)(2)(A), (e)(1), and Employees, with the approval of (g)(2)(B) must be carried out by the their employing agencies, may accept Clerk of the House; and retain: (3) The Select Committee on Ethics (a) Gifts of minimal value received as of the Senate, for Senators and em- souvenirs or marks of courtesy. When a ployees of the Senate, except that gift of more than minimal value is ac- those responsibilities (other than re- cepted, the gift becomes the property sponsibilities involving approval of the of the U.S. Government, not the em- employing agency) specified in 5 U.S.C. ployee, and must be reported. 7342(c)(2), (d), and (g)(2)(B) must be car- (b) Decorations that have been of- ried out by the Secretary of the Sen- fered or awarded for outstanding or un- ate; and usually meritorious performance. If the (4) The Administrative Offices of the employing agency disapproves reten- United States Courts, for judges and tion of the decoration by the employee, the decoration becomes the property of judicial branch employees. the U.S. Government. Foreign government means: (1) Any unit of foreign government, § 102–42.20 What is the typical disposi- including any national, State, local, tion process for gifts and decora- and municipal government and their tions that employees are not au- foreign equivalents; thorized to retain? (2) Any international or multi- (a) Non-monetary gifts or decorations. national organization whose member- When an employee receives a non-mon- ship is composed of any unit of a for- etary gift above the minimal value or a eign government; and decoration that he/she is not author- (3) Any agent or representative of ized to retain: any such foreign government unit or (1) The employee must report the gift organization while acting as such. or decoration to his/her employing agency within 60 days after accepting Gift means a monetary or non-mone- it. tary present (other than a decoration) (2) The employing agency determines offered by or received from a foreign if it will keep the gift or decoration for government. A monetary gift includes official use. anything that may commonly be used (3) If it does not return the gift or in a financial transaction, such as cash decoration to the donor or keep it for or currency, checks, money orders, official use, the employing agency re- bonds, shares of stock, and other secu- ports it as excess personal property to rities and negotiable financial instru- GSA for Federal utilization screening ments. under § 102–42.95. Minimal value means a retail value in (4) If GSA does not transfer the gift the United States at the time of ac- or decoration during Federal utiliza- ceptance of $350 or less, except that tion screening, the employee may pur- GSA will adjust the definition of mini- chase the gift or decoration (see § 102– mal value in regulations prescribed by 42.140). the Administrator of General Services (5) If the employee declines to pur- every three years, in consultation with chase the gift or decoration, and there the Secretary of State, to reflect is no Federal requirement for either, changes in the consumer price index GSA may offer it for donation through

169

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00179 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–42.25 41 CFR Ch. 102 (7–1–11 Edition)

State Agencies for Surplus Property through SASPs will be without reim- (SASP) under part 102–37 of this sub- bursement. However, the employing chapter B. agency may require the receiving agen- (6) If no SASP requests the gift or cy to pay all or part of the direct costs decoration for donation, GSA may offer incurred by the employing agency in it for public sale, with the approval of packing, preparation for shipment, the Secretary of State, or will author- loading, and transportation. ize the destruction of the gift or decoration under part 102–38 of this sub- APPRAISALS chapter B. (b) Monetary gifts. When an employee § 102–42.40 When is an appraisal nec- receives a monetary gift above the essary? minimal value: An appraisal is necessary when— (1) The employee must report the gift to his/her employing agency within 60 (a) An employee indicates an interest days after accepting it. in purchasing a gift or decoration. In (2) The employing agency must: this situation, the appraisal must be (i) Report a monetary gift with pos- obtained before the gift or decoration sible historic or numismatic (i.e., col- is reported to GSA for screening (see lectible) value to GSA; or 102–42.20); or (ii) Deposit a monetary gift that has (b) GSA requires the employing agen- no historic or numismatic value with cy to obtain an appraisal of a gift or the Department of the Treasury. decoration that the agency has re- [65 FR 45539, July 24, 2000, as amended at 71 tained for official use and no longer FR 28778, May 18, 2006] needs before accepting the agency’s report of the item as excess personal § 102–42.25 Who retains custody of property; or gifts and decorations pending disposal? (c) The policy of one’s own agency requires it, pursuant to 5 U.S.C. 7342(g). (a) The employing agency retains NOTE TO § 102–42.40 paragraphs (a) and (b): custody of gifts and decorations that Refer to § 102–42.50 for how appraisals under employees have expressed an interest these two situations are handled. in purchasing. (b) GSA will accept physical custody [74 FR 2396, Jan. 15, 2009] of gifts above the minimal value, which employees decline to purchase, or deco- § 102–42.45 What is my agency’s re- rations that are not retained for offi- sponsibility for establishing proce- cial use or returned to donors. dures for obtaining an appraisal? The employing agency is responsible NOTE TO § 102–42.25(b): GSA will not accept physical custody of foreign gifts of firearms. for establishing its own procedure for Firearms reported by the agency as excess obtaining an appraisal that represents must be disposed of in accordance with part the value of the gift in the United 101–42 of this title. States. This applies to all gifts, even when the recipient wishes to retain § 102–42.30 Who is responsible for the and/or purchase the gift. Appraisals are security, care and handling, and delivery of gifts and decorations to required for gifts that are personalized GSA, and all costs associated with (e.g., Books signed by the author, Gifts such functions? personally labeled). The employing agency is responsible [74 FR 2396, Jan. 15, 2009] for the security, care and handling, and delivery of gifts and decorations to § 102–42.50 What types of appraisals GSA, and all costs associated with such may my agency consider? functions. Your agency may allow— § 102–42.35 Can the employing agency (a) Written commercial appraisals be reimbursed for transfers of gifts conducted by an appraisal firm or trade and decorations? organization; and No, all transfers of gifts and decora- (b) Retail value appraisals where the tions to Federal agencies or donation value of the gift may be ascertained by

170

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00180 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–42.95

reviewing current and reliable non-dis- and decorations received by the Presi- counted retail catalogs, retail price dent and Vice President or a member of lists, or retail Web site valuations. the President’s or Vice President’s [74 FR 2396, Jan. 15, 2009] family. [71 FR 28778, May 18, 2006] § 102–42.55 What does the employing agency do with the appraisal? § 102–42.75 How are gifts containing When an appraisal is necessary under hazardous materials handled? § 102–42.40, the employing agency must Gifts containing hazardous materials include the appraisal with the Stand- are handled in accordance with the re- ard Form (SF) 120, Report of Excess Personal Property, and send it to GSA quirements and provisions of this part in accordance with the requirements of and part 101–42 of this title. § 102–42.95. By attaching the appraisal, the employing agency is certifying Subpart B—Utilization of Foreign that the value cited is the retail value/ Gifts and Decorations appraised value of the item in the United States in U.S. dollars on the § 102–42.80 To whom do ‘‘we’’, ‘‘you’’, date set forth on the appraisal. and their variants refer? [74 FR 2396, Jan. 15, 2009] Use of pronouns ‘‘we’’, ‘‘you’’, and their variants throughout this subpart SPECIAL DISPOSALS refers to the employing agency.

§ 102–42.60 Who is responsible for gifts § 102–42.85 What gifts or decorations and decorations received by Sen- must we report to GSA? ators and Senate employees? Gifts and decorations received by You must report to GSA gifts of Senators and Senate employees are de- more than minimal value, except for posited with the Secretary of the Sen- monetary gifts that have no historic or ate for disposal by the Commission on numismatic value (see § 102–42.20), or Art and Antiquities of the United decorations the employee is not au- States Senate under 5 U.S.C. 7342(e)(2). thorized to retain that are: GSA is responsible for disposing of (a) Not being retained for official use gifts or decorations received by Mem- or have not been returned to the donor; bers and employees of the House of or Representatives. (b) Received by a Senator or a Senate employee and not disposed of by the § 102–42.65 What happens if the Com- Commission on Art and Antiquities of mission on Art and Antiquities does the United States Senate. not dispose of a gift or decoration? If the Commission on Art and Antiq- § 102–42.90 What is the requirement uities does not dispose of a gift or deco- for reporting gifts or decorations ration, then it must be reported to that were retained for official use GSA for disposal. If GSA does not dis- but are no longer needed? pose of a gift or decoration within one Non-monetary gifts or decorations year of the Commission’s reporting, that were retained for official use must the Commission may: be reported to GSA as excess property (a) Request that GSA return the gift within 30 days after termination of the or decoration and dispose of it itself; or official use. (b) Continue to allow GSA to dispose of the gift or decoration in accordance § 102–42.95 How do we report gifts and with this part. decorations as excess personal property? § 102–42.70 Who handles gifts and decorations received by the Presi- You must complete a Standard Form dent or Vice President or a member (SF) 120, Report of Excess Personal of their family? Property, and send it to the General The National Archives and Records Services Administration, Utilization Administration normally handles gifts and Donation Program Division

171

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00181 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–42.100 41 CFR Ch. 102 (7–1–11 Edition)

(QSCA), Washington, DC 20406. Con- TIONS’’, and include the following in- spicuously mark the SF 120, ‘‘FOR- formation: EIGN GIFTS AND/OR DECORA-

Entry Description

(a) Identity of Em- Give the name and position of the employee. ployee.

(b) Description of Item Give a full description of the gift or decoration, including the title of the decoration.

(c) Identity of Foreign Give the identity of the foreign government (if known) and the Government. name and position of the individual who presented the gift or decoration.

(d) Date of Acceptance Give the date the gift or decoration was accepted by the employee.

(e) Appraised Value ..... Give the appraised value in United States dollars of the gift or decoration, including the cost of the appraisal. (The employing agency must obtain a commercial appraisal before the gift is offered for sale to the employee.)

(f) Current Location of Give the current location of the gift or decoration. Item.

(g) Employing Agency Give the name, address, and telephone number of the accountable Contact Person. official in the employing agency.

(h) Purchase Interest Indicate whether the employee wants to buy the gift, or whether or Donation Rec- the employee wants the gift or decoration donated to an eligible ommendation. donee through GSA’s surplus donation program. Document this interest in a letter outlining any special significance of the gift or decoration to the proposed donee. Also provide the mailing address and telephone number of both the employee and the proposed donee.

(i) Administration ...... Give the Administration in which the gift or decoration was received (for example, Clinton Administration).

(j) Multiple Items ...... Identify each gift or decoration as a separate line item. Report multiple gift items that make up a set (for example, a tea set, a necklace and matching earrings) as a single line item.

[65 FR 45539, July 24, 2000, as amended at 74 § 102–42.105 What special information FR 2396, Jan. 15, 2009] must be included on the SF 122? § 102–42.100 How can we obtain an ex- Conspicuously mark the SF 122, cess gift or decoration from another ‘‘FOREIGN GIFTS AND/OR DECORA- agency? TIONS’’, and include all information To obtain an excess gift or decora- furnished by the employing agency as tion from another agency, you would specified in § 102–42.95. Also, include on complete a Standard Form (SF) 122, the form the following statement: ‘‘At Transfer Order Excess Personal Prop- such time as these items are no longer erty, or any other transfer order form required, they will be reported to the approved by GSA, for the desired General Services Administration, Prop- item(s) and submit the form to the erty Management Division (FBP), General Services Administration, Prop- Washington, DC 20406, and will be iden- erty Management Division (FBP), tified as foreign gift items and cross- Washington, DC 20406. referenced to this transfer order number.’’

172

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00182 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–42.130

§ 102–42.110 How must we justify a (b) Attaching an original and two transfer request? copies of a letter of intent to each SF You may only request excess gifts 123 submitted to GSA. An authorized representative of the proposed donee and decorations for public display or must sign and date the letter, setting other bona fide agency use and not for forth a detailed plan for use of the the personal benefit of any individual. property. The letter of intent must GSA may require that transfer orders provide the following information: be supported by justifications for the (1) Identifying the donee applicant, intended display or official use of re- including its legal name and complete quested gifts and decorations. Jewelry address, its status as a public agency and watches that are transferred for of- or as an eligible nonprofit tax-exempt ficial display must be displayed with activity, and the name, title, and tele- adequate provisions for security. phone number of its authorized representative; § 102–42.115 What must we do when the transferred gifts and decora- (2) A description of the gift or decorations are no longer required for of- tion requested, including the gift’s ficial use? commercially appraised value or estimated fair market value if no commer- When transferred gifts and decora- cial appraisal was performed; and tions are no longer required for official (3) Details on the planned use of the use, report these gifts and decorations gift or decoration, including where and to the GSA as excess property on a SF how it will be used and how it will be 120, including the original transfer safeguarded. order number or a copy of the original transfer order. § 102–42.130 Are there special requirements for the donation of gifts and Subpart C—Donation of Foreign decorations? Gifts and Decorations Yes, GSA imposes special handling and use limitations on the donation of § 102–42.120 When may gifts or decora- gifts and decorations. The SASP dis- tions be donated to State agencies? tribution document must contain or in- If there is no Federal requirement for corporate by reference the following: the gifts or decorations, and if gifts (a) The donee must display or use the were not sold to the employee, GSA gift or decoration in accordance with may make the gifts or decorations its GSA-approved letter of intent. available for donation to State agen- (b) There must be a period of restric- cies under this subpart and part 102–37 tion which will expire after the gift or of this subchapter B. decoration has been used for the purpose stated in the letter of intent for a [65 FR 45539, July 24, 2000, as amended at 71 period of 10 years, except that GSA FR 28778, May 18, 2006] may restrict the use of the gift or decoration for such other period when the § 102–42.125 How is donation of gifts inherent character of the property jus- or decorations accomplished? tifies such action. The State Agencies for Surplus Prop- (c) The donee must allow the right of erty (SASP) must initiate the process access to the donee’s premises at rea- on behalf of a prospective donee (e.g., sonable times for inspection of the gift units of State or local governments or decoration by duly authorized rep- and eligible non-profit organizations) resentatives of the SASP or the U.S. by: Government. (a) Completing a Standard Form (SF) (d) During the period of restriction, 123, Transfer Order Surplus Personal the donee must not: Property, and submitting it to General (1) Sell, trade, lease, lend, bail, en- Services Administration, Property cumber, cannibalize or dismantle for Management Division (FBP), Wash- parts, or otherwise dispose of the prop- ington, DC 20406. Conspicuously mark erty; the SF 123 with the words, ‘‘FOREIGN (2) Remove it permanently for use GIFTS AND/OR DECORATIONS.’’ outside the State;

173

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00183 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–42.135 41 CFR Ch. 102 (7–1–11 Edition)

(3) Transfer title to the gift or deco- Subpart D—Sale or Destruction of ration directly or indirectly; or Foreign Gifts and Decorations (4) Do or allow anything to be done that would contribute to the gift or § 102–42.135 Whose approval must be decoration being seized, attached, lost, obtained before a foreign gift or stolen, damaged, or destroyed. decoration is offered for public (e) If the gift or decoration is no sale? longer suitable, usable, or needed by The Secretary of State or the Sec- the donee for the stated purpose of do- retary’s designee must approve any nation during the period of restriction, sale of foreign gifts or decorations (ex- the donee must promptly notify the cept sale of foreign gifts to the em- General Services Administration, Prop- erty Management Division (FBP), ployee, that is approved in this part). Washington, DC 20406, through the § 102–42.140 How is a sale of a foreign SASP, and upon demand by GSA, title gift or decoration to an employee and right to possession of the gift or conducted? decoration reverts to the U.S. Govern- ment. In this event, the donee must Foreign gifts and decorations must comply with transfer or disposition in- be offered first through negotiated structions furnished by GSA through sales to the employee who has indi- the SASP, and pay the costs of trans- cated an interest in purchasing the portation, handling, and reasonable in- item. The sale price must be the com- surance during transportation. mercially appraised value of the gift. (f) The donee must comply with all Sales must be conducted and docu- additional conditions covering the han- mented in accordance with part 102–38 dling and use of any gift or decoration of this subchapter B. imposed by GSA. [68 FR 56496, Sept. 4, 2003, as amended at 71 (g) If the donee fails to comply with FR 28778, May 18, 2006] the conditions or limitations during the period of restriction, the SASP § 102–42.145 When is public sale of a may demand return of the gift or deco- foreign gift or decoration author- ration and, upon such demand, title ized? and right to possession of the gift or A public sale is authorized if a for- decoration reverts to the U.S. Govern- ment. In this event, the donee must re- eign gift or decoration: turn the gift or decoration in accord- (a) Survives Federal utilization ance with instructions furnished by the screening; SASP, with costs of transportation, (b) Is not purchased by the employee; handling, and reasonable insurance (c) Survives donation screening; and during transportation to be paid by the (d) Is approved by the Secretary of donee or as directed by the SASP. State or designee. (h) If the gift or decoration is lost, stolen, or cannot legally be recovered § 102–42.150 What happens to proceeds or returned for any other reason, the from sales? donee must pay to the U.S. Govern- The proceeds from the sale of foreign ment the fair market value of the gift gifts or decorations must be deposited or decoration at the time of its loss, in the Treasury as miscellaneous re- theft, or at the time that it became un- ceipts, unless otherwise authorized. recoverable as determined by GSA. If the gift or decoration is damaged or de- § 102–42.155 Can foreign gifts or deco- stroyed, the SASP may require the rations be destroyed? donee to: Yes, foreign gifts or decorations that (1) Return the item and pay the dif- are not sold under this part may be de- ference between its former fair market stroyed and disposed of as scrap or for value and its current fair market their material content under part 102– value; or 38 of this subchapter B. (2) Pay the fair market value, as determined by GSA, of the item had it [65 FR 45539, July 24, 2000, as amended at 71 not been damaged or destroyed. FR 28778, May 18, 2006]

174

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00184 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 SUBCHAPTER C—REAL PROPERTY

PART 102–71—GENERAL (j) Security. (k) Utility services. Sec. (l) Location of space. 102–71.5 What is the scope and philosophy of the General Services Administration’s § 102–71.15 [Reserved] (GSA) real property policies? 102–71.10 How are these policies organized? § 102–71.20 What definitions apply to 102–71.15 [Reserved] GSA’s real property policies? 102–71.20 What definitions apply to GSA’s The following definitions apply to real property policies? GSA’s real property policies: 102–71.25 Who must comply with GSA’s real property policies? Airport means any area of land or 102–71.30 How must these real property poli- water that is used, or intended for use, cies be implemented? for the landing and takeoff of aircraft, 102–71.35 Are agencies allowed to deviate and any appurtenant areas that are from GSA’s real property policies? used, or intended for use, for airport AUTHORITY: 40 U.S.C. 121(c). buildings or other airport facilities or rights-of-way, together with all airport SOURCE: 70 FR 67786, Nov. 8, 2005, unless otherwise noted. buildings and facilities located thereon. § 102–71.5 What is the scope and phi- Alteration means remodeling, improv- losophy of the General Services Ad- ing, extending, or making other ministration’s (GSA) real property changes to a facility, exclusive of policies? maintenance repairs that are preven- GSA’s real property policies con- tive in nature. The term includes plan- tained in this part and parts 102–72 ning, engineering, architectural work, through 102–82 of this chapter apply to and other similar actions. Federal agencies, including GSA’s Pub- Carpool means a group of two or more lic Buildings Service (PBS), operating people regularly using a motor vehicle under, or subject to, the authorities of for transportation to and from work on the Administrator of General Services. a continuing basis. These policies cover the acquisition, Commercial activities, within the management, utilization, and disposal meaning of subpart D, part 102–74 of of real property by Federal agencies this chapter, are activities undertaken that initiate and have decision-making for the primary purpose of producing a authority over actions for real prop- profit for the benefit of an individual erty services. The detailed guidance or organization organized for profit. implementing these policies is con- (Activities where commercial aspects tained in separate customer service are incidental to the primary purpose guides. of expression of ideas or advocacy of causes are not commercial activities § 102–71.10 How are these policies or- for purposes of this part.) ganized? Cultural activities include, but are not GSA has divided its real property limited to, films, dramatics, dances, policies into the following functional musical presentations, and fine art ex- areas: hibits, whether or not these activities (a) Delegation of authority. are intended to make a profit. (b) Real estate acquisition. Decontamination means the complete (c) Facility management. removal or destruction by flashing of (d) Real property disposal. explosive powders; the neutralizing and (e) Design and construction. cleaning-out of acid and corrosive ma- (f) Art-in-architecture. terials; the removal, destruction, or (g) Historic preservation. neutralizing of toxic, hazardous or in- (h) Assignment and utilization of fectious substances; and the complete space. removal and destruction by burning or (i) Safety and environmental man- detonation of live ammunition from agement. contaminated areas and buildings.

175

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00185 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–71.20 41 CFR Ch. 102 (7–1–11 Edition)

Designated Official is the highest Federal agency buildings manager ranking official of the primary occu- means the buildings manager employed pant agency of a Federal facility, or, by GSA or a Federal agency that has alternatively, a designee selected by been delegated real property manage- mutual agreement of occupant agency ment and operation authority from officials. GSA. Disabled employee means an employee Federal Government real property serv- who has a severe, permanent impair- ices provider means any Federal Gov- ment that for all practical purposes ernment entity operating under, or precludes the use of public transpor- subject to, the authorities of the Ad- tation, or an employee who is unable to ministrator of General Services that operate a car as a result of permanent provides real property services to Fed- impairment who is driven to work by eral agencies. This definition also in- another. Priority may require certifi- cludes private sector firms under con- cation by an agency medical unit, in- tract with Federal agencies that de- cluding the Department of Veterans liver real property services to Federal Affairs or the Public Health Service. agencies. This definition excludes any Disposal agency means the Executive entity operating under, or subject to, agency designated by the Adminis- authorities other than those of the Ad- trator of General Services to dispose of ministrator of General Services. surplus real or personal property. Flame-resistant means meeting per- Educational activities mean activities formance standards as described by the such as (but not limited to) the oper- National Fire Protection Association ation of schools, libraries, day care (NFPA Standard No. 701). Fabrics la- centers, laboratories, and lecture or beled with the Underwriters Labora- demonstration facilities. tories Inc., classification marking for Emergency includes bombings and flammability are deemed to be flame bomb threats, civil disturbances, fires, resistant for purposes of this part. explosions, electrical failures, loss of Foot-candle is the illumination on a water pressure, chemical and gas leaks, surface one square foot in area on medical emergencies, hurricanes, tor- which there is a uniformly distributed nadoes, floods, and earthquakes. The flux of one lumen, or the illuminance term does not apply to civil defense produced on a surface all points of matters such as potential or actual which are at a distance of one foot enemy attacks that are addressed by from a directionally uniform point the U.S. Department of Homeland Se- source of one candela. curity. GSA means the U.S. General Services Executive means a Government em- Administration, acting by or through ployee with management responsibil- the Administrator of General Services, ities who, in the judgment of the em- or a designated official to whom func- ploying agency head or his/her des- tions under this part have been dele- ignee, requires preferential assignment gated by the Administrator of General of parking privileges. Services. Executive agency means an Executive Highest and best use means the most department specified in section 101 of likely use to which a property can be title 5; a military department specified put, which will produce the highest in section 102 of such title; an inde- monetary return from the property, pendent establishment as defined in promote its maximum value, or serve a section 104(1) of such title; and a whol- public or institutional purpose. The ly owned Government corporation fully highest and best use determination subject to the provisions of chapter 91 must be based on the property’s eco- of title 31. nomic potential, qualitative values (so- Federal agency means any Executive cial and environmental) inherent in the agency or any establishment in the leg- property itself, and other utilization islative or judicial branch of the Gov- factors controlling or directly affecting ernment (except the Senate, the House land use (e.g., zoning, physical charac- of Representatives, and the Architect teristics, private and public uses in the of the Capitol and any activities under vicinity, neighboring improvements, his or her direction). utility services, access, roads, location,

176

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00186 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–71.20

and environmental and historical con- Maintenance, for the purposes of part siderations). Projected highest and best 102–75, entitled ‘‘Real Property Dis- use should not be remote, speculative, posal,’’ of this chapter, means the up- or conjectural. keep of property only to the extent Indefinite quantity contract (com- necessary to offset serious deteriora- monly referred to as term contract) pro- tion; also such operation of utilities, vides for the furnishing of an indefinite including water supply and sewerage quantity, within stated limits, of spe- systems, heating, plumbing, and air- cific property or services during a spec- conditioning equipment, as may be ified contract period, with deliveries to necessary for fire protection, the needs be scheduled by the timely placement of interim tenants, and personnel em- of orders with the contractor by activi- ployed at the site, and the require- ties designated either specifically or by ments for preserving certain types of class. equipment. For the purposes of part Industrial property means any real 102–74, entitled ‘‘Facility Manage- property and related personal property ment,’’ of this chapter, maintenance that has been used or that is suitable means preservation by inspection, ad- to be used for manufacturing, fabri- justment, lubrication, cleaning, and cating, or processing of products; min- the making of minor repairs. Ordinary ing operations; construction or repair maintenance means routine recurring of ships and other waterborne carriers; work that is incidental to everyday op- power transmission facilities; railroad erations; preventive maintenance means facilities; and pipeline facilities for work programmed at scheduled inter- transporting petroleum or gas. vals. Landholding agency means the Fed- Management means the safeguarding eral agency that has accountability for of the Government’s interest in prop- the property involved. For the purposes erty, in an efficient and economical of this definition, accountability manner consistent with the best busi- means that the Federal agency reports ness practices. the real property on its financial state- Nationally recognized standards en- ments and inventory records. compasses any standard or modifica- Landing area means any land or com- tion thereof that— bination of water and land, together (1) Has been adopted and promul- with improvements thereon and nec- gated by a nationally recognized stand- essary operational equipment used in ards-producing organization under pro- connection therewith, which is used for landing, takeoff, and parking of air- cedures whereby those interested and craft. The term includes, but is not affected by it have reached substantial limited to, runways, strips, taxiways, agreement on its adoption; or and parking aprons. (2) Was formulated through consulta- Life cycle cost is the total cost of own- tion by appropriate Federal agencies in ing, operating, and maintaining a a manner that afforded an opportunity building over its useful life, including for diverse views to be considered. its fuel and energy costs, determined No commercial value means real prop- on the basis of a systematic evaluation erty, including related personal prop- and comparison of alternative building erty, which has no reasonable prospect systems; except that in the case of of producing any disposal revenues. leased buildings, the life cycle cost Nonprofit organization means an orga- shall be calculated over the effective nization identified in 26 U.S.C. 501(c). remaining term of the lease. Normally furnished commercially Limited combustible means rigid mate- means consistent with the level of rials or assemblies that have fire haz- services provided by a commercial ard ratings not exceeding 25 for flame building operator for space of com- spread and 150 for smoke development parable quality and housing tenants when tested in accordance with the with comparable requirements. Service American Society for Testing and Ma- levels are based on the effort required terials, Test E 84, Surface Burning to service space for a five-day week, Characteristics of Building Materials. one eight-hour shift schedule.

177

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00187 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–71.20 41 CFR Ch. 102 (7–1–11 Edition)

Occupancy Emergency Organization installment-purchase, lease-purchase, means the emergency response organi- and purchase-contract authorities. zation comprised of employees of Fed- (2) Public building does not include eral agencies designated to perform the buildings: requirements established by the Occu- (i) On the public domain. pant Emergency Plan. (ii) In foreign countries. Occupant agency means an organiza- (iii) On Indian and native Eskimo tion that is assigned space in a facility properties held in trust by the United under GSA’s custody and control. States. Occupant Emergency Plan means pro- (iv) On lands used in connection with cedures developed to protect life and Federal programs for agricultural, rec- property in a specific federally occu- reational, and conservation purposes. pied space under stipulated emergency (v) On or used in connection with conditions. river, harbor, flood control, reclama- Occupant Emergency Program means a tion or power projects, or for chemical short-term emergency response pro- manufacturing or development gram. It establishes procedures for projects, or for nuclear production, re- safeguarding lives and property during search, or development projects. emergencies in particular facilities. (vi) On or used in connection with Postal vehicle means a Government- housing and residential projects. owned vehicle used for the transpor- (vii) On military installations. tation of mail, or a privately owned ve- (viii) On Department of Veterans Af- hicle used under contract with the U.S. fairs installations used for hospital or Postal Service for the transportation domiciliary purposes. of mail. (ix) Excluded by the President. Protection means the provisions of adequate measures for prevention and Real property means: extinguishment of fires, special inspec- (1) Any interest in land, together tions to determine and eliminate fire with the improvements, structures, and other hazards, and necessary and fixtures located thereon (including guards to protect property against prefabricated movable structures, such thievery, vandalism, and unauthorized as Butler-type storage warehouses and entry. Quonset huts, and house trailers with Public area means any area of a build- or without undercarriages), and appur- ing under the control and custody of tenances thereto, under the control of GSA that is ordinarily open to mem- any Federal agency, except— bers of the public, including lobbies, (i) The public domain; courtyards, auditoriums, meeting (ii) Lands reserved or dedicated for rooms, and other such areas not as- national forest or national park pur- signed to a lessee or occupant agency. poses; Public body means any State of the (iii) Minerals in lands or portions of United States, the District of Colum- lands withdrawn or reserved from the bia, the Commonwealth of Puerto Rico, public domain that the Secretary of the Virgin Islands, or any political sub- the Interior determines are suitable for division, agency, or instrumentality of disposition under the public land min- the foregoing. ing and mineral leasing laws; Public building means: (iv) Lands withdrawn or reserved (1) Any building that is suitable for from the public domain but not includ- office and/or storage space for the use ing lands or portions of lands so with- of one or more Federal agencies or drawn or reserved that the Secretary of mixed-ownership corporations, such as the Interior, with the concurrence of Federal office buildings, post offices, the Administrator of General Services, customhouses, courthouses, border in- determines are not suitable for return spection facilities, warehouses, and any to the public domain for disposition such building designated by the Presi- under the general public land laws be- dent. It also includes buildings of this cause such lands are substantially sort that are acquired by the Federal changed in character by improvements Government under the Administrator’s or otherwise; and

178

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00188 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–71.20

(v) Crops when designated by such plies, or general-purpose vehicles, are agency for disposition by severance and not considered to be related personal removal from the land. property); or (2) Improvements of any kind, struc- (2) That is determined by the Admin- tures, and fixtures under the control of istrator of General Services to be re- any Federal agency when designated by lated to the real property. such agency for disposition without the Repairs means those additions or underlying land (including such as may changes that are necessary for the pro- be located on the public domain, on tection and maintenance of property to lands withdrawn or reserved from the deter or prevent excessive or rapid de- public domain, on lands reserved or terioration or obsolescence, and to re- dedicated for national forest or na- store property damaged by storm, tional park purposes, or on lands that flood, fire, accident, or earthquake. are not owned by the United States) Ridesharing means the sharing of the excluding, however, prefabricated mov- commute to and from work by two or able structures, such as Butler-type more people, on a continuing basis, re- storage warehouses and Quonset huts, gardless of their relationship to each and house trailers (with or without other, in any mode of transportation, undercarriages). including, but not limited to, carpools, (3) Standing timber and embedded vanpools, buspools, and mass transit. gravel, sand, or stone under the control State means the fifty States, political of any Federal agency, whether des- subdivisions thereof, the District of Co- ignated by such agency for disposition lumbia, the Commonwealths of Puerto with the land or by severance and re- Rico and Guam, and the territories and moval from the land, excluding timber possessions of the United States. felled, and gravel, sand, or stone exca- Unit price agreement provides for the vated by or for the Government prior furnishing of an indefinite quantity, to disposition. within stated limits, of specific prop- Recognized labor organization means a erty or services at a specified price, labor organization recognized under during a specified contract period, with title VII of the Civil Service Reform deliveries to be scheduled by the time- Act of 1978 (Pub. L. 95–454), as amended, ly placement of orders upon the lessor governing labor-management relations. by activities designated either specifi- Recreational activities include, but are cally or by class. not limited to, the operations of gym- Unusual hours means work hours that nasiums and related facilities. are frequently required to be varied Regional Officer, within the meaning and do not coincide with any regular of part 102–74, subpart D of this chap- work schedule. This category includes ter, means the Federal official des- time worked by individuals who regu- ignated to supervise the implementa- larly or frequently work significantly tion of the occasional use provisions of more than 8 hours per day. Unusual 40 U.S.C. 581(h)(2). The Federal official hours does not include time worked by may be an employee of GSA or a Fed- shift workers, by those on alternate eral agency that has delegated author- work schedules, and by those granted ity from GSA to supervise the imple- exceptions to the normal work sched- mentation of the occasional use provi- ule (e.g., flex-time). sions of 40 U.S.C. 581(h)(2). Upon approval from GSA means when Related personal property means any an agency either has a delegation of personal property— authority document from the Adminis- (1) That is an integral part of real trator of General Services or written property or is related to, designed for, approval from the Administrator or or specially adapted to the functional his/her designee before proceeding with or productive capacity of the real prop- a specified action. erty and the removal of which would Vanpool means a group of at least 8 significantly diminish the economic persons using a passenger van or a value of the real property (normally commuter bus designed to carry 10 or common use items, including but not more passengers. Such a vehicle must limited to general-purpose furniture, be used for transportation to and from utensils, office machines, office sup- work in a single daily round trip.

179

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00189 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–71.25 41 CFR Ch. 102 (7–1–11 Edition)

Zonal allocations means the alloca- 102–72.35 What are the requirements for ob- tion of parking spaces on the basis of taining an Administrative Contracting zones established by GSA in conjunc- Officer (ACO) delegation from GSA? tion with occupant agencies. In metro- 102–72.40 What are facility management delegations? politan areas where this method is 102–72.45 What are the different types of del- used, all agencies located in a des- egations related to facility management? ignated zone will compete for available 102–72.50 What are Executive agencies’ re- parking in accordance with instruc- sponsibilities under a delegation of real tions issued by GSA. In establishing property management and operation au- this procedure, GSA will consult with thority from GSA? all affected agencies. 102–72.55 What are the requirements for obtaining a delegation of real property § 102–71.25 Who must comply with management and operation authority GSA’s real property policies? from GSA? 102–72.60 What are Executive agencies’ re- Federal agencies operating under, or sponsibilities under a delegation of indi- subject to, the authorities of the Ad- vidual repair and alteration project au- ministrator of General Services must thority from GSA? comply with these policies. 102–72.65 What are the requirements for obtaining a delegation of individual repair § 102–71.30 How must these real prop- and alteration project authority from erty policies be implemented? GSA? 102–72.66 Do Executive agencies have a dele- Each Federal Government real prop- gation of authority to perform ancillary erty services provider must provide repair and alteration projects in feder- services that are in accord with the ally owned buildings under the jurisdic- policies presented in parts 102–71 tion, custody or control of GSA? through 102–82 of this chapter. Also, 102–72.67 What work is covered under an an- Federal agencies must make the provi- cillary repair and alteration delegation? 102–72.68 What preconditions must be satis- sions of any contract with private sec- fied before an Executive agency may ex- tor real property services providers ercise the delegated authority to perform conform to the policies in parts 102–71 an individual ancillary repair and alter- through 102–82 of this chapter. ation project? 102–72.69 What additional terms and condi- § 102–71.35 Are agencies allowed to de- tions apply to an Executive agencies’ del- viate from GSA’s real property poli- egation of ancillary repair and alteration cies? authority? 102–72.70 What are Executive agencies’ re- Yes, see §§ 102–2.60 through 102–2.110 of sponsibilities under a delegation of lease this chapter to request a deviation management authority (contracting offi- from the requirements of these real cer representative authority) from GSA? property policies. 102–72.75 What are the requirements for obtaining a delegation of lease management authority (contracting officer rep- PART 102–72—DELEGATION OF resentative authority) from GSA? AUTHORITY 102–72.80 What are Executive agencies’ responsibilities under a disposal of real Subpart A—General Provisions property delegation of authority from GSA? Sec. 102–72.85 What are the requirements for ob- 102–72.5 What is the scope of this part? taining a disposal of real property dele- 102–72.10 What basic policy governs delega- gation of authority from GSA? tion of authority to Federal agencies? 102–72.90 What are Executive agencies’ responsibilities under a security delegation Subpart B—Delegation of Authority of authority from GSA? 102–72.95 What are the requirements for ob- 102–72.15 What criteria must a delegation taining a security delegation of author- meet? ity from GSA? 102–72.20 Are there limitations on this dele- 102–72.100 What are Executive agencies’ regation of authority? sponsibilities under a utility service del- 102–72.25 What are the different types of delegation of authority from GSA? egations of authority? 102–72.105 What are the requirements for ob- 102–72.30 What are the different types of del- taining a utility services delegation of egations related to real estate leasing? authority from GSA?

180

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00190 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–72.35

AUTHORITY: 40 U.S.C. 121(c), (d) and (e). (d) Delegation of Lease Management SOURCE: 70 FR 67789, Nov. 8, 2005, unless Authority (Contracting Office Rep- otherwise noted. resentative Authority); (e) Delegation of Administrative Con- Subpart A—General Provisions tracting Officer (ACO) Authority; (f) Delegation of Real Property Dis- § 102–72.5 What is the scope of this posal Authority; part? (g) Security Delegation of Authority; and The real property policies contained in this part apply to Federal agencies, (h) Utility Services Delegation of Au- including GSA’s Public Buildings Serv- thority. ice (PBS), operating under, or subject to, the authorities of the Adminis- § 102–72.30 What are the different types of delegations related to real trator of General Services. estate leasing? § 102–72.10 What basic policy governs Delegations related to real estate delegation of authority to Federal leasing include the following: agencies? (a) Categorical space delegations and The Administrator of General Serv- agency special purpose space delega- ices may delegate and may authorize tions (see § 102–73.140 of this title). successive redelegations of the real (b) The Administrator of General property authority vested in the Ad- Services has issued a standing delega- ministrator to any Federal agency. tion of authority (under a program known as ‘‘Can’t Beat GSA Leasing’’) to the heads of all Federal agencies to Subpart B—Delegation of accomplish all functions relating to Authority leasing of up to 19,999 rentable square feet of general purpose space for terms § 102–72.15 What criteria must a delegation meet? of up to 20 years and below prospectus level requirements, regardless of geo- Delegations must be in the Govern- graphic location. This delegation in- ment’s best interest, which means that cludes some conditions Federal agen- GSA must evaluate such factors as cies must meet when conducting the whether a delegation would be cost ef- procurement themselves, such as train- fective for the Government in the de- ing in lease contracting and reporting livery of space. data to GSA. (c) An ACO delegation, in addition to § 102–72.20 Are there limitations on lease management authority, provides this delegation of authority? Federal agencies with limited con- Federal agencies must exercise dele- tracting officer authority to perform gated real property authority and func- such duties as paying and withholding tions according to the parameters de- lessor rent and modifying lease provi- scribed in each delegation of authority sions that do not change the lease term document, and Federal agencies may length or the amount of space under only exercise the authority of the Ad- lease. ministrator that is specifically provided within the delegation of author- [70 FR 67789, Nov. 8, 2005, as amended at 73 FR 2167, Jan. 14, 2008] ity document. § 102–72.35 What are the requirements § 102–72.25 What are the different for obtaining an Administrative types of delegations of authority? Contracting Officer (ACO) delega- The basic types of GSA Delegations tion from GSA? of Authority are— When Federal agencies do not exer- (a) Delegation of Leasing Authority; cise the delegation of authority for (b) Delegation of Real Property Man- general purpose space mentioned in agement and Operation Authority; § 102–72.30(b) of this part, GSA may con- (c) Delegation of Individual Repair sider granting an ACO delegation when and Alteration Project Authority; Federal agencies—

181

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00191 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–72.40 41 CFR Ch. 102 (7–1–11 Edition)

(a) Occupy at least 90 percent of the (b) Demonstrates that it can perform building’s GSA-controlled space, or the delegated real property manage- Federal agencies have the written con- ment and operation responsibilities. currence of 100 percent of rent-paying occupants covered under the lease; and § 102–72.60 What are Executive agencies’ responsibilities under a dele- (b) Have the technical capability to gation of individual repair and al- perform the leasing function. teration project authority from GSA? § 102–72.40 What are facility management delegations? With this delegation of authority, Executive agencies have the responsi- Facility management delegations bility to perform individual repair and give Executive agencies authority to alterations projects. Executive agen- operate and manage buildings day to cies are delegated repair and alter- day, to perform individual repair and ations authority for reimbursable alteration projects, and manage real space alteration projects up to the sim- property leases. plified acquisition threshold, as specified in the GSA Customer Guide to § 102–72.45 What are the different Real Property. types of delegations related to facility management? § 102–72.65 What are the requirements The principal types of delegations infor obtaining a delegation of indi- volved in the management of facilities vidual repair and alteration project authority from GSA? are— (a) Real property management and Executive agencies may be delegated operation authority; repair and alterations authority for (b) Individual repair and alteration other individual alteration projects when they demonstrate the ability to project authority; and perform the delegated repair and alter- (c) Lease management authority ations responsibilities and when such a (contracting officer representative au- delegation promotes efficiency and thority). economy.

§ 102–72.50 What are Executive agen- § 102–72.66 Do Executive agencies cies’ responsibilities under a dele- have a delegation of authority to gation of real property management perform ancillary repair and alter- and operation authority from GSA? ation projects in federally owned With this delegation, Executive agen- buildings under the jurisdiction, cies have the authority to operate and custody or control of GSA? manage buildings day to day. Dele- Yes. Executive agencies, as defined in gated functions may include building § 102–71.20, are hereby delegated the au- operations, maintenance, recurring re- thority to perform ancillary repair and pairs, minor alterations, historic pres- alteration work in federally owned ervation, concessions, and energy man- buildings under the jurisdiction, cus- agement of specified buildings subject tody or control of GSA in accordance to the conditions in the delegation doc- with the terms, conditions and limita- ument. tions set forth in §§ 102–72.67 through 102–72.69. § 102–72.55 What are the requirements [74 FR 12273, Mar. 24, 2009] for obtaining a delegation of real property management and oper- § 102–72.67 What work is covered ation authority from GSA? under an ancillary repair and alter- An Executive agency may be dele- ation delegation? gated real property management and (a) For purposes of this delegation, operation authority when it— ancillary repair and alteration projects (a) Occupies at least 90 percent of the are those— space in the Government-controlled fa- (1) Where an Executive agency has cility, or has the concurrence of 100 placed an order from a vendor under a percent of the rent-paying occupants to GSA Multiple Award Schedule and an- perform these functions; and cillary repair and alteration services

182

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00192 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–72.69

also are available from that same ven- pair and alteration work as required by dor as a Special Item Number (SIN); the GSA Multiple Award Schedule or- (2) Where the ancillary repair and al- dering procedures must be satisfied; teration work to be performed is asso- (d) The ancillary repair and alter- ciated solely with the repair, alteration work must not be in a facility ation, delivery, or installation of prod- leased by GSA or in any other leased ucts or services also purchased under facility acquired under a lease delega- the same GSA Multiple Award Sched- tion from GSA; and ule; (e) As soon as reasonably practicable, (3) That are routine and non-complex the Executive agency must provide the in nature, such as routine painting or building manager with a detailed scope carpeting, simple hanging of drywall, of work, including cost estimates, and basic electrical or plumbing work, schedule for the project, and such other landscaping, and similar non-complex information as may be reasonably re- services; and quested by the building manager, so (4) That are necessary to be per- the building manager can determine formed to use, execute or implement whether or not the proposed work is successfully the products or services reasonably expected to have an adverse purchased from the GSA Multiple effect on the operation and manage- Award Schedule. ment of the building, the building’s (b) Ancillary repair and alteration structural, mechanical, electrical, projects do not include— plumbing, or heating and air condi- (1) Major or new construction of tioning systems, the building’s aes- buildings, roads, parking lots, and thetic or historic features, or the space other facilities; or property of any other tenant in the (2) Complex repair and alteration of building. The Executive agency must entire facilities or significant portions obtain written approval from the build- of facilities; or ing manager prior to placing an order (3) Architectural and engineering for any ancillary repair and alteration services procured pursuant to 40 U.S.C. work. 1101–1104. [74 FR 12273, Mar. 24, 2009] [74 FR 12273, Mar. 24, 2009] § 102–72.69 What additional terms and § 102–72.68 What preconditions must conditions apply to an Executive be satisfied before an Executive agencies’ delegation of ancillary re- agency may exercise the delegated pair and alteration authority? authority to perform an individual (a) Before commencing any ancillary ancillary repair and alteration repair and alteration work, the Execu- project? tive agency shall deliver, or cause its The preconditions that must be satis- contractor to deliver, to the building fied before an Executive agency may manager evidence that the contractor perform ancillary repair and alteration has obtained at least $5,000,000 com- work are as follows: prehensive general public liability and (a) The ordering agency must order property damage insurance policies to both the products or services and the cover claims arising from or relating ancillary repair and alteration services to the contractor’s operations that under the same GSA Multiple Award cause damage to persons or property; Schedule from the same vendor; such insurance shall name the United (b) The value of the ancillary repair States as an additional insured. and alteration work must be less than (b) The Executive agency shall agree or equal to $100,000 (for work estimated that GSA has no responsibility or li- to exceed $100,000, the Executive agen- ability, either directly or indirectly, cy must contact the GSA Assistant Re- for any contractual claims or disputes gional Administrator, Public Buildings that arise out of or relate to the per- Service, in the region where the work formance of ancillary repair and alter- is to be performed to request a specific ation work, except to the extent such delegation); claim or dispute arises out of or relates (c) All terms and conditions applica- to the wrongful acts or negligence of ble to the acquisition of ancillary re- GSA’s agents or employees.

183

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00193 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–72.70 41 CFR Ch. 102 (7–1–11 Edition)

(c) The Executive agency shall agree § 102–72.70 What are Executive agen- to administer and defend any claims cies’ responsibilities under a dele- and actions, and shall be responsible gation of lease management author- for the payment of any judgments ren- ity (contracting officer representative authority) from GSA? dered or settlements agreed to, in connection with contract claims or other When an Executive agency does not causes of action arising out of or relat- exercise the delegation of authority ing to the performance of the ancillary mentioned in § 102–72.30(b) to lease gen- repair and alteration work. eral purpose space itself, it may be delegated, upon request, lease manage- (d) For buildings under GSA’s cus- ment authority to manage the admin- tody and control, GSA shall have the istration of one or more lease contracts right, but not the obligation, to review awarded by GSA. the work from time to time to ascertain that it is being performed in ac- § 102–72.75 What are the requirements cordance with the approved project re- for obtaining a delegation of lease quirements, schedules, plans, drawings, management authority (contracting specifications, and other related con- officer representative authority) from GSA? struction documents. The Executive agency shall promptly correct, or cause An Executive agency may be dele- to be corrected, any non-conforming gated lease management authority work or property damage identified by when it— GSA, including damage to the space or (a) Occupies at least 90 percent of the building’s GSA-controlled space or has property of any other tenant in the the written concurrence of 100 percent building, at no cost or expense to GSA. of rent-paying occupants covered under (e) The Executive agency shall re- the lease to perform this function; and main liable and financially responsible (b) Demonstrates the ability to per- to GSA for any and all personal or form the delegated lease management property damage caused, in whole or in responsibilities. part, by the acts or omissions of the Executive agency, its employees, § 102–72.80 What are Executive agen- agents, and contractors. cies’ responsibilities under a dis- (f) If the cost or expense to GSA to posal of real property delegation of authority from GSA? operate the facility is increased as a result of the ancillary repair and alter- With this delegation, Executive agen- ation project, the Executive agency cies have the authority to utilize and shall be responsible for any such costs dispose of excess or surplus real and related personal property and to grant or expenses. approvals and make determinations, (g) Disputes between the Executive subject to the conditions in the delega- agency and GSA arising out of the an- tion document. cillary repair and alteration work will, to the maximum extent practicable, be § 102–72.85 What are the requirements resolved informally at the working for obtaining a disposal of real level. In the event a dispute cannot be property delegation of authority resolved informally, the matter shall from GSA? be referred to GSA’s Public Buildings While disposal delegations to Execu- Service. The Executive agency agrees tive agencies are infrequent, GSA may that, in the event GSA’s Public Build- delegate authority to them based on ings Service and the Executive agency situations involving certain low-value fail to resolve the dispute, they shall properties and when they can dem- refer it for resolution to the Adminis- onstrate that they have the technical trator of General Services, whose deci- expertise to perform the disposition sion shall be binding. functions. GSA may grant special delegations of authority to Executive agen- [74 FR 12273, Mar. 24, 2009] cies for the utilization and disposal of certain real property through the procedures set forth in part 102–75, subpart F of this chapter.

184

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00194 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–73

§ 102–72.90 What are Executive agen- § 102–72.105 What are the require- cies’ responsibilities under a secu- ments for obtaining a utility serv- rity delegation of authority from ices delegation of authority from GSA? GSA? Law enforcement and related secu- Executive agencies may be delegated rity functions were transferred to the utility services authority when they Department of Homeland Security have the technical expertise and ade- upon its establishment in 2002. The quate staffing. Homeland Security Act authorizes the Secretary of Homeland Security, in PART 102–73—REAL ESTATE consultation with the Administrator of ACQUISITION General Services, to issue regulations necessary for the protection and ad- Subpart A—General Provisions ministration of property owned or oc- Sec. cupied by the Federal Government and 102–73.5 What is the scope of this part? persons on the property. Notwith- 102–73.10 What is the basic real estate acqui- standing the foregoing, GSA retained sition policy? all powers, functions and authorities 102–73.15 What real estate acquisition and related services may Federal agencies necessary for the operation, mainte- provide? nance, and protection of buildings and grounds owned and occupied by the UNITED STATES POSTAL SERVICE-CONTROLLED Federal Government and under the ju- SPACE risdiction, custody, or control of GSA. 102–73.20 Are Federal agencies required to give priority consideration to space in § 102–72.95 What are the requirements buildings under the custody and control for obtaining a security delegation of the United States Postal Service in of authority from GSA? fulfilling Federal agency space needs? An Executive agency may request a LOCATING FEDERAL FACILITIES security delegation from GSA by sub- 102–73.25 What policies must Executive mitting a written request with the de- agencies comply with in locating Federal tailed basis for the requested delega- facilities? tion to the Assistant Regional Admin- HISTORIC PRESERVATION istrator, PBS, in the region where the building is located. A request for mul- 102–73.30 What historic preservation provi- tiple buildings in multiple regions sions must Federal agencies comply with prior to acquiring, constructing, or leas- should be directed to the Commissioner ing space? of PBS. The delegation may be granted where the requesting agency dem- PROSPECTUS REQUIREMENTS onstrates a compelling need for the 102–73.35 Is a prospectus required for all ac- delegated authority and the delegation quisition, construction, or alteration is not inconsistent with the authorities projects? of any other law enforcement agency. 102–73.40 What happens if the dollar value of the project exceeds the prospectus threshold? § 102–72.100 What are Executive agencies’ responsibilities under a utility Subpart B—Acquisition by Lease service delegation of authority from GSA? 102–73.45 When may Federal agencies con- With this delegation, Executive agen- sider leases of privately owned land and buildings to satisfy their space needs? cies have the authority to negotiate 102–73.50 Are Federal agencies that possess and execute utility services contracts independent statutory authority to ac- for periods over one year but not ex- quire leased space subject to require- ceeding ten years for their use and ben- ments of this part? efit. Agencies also have the authority 102–73.55 On what basis must Federal agen- to intervene in utility rate proceedings cies acquire leases? 102–73.60 With whom may Federal agencies to represent the consumer interests of enter into lease agreements? the Federal Government, if so provided 102–73.65 Are there any limitations on leas- in the delegation of authority. ing certain types of space?

185

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00195 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–73 41 CFR Ch. 102 (7–1–11 Edition)

102–73.70 Are Executive agencies required to CATEGORICAL SPACE DELEGATIONS acquire leased space by negotiation? 102–73.145 What is a categorical space dele- 102–73.75 What functions must Federal agen- gation? cies perform with regard to leasing build- 102–73.150 What is the policy for categorical ing space? space delegations? 102–73.80 Who is authorized to contact les- 102–73.155 What types of space can Federal sors, offerors, or potential offerors con- agencies acquire with a categorical space cerning space leased or to be leased? delegation? 102–73.85 Can agencies with independent statutory authority to lease space have SPECIAL PURPOSE SPACE DELEGATIONS GSA perform the leasing functions? 102–73.160 What is an agency special purpose 102–73.90 What contingent fee policy must space delegation? Federal agencies apply to the acquisition 102–73.165 What is the policy for agency spe- of real property by lease? cial purpose space delegations? 102–73.95 How are Federal agencies required 102–73.170 What types of special purpose to assist GSA? space may the Department of Agri- COMPETITION IN CONTRACTING ACT OF 1984 culture lease? 102–73.175 What types of special purpose 102–73.100 Is the Competition in Contracting space may the Department of Commerce Act of 1984, as amended (CICA), applica- lease? ble to lease acquisition? 102–73.180 What types of special purpose space may the Department of Defense NATIONAL ENVIRONMENTAL POLICY ACT OF lease? 1969 (NEPA) 102–73.185 What types of special purpose 102–73.105 What policies must Federal agen- space may the Department of Energy cies follow to implement the require- lease? ments of NEPA when acquiring real 102–73.190 What types of special purpose property by lease? space may the Federal Communications Commission lease? LEASE CONSTRUCTION 102–73.195 What types of special purpose space may the Department of Health and 102–73.110 What rules must Executive agen- Human Services lease? cies follow when acquiring leasehold in- 102–73.196 What types of special purpose terests in buildings constructed for Fed- space may the Department of Homeland eral Government use? Security lease? 102–73.200 What types of special purpose PRICE PREFERENCE FOR HISTORIC PROPERTIES space may the Department of the Inte- 102–73.115 Must Federal agencies offer a rior lease? price preference to space in historic 102–73.205 What types of special purpose properties when acquiring leased space? space may the Department of Justice 102–73.120 How much of a price preference lease? must Federal agencies give when acquir- 102–73.210 What types of special purpose ing leased space using the lowest price space may the Office of Thrift Super- technically acceptable source selection vision lease? process? 102–73.215 What types of special purpose 102–73.125 How much of a price preference space may the Department of Transpor- must Federal agencies give when acquir- tation lease? ing leased space using the best value 102–73.220 What types of special purpose tradeoff source selection process? space may the Department of the Treas- ury lease? LEASES WITH PURCHASE OPTIONS 102–73.225 What types of special purpose space may the Department of Veterans 102–73.130 When may Federal agencies con- Affairs lease? sider acquiring leases with purchase options? LIMITATIONS ON THE USE OF DELEGATED AUTHORITY SCORING RULES 102–73.230 When must Federal agencies sub- 102–73.135 What scoring rules must Federal mit a prospectus to lease real property? agencies follow when considering leases 102–73.235 What is the maximum lease term and leases with purchase options? that a Federal agency may agree to when it has been delegated lease acquisition DELEGATIONS OF LEASING AUTHORITY authority from GSA? 102–73.140 When may agencies that do not 102–73.240 What policy must Federal agen- possess independent leasing authority cies follow to acquire official parking lease space? spaces?

186

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00196 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–73.20

Subpart C—Acquisition by Purchase or Subpart A—General Provisions Condemnation § 102–73.5 What is the scope of this BUILDINGS part? 102–73.245 When may Federal agencies con- The real property policies contained sider purchase of buildings? in this part apply to Federal agencies, 102–73.250 Are agencies required to adhere including GSA’s Public Buildings Serv- to the policies for locating Federal facili- ice (PBS), operating under, or subject ties when purchasing buildings? to, the authorities of the Adminis- 102–73.255 What factors must Executive agencies consider when purchasing sites? trator of General Services.

LAND § 102–73.10 What is the basic real estate acquisition policy? 102–73.260 What land acquisition policy must Federal agencies follow? When seeking to acquire space, Fed- 102–73.265 What actions must Federal agen- eral agencies should first seek space in cies take to facilitate land acquisition? Government-owned and Government- leased buildings. If suitable Govern- JUST COMPENSATION ment-controlled space is unavailable, 102–73.270 Are Federal agencies required to Federal agencies must acquire real es- provide the owner with a written state- tate and related services in an efficient ment of the amount established as just and cost effective manner. compensation? 102–73.275 What specific information must § 102–73.15 What real estate acquisi- be included in the summary statement tion and related services may Fed- for the owner that explains the basis for eral agencies provide? just compensation? Federal agencies, upon approval from 102–73.280 Where can Federal agencies find GSA, may provide real estate acquisi- guidance on how to appraise the value of tion and related services, including properties being acquired by the Federal leasing (with or without purchase op- Government? tions), building and/or site purchase, 102–73.285 [Reserved] condemnation, and relocation assist- 102–73.290 Are there any prohibitions when a ance. For information on the design Federal agency pays ‘‘just compensa- and construction of Federal facilities, tion’’ to a tenant? see part 102–76 of this chapter. EXPENSES INCIDENTAL TO PROPERTY TRANSFER UNITED STATES POSTAL SERVICE- CONTROLLED SPACE 102–73.295 What property transfer expenses must Federal agencies cover when ac- § 102–73.20 Are Federal agencies requiring real property? quired to give priority consideration to space in buildings under LITIGATION EXPENSES the custody and control of the 102–73.300 Are Federal agencies required to United States Postal Service in ful- pay for litigation expenses incurred by a filling Federal agency space needs? property owner because of a condemna- Yes, after considering the avail- tion proceeding? ability of GSA-controlled space and de- RELOCATION ASSISTANCE POLICY termining that no such space is available to meet its needs, Federal agen- 102–73.305 What relocation assistance policy cies must extend priority consideration must Federal agencies follow? to available space in buildings under AUTHORITY: 40 U.S.C. 121(c); Sec. 3(c), Reor- the custody and control of the United ganization Plan No. 18 of 1950 (40 U.S.C. 301 States Postal Service (USPS) in ful- note); Sec. 1–201(b), E.O. 12072, 43 FR 36869, 3 filling Federal agency space needs, as CFR, 1978 Comp., p. 213. specified in the ‘‘Agreement Between SOURCE: 70 FR 67791, Nov. 8, 2005, unless General Services Administration and otherwise noted. the United States Postal Service Cov- ering Real and Personal Property Rela- tionships and Associated Services,’’ dated July 1985.

187

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00197 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–73.25 41 CFR Ch. 102 (7–1–11 Edition)

LOCATING FEDERAL FACILITIES General Services will transmit the proposed prospectuses to Congress for con- § 102–73.25 What policies must Execu- sideration by the Senate and the House tive agencies comply with in locat- of Representatives. Furthermore, as in- ing Federal facilities? dicated in § 102–72.30(b), the general Executive agencies must comply with purpose lease delegation authority is the location policies in this part and restricted to below the prospectus part 102–83 of this chapter. threshold, and therefore, GSA must conduct all lease acquisitions over the HISTORIC PRESERVATION threshold. § 102–73.30 What historic preservation provisions must Federal agencies Subpart B—Acquisition by Lease comply with prior to acquiring, constructing, or leasing space? § 102–73.45 When may Federal agencies consider leases of privately Prior to acquiring, constructing, or owned land and buildings to satisfy leasing space, Federal agencies must their space needs? comply with the provisions of section 110(a) of the National Historic Preser- Federal agencies may consider leases vation Act of 1966, as amended (16 of privately owned land and buildings U.S.C. 470h–2(a)), regarding the use of only when needs cannot be met satis- historic properties. Federal agencies factorily in Government-controlled can find guidance on protecting, en- space and one or more of the following hancing, and preserving historic and conditions exist: cultural property in part 102–78 of this (a) Leasing is more advantageous to chapter. the Government than constructing a new building, or more advantageous PROSPECTUS REQUIREMENTS than altering an existing Federal building. § 102–73.35 Is a prospectus required (b) New construction or alteration is for all acquisition, construction, or unwarranted because demand for space alteration projects? in the community is insufficient, or is No, a prospectus is not required if the indefinite in scope or duration. dollar value of a project does not ex- (c) Federal agencies cannot provide ceed the prospectus threshold. 40 U.S.C. for the completion of a new building 3307 establishes a prospectus threshold, within a reasonable time. applicable to Federal agencies operating under, or subject to, the authori- § 102–73.50 Are Federal agencies that ties of the Administrator of General possess independent statutory au- Services, for the construction, alter- thority to acquire leased space subject to requirements of this part? ation, purchase, and acquisition of any building to be used as a public building, No, Federal agencies possessing inde- and establishes a prospectus threshold pendent statutory authority to acquire to lease any space for use for public leased space are not subject to GSA au- purposes. The current prospectus thority and, therefore, may not be sub- threshold value for each fiscal year can ject to the requirements of this part. be accessed by entering GSA’s Web site However, lease prospectus approval re- at http://www.gsa.gov and then inserting quirements of 40 U.S.C. Section 3307 ‘‘prospectus thresholds’’ in the search may still apply appropriations to lease mechanism in the upper right-hand of space for public purposes under an corner of the page. agency’s independent leasing authority. § 102–73.40 What happens if the dollar value of the project exceeds the § 102–73.55 On what basis must Fed- prospectus threshold? eral agencies acquire leases? Projects require approval by the Sen- Federal agencies must acquire leases ate and the House of Representatives if on the most favorable basis to the Fed- the dollar value of a project exceeds eral Government, with due consider- the prospectus threshold. To obtain ation to maintenance and operational this approval, the Administrator of efficiency, and at charges consistent

188

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00198 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–73.95

with prevailing market rates for com- § 102–73.75 What functions must Fed- parable facilities in the community. eral agencies perform with regard to leasing building space? § 102–73.60 With whom may Federal Federal agencies, upon approval from agencies enter into lease agree- GSA, must perform all functions of ments? leasing building space, and land inci- Federal agencies, upon approval from dental thereto, for their use except as GSA, may enter into lease agreements provided in this subpart. with any person, partnership, corporation, or other public or private entity, § 102–73.80 Who is authorized to contact lessor, offerors, or potential provided that such lease agreements do offerors concerning space leased or not bind the Government for periods in to be leased? excess of twenty years (40 U.S.C. No one, except the Contracting Offi- 585(a)). Federal agencies may not enter cer or his or her designee, may contact into lease agreements with persons lessors, offerors, or potential offerors who are barred from contracting with concerning space leased or to be leased the Federal Government (e.g., Members for the purpose of making oral or writ- of Congress or debarred or suspended ten representation or commitments or contractors). agreements with respect to the terms of occupancy of particular space, ten- § 102–73.65 Are there any limitations ant improvements, alterations and re- on leasing certain types of space? pairs, or payment for overtime serv- Yes, the limitations on leasing cer- ices. tain types of space are as follows: (a) In general, Federal agencies may § 102–73.85 Can agencies with independent statutory authority to lease not lease any space to accommodate space have GSA perform the leasing computer and telecommunications op- functions? erations; secure or sensitive activities Yes, upon request, GSA may perform, related to the national defense or secu- on a reimbursable basis, all functions rity; or a permanent courtroom, judi- of leasing building space, and land inci- cial chamber, or administrative office dental thereto, for Federal agencies for any United States court, if the av- possessing independent statutory au- erage annual net rental cost of leasing thority to lease space. However, GSA such space would exceed the prospectus reserves the right to accept or reject threshold (40 U.S.C. 3307(f)(1)). reimbursable leasing service requests (b) However, Federal agencies may on a case-by-case basis. lease such space if the Administrator of General Services first determines § 102–73.90 What contingent fee policy that leasing such space is necessary to must Federal agencies apply to the acquisition of real property by meet requirements that cannot be met lease? in public buildings, and then submits Federal agencies must apply the con- such determination to the Committee tingent fee policies in 48 CFR 3.4 to all on Environment and Public Works of negotiated and sealed bid contracts for the Senate and the Committee on the acquisition of real property by Transportation and Infrastructure of lease. Federal agencies must appro- the House of Representatives in accord- priately adapt the representations and ance with 40 U.S.C. 3307(f)(2). covenants required by that subpart for use in leases of real property for Gov- § 102–73.70 Are Executive agencies re- ernment use. quired to acquire leased space by negotiation? § 102–73.95 How are Federal agencies Yes, Executive agencies must acquire required to assist GSA? leased space by negotiation, except The heads of Federal agencies must— where the sealed bid procedure is re- (a) Cooperate with and assist the Ad- quired by the Competition in Con- ministrator of General Services in car- tracting Act, as amended (CICA) (41 rying out his responsibilities respect- U.S.C. 253(a)). ing office buildings and space;

189

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00199 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–73.100 41 CFR Ch. 102 (7–1–11 Edition)

(b) Take measures to give GSA early (e) Ensure that any contract that notice of new or changing space re- will result in the construction of a quirements; building contains provisions permit- (c) Seek to economize their require- ting the Government to reduce the rent ments for space; and during any period when the building (d) Continuously review their needs does not comply with the Govern- for space in and near the District of Co- ment’s specifications. lumbia, taking into account the feasibility of decentralizing services or ac- PRICE PREFERENCE FOR HISTORIC tivities that can be carried on else- PROPERTIES where without excessive costs or significant loss of efficiency. § 102–73.115 Must Federal agencies offer a price preference to space in COMPETITION IN CONTRACTING ACT OF historic properties when acquiring 1984 leased space? § 102–73.100 Is the Competition in Con- Yes, Federal agencies must give a tracting Act of 1984, as amended price preference to space in historic (CICA), applicable to lease acquisi- properties when acquiring leased space tion? using either the lowest price tech- Yes, Executive agencies must obtain nically acceptable or the best value full and open competition among suit- tradeoff source selection processes. able locations meeting minimum Gov- ernment requirements, except as other- § 102–73.120 How much of a price pref- wise provided by CICA, 41 U.S.C. 253. erence must Federal agencies give when acquiring leased space using NATIONAL ENVIRONMENTAL POLICY ACT the lowest price technically accept- OF 1969 (NEPA) able source selection process? § 102–73.105 What policies must Fed- Federal agencies must give a price eral agencies follow to implement evaluation preference to space in his- the requirements of NEPA when ac- toric properties as follows: quiring real property by lease? (a) First to suitable historic prop- Federal agencies must follow the erties within historic districts, a 10 NEPA policies identified in §§ 102–76.40 percent price preference. and 102–76.45 of this chapter. (b) If no suitable historic property within an historic district is offered, or LEASE CONSTRUCTION the 10 percent preference does not re- § 102–73.110 What rules must Execu- sult in such property being the lowest tive agencies follow when acquiring price technically acceptable offer, the leasehold interests in buildings con- Government will give a 2.5 percent structed for Federal Government price preference to suitable non-his- use? toric developed or undeveloped sites When acquiring leasehold interests in within historic districts. buildings to be constructed for Federal (c) If no suitable non-historic devel- Government use, Executive agencies oped or undeveloped site within an his- must— toric district is offered, or the 2.5 per- (a) Establish detailed building speci- cent preference does not result in such fications before agreeing to a contract property being the lowest price tech- that will result in the construction of a nically acceptable offer, the Govern- building; ment will give a 10 percent price pref- (b) Use competitive procedures; (c) Inspect every building during con- erence to suitable historic properties struction to ensure that the building outside of historic districts. complies with the Government’s speci- (d) Finally, if no suitable historic fications; property outside of historic districts is (d) Evaluate every building after offered, no historic price preference completion of construction to deter- will be given to any property offered. mine that the building complies with the Government’s specifications; and

190

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00200 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–73.140

§ 102–73.125 How much of a price pref- SCORING RULES erence must Federal agencies give when acquiring leased space using § 102–73.135 What scoring rules must the best value tradeoff source selec- Federal agencies follow when con- tion process? sidering leases and leases with purchase options? When award will be based on the best value tradeoff source selection process, All Federal agencies must follow the budget scorekeeping rules for leases, which permits tradeoffs among price capital leases, and lease-purchases and non-price factors, the Government identified in appendices A and B of will give a price evaluation preference OMB Circular A–11. (For availability, to historic properties as follows: see 5 CFR 1310.3.) (a) First to suitable historic properties within historic districts, a 10 DELEGATIONS OF LEASING AUTHORITY percent price preference. (b) If no suitable historic property § 102–73.140 When may agencies that within an historic district is offered or do not possess independent leasing authority lease space? remains in the competition, the Gov- ernment will give a 2.5 percent price Federal agencies may perform for preference to suitable non-historic de- themselves all functions necessary to veloped or undeveloped sites within acquire leased space in buildings and historic districts. land incidental thereto when— (c) If no suitable non-historic devel- (a) The authority may be delegated oped or undeveloped site within an his- (see § 102–72.30) on the different types of toric district is offered or remains in delegations related to real estate leasing); the competition, the Government will (b) The space may be leased for no give a 10 percent price preference to rental, or for a nominal consideration suitable historic properties outside of of $1 per annum, and is limited to historic districts. terms not to exceed 1 year; (d) Finally, if no suitable historic (c) Authority has been requested by property outside of historic districts is an Executive agency and a specific del- offered, no historic price preference egation has been granted by the Ad- will be given to any property offered. ministrator of General Services; (d) A categorical delegation has been LEASES WITH PURCHASE OPTIONS granted by the Administrator of Gen- § 102–73.130 When may Federal agen- eral Services for space to accommodate cies consider acquiring leases with particular types of agency activities, purchase options? such as military recruiting offices or space for certain county level agricul- Agencies may consider leasing with a tural activities (see § 102–73.155 for a purchase option at or below fair mar- listing of categorical delegations); or ket value, consistent with the lease- (e) The required space is found by the purchase scoring rules, when one or Administrator of General Services to more of the following conditions exist: be wholly or predominantly utilized for (a) The purchase option offers eco- the special purposes of the agency to nomic and other advantages to the occupy such space and is not generally Government and is consistent with the suitable for use by other agencies. Fed- Government’s goals. eral agencies must obtain prior ap- (b) The Government is the sole or proval from the GSA regional office major tenant of the building, and has a having jurisdiction for the proposed long-term need for the property. leasing action, before initiating a leas- (c) Leasing with a purchase option is ing action involving 2,500 or more otherwise in the best interest of the square feet of such special purpose Government. space. GSA’s approval must be based upon a finding that there is no vacant Government-owned or leased space available that will meet the agency’s requirements. Agency special purpose

191

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00201 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–73.145 41 CFR Ch. 102 (7–1–11 Edition)

space delegations can be found in §§ 102– and storage space. Office space within 73.170 through 102–73.225. ranger stations is minimal and does not comprise a majority of the space. CATEGORICAL SPACE DELEGATIONS (May also be referred to as guard stations, information centers, or kiosks); § 102–73.145 What is a categorical space delegation? (m) Recruiting space for the armed forces (lease terms, including all op- A categorical space delegation is a tions, limited to 5 years); standing delegation of authority from (n) Schools directly related to the the Administrator of General Services special purpose function(s) of an agen- to a Federal agency to acquire a type cy; of space identified in § 102–73.155, sub- (o) Specialized storage/depot facili- ject to limitations in this part. ties, such as cold storage; self-storage § 102–73.150 What is the policy for cat- units; and lumber, oil, gasoline, ship- egorical space delegations? building materials, and pesticide materials/equipment storage (general pur- Subject to the limitations cited in §§ 102–73.230 through 102–73.240, all Fed- pose warehouse type storage facilities eral agencies are authorized to acquire not included); and the types of space listed in § 102–73.155 (p) Space for short-term use (such as and, except where otherwise noted, conferences and meetings, judicial pro- may lease space for terms, including ceedings, and emergency situations). all options, of up to 20 years. SPECIAL PURPOSE SPACE DELEGATIONS § 102–73.155 What types of space can Federal agencies acquire with a § 102–73.160 What is an agency special categorical space delegation? purpose space delegation? Federal agencies can use categorical An agency special purpose space dele- space delegations to acquire— gation is a standing delegation of au- (a) Space to house antennas, repeat- thority from the Administrator of Gen- ers, or transmission equipment; eral Services to specific Federal agen- (b) Depots, including, but not limited cies to lease their own special purpose to, stockpiling depots and torpedo net space (identified in §§ 102–73.170 through depots; 102–73.225), subject to limitations in (c) Docks, piers, and mooring facili- this part. ties (including closed storage space required in combination with such facili- § 102–73.165 What is the policy for ties); agency special purpose space delegations? (d) Fumigation areas; (e) Garage space (may be leased only Subject to the limitations on annual on a fiscal year basis); rental amounts, lease terms, and leases (f) Greenhouses; on parking spaces cited in §§ 102–73.230 (g) Hangars and other airport oper- through 102–73.240, the agencies listed ating facilities including, but not lim- below are authorized to acquire special ited to, flight preparation space, air- purpose space associated with that craft storage areas, and repair shops; agency and, except where otherwise (h) Hospitals, including medical clin- noted, may lease such space for terms, ics; including all options, of up to 20 years. (i) Housing (temporary), including The agencies and types of space subject hotels (does not include quarters ob- to special purpose space delegations tained pursuant to temporary duty are specified in §§ 102–73.170 through travel or employee relocation); 102–73.225. (j) Laundries; (k) Quarantine facilities for plants, § 102–73.170 What types of special pur- birds, and other animals; pose space may the Department of (l) Ranger stations, i.e., facilities Agriculture lease? that typically include small offices The Department of Agriculture is staffed by one or more uniformed em- delegated the authority to lease the ployees, and may include sleeping/fam- following types of special purpose ily quarters, parking areas, garages, space:

192

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00202 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–73.196

(a) Cotton classing laboratories year basis; for space, lease terms, in- (lease terms, including all options, lim- cluding all options, limited to 5 years). ited to 5 years). (b) Armories. (b) Land (if unimproved, may be (c) Film library in the vicinity of leased only on a fiscal year basis). Washington, DC. (c) Miscellaneous storage by cubic (d) Mess halls. foot or weight basis. (e) Ports of embarkation and debar- (d) Office space when required to be kation. located in or adjacent to stockyards, (f) Post exchanges. produce markets, produce terminals, (g) Postal Concentration Center, airports, and other ports (lease terms, Long Island City, NY. including all options, limited to 5 (h) Recreation centers. years). (i) Reserve training space. (e) Space for agricultural commod- (j) Service clubs. ities stored in licensed warehouses and (k) Testing laboratories (lease terms, utilized under warehouse contracts. including all options, limited to 5 (f) Space utilized in cooperation with years). State and local governments or their § 102–73.185 What types of special pur- instrumentalities (extension services) pose space may the Department of where the cooperating State or local Energy lease? government occupies a portion of the The Department of Energy, as the space and pays a portion of the rent. successor to the Atomic Energy Com- § 102–73.175 What types of special pur- mission, is delegated authority to lease pose space may the Department of facilities housing the special purpose Commerce lease? or special location activities of the old Atomic Energy Commission. The Department of Commerce is delegated authority to lease the following § 102–73.190 What types of special pur- types of special purpose space: pose space may the Federal Com- (a) Space required by the Census Bu- munications Commission lease? reau in connection with conducting the The Federal Communications Com- decennial census (lease terms, includ- mission is delegated authority to lease ing all options, limited to 5 years). monitoring station sites. (b) Laboratories for testing materials, classified or ordnance devices, § 102–73.195 What types of special pur- calibration of instruments, and atmos- pose space may the Department of pheric and oceanic research (lease Health and Human Services lease? terms, including all options, limited to The Department of Health and 5 years). Human Services is delegated authority (c) Maritime training stations. to lease laboratories (lease terms, in- (d) Radio stations. cluding all options, limited to 5 years). (e) Land (if unimproved, may be leased only on a fiscal year basis). § 102–73.196 What types of special pur- (f) National Weather Service mete- pose space may the Department of orological facilities. Homeland Security lease? The Department of Homeland Secu- § 102–73.180 What types of special pur- rity is delegated authority to lease pose space may the Department of whatever space its organizational units Defense lease? or components had authority to lease The Department of Defense is dele- prior to the creation of the Department gated authority to lease the following of Homeland Security, including— types of special purpose space: (a) Border patrol offices similar in (a) Air Force—Civil Air Patrol Liai- character and utilization to police sta- son Offices and land incidental thereto tions, involving the handling of pris- when required for use incidental to, in oners, firearms, and motor vehicles, re- conjunction with, and in close prox- gardless of location (lease terms, in- imity to airports, including aircraft cluding all options limited to 5 years); and warning stations (if unimproved, (b) Space for the U.S. Coast Guard land may be leased only on a fiscal oceanic unit, Woods Hole, MA; and

193

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00203 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–73.200 41 CFR Ch. 102 (7–1–11 Edition)

(c) Space for the U.S. Coast Guard § 102–73.215 What types of special pur- port security activities. pose space may the Department of Transportation lease? § 102–73.200 What types of special pur- The Department of Transportation is pose space may the Department of delegated authority to lease the fol- the Interior lease? lowing types of special purpose space The Department of the Interior is (or real property): delegated authority to lease the fol- (a) Land for the Federal Aviation Ad- lowing types of special purpose space: ministration (FAA) at airports (unim- (a) Space in buildings and land inci- proved land may be leased only on a dental thereto used by field crews of fiscal year basis). the Bureau of Reclamation, Bureau of (b) General purpose office space not Land Management, and the Geological exceeding 10,000 square feet for the Survey in areas where no other Gov- FAA at airports in buildings under the ernment agencies are quartered (unim- jurisdiction of public or private airport proved land may be leased only on a authorities (lease terms, including all fiscal year basis). options, limited to 5 years). (b) National Parks/Monuments Visi- tors Centers consisting primarily of § 102–73.220 What types of special pur- special purpose space (e.g., visitor re- pose space may the Department of the Treasury lease? ception, information, and rest room facilities) and not general office or ad- The Department of the Treasury is ministrative space. delegated authority to lease the following types of special purpose space: § 102–73.205 What types of special pur- (a) Space and land incidental thereto pose space may the Department of for the use of the Comptroller of the Justice lease? Currency, as well as the operation, The Department of the Justice is del- maintenance and custody thereof (if egated authority to lease the following unimproved, land may be leased only types of special purpose space: on a fiscal year basis; lease term for (a) U.S. marshals office in any Alas- space, including all options, limited to ka location (lease terms, including all 5 years). options, limited to 5 years). (b) Aerostat radar facilities nec- (b) Space used for storage and main- essary for U.S. Custom Service mission tenance of surveillance vehicles and activities. seized property (lease terms, including § 102–73.225 What types of special pur- all options, limited to 5 years). pose space may the Department of (c) Space used for review and custody Veterans Affairs lease? of records and other evidentiary mate- The Department of Veterans Affairs rials (lease terms, including all op- is delegated authority to lease the fol- tions, limited to 5 years). lowing types of special purpose space: (d) Space used for trial preparation (a) Guidance and training centers lo- where space is not available in Federal cated at schools and colleges. buildings, Federal courthouses, USPS (b) Space used for veterans hospitals, facilities, or GSA-leased buildings including outpatient and medical-re- (lease terms limited to not more than 1 lated clinics, such as drug, mental year). health, and alcohol.

§ 102–73.210 What types of special pur- LIMITATIONS ON THE USE OF DELEGATED pose space may the Office of Thrift AUTHORITY Supervision lease? The Office of Thrift Supervision is § 102–73.230 When must Federal agen- delegated authority to lease space for cies submit a prospectus to lease field offices of Examining Divisions re- real property? quired to be located within Office of In accordance with 40 U.S.C. 3307, Thrift Supervision buildings or imme- Federal agencies must submit a pro- diately adjoining or adjacent to such spectus to the Administrator of Gen- buildings (lease terms, including all op- eral Services for leases involving a net tions, limited to 5 years). annual rental, excluding services and

194

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00204 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–73.255

utilities, in excess of the prospectus § 102–73.250 Are agencies required to threshold provided in 40 U.S.C. 3307. adhere to the policies for locating Agencies must be aware that pro- Federal facilities when purchasing spectus thresholds are indexed and buildings? change each year. Yes, when purchasing buildings, agencies must comply with the loca- § 102–73.235 What is the maximum tion policies in this part and part 102– lease term that a Federal agency may agree to when it has been dele- 83 of this chapter. gated lease acquisition authority from GSA? § 102–73.255 What factors must Execu- tive agencies consider when pur- Pursuant to GSA’s authority to enter chasing sites? into lease agreements contained in 40 U.S.C. 585(a)(2), agencies delegated the Agencies must locate proposed Fed- authorities outlined herein may enter eral buildings on sites that are most into leases for the term specified in the advantageous to the United States. Ex- delegation. In those cases where agen- ecutive agencies must consider factors cy special purposes space delegations such as whether the site will con- include the authority to acquire unim- tribute to economy and efficiency in proved land, the land may be leased the construction, maintenance, and op- only on a fiscal year basis. eration of the individual building, and how the proposed site relates to the § 102–73.240 What policy must Federal Government’s total space needs in the agencies follow to acquire official community. Prior to acquiring, con- parking spaces? structing, or leasing buildings (or sites Federal agencies that need parking for such buildings), Federal agencies must utilize available Government- must use, to the maximum extent fea- owned or leased facilities. Federal sible, historic properties available to agencies must make inquiries regard- the agency. In site selections, Execu- ing availability of such Government- tive agencies must consider Executive controlled space to GSA regional of- Order 12072 (August 16, 1978, 43 FR fices and document such inquiries. If 36869) and Executive Order 13006 (40 no suitable Government-controlled fa- U.S.C. 3306 note). In addition, Execu- cilities are available, an agency may tive agencies must consider all of the use its own procurement authority to following: acquire parking by service contract. (a) Maximum utilization of Govern- ment-owned land (including excess Subpart C—Acquisition by land) whenever it is adequate, eco- Purchase or Condemnation nomically adaptable to requirements and properly located, where such use is BUILDINGS consistent with the provisions of part 102–75, subpart B, of this chapter. § 102–73.245 When may Federal agen- (b) A site adjacent to or in the prox- cies consider purchase of buildings? imity of an existing Federal building A Federal agency may consider pur- that is well located and is to be re- chase of buildings on a case-by-case tained for long-term occupancy. basis if it has landholding authority (c) The environmental condition of and when one or more of the following proposed sites prior to purchase. The conditions exist: sites must be free from contamination, (a) It is economically more beneficial unless it is otherwise determined to be to own and manage the property. in the best interests of the Government (b) There is a long-term need for the to purchase a contaminated site (e.g., property. reuse of a site under an established (c) The property is an existing build- ‘‘Brownfields’’ program). ing, or a building nearing completion, (d) Purchase options to secure the fu- that can be purchased and occupied ture availability of a site. within a reasonable time. (e) All applicable location policies in (d) When otherwise in the best inter- this part and part 102–83 of this chap- ests of the Government. ter.

195

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00205 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–73.260 41 CFR Ch. 102 (7–1–11 Edition)

LAND JUST COMPENSATION

§ 102–73.260 What land acquisition pol- § 102–73.270 Are Federal agencies re- icy must Federal agencies follow? quired to provide the owner with a written statement of the amount es- Federal agencies must follow the tablished as just compensation? land acquisition policy in the Uniform Yes, Federal agencies must provide Relocation Assistance and Real Prop- the owner with a written statement of erty Acquisition Policies Act, as this amount and summarize the basis amended, 42 U.S.C. 4651–4655, which— for it. When it is appropriate, Federal (a) Encourages and expedites the ac- agencies must separately state the just quisition of real property by agree- compensation for the property to be ac- ments with owners; quired and damages to the remaining (b) Avoids litigation, including con- real property. demnation actions, where possible and relieves congestion in the courts; § 102–73.275 What specific information (c) Provides for consistent treatment must be included in the summary statement for the owner that ex- of owners; and plains the basis for just compensa- (d) Promotes public confidence in tion? Federal land acquisition practices. The summary statement must— (a) Identify the real property and the § 102–73.265 What actions must Fed- estate or interest the Federal agency is eral agencies take to facilitate land acquisition? acquiring; (b) Identify the buildings, structures, To facilitate land acquisition, Fed- and other improvements the Federal eral agencies must, among other agency considers part of the real prop- things— erty for which just compensation is (a) Appraise the real property before being offered; starting negotiations and give the (c) State that the Federal agency owner (or the owner’s representative) based the estimate of just compensa- the opportunity to accompany the ap- tion on the Government’s estimate of praiser during the inspection; the property’s fair market value. If (b) Establish an amount estimated to only part of a property or less than a be the just compensation before start- full interest is being acquired, Federal ing negotiations and promptly offer to agencies must explain how they deter- acquire the property for this full mined the just compensation for it; and amount; (d) State that the Government’s estimate of just compensation is at least (c) Try to negotiate with owners on as much as the property’s approved ap- the price; praisal value. (d) Pay the agreed purchase price to the property owner, or in the case of a § 102–73.280 Where can Federal agen- condemnation, deposit payment in the cies find guidance on how to ap- registry of the court, for the benefit of praise the value of properties being the owner, before requiring the owner acquired by the Federal Govern- ment? to surrender the property; and (e) Provide property owners (and oc- The Interagency Land Acquisition cupants) at least 90 days’ notice of dis- Conference has developed, promul- placement before requiring anyone to gated, and adopted the Uniform Ap- praisal Standards for Federal Land Ac- move. If a Federal agency permits the quisitions, sometimes referred to as owner to keep possession for a short the ‘‘Yellow Book.’’ The Interagency time after acquiring the owner’s prop- Land Acquisition Conference, estab- erty, Federal agencies must not charge lished on November 27, 1968, by invita- rent in excess of the property’s fair tion of the Attorney General, is a vol- rental value to a short-term occupier. untary organization composed of the many Federal agencies engaged in the acquisition of real estate for public uses. The ‘‘Yellow Book’’ is published

196

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00206 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–73.305

by the Appraisal Institute in coopera- (d) Whenever possible, directly pay tion with the U.S. Department of Jus- the costs identified in this section, so tice and is available in hard copy or on property owners will not have to pay the Department of Justice’s internet them and then seek reimbursement Web site at http://www.usdoj.gov/enrd/ from the Government. land-ack/. LITIGATION EXPENSES § 102–73.285 [Reserved] § 102–73.300 Are Federal agencies re- § 102–73.290 Are there any prohibi- quired to pay for litigation ex- tions when a Federal agency pays penses incurred by a property ‘‘just compensation’’ to a tenant? owner because of a condemnation proceeding? Yes, Federal agencies must not— (a) Duplicate any payment to the Federal agencies must pay reason- tenant otherwise authorized by law; able expenses for attorneys, appraisals, and and engineering fees that a property (b) Pay a tenant unless the land- owner incurs because of a condemna- owner disclaims all interests in the tion proceeding, if any of the following tenant’s improvements. In consider- are true: ation for any such payment, the tenant (a) The court’s final judgment is that must assign, transfer, and release to the Federal agency cannot acquire the the Federal agency all of its right, real property by condemnation. title, and interest in the improve- (b) The Federal agency abandons the ments. The tenant may reject such condemnation proceeding other than payment under this subpart and obtain under an agreed-on settlement. payment for its property interests ac- (c) The court renders a judgment in cording to other sections of applicable the property owner’s favor in an in- law. verse condemnation proceeding or the Federal agency agrees to settle such EXPENSES INCIDENTAL TO PROPERTY proceeding. TRANSFER RELOCATION ASSISTANCE POLICY § 102–73.295 What property transfer expenses must Federal agencies § 102–73.305 What relocation assist- cover when acquiring real prop- ance policy must Federal agencies erty? follow? Federal agencies must— Federal agencies, upon approval from (a) Reimburse property owners for all GSA, must provide appropriate reloca- reasonable expenses actually incurred tion assistance under the Uniform Re- for recording fees, transfer taxes, docu- location Assistance and Real Property mentary stamps, evidence of title, Acquisition Policies Act, as amended, boundary surveys, legal descriptions of 42 U.S.C. 4651–4655, to eligible owners the real property, and similar expenses and tenants of property purchased for needed to convey the property to the use by Federal agencies in accordance Federal Government; with the implementing regulations (b) Reimburse property owners for all found in 49 CFR part 24. Appropriate reasonable expenses actually incurred relocation assistance means that the for penalty costs and other charges to Federal agency must pay the displaced prepay any existing, recorded mortgage person for actual— that a property owner entered into in (a) Reasonable moving expenses (in good faith and that encumbers the real moving himself, his family, and busi- property; ness); (c) Reimburse property owners for all (b) Direct losses of tangible personal reasonable expenses actually incurred property as a result of moving or dis- for the prorated part of any prepaid continuing a business; real property taxes that cover the pe- (c) Reasonable expenses in searching riod after the Federal Government gets for a replacement business or farm; and title to the property or effective pos- (d) Reasonable expenses necessary to session of it, whichever is earlier; and reestablish a displaced farm, nonprofit

197

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00207 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–74 41 CFR Ch. 102 (7–1–11 Edition)

organization, or small business at its 102–74.120 Is a prospectus required to be sub- new site, but not to exceed $10,000. mitted before emergency alterations can be performed? 102–74.125 Are prospectuses required for re- PART 102–74—FACILITY imbursable alteration projects? MANAGEMENT 102–74.130 When a prospectus is required, can GSA prepare a prospectus for a reim- Subpart A—General Provisions bursable alteration project? 102–74.135 Who selects construction and al- Sec. teration projects that are to be per- 102–74.5 What is the scope of this part? formed? 102–74.10 What is the basic facility manage- 102–74.140 On what basis does the Adminis- ment policy? trator select construction and alteration projects? Subpart B—Facility Management 102–74.145 What information must a Federal agency submit to GSA after the agency 102–74.15 What are the facility management has identified a need for construction or responsibilities of occupant agencies? alteration of a public building? 102–74.150 Who submits prospectuses for the OCCUPANCY SERVICES construction or alteration of public 102–74.20 What are occupancy services? buildings to the Congressional commit- 102–74.25 What responsibilities do Executive tees? agencies have regarding occupancy serv- ENERGY CONSERVATION ices? 102–74.30 What standard in providing occu- 102–74.155 What energy conservation policy pancy services must Executive agencies must Federal agencies follow in the man- follow? agement of facilities? 102–74.35 What building services must Exec- 102–74.160 What actions must Federal agen- utive agencies provide? cies take to promote energy conservation? CONCESSION SERVICES 102–74.165 What energy standards must Fed- eral agencies follow for existing facili- 102–74.40 What are concession services? ties? 102–74.45 When must Federal agencies pro- 102–74.170 May exceptions to the energy vide concession services? conservation policies in this subpart be 102–74.50 Are Federal agencies required to granted? give blind vendors priority in operating 102–74.175 Are Government-leased buildings vending facilities? required to conform with the policies in 102–74.55 Are vending facilities authorized this subpart? under the Randolph-Sheppard Act oper- 102–74.180 What illumination levels must ated by permit or contract? Federal agencies maintain on Federal fa- 102–74.60 Are Federal agencies required to cilities? give blind vendors priority in operating 102–74.185 What heating and cooling policy cafeterias? must Federal agencies follow in Federal 102–74.65 Are cafeterias authorized under facilities? the Randolph-Sheppard Act operated by 102–74.190 Are portable heaters, fans, and permit or contract? other such devices allowed in Govern- 102–74.70 Are commercial vendors and non- ment-controlled facilities? profit organizations required to operate 102–74.195 What ventilation policy must vending facilities by permit or contrac- Federal agencies follow? tual arrangement? 102–74.200 What information are Federal 102–74.75 May Federal agencies sell tobacco agencies required to report to the De- products in vending machines in Govern- partment of Energy (DOE)? ment-owned and leased space? 102–74.80–102–74.95 [Reserved] RIDESHARING

CONSERVATION PROGRAM 102–74.205 What Federal facility ridesharing policy must Executive agencies follow? 102–74.100 What are conservation programs? 102–74.210 What steps must Executive agencies take to promote ridesharing at Fed- ASSET SERVICES eral facilities? 102–74.105 What are asset services? 102–74.215–102–74.225 [Reserved] 102–74.110 What asset services must Execu- OCCUPANT EMERGENCY PROGRAM tive agencies provide? 102–74.115 What standard in providing asset 102–74.230 Who is responsible for estab- services must Executive agencies follow? lishing an occupant emergency program?

198

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00208 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–74

102–74.235 Are occupant agencies required to 102–74.335 Who is responsible for furnishing cooperate with the Designated Official in and installing signs concerning smoking the implementation of the emergency restrictions in the building, and in and plans and the staffing of the emergency around building entrance doorways and organization? air intake ducts? 102–74.240 What are Federal agencies’ occu- 102–74.340 Who is responsible for monitoring pant emergency responsibilities? and controlling areas designated for 102–74.245 Who makes the decision to acti- smoking by an agency head and for iden- vate the Occupant Emergency Organiza- tifying those areas with proper signage? tion? 102–74.345 Does the smoking policy in this 102–74.250 What information must the Des- part apply to the judicial branch? ignated Official use to make a decision 102–74.350 Are agencies required to meet to activate the Occupant Emergency Or- their obligations under the Federal Serv- ganization? ice Labor-Management Relations Act 102–74.255 How must occupant evacuation or where there is an exclusive representa- relocation be accomplished when there is tive for the employees prior to imple- immediate danger to persons or property, menting this smoking policy? such as fire, explosion, or the discovery 102–74.351 If a state or local government has of an explosive device (not including a a smoke-free ordinance that is more bomb threat)? strict than the smoking policy for Fed- 102–74.260 What action must the Designated eral facilities, does the state or local law Official initiate when there is advance or Federal policy control? notice of an emergency? ACCIDENT AND FIRE PREVENTION PARKING FACILITIES 102–74.355 With what accident and fire pre- 102–74.265 Who must provide for the regula- vention standards must Federal facilities tion and policing of parking facilities? comply? 102–74.270 Are vehicles required to display 102–74.360 What are the specific accident parking permits in parking facilities? and fire prevention responsibilities of oc- 102–74.275 May Federal agencies authorize cupant agencies? lessors or parking management contractors to manage, regulate, and police Subpart C—Conduct on Federal Property parking facilities? APPLICABILITY 102–74.280 Are privately owned vehicles converted for propane carburetion permitted 102–74.365 To whom does this subpart apply? in underground parking facilities? 102–74.285 How must Federal agencies assign INSPECTION priority to parking spaces in controlled 102–74.370 What items are subject to inspec- areas? tion by Federal agencies? 102–74.290 May Federal agencies allow employees to use parking spaces not re- ADMISSION TO PROPERTY quired for official needs? 102–74.375 What is the policy on admitting 102–74.295 Who determines the number of persons to Government property? employee parking spaces for each facility? PRESERVATION OF PROPERTY 102–74.300 How must space available for em- 102–74.380 What is the policy concerning the ployee parking be allocated among occu- preservation of property? pant agencies? 102–74.305 How must Federal agencies assign CONFORMITY WITH SIGNS AND DIRECTIONS available parking spaces to their employees? 102–74.385 What is the policy concerning 102–74.310 What measures must Federal conformity with official signs and direc- agencies take to improve the utilization tions? of parking facilities? DISTURBANCES SMOKING 102–74.390 What is the policy concerning dis- 102–74.315 What is the smoking policy for in- turbances? terior space in Federal facilities? GAMBLING 102–74.320 Are there any exceptions to the smoking policy for interior space in Fed- 102–74.395 What is the policy concerning eral facilities? gambling? 102–74.325 Are designated smoking areas au- NARCOTICS AND OTHER DRUGS thorized in interior space? 102–74.330 What smoking restrictions apply 102–74.400 What is the policy concerning the to outside areas under Executive branch possession and use of narcotics and other control? drugs?

199

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00209 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–74 41 CFR Ch. 102 (7–1–11 Edition)

ALCOHOLIC BEVERAGES apply for a permit from a Federal agency? 102–74.405 What is the policy concerning the 102–74.470 What information must persons use of alcoholic beverages? or organizations submit so that Federal SOLICITING, VENDING AND DEBT COLLECTION agencies may consider their application for a permit? 102–74.410 What is the policy concerning so- 102–74.475 If an applicant proposes to use a liciting, vending and debt collection? public area to solicit funds, is the applicant required to make a certification? POSTING AND DISTRIBUTING MATERIALS 102–74.415 What is the policy for posting and PERMITS distributing materials? 102–74.480 How many days does a Federal PHOTOGRAPHS FOR NEWS, ADVERTISING OR agency have to issue a permit following COMMERCIAL PURPOSES receipt of a completed application? 102–74.485 Is there any limitation on the 102–74.420 What is the policy concerning length of time of a permit? photographs for news, advertising or 102–74.490 What if more than one permit is commercial purposes? requested for the same area and time? 102–74.495 If a permit involves demonstra- DOGS AND OTHER ANIMALS tions or activities that may lead to civil 102–74.425 What is the policy concerning disturbances, what action must a Federal dogs and other animals on Federal prop- agency take before approving such a per- erty? mit application?

BREASTFEEDING DISAPPROVAL OF APPLICATIONS OR 102–74.426 May a woman breastfeed her child CANCELLATION OF PERMITS in a Federal building or on Federal prop- 102–74.500 Can Federal agencies disapprove erty? permit applications or cancel issued permits? VEHICULAR AND PEDESTRIAN TRAFFIC 102–74.505 What action must Federal agen- 102–74.430 What is the policy concerning ve- cies take after disapproving an applica- hicular and pedestrian traffic on Federal tion or canceling an issued permit? property? APPEALS EXPLOSIVES 102–74.510 How may the disapproval of a per- 102–74.435 What is the policy concerning ex- mit application or cancellation of an plosives on Federal property? issued permit be appealed? 102–74.515 Will the affected person or organi- WEAPONS zation and the Federal agency buildings 102–74.440 What is the policy concerning manager have an opportunity to state weapons on Federal property? their positions on the issues? 102–74.520 How much time does the Regional NONDISCRIMINATION Officer have to affirm or reverse the Fed- 102–74.445 What is the policy concerning dis- eral agency buildings manager’s decision crimination on Federal property? after receiving the notification of appeal from the affected person or organization? PENALTIES SCHEDULE OF USE 102–74.450 What are the penalties for violating any rule or regulation in this sub- 102–74.525 May Federal agencies reserve part? time periods for the use of public areas for official Government business or for IMPACT ON OTHER LAWS OR REGULATIONS maintenance, repair, and construction?

102–74.455 What impact do the rules and reg- HOURS OF USE ulations in this subpart have on other laws or regulations? 102–74.530 When may public areas be used?

Subpart D—Occasional Use of Public SERVICES AND COSTS Buildings 102–74.535 What items may Federal agencies provide to permittees free of charge? 102–74.460 What is the scope of this subpart? 102–74.540 What are the items for which permittees must reimburse Federal agen- APPLICATION FOR PERMIT cies? 102–74.465 Is a person or organization that 102–74.545 May permittees make alterations wishes to use a public area required to to the public areas?

200

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00210 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.25

102–74.550 What items are permittees re- provides for quality space and services sponsible for furnishing? consistent with their operational needs CONDUCT and accomplishes overall Government objectives. The management, operation 102–74.555 What rules of conduct must all and maintenance of buildings and permittees observe while on Federal property? building systems must— (a) Be cost effective and energy effi- NON-AFFILIATION WITH THE GOVERNMENT cient; 102–74.560 May Federal agencies advise the (b) Be adequate to meet the agencies’ public of the presence of any permittees missions; and their non-affiliation with the Fed- (c) Meet nationally recognized stand- eral Government? ards; and Subpart E—Installing, Repairing, and (d) Be at an appropriate level to Replacing Sidewalks maintain and preserve the physical plant assets, consistent with available 102–74.565 What is the scope of this subpart? funding. 102–74.570 Are State and local governments required to fund the cost of installing, repairing, and replacing sidewalks? Subpart B—Facility Management 102–74.575 How do Federal agencies arrange for work on sidewalks? § 102–74.15 What are the facility man- 102–74.580 Who decides when to replace a agement responsibilities of occu- sidewalk? pant agencies? Subpart F—Telework Occupants of facilities under the custody and control of Federal agencies 102–74.585 What Federal facility telework must— policy must Executive agencies follow? 102–74.590 What steps must agencies take to (a) Cooperate to the fullest extent implement these laws and policies? with all pertinent facility procedures 102–74.595 How can agencies obtain guid- and regulations; ance, assistance, and oversight regarding (b) Promptly report all crimes and alternative workplace arrangements suspicious circumstances occurring on from GSA? Federally controlled property first to 102–74.600 Should Federal agencies utilize telework centers? the regional Federal Protective Serv- ice, and as appropriate, the local re- APPENDIX TO PART 102–74—RULES AND REGU- LATIONS GOVERNING CONDUCT ON FEDERAL sponding law enforcement authority; PROPERTY (c) Provide training to employees regarding protection and responses to AUTHORITY: 40 U.S.C. 121(c); Executive Order 12191, 45 FR 7997, 3 CFR, 1980 Comp., p emergency situations; and 138. (d) Make recommendations for improving the effectiveness of protection SOURCE: 70 FR 67798, Nov. 8, 2005, unless otherwise noted. in Federal facilities.

OCCUPANCY SERVICES Subpart A—General Provisions § 102–74.20 What are occupancy serv- § 102–74.5 What is the scope of this ices? part? The real property policies contained Occupancy services are— in this part apply to Federal agencies, (a) Building services (see § 102–74.35); including the GSA’s Public Buildings (b) Concession services (see § 102– Service (PBS), operating under, or sub- 74.40); and ject to, the authorities of the Adminis- (c) Conservation programs (see § 102– trator of General Services. 74.100).

§ 102–74.10 What is the basic facility § 102–74.25 What responsibilities do management policy? Executive agencies have regarding Executive agencies must manage, op- occupancy services? erate and maintain Government-owned Executive agencies, upon approval and leased buildings in a manner that from GSA, must manage, administer

201

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00211 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.30 41 CFR Ch. 102 (7–1–11 Edition)

and enforce the requirements of agree- of existing commercial services is in- ments (such as Memoranda of Under- sufficient to meet Federal agency standing) and contracts that provide needs. Prior to establishing conces- for the delivery of occupancy services. sions, Federal agencies must ensure that— § 102–74.30 What standard in pro- (a) The proposed concession will be viding occupancy services must Ex- established and operated in conform- ecutive agencies follow? ance with applicable policies, safety, Executive agencies must provide oc- health and sanitation codes, laws, reg- cupancy services that substantially ulations, etc., and will not contravene conform to nationally recognized the terms of any lease or other con- standards. As needed, Executive agen- tractual arrangement; and cies may adopt other standards for (b) Sufficient funds are legally avail- buildings and services in Federally able to cover all costs for which the controlled facilities to conform to stat- Government may be responsible. utory requirements and to implement cost-reduction efforts. § 102–74.50 Are Federal agencies required to give blind vendors pri- § 102–74.35 What building services ority in operating vending facili- must Executive agencies provide? ties? Executive agencies, upon approval With certain exceptions, the Ran- from GSA, must provide— dolph-Sheppard Act (20 U.S.C. 107 et (a) Building services such as custo- seq.) requires that blind persons li- dial, solid waste management (includ- censed by a State licensing agency ing recycling), heating and cooling, under the provisions of the Randolph- landscaping and grounds maintenance, Sheppard Act be authorized to operate tenant alterations, minor repairs, vending facilities on Federal property, building maintenance, integrated pest including leased buildings. The Depart- management, signage, parking, and ment of Education (ED) is responsible snow removal, at appropriate levels to for the administration of the Ran- support Federal agency missions; and dolph-Sheppard Act as set forth at 34 (b) Arrangements for raising and low- CFR part 395. The ED designates indi- ering the United States flags at appro- vidual State licensing agencies with priate times. In addition, agencies program administration responsibility. must display P.O.W. and M.I.A. flags at The Randolph-Sheppard Act and its im- locations specified in 36 U.S.C. 902 on plementing regulations require that P.O.W./M.I.A. flag display days. Federal property managers give priority to and notify the State licensing CONCESSION SERVICES agencies in writing of any opportunity.

§ 102–74.40 What are concession serv- § 102–74.55 Are vending facilities au- ices? thorized under the Randolph- Concession services are any food or Sheppard Act operated by permit or snack services provided by a Randolph- contract? Sheppard Act vendor, commercial con- Vending facilities are authorized by tractor or nonprofit organization (see permit. As set forth in 34 CFR part 395, definition in § 102–71.20 of this chapter), the Federal property manager approves in vending facilities such as— and signs State licensing agency per- (a) Vending machines; mits that authorize States to license (b) Sundry facilities; blind vendors to operate vending facili- (c) Prepackaged facilities; ties (including vending machines) on (d) Snack bars; and Federal property. (e) Cafeterias. § 102–74.60 Are Federal agencies re- § 102–74.45 When must Federal agen- quired to give blind vendors pri- cies provide concession services? ority in operating cafeterias? Federal agencies, upon approval from Yes. Federal agencies are required to GSA, must provide concession services give Randolph-Sheppard vendors pri- where building population supports ority in the operation of cafeterias such services and when the availability when the State licensing agency is in

202

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00212 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.120

the competitive range as set forth at 34 ASSET SERVICES CFR part 395. § 102–74.105 What are asset services? § 102–74.65 Are cafeterias authorized Asset services include repairs (other under the Randolph-Sheppard Act than those minor repairs identified in operated by permit or contract? § 102–74.35(a)), alterations and mod- They are operated by contract. As set ernizations for real property assets. forth at 34 CFR part 395, the Federal Typically, these are the types of re- property manager contracts with the pairs and alterations necessary to pre- State licensing agency to license blind serve or enhance the value of the real vendors to operate cafeterias on Fed- property asset. eral property. § 102–74.110 What asset services must § 102–74.70 Are commercial vendors Executive agencies provide? and nonprofit organizations re- Executive agencies, upon approval quired to operate vending facilities from GSA, must provide asset services by permit or contractual arrangement? such as repairs (in addition to those minor repairs identified in § 102– Commercial vendors and nonprofit 74.35(a)), alterations, and moderniza- organizations must operate vending fa- tions for real property assets. For re- cilities, including cafeterias, under a pairs and alterations projects for which contractual arrangement with Federal the estimated cost exceeds the pro- agencies. spectus threshold, Federal agencies must follow the prospectus submission § 102–74.75 May Federal agencies sell and approval policy identified in this tobacco products in vending ma- part and part 102–73 of this chapter. chines in Government-owned and leased space? § 102–74.115 What standard in pro- No. Section 636 of Public Law 104–52 viding asset services must Execu- prohibits the sale of tobacco products tive agencies follow? in vending machines in Government- Executive agencies must provide owned and leased space. The Adminis- asset services that maintain continuity trator of GSA or the head of an Agency of Government operations, continue ef- may designate areas not subject to the ficient building operations, extend the prohibition, if minors are prohibited useful life of buildings and related and reports are made to the appro- building systems, and provide a quality priate committees of Congress. workplace environment that enhances employee productivity. §§ 102–74.80–102–74.95 [Reserved] § 102–74.120 Is a prospectus required CONSERVATION PROGRAMS to be submitted before emergency alterations can be performed? § 102–74.100 What are conservation programs? No. A prospectus does not need to be submitted before emergency alter- Conservation programs are programs ations are performed, but GSA must that improve energy and water effi- submit a prospectus as soon as possible ciency and promote the use of solar after the emergency. Federal agencies and other renewable energy. These pro- must immediately alter a building if grams must promote and maintain an the alteration protects people, build- effective source reduction activity (re- ings, or equipment, saves lives, and/or ducing consumption of resources such avoids further property damage. Fed- as energy, water, and paper), resource eral agencies can take these actions in recovery activity (obtaining materials an emergency before GSA submits a from the waste stream that can be re- prospectus on the alterations to the cycled into new products), and reuse Senate Committee on Environment and activity (reusing same product before Public Works and the House Com- disposition, such as reusing unneeded mittee on Transportation and Infra- memos for scratch paper). structure.

203

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00213 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.125 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–74.125 Are prospectuses required lic building construction or alteration for reimbursable alteration projects to the Senate Committee on projects? Environment and Public Works and the A project that is to be financed in House Committee on Transportation whole or in part from funds appro- and Infrastructure for approval. priated to the requesting agency may be performed without a prospectus if— ENERGY CONSERVATION (a) Payment is made from agency appropriations that are not subject to 40 § 102–74.155 What energy conservation U.S.C. 3307; and policy must Federal agencies follow (b) GSA’s portion of the cost, if any, in the management of facilities? does not exceed the prospectus thresh- Federal agencies must— old. (a) Comply with the energy conservation guidelines in 10 CFR part 436 (Fed- § 102–74.130 When a prospectus is re- eral Energy Management and Planning quired, can GSA prepare a prospectus for a reimbursable alter- Programs); and ation project? (b) Observe the energy conservation Yes, if requested by a Federal agen- policies cited in this part. cy, GSA will prepare a prospectus for a reimbursable alteration project. § 102–74.160 What actions must Fed- eral agencies take to promote en- § 102–74.135 Who selects construction ergy conservation? and alteration projects that are to Federal agencies must— be performed? (a) Turn off lights and equipment The Administrator of General Serv- when not needed; ices selects construction and alteration (b) Not block or impede ventilation; projects to be performed. and (c) Keep windows and other building § 102–74.140 On what basis does the Administrator select construction accesses closed during the heating and and alteration projects? cooling seasons. The Administrator selects projects § 102–74.165 What energy standards based on a continuing investigation must Federal agencies follow for ex- and survey of the public building needs isting facilities? of the Federal Government. These projects must be equitably distributed Existing Federal facilities must meet throughout the United States, with due the energy standards prescribed by the consideration given to each project’s American Society of Heating, Refrig- comparative urgency. erating, and Air Conditioning Engi- neers and the Illuminating Engineering § 102–74.145 What information must a Society of North American in Federal agency submit to GSA after ASHRAE/IES Standard 90A–1980, as the agency has identified a need for amended by the Department of Energy. construction or alteration of a public building? Federal agencies must apply these energy standards where they can be Federal agencies identifying a need achieved through life cycle, cost effec- for construction or alteration of a pub- tive actions. lic building must provide information, such as a description of the work, loca- § 102–74.170 May exceptions to the en- tion, estimated maximum cost, and ergy conservation policies in this justification to the Administrator of subpart be granted? General Services. Yes, the Federal agency buildings § 102–74.150 Who submits prospectuses manager may grant exceptions to the for the construction or alteration of foregoing policies in this subpart to en- public buildings to the Congres- able agencies to accomplish their mis- sional committees? sions more effectively and efficiently. The Administrator of General Serv- ices must submit prospectuses for pub-

204

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00214 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.205

§ 102–74.175 Are Government-leased (d) Not provide air-conditioning dur- buildings required to conform with ing non-working hours, except as nec- the policies in this subpart? essary to return space temperatures to Yes, all new lease contracts must be a suitable level for the beginning of in conformance with the policies pre- working hours; scribed in this subpart. Federal agen- (e) Not permit reheating, humidi- cies must administer existing lease fication and simultaneous heating and contracts in accordance with these cooling; and policies to the maximum extent fea- (f) Operate building systems as nec- sible. essary during extreme weather conditions to protect the physical condition § 102–74.180 What illumination levels of the building. must Federal agencies maintain on Federal facilities? § 102–74.190 Are portable heaters, fans and other such devices allowed in Except where special circumstances Government-controlled facilities? exist, Federal agencies must maintain Federal agencies are prohibited from illumination levels at— operating portable heaters, fans, and (a) 50 foot-candles at work station other such devices in Government-con- surfaces, measured at a height of 30 trolled facilities unless authorized by inches above floor level, during work- the Federal agency buildings manager. ing hours (for visually difficult or critical tasks, additional lighting may be § 102–74.195 What ventilation policy authorized by the Federal agency must Federal agencies follow? buildings manager); During working hours in periods of (b) 30 foot-candles in work areas dur- heating and cooling, Federal agencies ing working hours, measured at 30 must provide ventilation in accordance inches above floor level; with ASHRAE Standard 62, Ventilation (c) 10 foot-candles, but not less than for Acceptable Indoor Air Quality, 1 foot-candle, in non-work areas, dur- where physically practical. Where not ing working hours (normally this will physically practical, Federal agencies require levels of 5 foot-candles at ele- must provide the maximum allowable vator boarding areas, minimum of 1 amount of ventilation during periods of foot-candle at the middle of corridors heating and cooling and pursue oppor- and stairwells as measured at the tunities to increase ventilation up to walking surface, 1 foot-candle at the current standards. ASHRAE Standard middle of corridors and stairwells as 62 is available from ASHRAE Publica- measured at the walking surface, and tions Sales, 1791 Tullie Circle NE, At- 10 foot-candles in storage areas); and lanta, GA 30329–2305. (d) Levels essential for safety and security purposes, including exit signs § 102–74.200 What information are Fed- eral agencies required to report to and exterior lights. the Department of Energy (DOE)? § 102–74.185 What heating and cooling Federal agencies, upon approval of policy must Federal agencies follow GSA, must report to the DOE the en- in Federal facilities? ergy consumption in buildings, facili- Within the limitations of the build- ties, vehicles, and equipment within 45 ing systems, Federal agencies must— calendar days after the end of each quarter as specified in the DOE Federal (a) Operate heating and cooling sys- Energy Usage Report DOE F 6200.2 In- tems in the most overall energy effi- structions. cient and economical manner; (b) Maintain temperatures to maxi- RIDESHARING mize customer satisfaction by conforming to local commercial equiva- § 102–74.205 What Federal facility ride- lent temperature levels and operating sharing policy must Executive practices; agencies follow? (c) Set heating temperatures no high- (a) In accordance with Executive er than 55 degrees Fahrenheit during Order 12191, ‘‘Federal Facility Ride- non-working hours; sharing Program’’ (3 CFR, 1980 Comp.,

205

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00215 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.210 41 CFR Ch. 102 (7–1–11 Edition)

p. 138), Executive agencies must ac- (iv) Assessment of environmental or tively promote the use of ridesharing other benefits realized from these pro- (carpools, vanpools, privately leased grams; and buses, public transportation, and other (v) Other matters that may be appro- multi-occupancy modes of travel) by priate under Public Law 103–172. personnel working at Federal facilities (c) In accordance with the Transpor- to conserve energy, reduce congestion, tation Equity Act for the 21st Century, improve air quality, and provide an ec- agencies may (in lieu of or in combina- onomical way for Federal employees to tion with other commuter benefits) commute to work. provide fringe benefits to qualified (b) In accordance with the Federal commuters, at no cost, by giving them Employees Clean Air Incentives Act a monthly pretax payroll deduction to (Public Law 103–172), the Federal Gov- support and encourage the use of mass ernment is required to take steps to transportation systems. improve the air quality, and to reduce traffic congestion by providing for the §§ 102–74.215–102–74.225 [Reserved] establishment of programs that encourage Federal employees to com- OCCUPANT EMERGENCY PROGRAM mute to work by means other than sin- § 102–74.230 Who is responsible for es- gle-occupancy motor vehicles. tablishing an occupant emergency (c) In accordance with the Transpor- program? tation Equity Act for the 21st Century The Designated Official (as defined in (Public Law 105–178), employers, in- § 102–71.20 of this chapter) is responsible cluding the Federal Government, are to for developing, implementing and offer employees transportation fringe maintaining an Occupant Emergency benefits. Plan (as defined in § 102–71.20 of this § 102–74.210 What steps must Execu- chapter). The Designated Official’s re- tive agencies take to promote ride- sponsibilities include establishing, sharing at Federal facilities? staffing and training an Occupant (a) Under Executive Order 12191, Emergency Organization with agency ‘‘Federal Facility Ridesharing Pro- employees. Federal agencies, upon ap- gram,’’ agencies shall— proval from GSA, must assist in the es- (1) Establish an annual ridesharing tablishment and maintenance of such goal for each facility; and plans and organizations. (2) Cooperate with State and local § 102–74.235 Are occupant agencies re- ridesharing agencies where such agen- quired to cooperate with the Des- cies exist. ignated Official in the implementa- (b) Under the Federal Employees tion of the emergency plans and the Clean Air Incentives Act (Public Law staffing of the emergency organiza- 103–172), agencies shall— tion? (1) Issue transit passes or similar Yes, all occupant agencies of a facil- vouchers to exchange for transit ity must fully cooperate with the Des- passes; ignated Official in the implementation (2) Furnish space, facilities, and serv- of the emergency plans and the staffing ices to bicyclists; of the emergency organization. (3) Provide non-monetary incentives as provided by other provisions of law § 102–74.240 What are Federal agen- or other authority; and cies’ occupant emergency respon- (4) Submit biennially to GSA (as di- sibilities? rected in House of Representatives Re- Federal agencies, upon approval from port 103–356, dated November 10, 1993) a GSA, must— report that covers— (a) Provide emergency program pol- (i) Agency programs offered under icy guidance; Public law 103–172; (b) Review plans and organizations (ii) Description of each program; annually; (iii) Extent of employee participation (c) Assist in training of personnel; in, and costs to the Government associ- (d) Otherwise provide for the proper ated with, each program; administration of Occupant Emergency

206

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00216 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.275

Programs (as defined in § 102–71.20 of immediate danger to persons or prop- this chapter); erty, such as fire, explosion or the dis- (e) Solicit the assistance of the lessor covery of an explosive device (not in- in the establishment and implementa- cluding a bomb threat). tion of plans in leased space; and (f) Assist the Occupant Emergency § 102–74.260 What action must the Des- Organization (as defined in § 102–71.20 of ignated Official initiate when there this chapter) by providing technical is advance notice of an emergency? personnel qualified in the operation of The Designated Official must initiate utility systems and protective equip- appropriate action according to the ment. plan when there is advance notice of an § 102–74.245 Who makes the decision to emergency. activate the Occupant Emergency Organization? PARKING FACILITIES The decision to activate the Occu- § 102–74.265 Who must provide for the pant Emergency Organization must be regulation and policing of parking made by the Designated Official, or by facilities? the designated alternate official. After normal duty hours, the senior Federal Federal agencies, upon approval from official present must represent the Des- GSA, must provide for any necessary ignated Official or his/her alternates regulation and policing of parking fa- and must initiate action to cope with cilities, which may include— emergencies in accordance with the (a) The issuance of traffic rules and plans. regulations; (b) The installation of signs and § 102–74.250 What information must markings for traffic control (Signs and the Designated Official use to make markings must conform with the Man- a decision to activate the Occupant Emergency Organization? ual on Uniform Traffic Control Devices published by the Department of Trans- The Designated Official must make a portation); decision to activate the Occupant (c) The issuance of citations for park- Emergency Organization based upon ing violations; and the best available information, including— (d) The immobilization or removal of (a) An understanding of local ten- illegally parked vehicles. sions; (b) The sensitivity of target agen- § 102–74.270 Are vehicles required to cy(ies); display parking permits in parking facilities? (c) Previous experience with similar situations; When the use of parking space is con- (d) Advice from the Federal agency trolled as in § 102–74.265, all privately buildings manager; owned vehicles other than those au- (e) Advice from the appropriate Fed- thorized to use designated visitor or eral law enforcement official; and service areas must display a parking (f) Advice from Federal, State, and permit. This requirement may be local law enforcement agencies. waived in parking facilities where the number of available spaces regularly § 102–74.255 How must occupant evac- exceeds the demand for such spaces. uation or relocation be accomplished when there is immediate danger to persons or property, such § 102–74.275 May Federal agencies au- as fire, explosion or the discovery thorize lessors or parking manage- of an explosive device (not includ- ment contractors to manage, regu- ing a bomb threat)? late and police parking facilities? The Designated Official must initiate Yes, Federal agencies, upon approval action to evacuate or relocate occu- from GSA, may authorize lessors or pants in accordance with the plan by parking management contractors to sounding the fire alarm system or by manage, regulate and police parking other appropriate means when there is facilities.

207

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00217 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.280 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–74.280 Are privately owned vehi- § 102–74.290 May Federal agencies cles converted for propane allow employees to use parking carburetion permitted in under- spaces not required for official ground parking facilities? needs? Federal agencies must not permit Yes, Federal agencies may allow em- privately owned vehicles converted for ployees to use parking spaces not re- propane carburetion to enter under- quired for official needs. ground parking facilities unless the § 102–74.295 Who determines the num- owner provides to the occupant agency ber of employee parking spaces for and the Federal agency buildings man- each facility? ager the installer’s certification that The Federal agency buildings man- the installation methods and equip- ager must determine the total number ment comply with National Fire Pro- of spaces available for employee park- tection Association (NFPA) Standard ing. Typically, Federal agencies must No. 58. make a separate determination for each parking facility. However, in § 102–74.285 How must Federal agen- major metropolitan areas, Federal cies assign priority to parking agencies may determine that alloca- spaces in controlled areas? tions by zone would make parking Federal agencies must reserve offi- more efficient or more equitably avail- cial parking spaces, in the following able. order of priority, for— (a) Official postal vehicles at build- § 102–74.300 How must space available ings containing the U.S. Postal Serv- for employee parking be allocated among occupant agencies? ice’s mailing operations; (b) Federally owned vehicles used to The Federal agency buildings man- apprehend criminals, fight fires and ager must allocate space available for handle other emergencies; employee parking among occupant agencies on an equitable basis, such as (c) Private vehicles owned by Mem- by allocating such parking in propor- bers of Congress (but not their staffs); tion to each agency’s share of building (d) Private vehicles owned by Federal space, office space or total employee judges (appointed under Article III of population, as appropriate. In certain the Constitution), which may be cases, Federal agencies may allow a parked in those spaces assigned for the third party, such as a board composed use of the Court, with priority for them of representatives of agencies sharing set by the Administrative Office of the space, to determine proper parking al- U.S. Courts; locations among the occupant agen- (e) Other Federally owned and leased cies. vehicles, including those in motor pools or assigned for general use; § 102–74.305 How must Federal agen- (f) Service vehicles, vehicles used in cies assign available parking spaces to their employees? child care center operations, and vehicles of patrons and visitors (Federal Federal agencies must assign avail- agencies must allocate parking for dis- able parking spaces to their employees abled visitors whenever an agency’s using the following order of priority: mission requires visitor parking); and (a) Severely disabled employees (see definition in § 102–71.20 of this chapter). (g) Private vehicles owned by em- (b) Executive personnel and persons ployees, using spaces not needed for of- who work unusual hours. ficial business. (c) Vanpool/carpool vehicles. However, in major metropolitan (d) Privately owned vehicles of occu- areas, Federal agencies may determine pant agency employees that are regu- that allocations by zone would make larly used for Government business at parking more efficient or equitable, least 12 days per month and that qual- taking into account the priority for of- ify for reimbursement of mileage and ficial parking set forth in this section. travel expenses under Government travel regulations.

208

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00218 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.330

(e) Other privately owned vehicles of provided in their entirety to non-Fed- employees, on a space-available basis. eral parties; (In locations where parking allocations (c) Places of employment in the pri- are made on a zonal basis, GSA and af- vate sector or in other non-Federal fected agencies may cooperate to issue Governmental units that serve as the additional rules, as appropriate.) permanent or intermittent duty station of one or more Federal employees; § 102–74.310 What measures must Fed- and eral agencies take to improve the (d) Instances where an agency head utilization of parking facilities? establishes limited and narrow excep- Federal agencies must take all fea- tions that are necessary to accomplish sible measures to improve the utiliza- agency missions. Such exceptions must tion of parking facilities, including— be in writing, approved by the agency (a) The conducting of surveys and head and, to the fullest extent possible, studies; provide protection of nonsmokers from (b) The periodic review of parking exposure to environmental tobacco space allocations; smoke. Authority to establish such ex- (c) The dissemination of parking in- ceptions may not be delegated. formation to occupant agencies; (d) The implementation of parking [73 FR 77518, Dec. 19, 2008] incentives that promote ridesharing; § 102–74.325 Are designated smoking (e) The use of stack parking prac- areas authorized in interior space? tices, where appropriate; and (f) The employment of parking man- No, unless specifically established by agement contractors and conces- an agency head as provided by § 102– sionaires, where appropriate. 74.320(d). A previous exception for designated smoking areas is being elimi- SMOKING nated. All designated interior smoking areas will be closed effective June 19, § 102–74.315 What is the smoking pol- 2009. This six-month phase-in period is icy for interior space in Federal fa- designed to establish a fixed but rea- cilities? sonable time for implementing this Pursuant to Executive Order 13058, policy change. This phase-in period ‘‘Protecting Federal Employees and will provide agencies with time to com- the Public From Exposure to Tobacco ply with their obligations under the Smoke in the Federal Workplace’’ (3 Federal Service Labor-Management CFR, 1997 Comp., p. 216), it is the policy Relations Act, as amended, 5 U.S.C. Ch. of the executive branch to establish a 71, Labor-Management Relations, in smoke-free environment for Federal those circumstances where there is an employees and members of the public exclusive union representative for the visiting or using Federal facilities. The employees. smoking of tobacco products is prohib- [73 FR 77518, Dec. 19, 2008] ited in all interior space owned, rented or leased by the executive branch of § 102–74.330 What smoking restrictions the Federal Government. apply to outside areas under Execu- tive branch control? [73 FR 77518, Dec. 19, 2008] Effective June 19, 2009, smoking is § 102–74.320 Are there any exceptions prohibited in courtyards and within to the smoking policy for interior twenty-five (25) feet of doorways and space in Federal facilities? air intake ducts on outdoor space Yes, the smoking policy does not under the jurisdiction, custody or con- apply in— trol of GSA. This six-month phase-in (a) Any residential accommodation period is designed to establish a fixed for persons voluntarily or involun- but reasonable time for implementing tarily residing, on a temporary or long- this policy change. This phase-in pe- term basis, in a building owned, leased riod will provide agencies with time to or rented by the Federal Government; comply with their obligations under (b) Portions of Federally owned the Federal Service Labor-Manage- buildings leased, rented or otherwise ment Relations Act, as amended, 5

209

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00219 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.335 41 CFR Ch. 102 (7–1–11 Edition)

U.S.C. Ch. 71, Labor-Management Rela- § 102–74.350 Are agencies required to tions, in those circumstances where meet their obligations under the there is an exclusive union representa- Federal Service Labor-Management tive for the employees. Relations Act where there is an exclusive representative for the em- [73 FR 77518, Dec. 19, 2008] ployees prior to implementing this smoking policy? § 102–74.335 Who is responsible for fur- Yes. Where there is an exclusive rep- nishing and installing signs con- resentative for the employees, Federal cerning smoking restrictions in the building, and in and around build- agencies must meet their obligations ing entrance doorways and air in- under the Federal Service Labor-Man- take ducts? agement Relations Act, 5 U.S.C. Ch. 71, Labor-Management Relations, prior to Federal agency building managers implementing this section. In all other are responsible for furnishing and in- cases, agencies may consult directly stalling suitable, uniform signs in the with employees. building, and in and around building entrance doorways and air intake [73 FR 77518, Dec. 19, 2008] ducts, reading ‘‘No Smoking,’’ ‘‘No Smoking Except in Designated Areas,’’ § 102–74.351 If a state or local government has a smoke-free ordinance ‘‘No Smoking Within 25 Feet of Door- that is more strict than the smoking way,’’ or ‘‘No Smoking Within 25 Feet policy for Federal facilities, does of Air Duct,’’ as applicable. the state or local law or Federal policy control? [73 FR 77518, Dec. 19, 2008] The answer depends on whether the § 102–74.340 Who is responsible for facility is Federally owned or privately monitoring and controlling areas owned. If the facility is Federally designated for smoking by an agen- owned, then Federal preemption prin- cy head and for identifying those ciples apply and the Federal policy areas with proper signage? controls. If the facility is privately Agency heads are responsible for owned, then Federal tenants are sub- monitoring and controlling areas des- ject to the provisions of the state or ignated by them under § 102–74.320(d) local ordinance, even in the Federally for smoking and identifying these leased space, if the state or local restrictions are more stringent than the areas with proper signage. Suitable, Federal policy. uniform signs reading ‘‘Designated Smoking Area’’ must be furnished and [73 FR 77518, Dec. 19, 2008] installed by the occupant agency. ACCIDENT AND FIRE PREVENTION [73 FR 77518, Dec. 19, 2008] § 102–74.355 With what accident and § 102–74.345 Does the smoking policy fire prevention standards must Fed- in this part apply to the judicial eral facilities comply? branch? To the maximum extent feasible, This smoking policy applies to the Federal agencies must manage facili- judicial branch when it occupies space ties in accordance with the accident in buildings controlled by the execu- and fire prevention requirements iden- tive branch. Furthermore, the Federal tified in § 102–80.80 of this chapter. Chief Judge in a local jurisdiction may be deemed to be comparable to an § 102–74.360 What are the specific acci- agency head and may establish excep- dent and fire prevention respon- tions for Federal jurors and others as sibilities of occupant agencies? provided in § 102–74.320(d). Each occupant agency must— (a) Participate in at least one fire [73 FR 77518, Dec. 19, 2008] drill per year; (b) Maintain a neat and orderly facility to minimize the risk of accidental injuries and fires;

210

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00220 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.375

(c) Keep all exits, accesses to exits INSPECTION and accesses to emergency equipment clear at all times; § 102–74.370 What items are subject to inspection by Federal agencies? (d) Not bring hazardous, explosive or combustible materials into buildings Federal agencies may, at their dis- unless authorized by appropriate agen- cretion, inspect packages, briefcases cy officials and by GSA and unless pro- and other containers in the immediate tective arrangements determined nec- possession of visitors, employees or other persons arriving on, working at, essary by GSA have been provided; visiting, or departing from Federal (e) Use only draperies, curtains or property. Federal agencies may con- other hanging materials that are made duct a full search of a person and the of non-combustible or flame-resistant vehicle the person is driving or occu- fabric; pying upon his or her arrest. (f) Use only freestanding partitions and space dividers that are limited ADMISSION TO PROPERTY combustible, and fabric coverings that § 102–74.375 What is the policy on ad- are flame resistant; mitting persons to Government (g) Cooperate with GSA to develop property? and maintain fire prevention programs Federal agencies must— that provide the maximum safety for (a) Except as otherwise permitted, the occupants; close property to the public during (h) Train employees to use protective other than normal working hours. In equipment and educate employees to those instances where a Federal agency take appropriate fire safety pre- has approved the after-normal-work- cautions in their work; ing-hours use of buildings or portions (i) Keep facilities in the safest condi- thereof for activities authorized by tion practicable, and conduct periodic subpart D of this part, Federal agencies inspections in accordance with Execu- must not close the property (or af- tive Order 12196 and 29 CFR part 1960; fected portions thereof) to the public; (j) Immediately report accidents in- (b) Close property to the public dur- volving personal injury or property ing working hours only when situa- damage, which result from building tions require this action to provide for the orderly conduct of Government system or maintenance deficiencies, to business. The designated official under the Federal agency building manager; the Occupant Emergency Program may and make such decision only after con- (k) Appoint a safety, health and fire sultation with the buildings manager protection liaison to represent the oc- and the highest ranking representative cupant agency with GSA. of the law enforcement organization responsible for protection of the property Subpart C—Conduct on Federal or the area. The designated official is Property defined in § 102–71.20 of this chapter as the highest ranking official of the pri- APPLICABILITY mary occupant agency, or the alternate highest ranking official or des- § 102–74.365 To whom does this sub- ignee selected by mutual agreement by part apply? other occupant agency officials; and (c) When property or a portion there- The rules in this subpart apply to all of is closed to the public, restrict ad- property under the authority of GSA mission to the property, or the affected and to all persons entering in or on portion, to authorized persons who such property. Each occupant agency must register upon entry to the prop- shall be responsible for the observance erty and must, when requested, display of these rules and regulations. Federal Government or other identifying cre- agencies must post the notice in the dentials to Federal police officers or Appendix to this part at each public other authorized individuals when en- entrance to each Federal facility. tering, leaving or while on the property. Failure to comply with any of the

211

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00221 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.380 41 CFR Ch. 102 (7–1–11 Edition)

applicable provisions is a violation of GAMBLING these regulations. § 102–74.395 What is the policy con- PRESERVATION OF PROPERTY cerning gambling? (a) Except for the vending or ex- § 102–74.380 What is the policy con- change of chances by licensed blind op- cerning the preservation of prop- erators of vending facilities for any erty? lottery set forth in a State law and au- All persons entering in or on Federal thorized by section 2(a)(5) of the Ran- property are prohibited from— dolph-Sheppard Act (20 U.S.C. 107 et (a) Improperly disposing of rubbish seq.), all persons entering in or on Fed- on property; eral property are prohibited from— (b) Willfully destroying or damaging (1) Participating in games for money property; or other personal property; (c) Stealing property; (2) Operating gambling devices; (d) Creating any hazard on property (3) Conducting a lottery or pool; or to persons or things; or (4) Selling or purchasing numbers (e) Throwing articles of any kind tickets. from or at a building or climbing upon (b) This provision is not intended to prohibit prize drawings for personal statues, fountains or any part of the property at otherwise permitted func- building. tions on Federal property, provided that the game or drawing does not con- CONFORMITY WITH SIGNS AND stitute gambling per se. Gambling per DIRECTIONS se means a game of chance where the § 102–74.385 What is the policy con- participant risks something of value cerning conformity with official for the chance to gain or win a prize. signs and directions? NARCOTICS AND OTHER DRUGS Persons in and on property must at all times comply with official signs of § 102–74.400 What is the policy con- a prohibitory, regulatory or directory cerning the possession and use of nature and with the lawful direction of narcotics and other drugs? Federal police officers and other au- Except in cases where the drug is thorized individuals. being used as prescribed for a patient by a licensed physician, all persons en- DISTURBANCES tering in or on Federal property are prohibited from— § 102–74.390 What is the policy con- (a) Being under the influence, using cerning disturbances? or possessing any narcotic drugs, All persons entering in or on Federal hallucinogens, marijuana, barbitu- property are prohibited from loitering, rates, or amphetamines; or exhibiting disorderly conduct or exhib- (b) Operating a motor vehicle on the iting other conduct on property that— property while under the influence of (a) Creates loud or unusual noise or a alcoholic beverages, narcotic drugs, nuisance; hallucinogens, marijuana, barbitu- (b) Unreasonably obstructs the usual rates, or amphetamines. use of entrances, foyers, lobbies, cor- ALCOHOLIC BEVERAGES ridors, offices, elevators, stairways, or parking lots; § 102–74.405 What is the policy con- (c) Otherwise impedes or disrupts the cerning the use of alcoholic bev- performance of official duties by Gov- erages? ernment employees; or Except where the head of the respon- (d) Prevents the general public from sible agency or his or her designee has obtaining the administrative services granted an exemption in writing for provided on the property in a timely the appropriate official use of alcoholic manner. beverages, all persons entering in or on Federal property are prohibited from

212

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00222 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.425

being under the influence or using alco- (a) Distributing free samples of to- holic beverages. The head of the re- bacco products in or around Federal sponsible agency or his or her designee buildings, as mandated by Section 636 must provide a copy of all exemptions of Public Law 104–52; granted to the buildings manager and (b) Posting or affixing materials, the highest ranking representative of such as pamphlets, handbills, or flyers, the law enforcement organization, or on bulletin boards or elsewhere on other authorized officials, responsible GSA-controlled property, except as au- for the security of the property. thorized in § 102–74.410, or when these displays are conducted as part of au- SOLICITING, VENDING AND DEBT thorized Government activities; and COLLECTION (c) Distributing materials, such as pamphlets, handbills or flyers, unless § 102–74.410 What is the policy con- conducted as part of authorized Gov- cerning soliciting, vending and debt ernment activities. This prohibition collection? does not apply to public areas of the All persons entering in or on Federal property as defined in § 102–71.20 of this property are prohibited from soliciting chapter. However, any person or orga- alms (including money and non-mone- nization proposing to distribute mate- tary items) or commercial or political rials in a public area under this section donations, vending merchandise of all must first obtain a permit from the kinds, displaying or distributing com- building manager as specified in sub- mercial advertising, or collecting pri- part D of this part. Any such person or vate debts, except for— organization must distribute materials (a) National or local drives for funds only in accordance with the provisions for welfare, health or other purposes as of subpart D of this part. Failure to authorized by 5 CFR part 950, entitled comply with those provisions is a vio- ‘‘Solicitation Of Federal Civilian And lation of these regulations. Uniformed Service Personnel For Con- tributions To Private Voluntary Orga- PHOTOGRAPHS FOR NEWS, ADVERTISING nizations,’’ and sponsored or approved OR COMMERCIAL PURPOSES by the occupant agencies; § 102–74.420 What is the policy con- (b) Concessions or personal notices cerning photographs for news, ad- posted by employees on authorized bul- vertising or commercial purposes? letin boards; Except where security regulations, (c) Solicitation of labor organization rules, orders, or directives apply or a membership or dues authorized by oc- Federal court order or rule prohibits it, cupant agencies under the Civil Service persons entering in or on Federal prop- Reform Act of 1978 (Pub. L. 95–454); erty may take photographs of— (d) Lessee, or its agents and employ- (a) Space occupied by a tenant agen- ees, with respect to space leased for cy for non-commercial purposes only commercial, cultural, educational, or with the permission of the occupying recreational use under 40 U.S.C. 581(h). agency concerned; Public areas of GSA-controlled prop- (b) Space occupied by a tenant agen- erty may be used for other activities in cy for commercial purposes only with accordance with subpart D of this part; written permission of an authorized of- (e) Collection of non-monetary items ficial of the occupying agency con- that are sponsored or approved by the cerned; and occupant agencies; and (c) Building entrances, lobbies, foy- (f) Commercial activities sponsored ers, corridors, or auditoriums for news by recognized Federal employee asso- purposes. ciations and on-site child care centers. DOGS AND OTHER ANIMALS POSTING AND DISTRIBUTING MATERIALS § 102–74.425 What is the policy con- § 102–74.415 What is the policy for cerning dogs and other animals on posting and distributing materials? Federal property? All persons entering in or on Federal No person may bring dogs or other property are prohibited from— animals on Federal property for other

213

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00223 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.426 41 CFR Ch. 102 (7–1–11 Edition)

than official purposes. However, a dis- EXPLOSIVES abled person may bring a seeing-eye dog, a guide dog, or other animal as- § 102–74.435 What is the policy consisting or being trained to assist that cerning explosives on Federal prop- individual. erty? No person entering or while on Fed- BREASTFEEDING eral property may carry or possess explosives, or items intended to be used § 102–74.426 May a woman breastfeed to fabricate an explosive or incendiary her child in a Federal building or device, either openly or concealed, ex- on Federal property? cept for official purposes. Yes. Public Law 108–199, Section 629, Division F, Title VI (January 23, 2004), WEAPONS provides that a woman may breastfeed her child at any location in a Federal § 102–74.440 What is the policy con- building or on Federal property, if the cerning weapons on Federal prop- woman and her child are otherwise au- erty? thorized to be present at the location. Federal law prohibits the possession of firearms or other dangerous weapons VEHICULAR AND PEDESTRIAN TRAFFIC in Federal facilities and Federal court facilities by all persons not specifically § 102–74.430 What is the policy con- authorized by 18 U.S.C. 930. Violators cerning vehicular and pedestrian will be subject to fine and/or imprison- traffic on Federal property? ment for periods up to five (5) years. All vehicle drivers entering or while on Federal property— NONDISCRIMINATION (a) Must drive in a careful and safe manner at all times; § 102–74.445 What is the policy con- (b) Must comply with the signals and cerning discrimination on Federal property? directions of Federal police officers or other authorized individuals; Federal agencies must not discrimi- (c) Must comply with all posted traf- nate by segregation or otherwise fic signs; against any person or persons because (d) Must comply with any additional of race, creed, religion, age, sex, color, posted traffic directives approved by disability, or national origin in fur- the GSA Regional Administrator, nishing or by refusing to furnish to which will have the same force and ef- such person or persons the use of any fect as these regulations; facility of a public nature, including (e) Are prohibited from blocking en- all services, privileges, accommoda- trances, driveways, walks, loading tions, and activities provided on the platforms, or fire hydrants; and property. (f) Are prohibited from parking on PENALTIES Federal property without a permit. Parking without authority, parking in § 102–74.450 What are the penalties for unauthorized locations or in locations violating any rule or regulation in reserved for other persons, or parking this subpart? contrary to the direction of posted A person found guilty of violating signs is prohibited. Vehicles parked in any rule or regulation in this subpart violation, where warning signs are while on any property under the charge posted, are subject to removal at the and control of GSA shall be fined under owner’s risk and expense. Federal agen- title 18 of the United States Code, im- cies may take as proof that a motor ve- prisoned for not more than 30 days, or hicle was parked in violation of these both. regulations or directives as prima facie evidence that the registered owner was responsible for the violation.

214

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00224 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.495

IMPACT ON OTHER LAWS OR § 102–74.475 If an applicant proposes REGULATIONS to use a public area to solicit funds, is the applicant required to make a § 102–74.455 What impact do the rules certification? and regulations in this subpart Yes, if an applicant proposes to use a have on other laws or regulations? public area to solicit funds, the appli- No rule or regulation in this subpart cant must certify, in writing, that— may be construed to nullify any other (a) The applicant is a representative Federal laws or regulations or any of and will be soliciting funds for the State and local laws and regulations sole benefit of a religion or religious applicable to any area in which the group; or property is situated (40 U.S.C. 121 (c)). (b) The applicant’s organization has received an official ruling of tax-exempt status from the Internal Revenue Subpart D—Occasional Use of Service under 26 U.S.C. 501; or, alter- Public Buildings natively, that an application for such a ruling is still pending. § 102–74.460 What is the scope of this subpart? PERMITS This subpart establishes rules and § 102–74.480 How many days does a regulations for the occasional use of Federal agency have to issue a per- public areas of public buildings for cul- mit following receipt of a completed tural, educational and recreational ac- application? tivities as provided by 40 U.S.C. Federal agencies must issue permits 581(h)(2). within 10 working days following the receipt of the completed applications, APPLICATION FOR PERMIT unless the permit is disapproved in accordance with § 102–74.500. § 102–74.465 Is a person or organization that wishes to use a public § 102–74.485 Is there any limitation on area required to apply for a permit the length of time of a permit? from a Federal agency? Yes, a permit may not be issued for a Yes, any person or organization wish- period of time in excess of 30 calendar ing to use a public area must file an ap- days, unless specifically approved by plication for a permit from the Federal the Regional Officer (as defined in agency buildings manager. § 102–71.20 of this chapter). After the expiration of a permit, Federal agencies § 102–74.470 What information must may issue a new permit upon submis- persons or organizations submit so sion of a new application. In such a that Federal agencies may consider case, applicants may incorporate by their application for a permit? reference all required information filed Applicants must submit the fol- with the prior application. lowing information: (a) Their full names, mailing address- § 102–74.490 What if more than one es, and telephone numbers. permit is requested for the same area and time? (b) The organization sponsoring the proposed activity. Federal agencies will issue permits on a first-come, first-served, basis (c) The individual(s) responsible for when more than one permit is re- supervising the activity. quested for the same area and times. (d) Documentation showing that the applicant has authority to represent § 102–74.495 If a permit involves dem- the sponsoring organization. onstrations or activities that may (e) A description of the proposed ac- lead to civil disturbances, what activity, including the dates and times tion must a Federal agency take before approving such a permit appli- during which it is to be conducted and cation? the number of persons to be involved. Before approving a permit application, Federal agencies must coordinate

215

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00225 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.500 41 CFR Ch. 102 (7–1–11 Edition)

with their law enforcement organiza- in § 102–71.20 of this chapter), in writ- tion if a permit involves demonstra- ing, of the intent to appeal within 5 tions or activities that may lead to calendar days of the notification of dis- civil disturbances. approval or cancellation.

DISAPPROVAL OF APPLICATIONS OR § 102–74.515 Will the affected person or CANCELLATION OF PERMITS organization and the Federal agency buildings manager have an op- § 102–74.500 Can Federal agencies dis- portunity to state their positions on approve permit applications or can- the issues? cel issued permits? Yes, during the appeal process, the Yes, Federal agencies may disapprove affected person or organization and the any permit application or cancel an Federal agency buildings manager will issued permit if— have an opportunity to state their po- (a) The applicant has failed to submit sitions on the issues, both verbally and all information required under §§ 102– in writing. 74.470 and 102–74.475, or has falsified such information; § 102–74.520 How much time does the (b) The proposed use is a commercial Regional Officer have to affirm or reverse the Federal agency build- activity as defined in § 102–71.20 of this ings manager’s decision after re- chapter; ceiving the notification of appeal (c) The proposed use interferes with from the affected person or organi- access to the public area, disrupts offi- zation? cial Government business, interferes The Regional Officer must affirm or with approved uses of the property by reverse the Federal agency buildings tenants or by the public, or damages manager’s decision, based on the infor- any property; mation submitted, within 10 calendar (d) The proposed use is intended to days of the date on which the Regional influence or impede any pending judi- Officer received notification of the ap- cial proceeding; peal. If the decision is not rendered (e) The proposed use is obscene with- within 10 days, the application will be in the meaning of obscenity as defined considered to be approved or the per- in 18 U.S.C. 1461–65; or mit validly issued. The Regional Offi- (f) The proposed use violates the pro- cer will promptly notify the applicant hibition against political solicitations or permittee and the buildings man- in 18 U.S.C. 607. ager of the decision and the reasons therefor. § 102–74.505 What action must Federal agencies take after disapproving an SCHEDULE OF USE application or canceling an issued permit? § 102–74.525 May Federal agencies re- Upon disapproving an application or serve time periods for the use of canceling a permit, Federal agencies public areas for official Govern- must promptly— ment business or for maintenance, (a) Notify the applicant or permittee repair and construction? of the reasons for the action; and Yes, Federal agencies may reserve (b) Inform the applicant or permittee certain time periods for use of public of his/her appeal rights under § 102– areas— 74.510. (a) For official Government business; or APPEALS (b) For maintenance, repair, and construction. § 102–74.510 How may the disapproval of a permit application or cancella- HOURS OF USE tion of an issued permit be appealed? § 102–74.530 When may public areas be A person or organization may appeal used? the disapproval of an application or Permittees may use public areas dur- cancellation of an issued permit by no- ing or after regular working hours of tifying the Regional Officer (as defined Federal agencies, provided that such

216

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00226 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–74.565

uses will not interfere with Govern- CONDUCT ment business. When public areas are used by permittees after normal work- § 102–74.555 What rules of conduct ing hours, Federal agencies must lock, must all permittees observe while barricade or identify by signs, as ap- on Federal property? propriate, all adjacent areas not ap- Permittees are subject to all rules proved for such use to restrict permit- and regulations governing conduct on tees’ activities to approved areas. Federal property as set forth in subpart C of this part. In addition, a per- SERVICES AND COSTS mittee must— (a) Not misrepresent his or her iden- § 102–74.535 What items may Federal tity to the public; agencies provide to permittees free (b) Not conduct any activities in a of charge? misleading or fraudulent manner; Federal agencies may provide to per- (c) Not discriminate on the basis of mittees at no cost— race, creed, religion, age, color, dis- (a) Space; and ability, sex, or national origin in con- (b) Services normally provided at the ducting activities; building in question during normal (d) Not distribute any item, nor post hours of building operation, such as se- or otherwise affix any item, for which curity, cleaning, heating, ventilation, prior written approval under § 102–74.415 and air-conditioning. The Regional Of- has not been obtained; ficer must approve an applicant’s re- (e) Not leave leaflets or other mate- quest to provide its own services, such rials unattended on the property; as security and cleaning, prior to per- (f) Not engage in activities that mit approval. would interfere with the preferences afforded blind licensees under the Ran- § 102–74.540 What are the items for dolph-Sheppard Act (20 U.S.C. 107); and which permittees must reimburse (g) Display identification badges Federal agencies? while on Federal property, if engaging Permittees must reimburse Federal in the solicitation of funds as author- agencies for services over and above ized by § 102–74.475. Each badge must in- those normally provided during normal dicate the permittee’s name, address, business hours. Federal agencies may telephone number, and organization. provide the services free of charge if NON-AFFILIATION WITH THE the cost is insignificant and if it is in GOVERNMENT the public interest. § 102–74.560 May Federal agencies ad- § 102–74.545 May permittees make al- vise the public of the presence of terations to the public areas? any permittees and their non-affili- Permittees must not make alteration with the Federal Govern- ations to public areas, except with the ment? prior written approval of the Federal Yes, Federal agencies reserve the agency buildings manager. Federal right to advise the public through signs agencies must not approve such alter- or announcements of the presence of ations unless the Federal agency deter- any permittees and of their non-affili- mines that the proposed alterations to ation with the Federal Government. a building should be made to encourage and aid in the proposed use. Permittees Subpart E—Installing, Repairing, making alterations must ensure the and Replacing Sidewalks safety of users and prevent damage to property. § 102–74.565 What is the scope of this subpart? § 102–74.550 What items are permittees In accordance with 40 U.S.C. 589, Fed- responsible for furnishing? eral agencies must comply with the Permittees are responsible for fur- real property policies in this subpart nishing items such as tickets, audio- governing the installation, repair and visual equipment, and other items that replacement of sidewalks around build- are necessary for the proposed use. ings, installations, properties, or

217

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00227 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–74.570 41 CFR Ch. 102 (7–1–11 Edition)

grounds under the control of Executive (OPM) to ensure the application and agencies and owned by the United implementation of Section 359 to 25 States. percent of the Federal workforce by April 2001, and to an additional 25 per- § 102–74.570 Are State and local gov- cent of such workforce each year there- ernments required to fund the cost of installing, repairing, and replac- after. Thus, the law provides that its ing sidewalks? requirements must be applied to 100 percent of the Federal workforce by No, the Federal Government must April 2004. fund the cost of installing, repairing, and replacing sidewalks. Funds appro- (b) In accordance with 40 U.S.C. 587, priated to the agency for installation, when considering whether to acquire repair, and maintenance, generally, any space, quarters, buildings, or other must be available for expenditure to facilities for use by employees of any accomplish the purposes of this sub- Executive agency, the head of that part. agency shall consider whether the need for the facilities can be met using al- § 102–74.575 How do Federal agencies ternative workplace arrangements. arrange for work on sidewalks? Upon approval from GSA, Federal § 102–74.590 What steps must agencies agencies may— take to implement these laws and (a) Authorize the appropriate State policies? or local government to install, repair (a) As interpreted by OPM Memo- and replace sidewalks, or arrange for randum to agencies (February 9, 2001), this work, and reimburse them for this Public Law 106–346 instructs Federal work; or agencies to— (b) Contract or otherwise arrange and (1) Review telework barriers, act to pay directly for installing, repairing remove them, and increase actual par- and/or replacing sidewalks. ticipation; § 102–74.580 Who decides when to re- (2) Establish eligibility criteria; and place a sidewalk? (3) Subject to any applicable agency Federal agencies, giving due consid- policies or bargaining obligations, eration to State and local standards allow employees who meet the criteria and specifications for sidewalks, decide and want to participate the oppor- when to install, repair or replace a tunity if they are satisfactory per- sidewalk. However, Federal agencies formers. may prescribe other standards and (b) 40 U.S.C. 587 requires agencies specifications for sidewalks whenever considering the acquisition of facilities necessary to achieve architectural har- for use by Federal employees to con- mony and maintain facility security. sider whether the facility need can be met using alternative workplace ar- Subpart F—Telework rangements, such as telecommuting, hoteling, virtual offices, and other dis- § 102–74.585 What Federal facility tributive work arrangements. If the telework policy must Executive agency needs assistance in this inves- agencies follow? tigation and/or subsequent application Executive agencies must follow these of alternative workplace arrange- telework policies: ments, GSA will provide guidance, as- (a) In accordance with Section 359 of sistance, and oversight, as needed, re- Public Law 106–346, each Executive garding establishment and operation of agency must establish a policy under alternative workplace arrangements. which eligible employees of the agency (c) Agencies evaluating alternative may participate in telecommuting to workplace arrangements should also the maximum extent possible without make these evaluations in coordination diminished employee performance. with Integrated Workplace policies and Public 106–346 became effective on Oc- tober 23, 2000, and required the Director strategies. See § 102–79.110. of the Office of Personnel Management

218

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00228 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–74, App.

§ 102–74.595 How can agencies obtain 102–74 at each public entrance to each Fed- guidance, assistance, and oversight eral facility. regarding alternative workplace ar- Inspection (41 CFR 102–74.370). Federal agen- rangements from GSA? cies may, at their discretion, inspect packages, briefcases and other containers in the Agencies may request assistance immediate possession of visitors, employees from the GSA/PBS regional office re- or other persons arriving on, working at, vis- sponsible for providing space in the ge- iting, or departing from Federal property. ographic area under consideration. Federal agencies may conduct a full search of a person and the vehicle the person is § 102–74.600 Should Federal agencies driving or occupying upon his or her arrest. utilize telework centers? Admission to Property (41 CFR 102–74.375). Federal agencies must— Yes. In accordance with Public Law (a) Except as otherwise permitted, close 107–217 (August 21, 2002), each of the fol- property to the public during other than nor- lowing departments and agencies, in mal working hours. In those instances where each fiscal year, must make at least a Federal agency has approved the after-nor- $50,000 available from amounts pro- mal-working-hours use of buildings or por- vided for salaries and expenses for car- tions thereof for activities authorized by rying out a flexiplace work telecom- subpart D of this part, Federal agencies must muting program (i.e., to pay telework not close the property (or affected portions thereof) to the public; center program user fees): (b) Close property to the public during (a) Department of Agriculture. working hours only when situations require (b) Department of Commerce. this action to provide for the orderly con- (c) Department of Defense. duct of Government business. The designated (d) Department of Education. official under the Occupant Emergency Pro- (e) Department of Energy. gram may make such decision only after (f) Department of Health and Human consultation with the buildings manager and the highest ranking representative of the Services. law enforcement organization responsible for (g) Department of Housing and Urban protection of the property or the area. The Development. designated official is defined in § 102–71.20 of (h) Department of the Interior. this chapter as the highest ranking official (i) Department of Justice. of the primary occupant agency, or the alter- (j) Department of Labor. nate highest ranking official or designee se- (k) Department of State. lected by mutual agreement by other occupant agency officials; and (l) Department of Transportation. (c) When property or a portion thereof is (m) Department of the Treasury. closed to the public, restrict admission to (n) Department of Veterans Affairs. the property, or the affected portion, to au- (o) Environmental Protection Agen- thorized persons who must register upon cy. entry to the property and must, when re- (p) General Services Administration. quested, display Government or other identi- (q) Office of Personnel Management. fying credentials to Federal police officers or other authorized individuals when entering, (r) Small Business Administration. leaving or while on the property. Failure to (s) Social Security Administration. comply with any of the applicable provisions (t) United States Postal Service. is a violation of these regulations. Preservation of Property (41 CFR 102–74.380). APPENDIX TO PART 102–74—RULES AND All persons entering in or on Federal prop- REGULATIONS GOVERNING CONDUCT erty are prohibited from— ON FEDERAL PROPERTY (a) Improperly disposing of rubbish on property; FEDERAL MANAGEMENT REGULATIONS (b) Willfully destroying or damaging property; TITLE 41, CODE OF FEDERAL REGULATIONS, (c) Stealing property; PART 102–74, SUBPART C (d) Creating any hazard on property to per- Applicability (41 CFR 102–74.365). The rules sons or things; and in this subpart apply to all property under (e) Throwing articles of any kind from or the authority of the U.S. General Services at a building or the climbing upon statues, Administration and to all persons entering fountains or any part of the building. in or on such property. Each occupant agen- Conformity with Signs and Directions (41 CFR cy shall be responsible for the observance of 102–74.385). Persons in and on property must these rules and regulations. Federal agencies at all times comply with official signs of a must post the notice in the Appendix to part prohibitory, regulatory or directory nature

219

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00229 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–74, App. 41 CFR Ch. 102 (7–1–11 Edition)

and with the lawful direction of Federal po- tising, or collecting private debts, except lice officers and other authorized individ- for— uals. (a) National or local drives for funds for Disturbances (41 CFR 102–74.390). All persons welfare, health or other purposes as author- entering in or on Federal property are pro- ized by 5 CFR part 950, entitled ‘‘Solicitation hibited from loitering, exhibiting disorderly of Federal Civilian And Uniformed Service conduct or exhibiting other conduct on prop- Personnel For Contributions To Private Vol- erty that— untary Organizations,’’ and sponsored or ap- (a) Creates loud or unusual noise or a nui- proved by the occupant agencies; sance; (b) Concessions or personal notices posted (b) Unreasonably obstructs the usual use of by employees on authorized bulletin boards; entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; (c) Solicitation of labor organization mem- (c) Otherwise impedes or disrupts the per- bership or dues authorized by occupant agen- formance of official duties by Government cies under the Civil Service Reform Act of employees; or 1978 (Public Law 95–454); (d) Prevents the general public from ob- (d) Lessee, or its agents and employees, taining the administrative services provided with respect to space leased for commercial, on the property in a timely manner. cultural, educational, or recreational use Gambling (41 CFR 102–74.395). Except for the under the Public Buildings Cooperative Use vending or exchange of chances by licensed Act of 1976 (40 U.S.C. 581(h)). Public areas of blind operators of vending facilities for any GSA-controlled property may be used for lottery set forth in a State law and author- other activities in accordance with subpart ized by section 2(a)(5) of the Randolph- D of this part; Sheppard Act (20 U.S.C. 107 et seq.), all per- (e) Collection of non-monetary items that sons entering in or on Federal property are are sponsored or approved by the occupant prohibited from— agencies; and (a) Participating in games for money or (f) Commercial activities sponsored by rec- other personal property; ognized Federal employee associations and (b) Operating gambling devices; on-site child care centers. (c) Conducting a lottery or pool; or Posting and Distributing Materials (41 CFR (d) Selling or purchasing numbers tickets. 102–74.415). All persons entering in or on Fed- Narcotics and Other Drugs (41 CFR 102– eral property are prohibited from— 74.400). Except in cases where the drug is (a) Distributing free samples of tobacco being used as prescribed for a patient by a li- products in or around Federal buildings, censed physician, all persons entering in or under Public Law 104–52, Section 636; on Federal property are prohibited from— (a) Being under the influence, using or pos- (b) Posting or affixing materials, such as sessing any narcotic drugs, hallucinogens, pamphlets, handbills, or flyers, on bulletin marijuana, barbiturates, or amphetamines; boards or elsewhere on GSA-controlled prop- or erty, except as authorized in § 102–74.410, or (b) Operating a motor vehicle on the prop- when these displays are conducted as part of erty while under the influence of alcoholic authorized Government activities; and beverages, narcotic drugs, hallucinogens, (c) Distributing materials, such as pam- marijuana, barbiturates, or amphetamines. phlets, handbills, or flyers, unless conducted Alcoholic Beverages (41 CFR 102–74.405). Ex- as part of authorized Government activities. cept where the head of the responsible agen- This prohibition does not apply to public cy or his or her designee has granted an ex- areas of the property as defined in § 102–71.20 emption in writing for the appropriate offi- of this chapter. However, any person or orga- cial use of alcoholic beverages, all persons nization proposing to distribute materials in entering in or on Federal property are pro- a public area under this section must first hibited from being under the influence or obtain a permit from the building manager using alcoholic beverages. The head of the as specified in subpart D of this part. Any responsible agency or his or her designee such person or organization must distribute must provide a copy of all exemptions grant- materials only in accordance with the provi- ed to the buildings manager and the highest sions of subpart D of this part. Failure to ranking representative of the law enforce- comply with those provisions is a violation ment organization, or other authorized offi- of these regulations. cials, responsible for the security of the Photographs for News, Advertising, or Com- property. mercial Purposes (41 CFR 102–74.420). Except Soliciting, Vending and Debt Collection (41 where security regulations, rules, orders, or CFR 102–74.410). All persons entering in or on directives apply or a Federal court order or Federal property are prohibited from solic- rule prohibits it, persons entering in or on iting alms (including money and non-mone- Federal property may take photographs of— tary items) or commercial or political dona- (a) Space occupied by a tenant agency for tions; vending merchandise of all kinds; dis- non-commercial purposes only with the per- playing or distributing commercial adver- mission of the occupying agency concerned;

220

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00230 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–75

(b) Space occupied by a tenant agency for persons because of race, creed, religion, age, commercial purposes only with written per- sex, color, disability, or national origin in mission of an authorized official of the occu- furnishing or by refusing to furnish to such pying agency concerned; and person or persons the use of any facility of a (c) Building entrances, lobbies, foyers, cor- public nature, including all services, privi- ridors, or auditoriums for news purposes. leges, accommodations, and activities pro- Dogs and Other Animals (41 CFR 102–74.425). vided on the property. No person may bring dogs or other animals Penalties (41 CFR 102–74.450). A person found on Federal property for other than official guilty of violating any rule or regulation in purposes. However, a disabled person may subpart C of this part while on any property bring a seeing-eye dog, a guide dog, or other under the charge and control of the U.S. animal assisting or being trained to assist General Services Administration shall be that individual. fined under title 18 of the United States Breastfeeding (41 CFR 102–74.426). Public Code, imprisoned for not more than 30 days, Law 108–199, Section 629, Division F, Title VI or both. (January 23, 2004), provides that a woman Impact on Other Laws or Regulations (41 CFR may breastfeed her child at any location in 102–74.455). No rule or regulation in this sub- a Federal building or on Federal property, if part may be construed to nullify any other the woman and her child are otherwise au- Federal laws or regulations or any State and thorized to be present at the location. local laws and regulations applicable to any Vehicular and Pedestrian Traffic (41 CFR area in which the property is situated (40 102–74.430). All vehicle drivers entering or U.S.C. 121 (c)). while on Federal property— (a) Must drive in a careful and safe manner WARNING—WEAPONS PROHIBITED at all times; (b) Must comply with the signals and direc- Federal law prohibits the possession of tions of Federal police officers or other au- firearms or other dangerous weapons in Fed- thorized individuals; eral facilities and Federal court facilities by (c) Must comply with all posted traffic all persons not specifically authorized by signs; Title 18, United States Code, Section 930. (d) Must comply with any additional post- Violators will be subject to fine and/or im- ed traffic directives approved by the GSA Re- prisonment for periods up to five (5) years. gional Administrator, which will have the same force and effect as these regulations; PART 102–75—REAL PROPERTY (e) Are prohibited from blocking entrances, driveways, walks, loading platforms, or fire DISPOSAL hydrants; and (f) Are prohibited from parking on Federal Subpart A—General Provisions property without a permit. Parking without Sec. authority, parking in unauthorized locations 102–75.5 What is the scope of this part? or in locations reserved for other persons, or 102–75.10 What basic real property disposal parking contrary to the direction of posted policy governs disposal agencies? signs is prohibited. Vehicles parked in violation, where warning signs are posted, are REAL PROPERTY DISPOSAL SERVICES subject to removal at the owner’s risk and expense. Federal agencies may take as proof 102–75.15 What real property disposal serv- that a motor vehicle was parked in violation ices must disposal agencies provide under of these regulations or directives as prima a delegation of authority from GSA? facie evidence that the registered owner was 102–75.20 How can Federal agencies with responsible for the violation. independent disposal authority obtain re- Explosives (41 CFR 102–74.435). No person en- lated disposal services? tering or while on property may carry or possess explosives, or items intended to be Subpart B—Utilization of Excess Real used to fabricate an explosive or incendiary Property device, either openly or concealed, except for official purposes. 102–75.25 What are landholding agencies’ re- Weapons (41 CFR 102–74.440). Federal law sponsibilities concerning the utilization prohibits the possession of firearms or other of excess property? dangerous weapons in Federal facilities and 102–75.30 What are disposal agencies’ re- Federal court facilities by all persons not sponsibilities concerning the utilization specifically authorized by Title 18, United of excess property? States Code, Section 930. Violators will be 102–75.35 [Reserved] subject to fine and/or imprisonment for peri- STANDARDS ods up to five (5) years. Nondiscrimination (41 CFR 102–74.445). Fed- 102–75.40 What are the standards that each eral agencies must not discriminate by seg- Executive agency must use to identify regation or otherwise against any person or unneeded Federal real property?

221

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00231 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–75 41 CFR Ch. 102 (7–1–11 Edition)

102–75.45 What does the term ‘‘Not utilized’’ TITLE REPORT mean? 102–75.125 What information must agencies 102–75.50 What does the term ‘‘Underuti- include in the title report? lized’’ mean? 102–75.130 If hazardous substance activity 102–75.55 What does the term ‘‘Not being put took place on the property, what specific to optimum use’’ mean? information must an agency include on the title report? GUIDELINES 102–75.135 If no hazardous substance activity 102–75.60 What are landholding agencies’ re- took place on the property, what specific sponsibilities concerning real property information must an agency include in surveys? the title report? 102–75.65 Why is it important for Executive agencies to notify the disposal agency of OTHER NECESSARY INFORMATION its real property needs? 102–75.140 In addition to the title report, 102–75.70 Are their any exceptions to this and all necessary environmental infor- notification policy? mation and certifications, what informa- 102–75.75 What is the most important con- tion must an Executive agency transmit sideration in evaluating a proposed with the Report of Excess Real Property transfer of excess real property? (Standard Form 118)? 102–75.80 What are an Executive agency’s responsibilities before requesting a trans- EXAMINATION FOR ACCEPTABILITY fer of excess real property? 102–75.145 Is GSA required to review each 102–75.85 Can disposal agencies transfer ex- report of excess? cess real property to agencies for pro- 102–75.150 What happens when GSA deter- grams that appear to be scheduled for mines that the report of excess is ade- substantial curtailment or termination? quate? 102–75.90 How is excess real property needed 102–75.155 What happens if GSA determines for office, storage, and related purposes that the report of excess is insufficient? normally transferred to the requesting agency? DESIGNATION AS PERSONAL PROPERTY 102–75.95 Can Federal agencies that nor- 102–75.160 Should prefabricated movable mally do not require real property (other structures be designated real or personal than for office, storage, and related pur- property for disposition purposes? poses) or that may not have statutory 102–75.165 Should related personal property authority to acquire such property, ob- be designated real or personal property tain the use of excess real property? for disposition purposes? 102–75.170 What happens to the related per- LAND WITHDRAWN OR RESERVED FROM THE sonal property in a structure scheduled PUBLIC DOMAIN for demolition? 102–75.100 When an agency holds land with- TRANSFERS drawn or reserved from the public domain and determines that it no longer 102–75.175 What are GSA’s responsibilities needs this land, what must it do? regarding transfer requests? 102–75.105 What responsibility does the De- 102–75.180 May landholding agencies trans- partment of the Interior have if it deter- fer excess real property without noti- mines that minerals in the land are un- fying GSA? suitable for disposition under the public 102–75.185 In those instances where land- land mining and mineral leasing laws? holding agencies may transfer excess real property without notifying GSA, which TRANSFERS UNDER OTHER LAWS policies must they follow? 102–75.190 What amount must the transferee 102–75.110 Can transfers of real property be agency pay for the transfer of excess real made under authority of laws other than property? those codified in Title 40 of the United 102–75.195 If the transferor agency is a whol- States Code? ly owned Government corporation, what REPORTING OF EXCESS REAL PROPERTY amount must the transferee agency pay? 102–75.200 What amount must the transferee 102–75.115 Must reports of excess real prop- agency pay if property is being trans- erty and related personal property be ferred for the purpose of upgrading the prepared on specific forms? transferee agency’s facilities? 102–75.120 Is there any other information 102–75.205 Are transfers ever made without that needs to accompany (or be sub- reimbursement by the transferee agency? mitted with) the Report of Excess Real 102–75.210 What must a transferee agency Property (Standard Form 118)? include in its request for an exception

222

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00232 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–75

from the 100 percent reimbursement re- Chapter 5 of Subtitle I of Title 40 of the quirement? United States Code? 102–75.215 Who must endorse requests for exception to the 100 percent reimbursement CREDIT DISPOSALS requirement? 102–75.295 What is the policy on extending 102–75.220 Where should an agency send a re- credit in connection with the disposal of quest for exception to the 100 percent re- surplus property? imbursement requirement? 102–75.225 Who must review and approve a DESIGNATION OF DISPOSAL AGENCIES request for exception from the 100 percent reimbursement requirement? 102–75.296 When may a landholding agency 102–75.230 Who is responsible for property other than GSA be the disposal agency protection and maintenance costs while for real and related personal property? the request for exception is being re- 102–75.297 Are there any exceptions to when viewed? landholding agencies may serve as the 102–75.235 May disposal agencies transfer ex- disposal agency? cess property to the Senate, the House of 102–75.298 Can agencies request that GSA be Representatives, and the Architect of the the disposal agency for real property and Capitol? real property interests described in § 102– 75.296? TEMPORARY UTILIZATION 102–75.299 What are landholding agencies’ 102–75.240 May excess real property be tem- responsibilities if GSA conducts the dis- porarily assigned/reassigned? posal?

NON-FEDERAL INTERIM USE OF EXCESS APPRAISAL PROPERTY 102–75.300 Are appraisals required for all 102–75.245 When can landholding agencies real property disposal transactions? grant rights for non-Federal interim use 102–75.305 What type of appraisal value of excess property reported to GSA? must be obtained for real property disposal transactions? Subpart C—Surplus Real Property Disposal 102–75.310 Who must agencies use to appraise the real property? 102–75.250 What general policy must the disposal agency follow concerning the dis- 102–75.315 Are appraisers authorized to con- posal of surplus property? sider the effect of historic covenants on 102–75.255 What are disposal agencies’ spe- the fair market value? cific responsibilities concerning the dis- 102–75.320 Does appraisal information need posal of surplus property? to be kept confidential? 102–75.260 When may the disposal agency dispose of surplus real property by ex- INSPECTION change for privately owned property? 102–75.325 What responsibility does the land- 102–75.265 Are conveyance documents re- holding agency have to provide persons quired to identify all agreements and the opportunity to inspect available sur- representations concerning property re- plus property? strictions and conditions? SUBMISSION OF OFFERS TO PURCHASE OR APPLICABILITY OF ANTITRUST LAWS LEASE 102–75.270 Must antitrust laws be considered 102–75.330 What form must all offers to pur- when disposing of property? chase or lease be in? 102–75.275 Who determines whether the proposed disposal would create or maintain PROVISIONS RELATING TO ASBESTOS a situation inconsistent with antitrust laws? 102–75.335 Where asbestos is identified, what 102–75.280 What information concerning a information must the disposal agency in- proposed disposal must a disposal agency corporate into the offer to purchase and provide to the Attorney General to deter- the conveyance document? mine the applicability of antitrust laws? 102–75.285 Can a disposal agency dispose of PROVISIONS RELATING TO HAZARDOUS real property to a private interest speci- SUBSTANCE ACTIVITY fied in § 102–75.270 before advice is re- 102–75.340 Where hazardous substance activ- ceived from the Attorney General? ity has been identified on property proposed for disposal, what information DISPOSALS UNDER OTHER LAWS must the disposal agency incorporate 102–75.290 Can disposals of real property be into the offer to purchase and the con- made under authority of laws other than veyance document?

223

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00233 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–75 41 CFR Ch. 102 (7–1–11 Edition)

102–75.345 What is different about the state- cy has submitted a plan of use and appli- ments in the offer to purchase and con- cation to acquire property for a public veyance document if the sale is to a po- airport? tentially responsible party with respect 102–75.415 What happens after the disposal to the hazardous substance activity? agency receives the FAA’s recommendation for disposal of the property for a PUBLIC BENEFIT CONVEYANCES public airport? 102–75.350 What are disposal agencies’ re- 102–75.420 What happens if the FAA informs sponsibilities concerning public benefit the disposal agency that it does not rec- conveyances? ommend disposal of the property for a 102–75.351 May the disposal agency waive public airport? screening for public benefit conveyances? 102–75.425 Who has sole responsibility for 102–75.355 What clause must be in the offer to purchase and the conveyance docu- enforcing compliance with the terms and ments for public benefit conveyances? conditions of disposal for property dis- 102–75.360 What wording must be in the non- posed of for use as a public airport? discrimination clause that is required in 102–75.430 What happens if property con- the offer to purchase and the conveyance veyed for use as a public airport is re- document? vested in the United States? 102–75.435 Does the Airport and Airway De- POWER TRANSMISSION LINES velopment Act of 1970, as amended (Air- 102–75.365 Do disposal agencies have to no- port Act of 1970) apply to the transfer of tify State entities and Government agen- airports to State and local agencies? cies that a surplus power transmission line and right-of-way is available? PROPERTY FOR USE AS HISTORIC MONUMENTS 102–75.370 May a State, or any political sub- 102–75.440 Who must disposal agencies no- division thereof, certify to a disposal tify that surplus property is available for agency that it needs a surplus power historic monument use? transmission line and the right-of-way acquired for its construction to meet the 102–75.445 Who can convey surplus real and requirements of a public or cooperative related personal property for historic power project? monument use? 102–75.375 What happens once a State, or po- 102–75.450 What type of property is suitable litical subdivision, certifies that it needs or desirable for use as a historic monu- a surplus power transmission line and ment? the right-of-way acquired for its con- 102–75.455 May historic monuments be used struction to meet the requirements of a for revenue-producing activities? public or cooperative power project? 102–75.460 What information must disposal 102–75.380 May power transmission lines and agencies furnish eligible public agencies? rights-of-way be disposed of in other 102–75.465 What information must eligible ways? public agencies interested in acquiring PROPERTY FOR PUBLIC AIRPORTS real property for use as a historic monument submit to the appropriate regional 102–75.385 Do disposal agencies have the re- or field offices of the National Park sponsibility to notify eligible public Service (NPS) of the Department of the agencies that airport property has been Interior (DOI)? determined to be surplus? 102–75.390 What does the term ‘‘surplus air- 102–75.470 What action must NPS take after port property’’ mean? an eligible public agency has submitted 102–75.395 May surplus airport property be an application for conveyance of surplus conveyed or disposed of to a State, polit- property for use as a historic monument? ical subdivision, municipality, or tax- 102–75.475 What happens after the disposal supported institution for a public air- agency receives the Secretary of the In- port? terior’s determination for disposal of the 102–75.400 Is industrial property located on surplus property for a historic monu- an airport also considered to be ‘‘airport ment and compatible revenue-producing property’’? activities? 102–75.405 What responsibilities does the 102–75.480 Who has the responsibility for en- Federal Aviation Administration (FAA) forcing compliance with the terms and have after receiving a copy of the notice conditions of disposal for surplus prop- (and a copy of the Report of Excess Real erty conveyed for use as a historic monu- Property (Standard Form 118)) given to ment? eligible public agencies that there is sur- 102–75.485 What happens if property that plus airport property? 102–75.410 What action must the disposal was conveyed for use as a historic monu- agency take after an eligible public agen- ment is revested in the United States?

224

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00234 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–75

PROPERTY FOR EDUCATIONAL AND PUBLIC 102–75.555 Which Federal agency receives HEALTH PURPOSES the property assigned for self-help housing or housing assistance for low-income 102–75.490 Who must notify eligible public individuals or families? agencies that surplus real property for 102–75.560 Who notifies eligible public agen- educational and public health purposes is cies that real property to be used for self- available? help housing or housing assistance pur- 102–75.495 May the Department of Education poses is available? (ED) or the Department of Health and 102–75.565 Is the requirement for self-help Human Services (HHS) notify nonprofit housing or housing assistance use of the organizations that surplus real property property by an eligible public agency or and related personal property is avail- nonprofit organization contingent upon able for educational and public health the disposal agency’s approval of an as- purposes? signment recommendation from the De- 102–75.500 Which Federal agencies may the partment of Housing and Urban Develop- head of the disposal agency (or his or her ment (HUD)? designee) assign for disposal surplus real 102–75.570 What happens if the disposal property to be used for educational and agency does not approve the assignment public health purposes? recommendation? 102–75.505 Is the request for educational or 102–75.575 Who notifies nonprofit organiza- public health use of a property by an eli- tions that surplus real property and re- gible nonprofit institution contingent lated personal property to be used for upon the disposal agency’s approval? self-help housing or housing assistance 102–75.510 When must the Department of purposes is available? Education and the Department of Health 102–75.580 When must HUD notify the dis- and Human Services notify the disposal posal agency that an eligible applicant is agency that an eligible applicant is in- interested in acquiring the property? terested in acquiring the property? 102–75.585 What action must the disposal 102–75.515 What action must the disposal agency take after an eligible public agen- agency take after an eligible public agency has submitted a plan of use for prop- cy has submitted a plan of use for property for a self-help housing or housing erty for an educational or public health assistance requirement? requirement? 102–75.590 What does the assignment rec- 102–75.520 What must the Department of ommendation contain? Education or the Department of Health 102–75.595 What responsibilities do land- and Human Services address in the as- holding agencies have concerning prop- signment recommendation that is sub- erties to be used for self-help housing or mitted to the disposal agency? housing assistance use? 102–75.525 What responsibilities do land- 102–75.600 What happens if HUD does not ap- holding agencies have concerning prop- prove any applications for self-help hous- erties to be used for educational and pub- ing or housing assistance use? lic health purposes? 102–75.605 What responsibilities does HUD 102–75.530 What happens if the Department have after receiving the disposal agen- of Education or the Department of cy’s assignment letter? Health and Human Services does not ap- 102–75.610 Who is responsible for enforcing prove any applications for conveyance of compliance with the terms and condi- the property for educational or public tions of the transfer of the property for health purposes? self-help housing or housing assistance 102–75.535 What responsibilities does the De- use? partment of Education or the Depart- 102–75.615 Who is responsible for enforcing ment of Health and Human Services have compliance with the terms and condi- after receiving the disposal agency’s as- tions of property transferred under sec- signment letter? tion 414(a) of the 1969 HUD Act? 102–75.540 Who is responsible for enforcing 102–75.620 What happens if property that compliance with the terms and condi- was transferred to meet a self-help hous- tions of the transfer for educational or ing or housing assistance use require- public health purposes? ment is found to be in noncompliance 102–75.545 What happens if property that with the terms of sale? was transferred to meet an educational or public health requirement is revested PROPERTY FOR USE AS PUBLIC PARK OR in the United States for noncompliance RECREATION AREAS with the terms of sale, or other cause? 102–75.625 Which Federal agency is assigned surplus real property for public park or PROPERTY FOR PROVIDING SELF-HELP recreation purposes? HOUSING OR HOUSING ASSISTANCE 102–75.630 Who must disposal agencies no- 102–75.550 What does ‘‘self-help housing or tify that real property for public park or housing assistance’’ mean? recreation purposes is available?

225

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00235 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–75 41 CFR Ch. 102 (7–1–11 Edition)

102–75.635 What information must the De- 102–75.720 Is there a specific or preferred for- partment of the Interior (DOI) furnish el- mat for the transfer request and who igible public agencies? should receive it? 102–75.640 When must DOI notify the dis- 102–75.725 What does the transfer request posal agency that an eligible applicant is contain? interested in acquiring the property? 102–75.730 What happens if a Federal agency 102–75.645 What responsibilities do land- does not submit a transfer request to the holding agencies have concerning prop- disposal agency for property to be used erties to be used for public park or recre- for replacement housing for persons who ation purposes? will be displaced by Federal or Federally 102–75.650 When must DOI request assign- assisted projects? ment of the property? 102–75.735 What happens after the disposal 102–75.655 What does the assignment rec- agency receives the transfer request from ommendation contain? the Federal agency? 102–75.660 What happens if DOI does not ap- 102–75.740 Does the State agency have any prove any applications or does not sub- responsibilities in helping to accomplish mit an assignment recommendation? the transfer of the property? 102–75.665 What happens after the disposal 102–75.745 What happens if the property agency receives the assignment rec- transfer request is not approved by the ommendation from DOI? disposal agency? 102–75.670 What responsibilities does DOI have after receiving the disposal agen- PROPERTY FOR CORRECTIONAL FACILITY, LAW cy’s assignment letter? ENFORCEMENT, OR EMERGENCY MANAGE- 102–75.675 What responsibilities does the MENT RESPONSE PURPOSES grantee or recipient of the property have 102–75.750 Who is eligible to receive surplus in accomplishing or completing the real and related personal property for transfer? correctional facility, law enforcement, or 102–75.680 What information must be in- emergency management response pur- cluded in the deed of conveyance of any poses? surplus property transferred for public 102–75.755 Which Federal agencies must the park or recreation purposes? disposal agency notify concerning the 102–75.685 Who is responsible for enforcing availability of surplus properties for cor- compliance with the terms and condi- rectional facility, law enforcement, or tions of the transfer of property used for emergency management response pur- public park or recreation purposes? poses? 102–75.690 What happens if property that 102–75.760 Who must the Office of Justice was transferred for use as a public park Programs (OJP) and the Federal Emer- or recreation area is revested in the gency Management Agency (FEMA) no- United States by reason of noncompli- tify that surplus real property is avail- ance with the terms or conditions of dis- able for correctional facility, law en- posal, or for other cause? forcement, or emergency management response purposes? PROPERTY FOR DISPLACED PERSONS 102–75.765 What does the term ‘‘law enforce- 102–75.695 Who can receive surplus real ment’’ mean? property for the purpose of providing re- 102–75.770 Is the disposal agency required to placement housing for persons who are to approve a determination by the Depart- be displaced by Federal or Federally as- ment of Justice (DOJ) that identifies sur- sisted projects? plus property for correctional facility 102–75.700 Which Federal agencies may so- use or for law enforcement use? licit applications from eligible State 102–75.775 Is the disposal agency required to agencies interested in acquiring the approve a determination by FEMA that property to provide replacement housing identifies surplus property for emergency for persons being displaced by Federal or management response use? Federally assisted projects? 102–75.780 When must DOJ or FEMA notify 102–75.705 When must the Federal agency the disposal agency that an eligible ap- notify the disposal agency that an eligi- plicant is interested in acquiring the ble State agency is interested in acquir- property? ing the property under section 218? 102–75.785 What specifically must DOJ or 102–75.710 What responsibilities do land- FEMA address in the assignment request holding and disposal agencies have con- or recommendation that is submitted to cerning properties used for providing re- the disposal agency? placement housing for persons who will 102–75.790 What responsibilities do land- be displaced by Federal or Federally as- holding agencies and disposal agencies sisted projects? have concerning properties to be used for 102–75.715 When can a Federal agency re- correctional facility, law enforcement, or quest transfer of the property to the se- emergency management response pur- lected State agency? poses?

226

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00236 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–75

102–75.795 What happens after the disposal NEGOTIATED SALES agency receives the assignment request 102–75.880 When may Executive agencies by DOJ or FEMA? conduct negotiated sales? 102–75.800 What information must be in- 102–75.885 What are the disposal agency’s re- cluded in the deed of conveyance? sponsibilities concerning negotiated 102–75.805 Who is responsible for enforcing sales? compliance with the terms and condi- 102–75.890 What clause must be in the offer tions of the transfer of the property used to purchase and conveyance documents for correctional facility, law enforce- for negotiated sales to public agencies? ment, or emergency management re- 102–75.895 What wording must generally be sponse purposes? in the excess profits clause that is re- 102–75.810 What responsibilities do OJP or quired in the offer to purchase and in the FEMA have if they discover any informa- conveyance document? tion indicating a change in use of a 102–75.900 What is a negotiated sale for eco- transferred property? nomic development purposes? 102–75.815 What happens if property conveyed for correctional facility, law en- EXPLANATORY STATEMENTS FOR NEGOTIATED forcement, or emergency management SALES response purposes is found to be in noncompliance with the terms of the convey- 102–75.905 When must the disposal agency ance documents? prepare an explanatory statement? 102–75.910 Are there any exceptions to this PROPERTY FOR PORT FACILITY USE policy of preparing explanatory statements? 102–75.820 Which Federal agency is eligible 102–75.915 Do disposal agencies need to re- to receive surplus real and related pertain a copy of the explanatory state- sonal property for the development or ment? operation of a port facility? 102–75.920 Where is the explanatory state- 102–75.825 Who must the disposal agency no- ment sent? tify when surplus real and related per- 102–75.925 Is GSA required to furnish the sonal property is available for port facil- disposal agency with the explanatory ity use? statement’s transmittal letter sent to 102–75.830 What does the surplus notice con- Congress? tain? 102–75.930 What happens if there is no objec- 102–75.835 When must DOT notify the dis- tion by an appropriate committee or sub- posal agency that an eligible applicant is committee of Congress concerning the interested in acquiring the property? proposed negotiated sale? 102–75.840 What action must the disposal agency take after an eligible public agen- PUBLIC SALES cy has submitted a plan of use for and an 102–75.935 What are disposal agencies’ re- application to acquire a port facility sponsibilities concerning public sales? property? 102–75.845 What must DOT address in the as- DISPOSING OF EASEMENTS signment recommendation submitted to the disposal agency? 102–75.936 When can an agency dispose of an 102–75.850 What responsibilities do land- easement? holding agencies have concerning prop- 102–75.937 Can an easement be released or erties to be used in the development or disposed of at no cost? operation of a port facility? 102–75.938 May the easement and the land 102–75.855 What happens if DOT does not that benefited from the easement (domi- submit an assignment recommendation? nant estate) be disposed of separately? 102–75.860 What happens after the disposal GRANTING EASEMENTS agency receives the assignment recommendation from DOT? 102–75.939 When can agencies grant ease- 102–75.865 What responsibilities does DOT ments? have after receiving the disposal agen- 102–75.940 Can agencies grant easements at cy’s assignment letter? no cost? 102–75.870 Who is responsible for enforcing 102–75.941 Does an agency retain responsi- compliance with the terms and condi- bility for the easement? tions of the port facility conveyance? 102–75.942 What must agencies consider 102–75.875 What happens in the case of re- when granting easements? possession by the United States under a 102–75.943 What happens if granting an ease- reversion of title for noncompliance with ment will reduce the value of the prop- the terms or conditions of conveyance? erty?

227

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00237 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–75 41 CFR Ch. 102 (7–1–11 Edition)

NON-FEDERAL INTERIM USE OF SURPLUS DETERMINATIONS PROPERTY 102–75.1000 How is the decision made to 102–75.944 Can landholding agencies outlease abandon, destroy, or donate property? surplus real property for non-Federal in- 102–75.1005 Who can make the determina- terim use? tion within the Federal agency on whether a property can be abandoned, de- Subpart D—Management of Excess and stroyed, or donated? Surplus Real Property 102–75.1010 When is a reviewing authority required to approve the determination 102–75.945 What is GSA’s policy concerning concerning a property that is to be aban- the physical care, handling, protection, doned, destroyed, or donated? and maintenance of excess and surplus real property and related personal prop- RESTRICTIONS erty? 102–75.1015 Are there any restrictions on TAXES AND OTHER OBLIGATIONS Federal agencies concerning property donations to public bodies? 102–75.950 Who has the responsibility for paying property-related obligations DISPOSAL COSTS pending transfer or disposal of the prop- 102–75.1020 Are public bodies ever required erty? to pay the disposal costs associated with DECONTAMINATION donated property?

102–75.955 Who is responsible for decontami- ABANDONMENT AND DESTRUCTION nating excess and surplus real property? 102–75.1025 When can a Federal agency aban- IMPROVEMENTS OR ALTERATIONS don or destroy improvements on land or related personal property in lieu of do- 102–75.960 May landholding agencies make nating it to a public body? improvements or alterations to excess or 102–75.1030 May Federal agencies abandon or surplus property in those cases where destroy property in any manner they de- disposal is otherwise not feasible? cide? 102–75.1035 Are there any restrictions on PROTECTION AND MAINTENANCE Federal agencies concerning the aban- 102–75.965 Who must perform the protection donment or destruction of improvements and maintenance of excess and surplus on land or related personal property? real property pending transfer to another 102–75.1040 May Federal agencies abandon or Federal agency or disposal? destroy improvements on land or related 102–75.970 How long is the landholding agen- personal property before public notice is cy responsible for the expense of protec- given of such proposed abandonment or tion and maintenance of excess and sur- destruction? plus real property pending its transfer or 102–75.1045 Are there exceptions to the pol- disposal? icy that requires public notice be given 102–75.975 What happens if the property is before Federal agencies abandon or de- not conveyed or disposed of during this stroy improvements on land or related time frame? personal property? 102–75.980 Who is responsible for protection 102–75.1050 Is there any property for which and maintenance expenses if there is no this subpart does not apply? written agreement or no Congressional appropriation to the disposal agency? Subpart F—Delegations

ASSISTANCE IN DISPOSITION DELEGATION TO THE DEPARTMENT OF DEFENSE 102–75.985 Is the landholding agency re- (DOD) quired to assist the disposal agency in 102–75.1055 What is the policy governing del- the disposition process? egations of real property disposal authority to the Secretary of Defense? Subpart E—Abandonment, Destruction, or 102–75.1060 What must the Secretary of De- Donation to Public Bodies fense do before determining that DoD- controlled excess real property and re- 102–75.990 May Federal agencies abandon, lated personal property is not required destroy, or donate to public bodies real for the needs of any Federal agency and property? prior to disposal? 102–75.1065 When using a delegation of real DANGEROUS PROPERTY property disposal authority under this 102–75.995 May Federal agencies dispose of subpart, is DoD required to report excess dangerous property? property to GSA?

228

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00238 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–75

102–75.1070 Can this delegation of authority gift of real property for a particular de- to the Secretary of Defense be redele- fense purpose? gated? 102–75.1145 What action must the Federal agency receiving an offer of a conditional DELEGATION TO THE DEPARTMENT OF gift take? AGRICULTURE (USDA) 102–75.1150 What happens to the gift if GSA 102–75.1075 What is the policy governing del- determines it to be acceptable? egations of real property disposal author- 102–75.1155 May an acceptable gift of prop- ity to the Secretary of Agriculture? erty be converted to money? 102–75.1080 What must the Secretary of Ag- riculture do before determining that Subpart H—Use of Federal Real Property to USDA-controlled excess real property Assist the Homeless and related personal property is not re- DEFINITIONS quired for the needs of any Federal agency and prior to disposal? 102–75.1160 What definitions apply to this 102–75.1085 When using a delegation of real subpart? property disposal authority under this subpart, is the USDA required to report APPLICABILITY excess property to GSA? 102–75.1165 What is the applicability of this 102–75.1090 Can this delegation of authority subpart? to the Secretary of Agriculture be redelegated? COLLECTING THE INFORMATION

DELEGATION TO THE DEPARTMENT OF THE 102–75.1170 How will information be col- INTERIOR lected? 102–75.1095 What is the policy governing del- SUITABILITY DETERMINATION egations of authority to the Secretary of 102–75.1175 Who issues the suitability deter- the Interior? mination? 102–75.1100 Can this delegation of authority to the Secretary of the Interior be re- REAL PROPERTY REPORTED EXCESS TO GSA delegated? 102–75.1105 What other responsibilities does 102–75.1180 For the purposes of this subpart, the Secretary of the Interior have under what is the policy concerning real prop- this delegation of authority? erty reported excess to GSA? SUITABILITY CRITERIA NATIVE AMERICAN-RELATED DELEGATIONS 102–75.1110 What is the policy governing del- 102–75.1185 What are suitability criteria? egations of authority to the Secretary of DETERMINATION OF AVAILABILITY the Interior, the Secretary of Health and Human Services, and the Secretary of 102–75.1190 What is the policy concerning Education for property used in the ad- determination of availability state- ministration of any Native American-re- ments? lated functions? PUBLIC NOTICE OF DETERMINATION 102–75.1115 Are there any limitations or restrictions on this delegation of author- 102–75.1195 What is the policy concerning ity? making public the notice of determina- 102–75.1120 Does the property have to be tion? Federally screened? 102–75.1125 Can the transfer/retransfer under APPLICATION PROCESS this delegation be at no cost or without 102–75.1200 How may representatives of the consideration? homeless apply for the use of properties 102–75.1130 What action must the Secretary to assist the homeless? requesting the transfer take where funds were not programmed and appropriated ACTION ON APPROVED APPLICATIONS for acquisition of the property? 102–75.1205 What action must be taken on 102–75.1135 May this delegation of authority approved applications? to the Secretary of the Interior, the Sec- retary of Health and Human Services, UNSUITABLE PROPERTIES and the Secretary of Education be redelegated? 102–75.1210 What action must be taken on properties determined unsuitable for Subpart G—Conditional Gifts of Real homeless assistance? Property to Further the Defense Effort NO APPLICATIONS APPROVED 102–75.1140 What is the policy governing the 102–75.1215 What action must be taken if acceptance or rejection of a conditional there is no expression of interest?

229

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00239 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.5 41 CFR Ch. 102 (7–1–11 Edition)

Subpart I—Screening Excess Federal Real States Code will be referred to as ‘‘dis- Property posal agencies’’ in this part. Except in rare instances where GSA delegates 102–75.1220 How do landholding agencies find out if excess Federal real property is disposal authority to a Federal agency, available? the ‘‘disposal agency’’ as used in this 102–75.1225 What details are provided in the part refers to GSA. ‘‘Notice of Availability’’? 102–75.1230 How long does an agency have to § 102–75.10 What basic real property indicate its interest in the property? disposal policy governs disposal 102–75.1235 Where should an agency send its agencies? written response to the ‘‘Notice of Avail- ability’’? Disposal agencies must provide, in a 102–75.1240 Who, from the interested land- timely, efficient, and cost effective holding agency, should submit the writ- manner, the full range of real estate ten response to GSA’s ‘‘Notice of Avail- ability’’? services necessary to support their real 102–75.1245 What happens after the land- property utilization and disposal needs. holding agency properly responds to a Landholding agencies must survey the ‘‘Notice of Availability’’? real property under their custody or 102–75.1250 What if the agency is not quite control to identify property that is not sure it wants the property and needs utilized, underutilized, or not being put more time to decide? 102–75.1255 What happens when more than to optimum use. Disposal agencies one agency has a valid interest in the must have adequate procedures in property? place to promote the effective utiliza- 102–75.1260 Does GSA conduct Federal tion and disposal of such real property. screening on every property reported as excess real property? REAL PROPERTY DISPOSAL SERVICES 102–75.1265 Are extensions granted to the Federal screening and response time- § 102–75.15 What real property dis- frames? 102–75.1270 How does an agency request a posal services must agencies pro- transfer of Federal real property? vide under a delegation of author- 102–75.1275 Does a requesting agency have to ity from GSA? pay for excess real property? Disposal agencies must provide real 102–75.1280 What happens if the property has property disposal services for real prop- already been declared surplus and an agency discovers a need for it? erty assets under their custody and 102–75.1285 How does GSA transfer excess control, such as the utilization of ex- real property to the requesting agency? cess property, surveys, and the disposal 102–75.1290 What happens if the landholding of surplus property, which includes agency requesting the property does not public benefit conveyances, negotiated promptly accept custody and accountability? sales, public sales, related disposal services, and appraisals. AUTHORITY: 40 U.S.C. 121(c), 521–523, 541–559; E.O. 12512, 50 FR 18453, 3 CFR, 1985 Comp., p. § 102–75.20 How can Federal agencies 340. with independent disposal author- SOURCE: 70 FR 67811, Nov. 8, 2005, unless ity obtain related disposal services? otherwise noted. Federal agencies with independent disposal authority are encouraged to Subpart A—General Provisions obtain utilization, disposal, and related § 102–75.5 What is the scope of this services from those agencies with ex- part? pertise in real property disposal, such The real property policies contained as GSA, as allowed by 31 U.S.C. 1535 in this part apply to Federal agencies, (the Economy Act), so that they can including GSA’s Public Buildings Serv- remain focused on their core mission. ice (PBS), operating under, or subject to, the authorities of the Adminis- trator of General Services. Federal agencies with authority to dispose of real property under Subchapter III of Chapter 5 of Title 40 of the United

230

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00240 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.60

Subpart B—Utilization of Excess countable Executive agency, or occu- Real Property pied in caretaker status only. § 102–75.25 What are landholding agen- § 102–75.50 What does the term ‘‘Un- cies’ responsibilities concerning the derutilized’’ mean? utilization of excess property? Underutilized means an entire prop- Landholding agencies’ responsibil- erty or portion thereof, with or with- ities concerning the utilization of ex- out improvements, which is used— cess property are to— (a) Irregularly or intermittently by (a) Achieve maximum use of their the accountable Executive agency for real property, in terms of economy and current program purposes of that agen- efficiency, to minimize expenditures cy; or for the purchase of real property; (b) For current program purposes (b) Increase the identification and re- that can be satisfied with only a por- porting of their excess real property; tion of the property. and (c) Fulfill its needs for real property, § 102–75.55 What does the term ‘‘Not so far as practicable, by utilization of being put to optimum use’’ mean? real property determined excess by Not being put to optimum use means other agencies, pursuant to the provi- an entire property or portion thereof, sion of this part, before it purchases with or without improvements, non-Federal real property. which— (a) Even though used for current pro- § 102–75.30 What are disposal agencies’ gram purposes, the nature, value, or lo- responsibilities concerning the utilization of excess property? cation of the property is such that it could be utilized for a different and sig- Disposal agencies’ responsibilities nificantly higher and better purpose; or concerning the utilization of excess (b) The costs of occupying are sub- property are to— stantially higher than other suitable (a) Provide for the transfer of excess properties that could be made available real property among Federal agencies, through transfer, purchase, or lease to mixed-ownership Government cor- with total net savings to the Govern- porations, and to the municipal gov- ment, after considering property val- ernment of the District of Columbia; ues, costs of moving, occupancy, oper- and ational efficiency, environmental ef- (b) Resolve conflicting requests for fects, regional planning, and employee transferring real property that the in- morale. volved agencies cannot resolve. GUIDELINES § 102–75.35 [Reserved] § 102–75.60 What are landholding agen- STANDARDS cies’ responsibilities concerning real property surveys? § 102–75.40 What are the standards that each Executive agency must A landholding agency’s responsibil- use to identify unneeded Federal ities concerning real property utiliza- real property? tion surveys are to— Each Executive agency must identify (a) Survey real property under its unneeded Federal property using the control (i.e., property reported on its following standards: financial statements) at least annually (a) Not utilized. to identify property that is not uti- (b) Underutilized. lized, underutilized, or not being put to (c) Not being put to optimum use. optimum use. When other needs for the property are identified or recognized, § 102–75.45 What does the term ‘‘Not the agency must determine whether utilized’’ mean? continuation of the current use or an- Not utilized means an entire prop- other use would better serve the public erty or portion thereof, with or with- interest, considering both the Federal out improvements, not occupied for agency’s needs and the property’s loca- current program purposes of the action. In conducting annual reviews of

231

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00241 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.65 41 CFR Ch. 102 (7–1–11 Edition)

their property holdings, the GSA Cus- sion or congressional action. Addition- tomer Guide to Real Property Disposal ally, a proposed transfer must not sub- can provide guidelines for Executive stantially increase the level of an agencies to consider in identifying agency’s existing programs beyond unneeded Federal real property; that which has been contemplated in (b) Maintain its inventory of real the President’s budget or by the Con- property at the absolute minimum congress. sistent with economical and efficient (Note: See Subpart I—Screening of conduct of the affairs of the agency; Excess Federal Real Property (§§ 102– and (c) Promptly report to GSA real 75.1220 through 102–75.1290) for informa- property that it has determined to be tion on screening and transfer re- excess. quests.)

§ 102–75.65 Why is it important for Ex- § 102–75.80 What are an Executive ecutive agencies to notify the dis- agency’s responsibilities before re- posal agency of its real property questing a transfer of excess real needs? property? It is important that each Executive Before requesting a transfer of excess agency notify the disposal agency of its real property, an Executive agency real property needs to determine must— whether the excess or surplus property (a) Screen its own property holdings of another agency is available that to determine whether the new require- would meet its need and prevent the ment can be met through improved uti- unnecessary purchase or lease of real lization of existing real property; how- property. ever, the utilization must be for pur- § 102–75.70 Are there any exceptions to poses that are consistent with the this notification policy? highest and best use of the property Yes, Executive agencies are not re- under consideration; quired to notify the disposal agency (b) Review all real property under its when an agency’s proposed acquisition accountability that has been permitted of real property is dictated by such fac- or outleased and terminate the permit tors as exact geographical location, to- or lease for any property, or portion pography, engineering, or similar char- thereof, suitable for the proposed need, acteristics that limit the possible use if termination is not prohibited by the of other available property. For exam- terms of the permit or lease; ple, Executive agencies are not re- (c) Utilize property that is or can be quired to notify disposal agencies con- made available under § 102–75.80(a) or cerning the acquisition of real property (b) for the proposed need in lieu of re- for a dam site, reservoir area, or the questing a transfer of excess real prop- construction of a generating plant or a erty and reassign the property, when substation, since specific lands are appropriate; needed, which limit the possible use of other available property. Therefore, no (d) Confirm that the appraised fair useful purpose would be served by noti- market value of the excess real prop- fying the disposal agency. erty proposed for transfer will not substantially exceed the probable pur- § 102–75.75 What is the most important chase price of other real property that consideration in evaluating a pro- would be suitable for the intended pur- posed transfer of excess real prop- pose; erty? (e) Limit the size and quantity of ex- In every case of a proposed transfer cess real property to be transferred to of excess real property, the most im- the actual requirements and separate, portant consideration is the validity if possible, other portions of the excess and appropriateness of the requirement installation for possible disposal to upon which the proposal is based. Also, other agencies or to the public; and a proposed transfer must not establish (f) Consider the design, layout, geo- a new program that has never been reflected in any previous budget submis- graphic location, age, state of repair,

232

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00242 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.110

and expected maintenance costs of ex- (b) The Department of the Interior cess real property proposed for trans- has notified the agency that the Sec- fer; agencies must be able to dem- retary of the Interior has determined onstrate that the transfer will be more that the lands are not suitable for re- economical over a sustained period of turn to the public domain for disposi- time than the acquisition of a new fa- tion under the general public land laws cility specifically planned for the pur- because the lands are substantially pose. changed in character by improvements or otherwise; and § 102–75.85 Can disposal agencies transfer excess real property to (c) The Department of the Interior agencies for programs that appear provides a report identifying whether to be scheduled for substantial cur- or not any other agency claims pri- tailment or termination? mary, joint, or secondary jurisdiction Yes, but only on a temporary basis over the lands and whether its records with the condition that the property show that the lands are encumbered by will be released for further Federal uti- rights or privileges under the public lization or disposal as surplus property land laws. at an agreed upon time when the transfer is arranged. § 102–75.105 What responsibility does the Department of the Interior have § 102–75.90 How is excess real property if it determines that minerals in the needed for office, storage, and re- land are unsuitable for disposition lated purposes normally trans- under the public land mining and ferred to the requesting agency? mineral leasing laws? GSA may temporarily assign or di- In such cases, the Department of the rect the use of such excess real prop- Interior must— erty to the requesting agency. See (a) Notify the appropriate GSA Re- § 102–75.240. gional Office of such a determination; and § 102–75.95 Can Federal agencies that normally do not require real prop- (b) Authorize the landholding agency erty (other than for office, storage, to identify in the Standard Form 118 and related purposes) or that may any minerals in the land that the De- not have statutory authority to ac- partment of the Interior determines to quire such property, obtain the use be unsuitable for disposition under the of excess real property? public land mining and mineral leasing Yes, GSA can authorize the use of ex- laws. cess real property for an approved program. See § 102–75.240. TRANSFERS UNDER OTHER LAWS

LAND WITHDRAWN OR RESERVED FROM § 102–75.110 Can transfers of real THE PUBLIC DOMAIN property be made under authority of laws other than those codified in § 102–75.100 When an agency holds Title 40 of the United States Code? land withdrawn or reserved from the public domain and determines Yes, the provisions of this section that it no longer needs this land, shall not apply to transfers of real what must it do? property authorized to be made by 40 An agency holding unneeded land U.S.C. 113(e) or by any special statute withdrawn or reserved from the public that directs or requires an Executive domain must submit to the appropriate agency to transfer or convey specifi- GSA Regional Office a Report of Excess cally described real property in accord- Real Property (Standard Form 118), ance with the provisions of that stat- with appropriate Schedules A, B, and ute. Transfers of real property must be C, only when— made only under the authority of Title (a) It has filed a notice of intention 40 of the United States Code, unless the to relinquish with the Department of independent authority granted to such the Interior (43 CFR part 2372 et seq.) agency specifically exempts the au- and sent a copy of the notice to the ap- thority from the requirements of Title propriate GSA Regional Office; 40.

233

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00243 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.115 41 CFR Ch. 102 (7–1–11 Edition)

REPORTING OF EXCESS REAL PROPERTY (e) The status of civil and criminal jurisdiction over the land that is pecu- § 102–75.115 Must reports of excess liar to the property by reason of it real property and related personal being Government-owned land. In the property be prepared on specific absence of any special circumstances, a forms? statement to that effect must be made Yes, landholding agencies must pre- a part of the report; pare reports of excess real property and (f) Detailed information regarding related personal property on— any known flood hazards or flooding of (a) Standard Form 118, Report of Ex- the property, and, if the property is lo- cess Real Property, and accompanying cated in a flood-plain or on wetlands, a Standard Form 118a, Buildings Struc- listing of restricted uses (along with tures, Utilities, and Miscellaneous Fa- the citations) identified in Federal, cilities, Schedule A; State, or local regulations as required (b) Standard Form 118b, Land, Sched- by Executive Orders 11988 and 11990 of ule B; and May 24, 1977; (c) Standard Form 118c, Related Per- (g) The specific identification and de- sonal Property, Schedule C. scription of fixtures and related personal property that have possible his- § 102–75.120 Is there any other infor- toric or artistic value; mation that needs to accompany (or (h) The historical significance of the be submitted with) the Report of property and whether the property is Excess Real Property (Standard listed, is eligible for, or has been nomi- Form 118)? nated for listing in the National Reg- Yes, in all cases where Government- ister of Historic Places or is in prox- owned land is reported excess, Execu- imity to a property listed in the Na- tive agencies must include a title re- tional Register. If the landholding port, prepared or approved by a quali- agency is aware of any effort by the fied employee of the landholding agen- public to have the property listed in cy, documenting the Government’s the National Register, it must also in- title to the property. clude this information; (i) A description of the type, loca- TITLE REPORT tion, and condition of asbestos incorporated in the construction, repair, or § 102–75.125 What information must agencies include in the title report? alteration of any building or improvement on the property (e.g., fire-proof- When completing the title report, ing, pipe insulation, etc.) and a descrip- agencies must include— tion of any asbestos control measures (a) The description of the property; taken for the property. Agencies must (b) The date title vested in the also provide to GSA any available indi- United States; cation of costs and/or time necessary (c) All exceptions, reservations, con- to remove all or any portion of the as- ditions, and restrictions, relating to bestos-containing materials. Agencies the title; are not required to conduct any spe- (d) Detailed information concerning cific studies and/or tests to obtain this any action, thing, or circumstance that information. (The provisions of this occurred from the date the United subpart do not apply to asbestos on States acquired the property to the Federal property that is subject to sec- date of the report that in any way af- tion 120(h) of the Superfund Amend- fected or may have affected the United ments and Reauthorization Act of 1986, States’ right, title, or interest in and Public Law 99–499); to the real property (including copies (j) A statement indicating whether or of legal comments or opinions dis- not lead-based paint is present on the cussing the manner in which and the property. Additionally, if the property extent to which such right, title, or in- is target housing (all housing except terest may have been affected). In the housing for the elderly or persons with absence of any such action, thing, or disabilities or any zero bedroom dwell- circumstance, a statement to that ef- ing) constructed prior to 1978, provide a fect must be made a part of the report; risk assessment and paint inspection

234

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00244 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.145

report that details all lead-based paint The (reporting agency) has determined, in hazards; and accordance with regulations issued by EPA (k) A statement indicating whether at 40 CFR part 373, that there is no evidence indicating that hazardous substance activity or not, during the time the property took place on the property during the time was owned by the United States, any the property was owned by the United hazardous substance activity, as de- States. fined by regulations issued by the U.S. Environmental Protection Agency OTHER NECESSARY INFORMATION (EPA) at 40 CFR part 373, took place on the property. Hazardous substance ac- § 102–75.140 In addition to the title re- tivity includes situations where any port, and all necessary environ- hazardous substance was stored for one mental information and certifi- year or more, known to have been re- cations, what information must an Executive agency transmit with the leased, or disposed of on the property. Report of Excess Real Property Agencies reporting such property must (Standard Form 118)? review the regulations issued by EPA at 40 CFR part 373 for details on the in- Executive agencies must provide— formation required and must comply (a) A legible, reproducible copy of all with these requirements. In addition, instruments in possession of the agen- agencies reporting such property shall cy that affect the United States’ right, review and comply with the regula- title, or interest in the property re- tions for the utilization and disposal of ported or the use and operation of such hazardous materials and certain cat- property (including agreements cov- egories of property set forth at 41 CFR ering and licenses to use, any patents, part 101–42. processes, techniques, or inventions). If it is impracticable to transmit the ab- § 102–75.130 If hazardous substance ac- stracts of title and related title evi- tivity took place on the property, dence, agencies must provide the name what specific information must an and address of the custodian of such agency include in the title report? documents in the title report referred If hazardous substance activity took to in § 102–75.120; place on the property, the reporting (b) Any appraisal reports indicating agency must include information on or providing the fair market value or the type and quantity of such haz- the fair annual rental of the property, ardous substance and the time at if requested by the disposal agency; which such storage, release, or disposal and took place. The reporting agency must (c) A certification by a responsible also advise the disposal agency if all person that the property does or does remedial action necessary to protect not contain polychlorinated biphenyl human health and the environment (PCB) transformers or other equipment with respect to any such hazardous regulated by EPA under 40 CFR part substance activity was taken before 761, if requested by the disposal agency. the date the property was reported ex- If the property does contain any equip- cess. If such action was not taken, the ment subject to EPA regulation under reporting agency must advise the dis- 40 CFR part 761, the certification must posal agency when such action will be include the landholding agency’s assur- completed or how the agency expects ance that each piece of equipment is to comply with the Comprehensive En- now and will continue to be in compli- vironmental Response, Compensation, ance with the EPA regulations until and Liability Act (CERCLA) in the dis- disposal of the property. posal. See §§ 102–75.340 and 102–75.345. EXAMINATION FOR ACCEPTABILITY § 102–75.135 If no hazardous substance activity took place on the property, § 102–75.145 Is GSA required to review what specific information must an each report of excess? agency include in the title report? Yes, GSA must review each report of If no hazardous substance activity excess to ascertain whether the report took place, the reporting agency must was prepared according to the provi- include the following statement: sions of this part. GSA must notify the

235

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00245 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.150 41 CFR Ch. 102 (7–1–11 Edition)

landholding agency, in writing, wheth- § 102–75.165 Should related personal er the report is acceptable or other in- property be designated real or per- formation is needed within 15 calendar sonal property for disposition pur- days after receipt of the report. poses? Related personal property may, at § 102–75.150 What happens when GSA the disposal agency’s discretion, be determines that the report of excess designated as personal property for dis- is adequate? posal purposes. However, for fine art- When GSA determines that a report work and sculptures, GSA’s policy is is adequate, GSA will accept the report that artwork specifically created for a and inform the landholding agency of Federal building is considered as a fix- the acceptance date. However, the ture of the building. This also applies landholding agency must, upon re- to sculptures created for a Federal quest, promptly furnish any additional building or a public park. Disposal information or documents relating to agencies must follow the policies and guidance for disposal of artwork and the property required by GSA to ac- sculptures developed by the GSA Office complish a transfer or a disposal. of the Chief Architect, Center for De- § 102–75.155 What happens if GSA design Excellence and the Arts, and the termines that the report of excess is Bulletin dated March 26, 1934, entitled insufficient? ‘‘Legal Title to Works Produced under the Public Works of Art Project.’’ Where GSA determines that a report is insufficient, GSA will return the re- § 102–75.170 What happens to the report and inform the landholding agen- lated personal property in a struc- cy of the facts and circumstances that ture scheduled for demolition? make the report insufficient. The land- When a structure is to be demolished, holding agency must promptly take ap- any fixtures or related personal prop- propriate action to submit an accept- erty therein may, at the disposal agen- able report to GSA. If the landholding cy’s discretion, be designated for dis- agency is unable to submit an accept- position as personal property where a able report, the property will no longer ready disposition can be made of these be considered as excess property and items. As indicated in § 102–75.165, par- the disposal agency will cease activity ticular consideration should be given for the disposal of the property. How- to designating items having possible ever, GSA may accept the report of ex- historical or artistic value as personal cess on a conditional basis and identify property. what deficiencies in the report must be TRANSFERS corrected in order for the report to gain full acceptance. § 102–75.175 What are GSA’s responsibilities regarding transfer re- DESIGNATION AS PERSONAL PROPERTY quests? § 102–75.160 Should prefabricated Before property can be transferred movable structures be designated among Federal agencies, to mixed-own- real or personal property for dis- ership Government corporations, and position purposes? to the municipal government of the District of Columbia, GSA must deter- Prefabricated movable structures mine that— such as Butler-type storage ware- (a) The transfer is in the best inter- houses, Quonset huts, and house trail- est of the Government; ers (with or without undercarriages) (b) The requesting agency is the ap- reported to GSA along with the land on propriate agency to hold the property; which they are located may, at GSA’s and discretion, be designated for disposi- (c) The proposed land use will maxi- tion as personal property for off-site mize use of the real property, in terms use or as real property for disposal of economy and efficiency, to minimize with the land. expenditures for the purchase of real property.

236

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00246 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.210

(Note: See Subpart I—Screening of § 102–75.195 If the transferor agency is Excess Federal Real Property (§§ 102– a wholly owned Government cor- 75.1220 through 102–75.1290) for informa- poration, what amount must the tion on screening and transfer re- transferee agency pay? quests.) As may be agreed upon by GSA and the corporation, the transferee agency § 102–75.180 May landholding agencies must pay an amount equal to— transfer excess real property with- (a) The estimated fair market value out notifying GSA? of the property; or Landholding agencies may, without (b) The corporation’s book value of notifying GSA, transfer excess real the property. property that they use, occupy, or con- § 102–75.200 What amount must the trol under a lease, permit, license, transferee agency pay if property is easement, or similar instrument being transferred for the purpose of when— upgrading the transferee agency’s (a) The lease or other instrument is facilities? subject to termination by the grantor Where the transfer is for the purpose or owner of the premises within nine of upgrading facilities (i.e., for the pur- months; pose of replacing other property of the (b) The remaining term of the lease transferee agency, which because of the or other instrument, including renewal location, nature, or condition thereof, is less efficient for use), the transferee rights, will provide for less than nine must pay an amount equal to the dif- months of use and occupancy; or ference between the fair market value (c) The lease or other instrument of the property to be replaced and the provides for use and occupancy of space fair market value of the property re- for office, storage, and related facili- quested, as determined by the Adminis- ties, which does not exceed a total of trator. 2,500 square feet. § 102–75.205 Are transfers ever made § 102–75.185 In those instances where without reimbursement by the landholding agencies may transfer transferee agency? excess real property without noti- Transfers may be made without reim- fying GSA, which policies must they bursement by the transferee agency follow? only if— In those instances, landholding agen- (a) Congress has specifically author- cies must transfer property following ized the transfer without reimburse- the policies in this subpart. ment, or (b) The Administrator, with the ap- § 102–75.190 What amount must the proval of the Director of the Office of transferee agency pay for the trans- Management and Budget (OMB), has fer of excess real property? approved a request for an exception The transferee agency must pay an from the 100 percent reimbursement re- amount equal to the property’s fair quirement. market value (determined by the Ad- § 102–75.210 What must a transferee ministrator)— agency include in its request for an (a) Where the transferor agency has exception from the 100 percent re- requested the net proceeds of the trans- imbursement requirement? fer pursuant to 40 U.S.C. 574; or The request must include an expla- (b) Where either the transferor or nation of how granting the exception transferee agency (or organizational would further essential agency pro- unit affected) is subject to the Govern- gram objectives and at the same time ment Corporation Control Act (31 be consistent with Executive Order U.S.C. 841), is a mixed-ownership Gov- 12512, Federal Real Property Manage- ernment corporation, or the municipal ment, dated April 29, 1985. The trans- government of the District of Colum- feree agency must attach the expla- bia. nation to the Request for Transfer of Excess Real and Related Personal

237

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00247 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.215 41 CFR Ch. 102 (7–1–11 Edition)

Property (GSA Form 1334) prior to sub- House of Representatives, and the Ar- mitting the form to GSA. The unavail- chitect of the Capitol and any activi- ability of funds alone is not sufficient ties under his or her direction, pursu- to justify an exception. ant to the provisions of 40 U.S.C. 113(d). The amount of reimbursement for such § 102–75.215 Who must endorse retransfer must be the same as would be quests for exception to the 100 per- required for a transfer of excess prop- cent reimbursement requirement? erty to an Executive agency under Agency heads must endorse requests similar circumstances. for exceptions to the 100 percent reimbursement requirement. TEMPORARY UTILIZATION

§ 102–75.220 Where should an agency § 102–75.240 May excess real property send a request for exception to the be temporarily assigned/reas- 100 percent reimbursement require- signed? ment? Yes, whenever GSA determines that Agencies must submit all requests it is more advantageous to assign prop- for exception from the 100 percent re- erty temporarily rather than perma- imbursement requirement to the ap- nently, it may do so. If the space is for propriate GSA regional property dis- office, storage, or related facilities, posal office. GSA will determine the length of the § 102–75.225 Who must review and ap- assignment/reassignment. Agencies are prove a request for exception from required to reimburse the landholding the 100 percent reimbursement re- agency (or GSA, if GSA has become requirement? sponsible for seeking an appropriation The Administrator must review all for protection and maintenance ex- requests for exception from the 100 per- penses) (see § 102–75.970) for protection cent reimbursement requirement. If and maintenance expenses. GSA may the Administrator approves the re- also temporarily assign/reassign excess quest, it is then submitted to OMB for real property for uses other than stor- final concurrence. If OMB approves the age, office or related facilities. In such request, then GSA may complete the cases, the agency receiving the tem- transfer. porary assignment may be required to pay a rental or users charge based upon § 102–75.230 Who is responsible for the fair market value of the property, property protection and mainte- as determined by GSA. If the property nance costs while the request for will be required by the agency for a pe- exception is being reviewed? riod of more than 1 year, it may be The agency requesting the property transferred on a conditional basis, with will assume responsibility for protec- an understanding that the property tion and maintenance costs not more will be reported excess at an agreed than 40 days from the date of the Ad- upon time (see § 102–75.85). The request- ministrator’s letter to OMB requesting ing agency is responsible for protection concurrence for an exception to the 100 and maintenance expenses. percent reimbursement requirement. If the request is denied, the requesting NON-FEDERAL INTERIM USE OF EXCESS agency may pay the fair market value PROPERTY for the property or withdraw its request. If the request is withdrawn, re- § 102–75.245 When can landholding sponsibility for protection and mainte- agencies grant rights for non-Fed- eral interim use of excess property nance cost will return to the land- reported to GSA? holding agency at that time. Landholding agencies, upon approval § 102–75.235 May disposal agencies from GSA, may grant rights for non- transfer excess property to the Sen- Federal interim use of excess property ate, the House of Representatives, reported to GSA, when it is determined and the Architect of the Capitol? that such excess property is not re- Yes, disposal agencies may transfer quired for the needs of any Federal excess property to the Senate, the agency and when the interim use will

238

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00248 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.280

not impair the ability to dispose of the questing Federal agency receives ap- property. proval from the Office of Management and Budget and the appropriate over- Subpart C—Surplus Real Property sight committees, and where the trans- Disposal action offers substantial economic or unique program advantages not other- § 102–75.250 What general policy must wise obtainable by any other acquisi- the disposal agency follow con- tion method. cerning the disposal of surplus property? § 102–75.265 Are conveyance docu- The disposal agency must dispose of ments required to identify all surplus real property— agreements and representations (a) In the most economical manner concerning property restrictions and conditions? consistent with the best interests of the Government; and Yes, conveyance documents must (b) Ordinarily for cash, consistent identify all agreements and representa- with the best interests of the Govern- tions concerning restrictions and con- ment. ditions affecting the property’s future use, maintenance, or transfer. § 102–75.255 What are disposal agencies’ specific responsibilities con- APPLICABILITY OF ANTITRUST LAWS cerning the disposal of surplus property? § 102–75.270 Must antitrust laws be The disposal agency must determine considered when disposing of prop- that there is no further Federal need or erty? requirement for the excess real prop- Yes, antitrust laws must be consid- erty and the property is surplus to the ered in any case in which there is con- needs of the Federal Government. After templated a disposal to any private in- reaching this determination, the dis- terest of— posal agency must expeditiously make (a) Real and related personal prop- the surplus property available for ac- erty that has an estimated fair market quisition by State and local govern- value of $3 million or more; or mental units and non-profit institu- (b) Patents, processes, techniques, or tions (see § 102–75.350) or for sale by inventions, irrespective of cost. public advertising, negotiation, or other disposal action. The disposal § 102–75.275 Who determines whether agency must consider the availability the proposed disposal would create of real property for public purposes on or maintain a situation inconsistent a case-by-case basis, based on highest with antitrust laws? and best use and estimated fair market The Attorney General determines value. Where hazardous substance ac- whether the proposed disposal would tivity is identified, see §§ 102–75.340 and create or maintain a situation incon- 102–75.345 for required information that sistent with antitrust laws. the disposal agency must incorporate into the offer to purchase and convey- § 102–75.280 What information con- ance document. cerning a proposed disposal must a disposal agency provide to the At- § 102–75.260 When may the disposal torney General to determine the ap- agency dispose of surplus real prop- plicability of antitrust laws? erty by exchange for privately The disposal agency must promptly owned property? provide the Attorney General with no- The disposal agency may dispose of tice of any such proposed disposal and surplus real property by exchange for the probable terms or conditions, as re- privately owned property for property quired by 40 U.S.C. 559. If notice is management considerations such as given by any disposal agency other boundary realignment or for providing than GSA, a copy of the notice must access. The disposal agency may also also be provided simultaneously to the dispose of surplus real property by ex- GSA Regional Office in which the prop- change for privately owned property erty is located. Upon request, a dis- where authorized by law, when the re- posal agency must furnish information

239

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00249 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.285 41 CFR Ch. 102 (7–1–11 Edition)

that the Attorney General believes to (b) Must administer and manage the be necessary in determining whether credit disposal and any related secu- the proposed disposition or any other rity; disposition of surplus real property vio- (c) May enforce, adjust, or settle any lates or would violate any of the anti- right of the Government with respect trust laws. to extending credit in a manner and with terms that are in the best inter- § 102–75.285 Can a disposal agency dis- ests of the Government; and pose of real property to a private (d) Must include provisions in the interest specified in § 102–75.270 before advice is received from the At- conveyance documents that obligate torney General? the purchaser, where a sale is made upon credit, to obtain the disposal No, advice from the Attorney Gen- agency’s prior written approval before eral must be received before disposing reselling or leasing the property. The of real property. purchaser’s credit obligations to the United States must be fulfilled before DISPOSALS UNDER OTHER LAWS the disposal agency may approve the § 102–75.290 Can disposals of real resale of the property. property be made under authority of laws other than Chapter 5 of DESIGNATION OF DISPOSAL AGENCIES Subtitle I of Title 40 of the United States Code? § 102–75.296 When may a landholding agency other than GSA be the dis- Except for disposals specifically au- posal agency for real and related thorized by special legislation, dis- personal property? posals of real property must be made A landholding agency may be the dis- only under the authority of Chapter 5 posal agency for real and related per- of Subtitle I of Title 40 of the United sonal property when— States Code. However, the Adminis- trator of General Services can evalu- (a) The agency has statutory author- ate, on a case-by-case basis, the dis- ity to dispose of real and related per- posal provisions of any other law to de- sonal property; termine consistency with the authority (b) The agency has delegated author- conferred by Title 40. The provisions of ity from GSA to dispose of real and re- this section do not apply to disposals of lated personal property; or real property authorized to be made by (c) The agency is disposing of— 40 U.S.C. 113 or by any special statute (1) Leases, licenses, permits, ease- that directs or requires an Executive ments, and other similar real estate in- agency named in the law to transfer or terests held by agencies in non-Govern- convey specifically described real prop- ment-owned real property; erty in accordance with the provisions (2) Government-owned improve- of that statute. ments, including fixtures, structures, and other improvements of any kind as CREDIT DISPOSALS long as the underlying land is not being disposed; or § 102–75.295 What is the policy on ex- (3) Standing timber, embedded grav- tending credit in connection with el, sand, stone, and underground water, the disposal of surplus property? without the underlying land. The disposal agency— (a) May extend credit in connection § 102–75.297 Are there any exceptions with any disposal of surplus property to when landholding agencies can when it determines that credit terms serve as the disposal agency? are necessary to avoid reducing the sal- Yes, landholding agencies may not ability of the property and potential serve as the disposal agency when— obtainable price and, when below mar- (a) Either the landholding agency or ket rates are extended, confer with the GSA determines that the Government’s Office of Management and Budget to best interests are served by disposing determine if the Federal Credit Reform of leases, licenses, permits, easements Act of 1990 is applicable to the trans- and similar real estate interests to- action; gether with other property owned or

240

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00250 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.325

controlled by the Government that has annual rental value of the property been or will be reported to GSA, or available for disposal. (b) Government-owned machinery and equipment being used by a con- § 102–75.310 Who must agencies use to tractor-operator will be sold to a con- appraise the real property? tractor-operator. Agencies must use only experienced and qualified real estate appraisers fa- § 102–75.298 Can agencies request that miliar with the types of property to be GSA be the disposal agency for real appraised when conducting the ap- property and real property inter- praisal. When an appraisal is required ests described in § 102–75.296? for negotiation purposes, the same Yes. If requested, GSA, at its discre- standard applies. However, agencies tion, may be the disposal agency for may authorize other methods of ob- such real property and real property taining an estimate of the fair market interests. value or the fair annual rental when the cost of obtaining that data from a § 102–75.299 What are landholding contract appraiser would be out of pro- agencies’ responsibilities if GSA portion to the expected recoverable conducts the disposal? value of the property. Landholding agencies are and remain responsible for all rental/lease pay- § 102–75.315 Are appraisers authorized to consider the effect of historic ments until the lease expires or is ter- covenants on the fair market value? minated. Landholding agencies are responsible for paying any restoration or Yes, appraisers are authorized to con- other direct costs incurred by the Gov- sider the effect of historic covenants on ernment associated with termination the fair market value, if the property of a lease, and for paying any demoli- is in or eligible for listing in the Na- tion and removal costs not offset by tional Register of Historic Places. the sale of the property. (See also § 102– § 102–75.320 Does appraisal informa- 75.965.) tion need to be kept confidential?

APPRAISAL Yes, appraisals, appraisal reports, appraisal analyses, and other pre- § 102–75.300 Are appraisals required decisional appraisal documents are for all real property disposal trans- confidential and can only be used by actions? authorized Government personnel who Generally, yes, appraisals are re- can substantiate the need to know this quired for all real property disposal information. Appraisal information transactions, except when— must not be divulged prior to the deliv- (a) An appraisal will serve no useful ery and acceptance of the deed. Any purpose (e.g., legislation authorizes persons engaged to collect or evaluate conveyance without monetary consid- appraisal information must certify eration or at a fixed price). This excep- that— tion does not apply to negotiated sales (a) They have no direct or indirect to public agencies intending to use the interest in the property; and property for a public purpose not cov- (b) The report was prepared and sub- ered by any of the special disposal pro- mitted without bias or influence. visions in subpart C of this part; or INSPECTION (b) The estimated fair market value of property to be offered on a competi- § 102–75.325 What responsibility does tive sale basis does not exceed $300,000. the landholding agency have to provide persons the opportunity to in- § 102–75.305 What type of appraisal spect available surplus property? value must be obtained for real Landholding agencies should provide property disposal transactions? all persons interested in acquiring For all real property transactions re- available surplus property with the op- quiring appraisals, agencies must ob- portunity to make a complete inspec- tain, as appropriate, an appraisal of ei- tion of the property, including any ther the fair market value or the fair available inventory records, plans,

241

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00251 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.330 41 CFR Ch. 102 (7–1–11 Edition)

specifications, and engineering reports related diseases, which include certain can- that relate to the property. These in- cers and which can result in disability or spections are subject to any necessary death. (b) Bidders (offerors) are invited, urged and national security restrictions and are cautioned to inspect the property to be sold subject to the disposal agency’s rules. prior to submitting a bid (offer). More par- (See §§ 102–75.335 and 102–75.985.) ticularly, bidders (offerors) are invited, urged and cautioned to inspect the property SUBMISSION OF OFFERS TO PURCHASE OR as to its asbestos content and condition and LEASE any hazardous or environmental conditions relating thereto. The disposal agency will as- § 102–75.330 What form must all offers sist bidders (offerors) in obtaining any au- to purchase or lease be in? thorization(s) that may be required in order to carry out any such inspection(s). Bidders All offers to purchase or lease must (offerors) shall be deemed to have relied sole- be in writing, accompanied by any rely on their own judgment in assessing the quired earnest money deposit, using overall condition of all or any portion of the the form prescribed by the disposal property including, without limitation, any agency. In addition to the financial asbestos hazards or concerns. terms upon which the offer is predi- (c) No warranties either express or implied cated, the offer must set forth the will- are given with regard to the condition of the property including, without limitation, ingness of the offeror to abide by the whether the property does or does not con- terms, conditions, reservations, and retain asbestos or is or is not safe for a par- strictions upon which the property is ticular purpose. The failure of any bidder (of- offered, and must contain such other feror) to inspect, or to be fully informed as information as the disposal agency to the condition of all or any portion of the may request. property offered, will not constitute grounds for any claim or demand for adjustment or PROVISIONS RELATING TO ASBESTOS withdrawal of a bid or offer after its opening or tender. § 102–75.335 Where asbestos is identi- (d) The description of the property set fied, what information must the dis- forth in the Invitation for Bids (Offer to Pur- posal agency incorporate into the chase) and any other information provided offer to purchase and the convey- therein with respect to said property is based ance document? on the best information available to the disposal agency and is believed to be correct, Where the existence of asbestos on but an error or omission, including, but not the property has been brought to the limited to, the omission of any information attention of the disposal agency by the available to the agency having custody over Report of Excess Real Property (Stand- the property and/or any other Federal agen- ard Form 118) information provided cy, shall not constitute grounds or reason for nonperformance of the contract of sale, or (see § 102–75.125), the disposal agency any claim by the Purchaser against the Gov- must incorporate this information (less ernment including, without limitation, any any cost or time estimates to remove claim for allowance, refund, or deduction the asbestos-containing materials) into from the purchase price. any offer to purchase and conveyance (e) The Government assumes no liability document and include the following for damages for personal injury, illness, dis- wording: ability, or death, to the Purchaser, or to the Purchaser’s successors, assigns, employees, Notice of the Presence of Asbestos—Warn- invitees, or any other person subject to Pur- ing! chaser’s control or direction, or to any other (a) The Purchaser is warned that the prop- person, including members of the general erty offered for sale contains asbestos-con- public, arising from or incident to the pur- taining materials. Unprotected or unregu- chase, transportation, removal, handling, lated exposures to asbestos in product manu- use, disposition, or other activity causing or facturing, shipyard, and building construc- leading to contact of any kind whatsoever tion workplaces have been associated with with asbestos on the property that is the asbestos-related diseases. Both the U.S. Oc- subject of this sale, whether the Purchaser, cupational Safety and Health Administra- its successors or assigns has or have properly tion (OSHA) and the U.S. Environmental warned or failed properly to warn the indi- Protection Agency (EPA) regulate asbestos vidual(s) injured. because of the potential hazards associated (f) The Purchaser further agrees that, in with exposure to airborne asbestos fibers. its use and occupancy of the property, it will Both OSHA and EPA have determined that comply with all Federal, State, and local such exposure increases the risk of asbestos- laws relating to asbestos.

242

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00252 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.351

PROVISIONS RELATING TO HAZARDOUS § 102–75.345 What is different about SUBSTANCE ACTIVITY the statements in the offer to purchase and conveyance document if § 102–75.340 Where hazardous sub- the sale is to a potentially respon- stance activity has been identified sible party with respect to the haz- on property proposed for disposal, ardous substance activity? what information must the disposal In the case where the purchaser or agency incorporate into the offer to grantee is a potentially responsible purchase and the conveyance docu- party (PRP) with respect to hazardous ment? substance activity on the property Where the existence of hazardous under consideration, the United States substance activity has been brought to is no longer under a general obligation the attention of the disposal agency by to certify that the property has been the Report of Excess Real Property successfully remediated, or to commit (Standard Form 118) information pro- to return to the property to address vided (see §§ 102–75.125 and 102–75.130), contamination that is discovered in the the disposal agency must incorporate future. Therefore, the statements of re- this information into any offer to pur- sponsibility and commitments on be- chase and conveyance document. In half of the United States referenced in any offer to purchase and conveyance § 102–75.340 should not be used. Instead, document, disposal agencies, generally, language should be included in the must also address the following (spe- offer to purchase and conveyance document that is consistent with any agree- cific recommended language that ad- ment that has been reached between dresses the following issues can be the landholding agency and the PRP found in the GSA Customer Guide to with regard to prior hazardous sub- Real Property Disposal): stance activity. (a) Notice of all hazardous substance activity identified as a result of a com- PUBLIC BENEFIT CONVEYANCES plete search of agency records by the landholding agency. § 102–75.350 What are disposal agen- (b) A statement, certified by a re- cies’ responsibilities concerning sponsible landholding agency official in public benefit conveyances? the Report of Excess Real Property, Based on a highest and best use anal- that all remedial actions necessary to ysis, disposal agencies may make sur- protect human health and the environ- plus real property available to State ment with regard to such hazardous and local governments and certain non- substance activity have been taken profit institutions or organizations at (this is not required in the offer to pur- up to 100 percent public benefit dis- chase or conveyance document in the count for public benefit purposes. Some case of a transfer of property under the examples of such purposes are edu- authority of section 120(h)(3)(C) of cation, health, park and recreation, the homeless, historic monuments, public CERCLA, or the Early Transfer Au- airports, highways, correctional facili- thority, or a conveyance to a ‘‘poten- ties, ports, and wildlife conservation. tially responsible party’’, as defined by The implementing regulations for CERCLA (see 102–75.345)). these conveyances are found in this (c) A commitment, on behalf of the subpart. United States, to return to correct any hazardous condition discovered after § 102–75.351 May the disposal agency the conveyance that results from haz- waive screening for public benefit ardous substance activity prior to the conveyances? date of conveyance. All properties, consistent with the (d) A reservation by the United highest and best use analysis, will nor- States of a right of access in order to mally be screened for public benefit accomplish any further remedial ac- uses. However, the disposal agency tions required in the future. may waive public benefit screening, with the exception of the mandatory McKinney-Vento homeless screening,

243

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00253 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.355 41 CFR Ch. 102 (7–1–11 Edition)

for specific property disposal consider- § 102–75.370 May a State, or any polit- ations, e.g., when a property has been ical subdivision thereof, certify to a reported excess for exchange purposes. disposal agency that it needs a surplus power transmission line and § 102–75.355 What clause must be in the right-of-way acquired for its the offer to purchase and the con- construction to meet the require- veyance documents for public ben- ments of a public or cooperative efit conveyances? power project? Executive agencies must include in Yes, section 13(d) of the Surplus the offer to purchase and conveyance Property Act of 1944 (50 U.S.C. App. documents the non-discrimination 1622(d)) allows any State or political clause in § 102–75.360 for public benefit subdivision, or any State or Govern- conveyances. ment agency or instrumentality to certify to the disposal agency that a sur- § 102–75.360 What wording must be in plus power transmission line and the the non-discrimination clause that right-of-way acquired for its construc- is required in the offer to purchase tion is needed to meet the require- and in the conveyance document? ments of a public or cooperative power The wording of the non-discrimina- project. tion clause must be as follows: § 102–75.375 What happens once a The Grantee covenants for itself, its heirs, State, or political subdivision, cer- successors, and assigns and every successor tifies that it needs a surplus power in interest to the property hereby conveyed, transmission line and the right-of- or any part thereof, that the said Grantee way acquired for its construction to and such heirs, successors, and assigns shall meet the requirements of a public not discriminate upon the basis of race, or cooperative power project? creed, color, religion, sex, disability, age, or national origin in the use, occupancy, sale, Generally, once a State or political or lease of the property, or in their employ- subdivision certifies that it needs a ment practices conducted thereon. This cov- surplus power transmission line and enant shall not apply, however, to the lease the right-of-way, the disposal agency or rental of a room or rooms within a family may sell the property to the state, or dwelling unit; nor shall it apply with respect political subdivision thereof, at the to religion to premises used primarily for re- fair market value. However, if a sale of ligious purposes. The United States of Amer- ica shall be deemed a beneficiary of this cov- a surplus transmission line cannot be enant without regard to whether it remains accomplished because of the price to be the owner of any land or interest therein in charged, or other reasons, and the cer- the locality of the property hereby conveyed tification by the State or political sub- and shall have the sole right to enforce this division is not withdrawn, the disposal covenant in any court of competent jurisdic- agency must report the facts involved tion. to the Administrator of General Serv- ices, to determine what further action POWER TRANSMISSION LINES will or should be taken to dispose of § 102–75.365 Do disposal agencies have the property. to notify State entities and Govern- ment agencies that a surplus power § 102–75.380 May power transmission transmission line and right-of-way lines and rights-of-way be disposed is available? of in other ways? Yes, disposal agencies must notify Yes, power transmission lines and State entities and Government agen- rights-of-way not disposed of by sale cies of the availability of a surplus for fair market value may be disposed power transmission line and right-of- of following other applicable provisions way. of this part, including, if appropriate, reclassification by the disposal agency.

244

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00254 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.415

PROPERTY FOR PUBLIC AIRPORTS authorizes the disposal agency to convey or dispose of surplus airport prop- § 102–75.385 Do disposal agencies have erty to a State, political subdivision, the responsibility to notify eligible municipality, or tax-supported institu- public agencies that airport prop- tion for use as a public airport. erty has been determined to be surplus? § 102–75.400 Is industrial property lo- Yes, the disposal agency must notify cated on an airport also considered eligible public agencies that property to be ‘‘airport property’’? currently used as or suitable for use as No, if the Administrator of General a public airport under the Surplus Services determines that a property’s Property Act of 1944, as amended, has highest and best use is industrial, then been determined to be surplus. A copy the property must be classified as such of the landholding agency’s Report of for disposal without regard to the pub- Excess Real Property (Standard Form lic benefit conveyance provisions of 118, with accompanying schedules) this subpart. must be transmitted with the copy of the surplus property notice sent to the § 102–75.405 What responsibilities does appropriate regional office of the Fed- the Federal Aviation Administra- eral Aviation Administration (FAA). tion (FAA) have after receiving a The FAA must furnish an application copy of the notice (and a copy of the Report of Excess Real Property form and instructions for the prepara- (Standard Form 118)) given to eligi- tion of an application to eligible public ble public agencies that there is agencies upon request. surplus airport property? § 102–75.390 What does the term ‘‘sur- As soon as possible after receiving plus airport property’’ mean? the copy of the surplus notice, the FAA must inform the disposal agency of its For the purposes of this part, surplus determination. Then, the FAA must airport property is any surplus real provide assistance to any eligible pub- property including improvements and lic agency known to have a need for personal property included as a part of the property for a public airport, so the operating unit that the Adminis- that the public agency may develop a trator of FAA deems is— comprehensive and coordinated plan of (a) Essential, suitable, or desirable use and procurement for the property. for the development, improvement, operation, or maintenance of a public air- § 102–75.410 What action must the dis- port, as defined in the Federal Airport posal agency take after an eligible Act, as amended (49 U.S.C. 1101); or public agency has submitted a plan (b) Reasonably necessary to fulfill of use and application to acquire the immediate and foreseeable future property for a public airport? requirements of the grantee for the de- After an eligible public agency sub- velopment, improvement, operation, or mits a plan of use and application, the maintenance of a public airport, in- disposal agency must transmit two cluding property needed to develop copies of the plan and two copies of the sources of revenue from non-aviation application to the appropriate FAA re- businesses at a public airport. Approval gional office. The FAA must promptly for non-aviation revenue-producing submit a recommendation to the dis- areas may only be given for such areas posal agency for disposal of the prop- as are anticipated to generate net pro- erty for a public airport or must in- ceeds that do not exceed expected defi- form the disposal agency that no such cits for operation of the aviation area recommendation will be submitted. applied for at the airport. § 102–75.415 What happens after the § 102–75.395 May surplus airport prop- disposal agency receives the FAA’s erty be conveyed or disposed of to a recommendation for disposal of the State, political subdivision, munici- property for a public airport? pality, or tax-supported institution The head of the disposal agency, or for a public airport? his or her designee, may convey prop- Yes, section 13(g) of the Surplus erty approved by the FAA for use as a Property Act of 1944 (49 U.S.C. § 47151) public airport to the eligible public

245

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00255 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.420 41 CFR Ch. 102 (7–1–11 Edition)

agency, subject to the provisions of the not apply to the transfer of airports to Surplus Property Act of 1944, as State and local agencies. The transfer amended. of airports to State and local agencies may be made only under section 13(g) § 102–75.420 What happens if the FAA of the Surplus Property Act of 1944 (49 informs the disposal agency that it U.S.C. 47151–47153). Only property that does not recommend disposal of the the landholding agency determines property for a public airport? cannot be reported excess to GSA for Any airport property that the FAA disposal under Title 40, but neverthe- does not recommend for disposal as a less may be made available for use by public airport must be disposed of in a State or local public body as a public accordance with other applicable provi- airport without being inconsistent sions of this part. However, the dis- with the Federal program of the land- posal agency must first notify the holding agency, may be conveyed under landholding agency of its inability to the Airport Act of 1970. In the latter in- dispose of the property for use as a stance, the Airport Act of 1970 may be public airport. In addition, the disposal used to transfer non-excess land for agency must allow the landholding airport development purposes provided agency 30 days to withdraw the prop- it does not constitute an entire airport. erty from surplus or to waive any fu- An entire, existing and established air- ture interest in the property for public port can only be disposed of to a State airport use. or eligible local government under section 13(g) of the Surplus Property Act § 102–75.425 Who has sole responsi- of 1944. bility for enforcing compliance with the terms and conditions of dis- PROPERTY FOR USE AS HISTORIC posal for property disposed of for MONUMENTS use as a public airport? The Administrator of the FAA has § 102–75.440 Who must disposal agen- the sole responsibility for enforcing cies notify that surplus property is compliance with the terms and condi- available for historic monument use? tions of disposals to be used as a public airport. The FAA is also responsible for Disposal agencies must notify State reforming, correcting, or amending any and area wide clearinghouses and eligi- disposal instruments; granting re- ble public agencies that property that leases; and any action necessary for re- may be conveyed for use as a historic capturing the property, using the pro- monument has been determined to be visions of 49 U.S.C. 47101 et seq. surplus. A copy of the landholding agency’s Report of Excess Real Prop- § 102–75.430 What happens if property erty (Standard Form 118) with accom- conveyed for use as a public airport panying schedules must be transmitted is revested in the United States? with the copy of each notice that is If property that was conveyed for use sent to the appropriate regional or as a public airport is revested in the field offices of the National Park Serv- United States for noncompliance with ice (NPS) of the Department of the In- the terms of the disposal, or other terior (DOI). cause, the Administrator of the FAA must be accountable for the property § 102–75.445 Who can convey surplus real and related personal property and must report the property to GSA for historic monument use? as excess property following the provisions of this part. A disposal agency may convey surplus real and related personal property § 102–75.435 Does the Airport and Air- for use as a historic monument, with- way Development Act of 1970, as out monetary consideration, to any amended (Airport Act of 1970), State, political subdivision, instrumen- apply to the transfer of airports to tality thereof, or municipality, for the State and local agencies? benefit of the public, provided the Sec- No, the Airport and Airway Develop- retary of the Interior has determined ment Act of 1970, as amended (49 U.S.C. that the property is suitable and desir- 47101–47131) (Airport Act of 1970), does able for such use.

246

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00256 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.480

§ 102–75.450 What type of property is § 102–75.465 What information must el- suitable or desirable for use as a igible public agencies interested in historic monument? acquiring real property for use as a historic monument submit to the Only property conforming with the appropriate regional or field offices recommendation of the Advisory Board of the National Park Service (NPS) on National Parks, Historic Sites, of the Department of the Interior Buildings, and Monuments shall be de- (DOI)? termined to be suitable or desirable for Eligible public agencies must submit use as a historic monument. the original and two copies of the completed application to acquire real prop- § 102–75.455 May historic monuments erty for use as a historic monument to be used for revenue-producing ac- the appropriate regional or field offices tivities? of NPS, which will forward one copy of The disposal agency may authorize the application to the appropriate re- the use of historic monuments con- gional office of the disposal agency. veyed under 40 U.S.C. 550(h) or the Sur- plus Property Act of 1944, as amended, § 102–75.470 What action must NPS for revenue-producing activities, if the take after an eligible public agency has submitted an application for Secretary of the Interior— conveyance of surplus property for (a) Determines that the activities, use as a historic monument? described in the applicant’s proposed NPS must promptly— program of use, are compatible with (a) Submit the Secretary of the Inte- the use of the property for historic rior’s determination to the disposal monument purposes; agency; or (b) Approves the grantee’s plan for (b) Inform the disposal agency that repair, rehabilitation, restoration, and no such recommendation will be sub- maintenance of the property; mitted. (c) Approves the grantee’s plan for financing the repair, rehabilitation, res- § 102–75.475 What happens after the toration, and maintenance of the prop- disposal agency receives the Sec- erty. DOI must not approve the plan retary of the Interior’s determina- unless it provides that all income in tion for disposal of the surplus property for a historic monument excess of costs of repair, rehabilitation, and compatible revenue-producing restoration, maintenance, and a speci- activities? fied reasonable profit or payment that The head of the disposal agency or may accrue to a lessor, sublessor, or his or her designee may convey to an developer in connection with the man- eligible public agency surplus property agement, operation, or development of determined by the Secretary of the In- the property for revenue producing ac- terior to be suitable and desirable for tivities, is used by the grantee, lessor, use as a historic monument for the sublessor, or developer, only for public benefit of the public and for compatible historic preservation, park, or rec- revenue-producing activities subject to reational purposes; and the provisions of 40 U.S.C. 550(h). (d) Examines and approves the grantee’s accounting and financial proce- § 102–75.480 Who has the responsibility dures for recording and reporting on for enforcing compliance with the revenue-producing activities. terms and conditions of disposal for surplus property conveyed for use § 102–75.460 What information must as a historic monument? disposal agencies furnish eligible The Secretary of the Interior has the public agencies? responsibility for enforcing compliance Upon request, the disposal agency with the terms and conditions of such must furnish eligible public agencies a disposal. DOI is also responsible for with adequate preliminary property in- reforming, correcting, or amending any formation and, with the landholding disposal instrument; granting releases; agency’s cooperation, provide assist- and any action necessary for recap- ance to enable public agencies to ob- turing the property using the provi- tain adequate property information. sions of 40 U.S.C. 550(b). The actions

247

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00257 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.485 41 CFR Ch. 102 (7–1–11 Edition)

are subject to the approval of the head ment of Health and Human Services of the disposal agency. (HHS), as appropriate. The notice must also let eligible public agencies know § 102–75.485 What happens if property where to obtain the applications, in- that was conveyed for use as a his- structions for preparing them, and toric monument is revested in the United States? where to submit the application. The requirement for educational or public In such a case, DOI must notify the health use of the property by an eligi- appropriate GSA Public Buildings ble public agency is contingent upon Service (PBS) Regional Office imme- the disposal agency’s approval, under diately by letter when title to the his- § 102–75.515, of a recommendation for as- toric property is to be revested in the signment of Federal surplus real prop- United States for noncompliance with erty received from ED or HHS. Fur- the terms and conditions of disposal or ther, any subsequent transfer is subject for other cause. The notification must cite the legal and administrative ac- to the approval of the head of the dis- tions that DOI must take to obtain full posal agency as stipulated under 40 title and possession of the property. In U.S.C. 550(c) or (d) and referenced in addition, it must include an adequate § 102–75.535. description of the property, including any improvements constructed since § 102–75.495 May the Department of Education (ED) or the Department the original conveyance to the grantee. of Health and Human Services After receiving a statement from DOI (HHS) notify nonprofit organiza- that title to the property is proposed tions that surplus real property and for revesting, GSA will review the related personal property is avail- statement and determine if title should able for educational and public be revested. If GSA, in consultation health purposes? with DOI, determines that the property Yes, ED or HHS may notify eligible should be revested, DOI must submit a non-profit institutions that such prop- Report of Excess Real Property, Stand- erty has been determined to be surplus. ard Form 118 to GSA. GSA will review Notices to eligible non-profit institu- and act upon the Standard Form 118, if tions must require eligible non-profit acceptable. However, the grantee must institutions to coordinate any request provide protection and maintenance of for educational or public health use of the property until the title reverts to the property with the appropriate pub- the Federal Government, including the lic agency responsible for developing period of the notice of intent to revert. and submitting a comprehensive and Such protection and maintenance coordinated plan of use and procure- must, at a minimum, conform to the ment for the property. standards prescribed in the GSA Cus- tomer Guide to Real Property Disposal. § 102–75.500 Which Federal agencies may the head of the disposal agency PROPERTY FOR EDUCATIONAL AND (or his or her designee) assign for PUBLIC HEALTH PURPOSES disposal surplus real property to be used for educational and public § 102–75.490 Who must notify eligible health purposes? public agencies that surplus real property for educational and public The head of the disposal agency or health purposes is available? his designee may— The disposal agency must notify eli- (a) Assign to the Secretary of ED for gible public agencies that surplus prop- disposal under 40 U.S.C. 550(c) surplus erty is available for educational and/or real property, including buildings, fix- public health purposes. The notice tures, and equipment, as recommended must require that any plans for an edu- by the Secretary as being needed for cational or public health use, resulting school, classroom, or other educational from the development of the com- use; or prehensive and coordinated plan of use (b) Assign to the Secretary of HHS and procurement for the property, for disposal under 40 U.S.C. 550 (d) such must be coordinated with the Depart- surplus real property, including build- ment of Education (ED) or the Depart- ings, fixtures, and equipment situated

248

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00258 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.525

thereon, as recommended by the Sec- of ED or HHS, as appropriate, or must retary as being needed for use in the inform the disposal agency, within the protection of public health, including 30–calendar day period, that a rec- research. ommendation will not be made for assignment of the property to ED or § 102–75.505 Is the request for edu- HHS. If, after considering other uses cational or public health use of a property by an eligible nonprofit infor the property, the disposal agency stitution contingent upon the disapproves the assignment recommenda- posal agency’s approval? tion from ED or HHS, it must assign Yes, eligible non-profit organizations the property by letter or other docu- will only receive surplus real property ment to the Secretary of ED or HHS, for an educational or public health use as appropriate. The disposal agency if the disposal agency approves or must furnish to the landholding agency grants the assignment request from ei- a copy of the assignment, unless the ther ED or HHS. The disposal agency landholding agency is also the disposal will also consider other uses for avail- agency. If the recommendation is dis- able surplus real property, taking into approved, the disposal agency must account the highest and best use deter- likewise notify the appropriate Depart- mination. Any subsequent transfer is ment. subject to the approval of the head of the disposal agency as stipulated under § 102–75.520 What must the Depart- 40 U.S.C. 550(c) or (d) and referenced in ment of Education or the Depart- this part. ment of Health and Human Services address in the assignment rec- § 102–75.510 When must the Depart- ommendation that is submitted to ment of Education and the Depart- the disposal agency? ment of Health and Human Services Any assignment recommendation notify the disposal agency that an eligible applicant is interested in that ED or HHS submits to the disposal acquiring the property? agency must provide complete information concerning the educational or ED and HHS must notify the disposal public health use, including— agency if it has an eligible applicant interested in acquiring the property (a) Identification of the property; within 30 calendar days after the date (b) The name of the applicant and the of the surplus notice. Then, after the size and nature of its program; 30-day period expires, ED or HHS has 30 (c) The specific use planned; calendar days to review and approve an (d) The intended public benefit allow- application and request assignment of ance; the property, or inform the disposal (e) The estimate of the value upon agency that no assignment request will which such proposed allowance is be forthcoming. based; and (f) An explanation if the acreage or § 102–75.515 What action must the disposal agency take after an eligible value of the property exceeds the public agency has submitted a plan standards established by the Secretary. of use for property for an educational or public health require- § 102–75.525 What responsibilities do ment? landholding agencies have concerning properties to be used for When an eligible public agency sub- educational and public health pur- mits a plan of use for property for an poses? educational or public health requirement, the disposal agency must trans- Landholding agencies must cooperate mit two copies of the plan to the re- to the fullest extent possible with rep- gional office of ED or HHS, as appro- resentatives of ED or HHS in their in- priate. The ED or HHS must submit to spection of such property and in fur- the disposal agency, within 30 calendar nishing information relating to the days after the date the plan is trans- property. mitted, a recommendation for assignment of the property to the Secretary

249

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00259 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.530 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–75.530 What happens if the De- its intent to take any actions to recap- partment of Education or the De- ture the property. The notice must partment of Health and Human identify the property affected, describe Services does not approve any ap- in detail the proposed action, and state plications for conveyance of the the reasons for the proposed action. property for educational or public health purposes? § 102–75.545 What happens if property In the absence of an approved appli- that was transferred to meet an cation from ED or HHS to convey the educational or public health re- property for educational or public quirement is revested in the United health purposes, which must be re- States for noncompliance with the ceived within the 30 calendar day time terms of sale, or other cause? limit, the disposal agency will proceed In each case of repossession under a with other disposal actions. terminated lease or reversion of title for noncompliance with the terms or § 102–75.535 What responsibilities does conditions of sale or other cause, ED or the Department of Education or the HHS must, prior to repossession or re- Department of Health and Human Services have after receiving the version of title, provide the appropriate disposal agency’s assignment letter? GSA regional property disposal office with an accurate description of the real After receiving the disposal agency’s and related personal property involved assignment letter, ED or HHS must furnish the disposal agency with a No- using the Report of Excess Real Prop- tice of Proposed Transfer within 30 cal- erty (Standard Form 118), and the ap- endar days. If the disposal agency appropriate schedules. After receiving a proves the proposed transfer within 30 statement from ED or HHS that the days of receiving the Notice of Pro- property is proposed for revesting, GSA posed Transfer, ED or HHS may pre- will review the statement and deter- pare the transfer documents and pro- mine if title should be revested. If ceed with the transfer. ED or HHS GSA, in conjunction with ED or HHS, must take all necessary actions to ac- determines that the property should be complish the transfer within 15–cal- revested, ED or HHS must submit a endar days beginning when the disposal Standard Form 118 to GSA. GSA will agency approves the transfer. ED or review and act upon the Standard HHS must furnish the disposal agency Form 118, if acceptable. However, the two conformed copies of deeds, leases grantee must provide protection and or other instruments conveying the maintenance for the property until the property under 40 U.S.C. 550(c) or (d) title reverts to the Federal Govern- and all related documents containing ment, including the period of any no- restrictions or conditions regulating tice of intent to revert. Such protec- the future use, maintenance or transfer tion and maintenance must, at a min- of the property. imum, conform to the standards prescribed in the GSA Customer Guide to § 102–75.540 Who is responsible for en- Real Property Disposal. forcing compliance with the terms and conditions of the transfer for PROPERTY FOR PROVIDING SELF-HELP educational or public health pur- HOUSING OR HOUSING ASSISTANCE poses? ED or HHS, as appropriate, is respon- § 102–75.550 What does ‘‘self-help hous- sible for enforcing compliance with the ing or housing assistance’’ mean? terms and conditions of transfer. ED or Property for self-help housing or HHS is also responsible for reforming, housing assistance (which is separate correcting, or amending any transfer from the program under Title V of the instruments; granting releases; and for McKinney-Vento Homeless Assistance taking any necessary actions for recap- Act covered in subpart H of this part) turing the property using or following is property for low-income housing op- the provisions of 40 U.S.C. 550(b). These portunities through the construction, actions are subject to the approval of rehabilitation, or refurbishment of the head of the disposal agency. ED or housing, under terms that require HHS must notify the disposal agency of that—

250

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00260 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.585

(a) Any individual or family receiv- the approval of the head of the disposal ing housing or housing assistance must agency as stipulated under 40 U.S.C. contribute a significant amount of 550(f) and referenced in § 102–75.605. labor toward the construction, rehabilitation, or refurbishment; and § 102–75.570 What happens if the dis- (b) Dwellings constructed, rehabili- posal agency does not approve the tated, or refurbished must be quality assignment recommendation? dwellings that comply with local build- If the recommendation is not ap- ing and safety codes and standards and proved, the disposal agency must also must be available at prices below pre- notify the Secretary of HUD and then vailing market prices. may proceed with other disposal action. § 102–75.555 Which Federal agency receives the property assigned for § 102–75.575 Who notifies non-profit or- self-help housing or housing assist- ganizations that surplus real prop- ance for low-income individuals or erty and related personal property families? to be used for self-help housing or The head of the disposal agency, or housing assistance purposes is designee, may assign, at his/her discre- available? tion, surplus real property, including HUD notifies eligible non-profit orga- buildings, fixtures, and equipment to nizations, following guidance in the the Secretary of the Department of GSA Customer Guide to Real Property Housing and Urban Development Disposal. Such notices must require el- (HUD). igible nonprofit organizations to— (a) Coordinate any requirement for § 102–75.560 Who notifies eligible pub- self-help housing or housing assistance lic agencies that real property to be used for self-help housing or hous- use of the property with the appro- ing assistance purposes is avail- priate public agency; and able? (b) Declare to the disposal agency an The disposal agency must notify eli- intent to develop and submit a com- gible public agencies that surplus prop- prehensive and coordinated plan of use erty is available. The notice must re- and procurement for the property. quire that any plans for self-help hous- § 102–75.580 When must HUD notify ing or housing assistance use resulting the disposal agency that an eligible from the development of the com- applicant is interested in acquiring prehensive and coordinated plan of use the property? and procurement for the property must HUD must notify the disposal agency be coordinated with HUD. Eligible pub- within 30 calendar days after the date lic agencies may obtain an application of the surplus notice. Then, after the form and instructions for preparing and submitting the application from 30-day period expires, HUD has 30 cal- HUD. endar days to review and approve an application and request assignment or § 102–75.565 Is the requirement for inform the disposal agency that no as- self-help housing or housing assist- signment request is forthcoming. ance use of the property by an eligible public agency or non-profit or- § 102–75.585 What action must the dis- ganization contingent upon the disposal agency take after an eligible posal agency’s approval of an as- public agency has submitted a plan signment recommendation from the of use for property for a self-help Department of Housing and Urban housing or housing assistance re- Development (HUD)? quirement? Yes, the requirement for self-help When an eligible public agency sub- housing or housing assistance use of mits a plan of use for property for a the property by an eligible public agen- self-help housing or housing assistance cy or nonprofit organization is contin- requirement, the disposal agency must gent upon the disposal agency’s ap- transmit two copies of the plan to the proval under § 102–75.585 of HUD’s as- appropriate HUD regional office. HUD signment recommendation/request. must submit to the disposal agency, Any subsequent transfer is subject to within 30 calendar days after the date

251

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00261 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.590 41 CFR Ch. 102 (7–1–11 Edition)

the plan is transmitted, a recommenda- posal agency must proceed with other tion for assignment of the property to disposal action. the Secretary of HUD, or must inform the disposal agency, within the 30–cal- § 102–75.605 What responsibilities does endar day period, that a recommenda- HUD have after receiving the disposal agency’s assignment letter? tion will not be made for assignment of the property to HUD. If, after consid- After receiving the disposal agency’s ering other uses for the property, the assignment letter, HUD must furnish disposal agency approves the assign- the disposal agency with a Notice of ment recommendation from HUD, it Proposed Transfer within 30 calendar must assign the property by letter or days. If the disposal agency approves other document to the Secretary of the proposed transfer within 30 cal- HUD. The disposal agency must furnish endar days of receiving the Notice of to the landholding agency a copy of the Proposed Transfer, HUD may prepare assignment, unless the landholding the transfer documents and proceed agency is also the disposal agency. If with the transfer. HUD must take all the disposal agency disapproves the necessary actions to accomplish the recommendation, the disposal agency transfer within 15 calendar days begin- must likewise notify the Secretary of ning when the disposal agency ap- HUD. proves the transfer. HUD must furnish the disposal agency two conformed cop- § 102–75.590 What does the assignment ies of deeds, leases or other instru- recommendation contain? ments conveying the property under 40 Any assignment recommendation U.S.C. 550(f) and all related documents that HUD submits to the disposal agen- containing restrictions or conditions cy must set forth complete information regulating the future use, maintenance concerning the self-help housing or or transfer of the property. housing assistance use, including— § 102–75.610 Who is responsible for en- (a) Identification of the property; forcing compliance with the terms (b) Name of the applicant and the and conditions of the transfer of size and nature of its program; the property for self-help housing (c) Specific use planned; or housing assistance use? (d) Intended public benefit allowance; HUD is responsible for enforcing (e) Estimate of the value upon which compliance with the terms and condi- such proposed allowance is based; and tions of transfer. HUD is also respon- (f) An explanation, if the acreage or sible for reforming, correcting, or value of the property exceeds the amending any transfer instrument; standards established by the Secretary. granting releases; and for taking any necessary actions for recapturing the § 102–75.595 What responsibilities do property using the provisions of 40 landholding agencies have con- U.S.C. 550(b). These actions are subject cerning properties to be used for to the approval of the head of the dis- self-help housing or housing assistance use? posal agency. HUD must notify the head of the disposal agency of its in- Landholding agencies must cooperate tent to take action to recapture the to the fullest extent possible with HUD property. The notice must identify the representatives in their inspection of property affected, describe in detail the such property and in furnishing infor- proposed action, and state the reasons mation relating to such property. for the proposed action.

§ 102–75.600 What happens if HUD § 102–75.615 Who is responsible for en- does not approve any applications forcing compliance with the terms for self-help housing or housing as- and conditions of property trans- sistance use? ferred under section 414(a) of the In the absence of an approved appli- 1969 HUD Act? cation from HUD for self-help housing HUD maintains responsibility for or housing assistance use, which must properties previously conveyed under be received within the 30–calendar day section 414(a) of the 1969 HUD Act. time limit specified therein, the dis- Property transferred to an entity other

252

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00262 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.640

than a public body and used for any PROPERTY FOR USE AS PUBLIC PARK OR purpose other than that for which it RECREATION AREAS was sold or leased within a 30-year period must revert to the United States. § 102–75.625 Which Federal agency is If the property was leased, then the assigned surplus real property for lease terminates. The appropriate Sec- public park or recreation purposes? retary (HUD or Department of Agri- The head of the disposal agency or culture) and the Administrator of GSA his or her designee is authorized to as- can approve the new use of the prop- sign to the Secretary of the Interior for erty after the first 20 years of the origi- disposal under 40 U.S.C. 550(e), surplus nal 30-year period has expired. real property, including buildings, fixtures, and equipment as recommended § 102–75.620 What happens if property by the Secretary as being needed for that was transferred to meet a self- use as a public park or recreation area help housing or housing assistance for conveyance to a State, political use requirement is found to be in subdivision, instrumentalities, or mu- noncompliance with the terms of sale? nicipality. In each case of repossession under a § 102–75.630 Who must disposal agen- terminated lease or reversion of title cies notify that real property for for noncompliance with the terms or public park or recreation purposes conditions of sale or other cause, HUD is available? (or USDA for property conveyed The disposal agency must notify es- through the former Farmers Home Ad- tablished State, regional, or metropoli- ministration program under section tan clearinghouses and eligible public 414(a) of the 1969 HUD Act) must, prior agencies that surplus property is avail- to repossession or reversion of title, able for use as a public park or recre- provide the appropriate GSA regional ation area. The disposal agency must office with an accurate description of transmit the landholding agency’s Re- the real and related personal property port of Excess Real Property (Standard involved using the Report of Excess Form 118, with accompanying sched- Real Property (Standard Form 118), ules) with the copy of each notice sent and the appropriate schedules. After to a regional or field office of the Na- receiving a statement from HUD (or tional Park Service (NPS) of the De- USDA) that title to the property is partment of the Interior (DOI). proposed for revesting, GSA will review the statement and determine if title § 102–75.635 What information must should be revested. If GSA, in conjunc- the Department of the Interior tion with HUD (or USDA), determines (DOI) furnish eligible public agen- that the property should be revested, cies? HUD (or USDA) must submit a Stand- Upon request, DOI must furnish eligi- ard Form 118 to GSA. GSA will review ble public agencies with an application and act upon the Standard Form 118, if form to acquire property for permanent acceptable. However, the grantee must use as a public park or recreation area provide protection and maintenance for and preparation instructions for the the property until the title reverts to application. the Federal Government, including the period of any notice of intent to revert. § 102–75.640 When must DOI notify the Such protection and maintenance disposal agency that an eligible ap- must, at a minimum, conform to the plicant is interested in acquiring the property? standards prescribed in the GSA Cus- tomer Guide to Real Property Disposal. DOI must notify the disposal agency if it has an eligible applicant interested in acquiring the property within 30 calendar days from the date of the surplus notice.

253

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00263 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.645 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–75.645 What responsibilities do tion is disapproved, the disposal agency landholding agencies have con- must likewise notify the Secretary. cerning properties to be used for public park or recreation purposes? § 102–75.670 What responsibilities does Landholding agencies must cooperate DOI have after receiving the dis- to the fullest extent possible with DOI posal agency’s assignment letter? representatives in their inspection of After receiving the disposal agency’s the property and in furnishing informa- assignment letter, the Secretary of the tion relating to the property. Interior must provide the disposal agency with a Notice of Proposed § 102–75.650 When must DOI request Transfer within 30 calendar days. If the assignment of the property? disposal agency approves the proposed Within 30 calendar days after the ex- transfer within 30 calendar days, the piration of the 30–calendar day period Secretary may proceed with the trans- specified in § 102–75.640, DOI must sub- fer. DOI must take all necessary ac- mit to the disposal agency an assign- tions to accomplish the transfer within ment recommendation along with a 15 calendar days after the expiration of copy of the application or inform the the 30–calendar day period provided for disposal agency that a recommenda- the disposal agency to consider the no- tion will not be made for assignment of the property. tice. DOI may place the applicant in possession of the property as soon as § 102–75.655 What does the assignment practicable to minimize the Govern- recommendation contain? ment’s expense of protection and main- Any recommendation submitted by tenance of the property. As of the date DOI must provide complete informa- the applicant takes possession of the tion concerning the plans for use of the property, or the date it is conveyed, property as a public park or recreation whichever occurs first, the applicant area, including— must assume responsibility for care (a) Identification of the property; and handling and all risks of loss or (b) The name of the applicant; damage to the property, and has all ob- (c) The specific use planned; and ligations and liabilities of ownership. (d) The intended public benefit allow- DOI must furnish the disposal agency ance. two conformed copies of deeds, leases, or other instruments conveying prop- § 102–75.660 What happens if DOI does erty under 40 U.S.C. 550(e) and related not approve any applications or does not submit an assignment rec- documents containing reservations, re- ommendation? strictions, or conditions regulating the future use, maintenance or transfer of If DOI does not approve any applica- the property. tions or does not submit an assignment recommendation to convey the prop- § 102–75.675 What responsibilities does erty for public park or recreation pur- the grantee or recipient of the poses, the disposal agency must pro- property have in accomplishing or ceed with other disposal action. completing the transfer? § 102–75.665 What happens after the Where appropriate, the disposal agen- disposal agency receives the assign- cy may make the assignment subject ment recommendation from DOI? to DOI requiring the grantee or recipi- If, after considering other uses for ent to bear the cost of any out-of-pock- the property, the disposal agency ap- et expenses necessary to accomplish proves the assignment recommenda- the transfer, such as for surveys, fenc- tion from DOI, it must assign the prop- ing, security of the remaining property by letter or other document to the erty, or otherwise. Secretary of the Interior. The disposal agency must furnish to the landholding agency a copy of the assignment, unless the landholding agency is also the disposal agency. If the recommenda-

254

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00264 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.700

§ 102–75.680 What information must be conditions of disposal or for other included in the deed of conveyance cause. The notification must cite the of any surplus property transferred legal and administrative actions that for public park or recreation pur- DOI must take to obtain full title and poses? possession of the property. In addition, The deed of conveyance of any sur- it must include an adequate descrip- plus real property transferred for pub- tion of the property, using the Report lic park and recreation purposes under of Excess Real Property (Standard 40 U.S.C. 550(e) must require that the Form 118) and the appropriate sched- property be used and maintained for ules. After receiving notice from DOI the purpose for which it was conveyed that title to the property is proposed in perpetuity. In the event that the for revesting, GSA will review the property ceases to be used or main- statement and determine if title should tained for that purpose, all or any por- be revested. If GSA, in consultation tion of such property will in its exist- with DOI, determines that the property ing condition, at the option of the should be revested, DOI must submit a United States, revert to the United Standard Form 118 to GSA. GSA will States. The deed of conveyance may review and act upon the Standard contain additional terms, reservations, Form 118, if acceptable. However, the restrictions, and conditions determined grantee must provide protection and by the Secretary of the Interior to be maintenance for the property until the necessary to safeguard the interests of title reverts to the Federal Govern- the United States. ment, including the period of any no- § 102–75.685 Who is responsible for en- tice of intent to revert. Such protec- forcing compliance with the terms tion and maintenance must, at a min- and conditions of the transfer of imum, conform to the standards pre- property used for public park or scribed in the GSA Customer Guide to recreation purposes? Real Property Disposal. The Secretary of the Interior is responsible for enforcing compliance PROPERTY FOR DISPLACED PERSONS with the terms and conditions of transfer. The Secretary of the Interior is § 102–75.695 Who can receive surplus also responsible for reforming, cor- real property for the purpose of providing replacement housing for recting, or amending any transfer in- persons who are to be displaced by strument; granting releases; and for re- Federal or Federally assisted capturing any property following the projects? provisions of 40 U.S.C. 550(b). These actions are subject to the approval of the Section 218 of the Uniform Reloca- head of the disposal agency. DOI must tion Assistance and Real Property Ac- notify the head of the disposal agency quisition Policies Act of 1970, as of its intent to take or recapture the amended, 42 U.S.C. 4638 (the Relocation property. The notice must identify the Act), authorizes the disposal agency to property affected and describe in detail transfer surplus real property to a the proposed action, including the rea- State agency to provide replacement sons for the proposed action. housing under title II of the Relocation Act for persons who are or will be dis- § 102–75.690 What happens if property placed by Federal or Federally assisted that was transferred for use as a projects. public park or recreation area is revested in the United States by rea- § 102–75.700 Which Federal agencies son of noncompliance with the may solicit applications from eligi- terms or conditions of disposal, or ble State agencies interested in ac- for other cause? quiring the property to provide re- DOI must notify the appropriate GSA placement housing for persons regional office immediately by letter being displaced by Federal or Fed- when title to property transferred for erally assisted projects? use as a public park or recreation area After receiving the surplus notice, is to be revested in the United States any Federal agency needing property for noncompliance with the terms or for replacement housing for displaced

255

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00265 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.705 41 CFR Ch. 102 (7–1–11 Edition)

persons may solicit applications from other options authorized under title II eligible State agencies. of the Relocation Act have been ex- plored and replacement housing cannot § 102–75.705 When must the Federal be found or made available through agency notify the disposal agency those channels; and that the Federal or that an eligible State agency is in- Federally assisted project cannot be terested in acquiring the property under section 218? accomplished unless the property is made available for replacement hous- Federal agencies must notify the dis- ing; posal agency within 30 calendar days (d) Any special terms and conditions after the date of the surplus notice, if that the Federal agency deems nec- an eligible State agency is interested essary to include in conveyance instru- in acquiring the property under section ments to ensure that the property is 218 of the Relocation Act. used for the intended purpose; (e) The name and proposed location § 102–75.710 What responsibilities do of the Federal or Federally assisted landholding and disposal agencies have concerning properties used project that is creating the require- for providing replacement housing ment; for persons who will be displaced (f) Purpose of the project; by Federal or Federally assisted (g) Citation of enabling legislation or projects? authorization for the project, when ap- Both landholding and disposal agen- propriate; cies must cooperate, to the fullest ex- (h) A detailed outline of steps taken tent possible, with Federal and State to obtain replacement housing for dis- agency representatives in their inspec- placed persons as authorized under tion of the property and in furnishing title II of the Relocation Act; and information relating to the property. (i) Details of the arrangements that have been made to construct replace- § 102–75.715 When can a Federal agen- ment housing on the surplus property cy request transfer of the property and to ensure that displaced persons to the selected State agency? will be provided housing in the devel- Federal agencies must advise the dis- opment. posal agency and request transfer of the property to the selected State § 102–75.730 What happens if a Federal agency does not submit a transfer agency within 30 calendar days after request to the disposal agency for the expiration of the 30–calendar day property to be used for replacement period specified in § 102–75.705. housing for persons who will be displaced by Federal or Federally as- § 102–75.720 Is there a specific or pre- sisted projects? ferred format for the transfer request and who should receive it? If the disposal agency does not receive a request for assignment or Any request submitted by a Federal transfer of the property under § 102– agency must be in the form of a letter 75.715, then the disposal agency must addressed to the appropriate GSA Pub- proceed with other appropriate disposal lic Buildings Service (PBS) regional actions. property disposal office. § 102–75.735 What happens after the § 102–75.725 What does the transfer redisposal agency receives the trans- quest contain? fer request from the Federal agen- Any transfer request must include— cy? (a) Identification of the property by If, after considering other uses for name, location, and control number; the property, the disposal agency de- (b) The name and address of the spe- termines that the property should be cific State agency and a copy of the made available for replacement hous- State agency’s application or proposal; ing under section 218, it must transfer (c) A certification by the appropriate the property to the designated State Federal agency official that the prop- agency on such terms and conditions as erty is required to house displaced per- will protect the United States’ inter- sons authorized by section 218; that all ests, including the payment or the

256

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00266 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.765

agreement to pay to the United States (b) Law enforcement purposes, if the all amounts received by the State Attorney General has determined that agency from any sale, lease, or other the property is required for such pur- disposition of the property for such poses; or housing. The sale, lease, or other dis- (c) Emergency management response position of the property by the State purposes, including fire and rescue agency must be at the fair market services, if the Director of the Federal value as approved by the disposal agen- Emergency Management Agency cy, unless a compelling justification is (FEMA) has determined that the prop- offered for disposal of the property at erty is required for such purposes. less than fair market value. Disposal of the property at less than fair market § 102–75.755 Which Federal agencies value must also be approved by the dis- must the disposal agency notify posal agency. concerning the availability of surplus properties for correctional fa- § 102–75.740 Does the State agency cility, law enforcement, or emer- have any responsibilities in helping gency management response pur- to accomplish the transfer of the poses? property? The disposal agency must provide Yes, the State agency is required to prompt notification to the Office of bear the costs of any out-of-pocket ex- Justice Programs (OJP), Department penses necessary to accomplish the of Justice (DOJ), and FEMA that sur- transfer, such as costs of surveys, fenc- plus property is available. The disposal ing, or security of the remaining prop- agency’s notice or notification must erty. include a copy of the landholding agen- § 102–75.745 What happens if the prop- cy’s Report of Excess Real Property erty transfer request is not ap- (Standard Form 118), with accom- proved by the disposal agency? panying schedules. If the request is not approved, the § 102–75.760 Who must the Office of disposal agency must notify the Fed- Justice Programs (OJP) and the eral agency requesting the transfer. Federal Emergency Management The disposal agency must furnish a Agency (FEMA) notify that surplus copy of the notice of disapproval to the real property is available for cor- landholding agency. rectional facility, law enforcement, or emergency management re- PROPERTY FOR CORRECTIONAL FACILITY, sponse purposes? LAW ENFORCEMENT, OR EMERGENCY OJP or FEMA must send notices of MANAGEMENT RESPONSE PURPOSES availability to the appropriate State § 102–75.750 Who is eligible to receive and local public agencies. The notices surplus real and related personal must state that OJP or FEMA, as ap- property for correctional facility, propriate, must coordinate and approve law enforcement, or emergency any planning involved in developing a management response purposes? comprehensive and coordinated plan of Under 40 U.S.C. 553, the head of the use and procurement for the property disposal agency or designee may, in his for correctional facility, law enforce- or her discretion, convey, without ment, or emergency management re- monetary consideration, to any State, sponse use. The notice must also state or to those governmental bodies named that public agencies may obtain appli- in the section; or to any political sub- cation forms and preparation instruc- division or instrumentality, surplus tions from OJP or FEMA. real and related personal property for— (a) Correctional facility purposes, if § 102–75.765 What does the term ‘‘law the Attorney General has determined enforcement’’ mean? that the property is required for such The OJP defines ‘‘law enforcement’’ purposes and has approved an appro- as ‘‘any activity involving the control priate program or project for the care or rehabilitation of criminal offenders;

257

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00267 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.770 41 CFR Ch. 102 (7–1–11 Edition)

or reduction of crime and juvenile de- § 102–75.785 What specifically must linquency, or enforcement of the crimi- DOJ or FEMA address in the as- nal law, including investigative activi- signment request or recommenda- ties such as laboratory functions as tion that is submitted to the disposal agency? well as training.’’ Any determination that DOJ or § 102–75.770 Is the disposal agency re- FEMA submits to the disposal agency quired to approve a determination must provide complete information by the Department of Justice (DOJ) concerning the correctional facility, that identifies surplus property for law enforcement, or emergency man- correctional facility use or for law agement response use, including— enforcement use? (a) Identification of the property; Yes, the disposal agency must ap- (b) Certification that the property is prove a determination, under § 102– required for correctional facility, law 75.795, by DOJ that identifies surplus enforcement, or emergency manage- property required for correctional fa- ment response use; cility use or for law enforcement use (c) A copy of the approved applica- before an eligible public agency can ob- tion that defines the proposed plan of tain such property for correctional fa- use; and cility or law enforcement use. (d) The environmental impact of the proposed correctional facility, law en- § 102–75.775 Is the disposal agency re- forcement, or emergency management quired to approve a determination response use. by FEMA that identifies surplus property for emergency manage- § 102–75.790 What responsibilities do ment response use? landholding agencies and disposal Yes, the disposal agency must ap- agencies have concerning properties to be used for correctional fa- prove a determination, under § 102– cility, law enforcement, or emer- 75.795, by FEMA that identifies surplus gency management response pur- property required for emergency man- poses? agement response use before an eligible Both landholding and disposal agen- public agency can obtain such property cies must cooperate to the fullest ex- for emergency management response tent possible with Federal and State use. agency representatives in their inspection of such property and in furnishing § 102–75.780 When must DOJ or FEMA information relating to the property. notify the disposal agency that an eligible applicant is interested in § 102–75.795 What happens after the acquiring the property? disposal agency receives the assign- OJP or FEMA must notify the dis- ment request by DOJ or FEMA? posal agency within 30 calendar days If, after considering other uses for after the date of the surplus notice, if the property, the disposal agency ap- there is an eligible applicant interested proves the assignment request by DOJ in acquiring the property. After that or FEMA, the disposal agency must 30–calendar day period expires, OJP or convey the property to the appropriate FEMA then has another 30 days to re- grantee. The disposal agency must pro- view and approve an appropriate proceed with other disposal action if it gram and notify the disposal agency of does not approve the assignment re- the need for the property. If no applica- quest, if DOJ or FEMA does not submit tion is approved, then OJP or FEMA an assignment request, or if the dis- must notify the disposal agency that posal agency does not receive the de- there is no requirement for the prop- termination within the 30 calendar erty within the 30–calendar day period days specified in § 102–75.780. The disposal agency must notify OJP or allotted for review and approval. FEMA 15 days prior to any announcement of a determination to either approve or disapprove an application for correctional, law enforcement, or

258

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00268 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.820

emergency management response pur- § 102–75.815 What happens if property poses and must furnish to OJP or conveyed for correctional facility, FEMA a copy of the conveyance docu- law enforcement, or emergency ments. management response purposes is found to be in noncompliance with the terms of the conveyance docu- § 102–75.800 What information must be ments? included in the deed of conveyance? OJP or FEMA must, prior to the re- The deed of conveyance of any sur- possession, provide the appropriate plus real property transferred under GSA regional property disposal office the provisions of 40 U.S.C. 553 must with an accurate description of the real provide that all property be used and and related personal property involved. maintained for the purpose for which it OJP or FEMA must use the Report of was conveyed in perpetuity. If the Excess Real Property (Standard Form property ceases to be used or main- 118), and the appropriate schedules for tained for that purpose, all or any por- this purpose. After receiving a state- tion of the property must, at the opment from OJP or FEMA that the title tion of the United States, revert to the to the property is proposed for re- United States in its existing condition. vesting, GSA will review the statement The deed of conveyance may contain and determine if title should be re- additional terms, reservations, restric- vested. If GSA, in consultation with tions, and conditions the Adminis- OJP or FEMA, determines that the trator of General Services determines property should be revested, OJP or to be necessary to safeguard the United FEMA must submit a Standard Form 118 to GSA. GSA will review and act States’ interests. upon the Standard Form 118, if accept- § 102–75.805 Who is responsible for enable. However, the grantee must pro- forcing compliance with the terms vide protection and maintenance for and conditions of the transfer of the property until the title reverts to the property used for correctional the Federal Government, including the facility, law enforcement, or emer- period following any notice of intent to gency management response pur- revert. Such protection and mainte- poses? nance must, at a minimum, conform to The Administrator of General Serv- the standards prescribed in the GSA ices is responsible for enforcing compli- Customer Guide to Real Property Dis- ance with the terms and conditions of posal. disposals of property to be used for cor- PROPERTY FOR PORT FACILITY USE rectional facility, law enforcement, or emergency management response pur- § 102–75.820 Which Federal agency is poses. GSA is also responsible for re- eligible to receive surplus real and forming, correcting, or amending any related personal property for the development or operation of a port disposal instrument; granting releases; facility? and any action necessary for recapturing the property following the pro- Under 40 U.S.C. 554, the Adminis- visions of 40 U.S.C. 553(e). trator of General Services, the Sec- retary of the Department of Defense (in § 102–75.810 What responsibilities do the case of property located at a mili- OJP or FEMA have if they discover tary installation closed or realigned any information indicating a pursuant to a base closure law), or change in use of a transferred prop- their designee, may assign to the Sec- erty? retary of the Department of Transpor- tation (DOT) for conveyance, without Upon discovery of any information monetary consideration, to any State, indicating a change in use, OJP or or to governmental bodies, any polit- FEMA must— ical subdivision, municipality, or in- (a) Notify GSA; and strumentality, surplus real and related (b) Upon request, make a redeter- personal property, including buildings, mination of continued appropriateness fixtures, and equipment situated on the of the use of a transferred property. property, that DOT recommends as

259

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00269 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.825 41 CFR Ch. 102 (7–1–11 Edition)

being needed for the development or then DOT must notify the disposal operation of a port facility. agency that there is no requirement for the property within the same 30–cal- § 102–75.825 Who must the disposal endar day period allotted for review agency notify when surplus real and approval. and related personal property is available for port facility use? § 102–75.840 What action must the dis- The disposal agency must notify es- posal agency take after an eligible tablished State, regional or metropoli- public agency has submitted a plan tan clearinghouses and eligible public of use for and an application to ac- agencies that surplus real property is quire a port facility property? available for the development or oper- Whenever an eligible public agency ation of a port facility. The disposal has submitted a plan of use for a port agency must transmit a copy of the no- facility requirement, the disposal agen- tice to DOT and a copy of the land- cy must transmit two copies of the holding agency’s Report of Excess Real plan to DOT. DOT must either submit Property (Standard Form 118 and sup- to the disposal agency, within 30 cal- porting schedules). endar days after the date the plan is transmitted, a recommendation for as- § 102–75.830 What does the surplus no- signment of the property to DOT, or in- tice contain? form the disposal agency, within the Surplus notices to eligible public 30–calendar day period, that a rec- agencies must state— ommendation will not be made for as- (a) That public agencies must coordi- signment of the property to DOT. nate any planning involved in the development of the comprehensive and § 102–75.845 What must DOT address coordinated plan of use and procure- in the assignment recommendation ment of property, with DOT, the Sec- submitted to the disposal agency? retary of Labor, and the Secretary of Any assignment recommendation Commerce; that DOT submits to the disposal agen- (b) That any party interested in ac- cy must provide complete information quiring the property for use as a port concerning the contemplated port fa- facility must contact the Department cility use, including— of Transportation, Maritime Adminis- (a) An identification of the property; tration, for the application and in- (b) An identification of the applicant; structions; (c) A copy of the approved applica- (c) That the disposal agency must ap- tion, which defines the proposed plan of prove a recommendation from DOT be- use of the property; fore it can assign the property to DOT (d) A statement that DOT’s deter- (see § 102–75.905); and mination (that the property is located (d) That any subsequent conveyance in an area of serious economic disrup- is subject to the approval of the head of tion) was made in consultation with the disposal agency as stipulated under the Secretary of Labor; 40 U.S.C. 554 and referenced in § 102– (e) A statement that DOT approved 75.865. the economic development plan, associated with the plan of use of the prop- § 102–75.835 When must DOT notify erty, in consultation with the Sec- the disposal agency that an eligible retary of Commerce; and applicant is interested in acquiring the property? (f) A copy of the explanatory statement, required under 40 U.S.C. DOT must notify the disposal agency 554(c)(2)(C). within 30 calendar days after the date of the surplus notice if there is an eli- § 102–75.850 What responsibilities do gible applicant interested in acquiring landholding agencies have con- the property. After that 30–calendar cerning properties to be used in the day period expires, DOT then has an- development or operation of a port other 30 calendar days to review and facility? approve applications and notify the Landholding agencies must cooperate disposal agency of the need for the to the fullest extent possible with DOT property. If no application is approved, representatives and the Secretary of

260

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00270 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.880

Commerce in their inspection of such § 102–75.870 Who is responsible for en- property, and with the Secretary of forcing compliance with the terms Labor in affirming that the property is and conditions of the port facility in an area of serious economic disrup- conveyance? tion, and in furnishing any information DOT is responsible for enforcing com- relating to such property. pliance with the terms and conditions of conveyance, including reforming, § 102–75.855 What happens if DOT does correcting, or amending any instru- not submit an assignment rec- ment of conveyance; granting releases; ommendation? and taking any necessary actions to re- If DOT does not submit an assign- capture the property following the pro- ment recommendation or if it is not re- visions of 40 U.S.C. 554(f). Any of these ceived within 30 calendar days, the dis- actions are subject to the approval of posal agency must proceed with other the head of the disposal agency. DOT disposal action. must notify the head of the disposal agency of its intent to take any pro- § 102–75.860 What happens after the posed action, identify the property af- disposal agency receives the assign- fected, and describe in detail the pro- ment recommendation from DOT? posed action, including the reasons for If, after considering other uses for the proposed action. the property, the disposal agency approves the assignment recommenda- § 102–75.875 What happens in the case tion from DOT, the disposal agency of repossession by the United States must assign the property by letter or under a reversion of title for non- other document to DOT. If the disposal compliance with the terms or condi- agency disapproves the recommendations of conveyance? tion, the disposal agency must likewise In each case of a repossession by the notify DOT. The disposal agency must United States, DOT must, at or prior to furnish to the landholding agency a reversion of title, provide the appro- copy of the assignment, unless the priate GSA regional property disposal landholding agency is also the disposal office, with a Report of Excess Real agency. Property (Standard Form 118) and accompanying schedules. After receiving § 102–75.865 What responsibilities does a statement from DOT that title to the DOT have after receiving the dis- property is proposed for revesting, GSA posal agency’s assignment letter? will review the statement and deter- After receiving the assignment letter mine if title should be revested. If from the disposal agency, DOT must GSA, in consultation with DOT, deter- provide the disposal agency with a No- mines that the property should be re- tice of Proposed Transfer within 30 cal- vested, DOT must submit a Standard endar days after the date of the assign- Form 118 to GSA. GSA will review and ment letter. If the disposal agency ap- act upon the Standard Form 118, if ac- proves the proposed transfer within 30 ceptable. However, the grantee must calendar days of the receipt of the No- provide protection and maintenance for tice of Proposed Transfer, DOT may the property until the title reverts to prepare the conveyance documents and the Federal Government, including the proceed with the conveyance. DOT period following the notice of intent to must take all necessary actions to ac- revert. Such protection and mainte- complish the conveyance within 15 cal- nance must, at a minimum, conform to endar days after the expiration of the the standards prescribed in the GSA 30–calendar day period provided for the Customer Guide to Real Property Dis- disposal agency to consider the notice. posal. DOT must furnish the disposal agency two conformed copies of the instru- NEGOTIATED SALES ments conveying property and all related documents containing restric- § 102–75.880 When may Executive tions or conditions regulating the fu- agencies conduct negotiated sales? ture use, maintenance, or transfer of Executive agencies may conduct ne- the property. gotiated sales only when—

261

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00271 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.885 41 CFR Ch. 102 (7–1–11 Edition)

(a) The estimated fair market value enter into agreements to sell the prop- of the property does not exceed $15,000; erty within 3 years from the date of (b) Bid prices after advertising are title transfer by the Federal Govern- unreasonable (for all or part of the ment, all proceeds in excess of the pur- property) or were not independently ar- chaser’s costs will be remitted to the rived at in open competition; Federal Government. (c) The character or condition of the property or unusual circumstances § 102–75.895 What wording must gen- make it impractical to advertise for erally be in the excess profits competitive bids and the fair market clause that is required in the offer to purchase and in the conveyance value of the property and other satis- document? factory terms of disposal are obtainable by negotiation; The wording of the excess profits (d) The disposals will be to States, clause should generally be as follows: the Commonwealth of Puerto Rico, Excess Profits Covenant for Negotiated possessions, political subdivisions, or Sales to Public Bodies tax-supported agencies therein, and the (a) This covenant shall run with the land estimated fair market value of the for a period of 3 years from the date of con- property and other satisfactory terms veyance. With respect to the property de- of disposal are obtainable by negotia- scribed in this deed, if at any time within a 3-year period from the date of transfer of tion. Negotiated sales to public bodies title by the Grantor, the Grantee, or its suc- can only be conducted if a public ben- cessors or assigns, shall sell or enter into efit, which would not be realized from agreements to sell the property, either in a a competitive sale, will result from the single transaction or in a series of trans- negotiated sale; or actions, it is covenanted and agreed that all (e) Negotiation is otherwise author- proceeds received or to be received in excess ized by Chapter 5 of Subtitle I of Title of the Grantee’s or a subsequent seller’s ac- 40 of the United States Code or other tual allowable costs will be remitted to the Grantor. In the event of a sale of less than law, such as disposals of power trans- the entire property, actual allowable costs mission lines for public or cooperative will be apportioned to the property based on power projects. a fair and reasonable determination by the Grantor. § 102–75.885 What are the disposal (b) For purposes of this covenant, the agency’s responsibilities concerning Grantee’s or a subsequent seller’s allowable negotiated sales? costs shall include the following: The disposal agency must— (1) The purchase price of the real property. (a) Obtain such competition as is fea- (2) The direct costs actually incurred and paid for improvements that serve only the sible in all negotiations of disposals property, including road construction, storm and contracts for disposal of surplus and sanitary sewer construction, other pub- property; and lic facilities or utility construction, building (b) Prepare and transmit an explana- rehabilitation and demolition, landscaping, tory statement if the fair market value grading, and other site or public improve- of the property exceeds $100,000, identi- ments. fying the circumstances of each dis- (3) The direct costs actually incurred and posal by negotiation for any real prop- paid for design and engineering services with erty specified in 40 U.S.C. 545(e), to the respect to the improvements described in (b)(2) of this section. appropriate committees of the Con- (4) The finance charges actually incurred gress in advance of such disposal. and paid in conjunction with loans obtained to meet any of the allowable costs enumer- § 102–75.890 What clause must be in ated above. the offer to purchase and convey- (c) None of the allowable costs described in ance documents for negotiated paragraph (b) of this section will be deduct- sales to public agencies? ible if defrayed by Federal grants or if used Disposal agencies must include in the as matching funds to secure Federal grants. offer to purchase and conveyance docu- (d) To verify compliance with the terms ments an excess profits clause, which and conditions of this covenant, the Grantee, or its successors or assigns, shall submit an usually runs for 3 years, to eliminate annual report for each of the subsequent 3 the potential for windfall profits to years to the Grantor on the anniversary date public agencies. This clause states of this deed. Each report will identify the that, if the purchaser should sell or property involved in this transaction and

262

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00272 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.930

will contain such of the following items of term of the lease is in excess of information as are applicable at the time of $100,000. submission: (d) Any real property or real and re- (1) A statement indicating whether or not a resale has been made. lated personal property disposed of by (2) A description of each portion of the exchange, regardless of value, or any property that has been resold. property disposed in which any part of (3) The sale price of each such resold por- the consideration is real property. tion. (4) The identity of each purchaser. § 102–75.910 Are there any exceptions (5) The proposed land use. to this policy of preparing explana- (6) An enumeration of any allowable costs tory statements? incurred and paid that would offset any realized profit. Yes, the disposal agency is not re- (e) The Grantor may monitor the property quired to prepare an explanatory state- and inspect records related thereto to ensure ment for property authorized to be dis- compliance with the terms and conditions of posed of without advertising by any this covenant and may take any actions that provision of law other than 40 U.S.C. it deems reasonable and prudent to recover 545. any excess profits realized through the resale of the property. § 102–75.915 Do disposal agencies need § 102–75.900 What is a negotiated sale to retain a copy of the explanatory for economic development pur- statement? poses? Yes, disposal agencies must retain a A negotiated sale for economic devel- copy of the explanatory statement in opment purposes means that the public their files. body purchasing the property will develop or make substantial improve- § 102–75.920 Where is the explanatory statement sent? ments to the property with the intention of reselling or leasing the property Disposal agencies must submit each in parcels to users to advance the com- explanatory statement to the Adminis- munity’s economic benefit. This type trator of General Services for review of negotiated sale is acceptable where and transmittal by letter from the Ad- the expected public benefits to the ministrator of General Services to the community are greater than the antici- Senate Committee on Governmental pated proceeds derived from a competi- Affairs and the House Committee on tive public sale. Government Reform and any other appropriate committees of the Senate EXPLANATORY STATEMENTS FOR and House of Representatives. Disposal NEGOTIATED SALES agencies must include in the submission to the Administrator of General § 102–75.905 When must the disposal Services any supporting data that may agency prepare an explanatory be relevant and necessary for evalu- statement? ating the proposed action. The disposal agency must prepare an explanatory statement of the cir- § 102–75.925 Is GSA required to furnish cumstances of each of the following the disposal agency with the ex- proposed disposals by negotiation: planatory statement’s transmittal (a) Any real property that has an es- letter sent to Congress? timated fair market value in excess of Yes, GSA must furnish copies of its $100,000, except that any real property transmittal letters to the committees disposed of by lease or exchange is sub- of the Congress (see § 102–75.920) to the ject only to paragraphs (b) through (d) disposal agency. of this section. (b) Any real property disposed of by § 102–75.930 What happens if there is lease for a term of 5 years or less, if the no objection by an appropriate estimated fair annual rent is in excess committee or subcommittee of Con- of $100,000 for any of such years. gress concerning the proposed ne- (c) Any real property disposed of by gotiated sale? lease for a term of more than 5 years, If there is no objection, the disposal if the total estimated rent over the agency may consummate the sale on or

263

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00273 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.935 41 CFR Ch. 102 (7–1–11 Edition)

after 35 days from the date the Admin- § 102–75.938 May the easement and the istrator of General Services trans- land that benefited from the ease- mitted the explanatory statement to ment (dominant estate) be disposed the committees. If there is an objec- of separately? tion, the disposal agency must resolve Yes. If the easement is no longer objections with the appropriate Con- needed in connection with the domi- gressional committee or subcommittee nant estate, it may be disposed of sepa- before consummating the sale. rately to the owner of the servient estate. However, if the dominant estate PUBLIC SALES is also surplus, the easement should be disposed of with the dominant estate. § 102–75.935 What are disposal agencies’ responsibilities concerning GRANTING EASEMENTS public sales? Disposal agencies must make avail- § 102–75.939 When can agencies grant easements? able by competitive public sale any surplus property that is not disposed of Agencies may grant easements in, by public benefit discount conveyance on, or over Government-owned real or by negotiated sale. Awards must be property upon determining that the made to the responsible bidder whose easement will not adversely impact the bid will be most advantageous to the Government’s interests. Government, price and other factors § 102–75.940 Can agencies grant ease- considered. ments at no cost?

DISPOSING OF EASEMENTS Yes. Easements may be granted with or without monetary or other consider- § 102–75.936 When can an agency dis- ation, including any interest in real pose of an easement? property. When the use, occupancy or control § 102–75.941 Does an agency retain re- of an easement is no longer needed, sponsibility for the easement? agencies may release the easement to the owner of the land subject to the Agencies may relinquish legislative easement (servient estate). jurisdiction as deemed necessary and desirable to the State where the real § 102–75.937 Can an easement be re- property containing the easement is lo- leased or disposed of at no cost? cated. Yes. However, agencies must consider § 102–75.942 What must agencies con- the Government’s cost of acquiring the sider when granting easements? easement and other factors when deter- Agencies must— mining if the easement will be disposed (a) Determine the easement’s fair of with or without monetary or other market value; and consideration. If the easement was ac- (b) Determine the remaining prop- quired at substantial consideration, erty’s reduced or enhanced value be- agencies must— cause of the easement. (a) Determine the easement’s fair market value (estimate the fair mar- § 102–75.943 What happens if granting ket value of the fee land without the an easement will reduce the value easement and with the easement then of the property? compute the difference or compute the If the easement will reduce the prop- damage the easement caused to the fee erty’s value, agencies must grant the land); and easement for the amount by which the (b) Negotiate the highest obtainable property’s fair market value is de- price with the owner of the servient es- creased unless the agency determines tate to release the easement. that the Government’s best interests are served by granting the easement at either reduced or without monetary or other consideration.

264

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00274 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.965

NON-FEDERAL INTERIM USE OF SURPLUS related obligations pending transfer or PROPERTY disposal of the property.

§ 102–75.944 Can landholding agencies DECONTAMINATION outlease surplus real property for non-Federal interim use? § 102–75.955 Who is responsible for de- Yes, landholding agencies who pos- contaminating excess and surplus real property? sess independent authority to outlease property may allow organizations to The landholding agency is respon- use surplus real property awaiting dis- sible for all expenses to the Govern- posal using either a lease or permit, ment and for the supervision of the de- only when— contamination of excess and surplus (a) The lease or permit does not ex- real property that has been contami- ceed one year and is revocable with not nated with hazardous materials of any more than a 30-day notice by the dis- sort. Extreme care must be exercised in posal agency; the decontamination, management, (b) The use and occupancy will not and disposal of contaminated property interfere with, delay, or impede the in order to prevent such properties disposal of the property; and from becoming a hazard to the general (c) The agency executing the agree- public. The landholding agency must ment is responsible for the servicing of inform the disposal agency of any and such property. all hazards involved relative to such property to protect the general public Subpart D—Management of from hazards and to limit the Govern- ment’s liability resulting from disposal Excess and Surplus Real Property or mishandling of hazardous materials.

§ 102–75.945 What is GSA’s policy con- IMPROVEMENTS OR ALTERATIONS cerning the physical care, handling, protection, and maintenance of ex- § 102–75.960 May landholding agencies cess and surplus real property and make improvements or alterations related personal property? to excess or surplus property in GSA’s policy is to— those cases where disposal is other- (a) Manage excess and surplus real wise not feasible? property, including related personal Yes, landholding agencies may make property, by providing only those min- improvements or alterations that in- imum services necessary to preserve volve rehabilitation, reconditioning, the Government’s interest and realiz- conversion, completion, additions, and able value of the property considered; replacements in excess or surplus (b) Place excess and surplus real structures, utilities, installations, and property in productive use through in- land improvements, in those cases terim utilization, provided, that such where disposal cannot be accomplished temporary use and occupancy do not without such improvements or alter- interfere with, delay, or impede its ations. However, agencies must not transfer to a Federal agency or dis- enter into commitments concerning posal; and improvements or alterations without (c) Render safe or destroy aspects of GSA’s prior approval. excess and surplus real property that are dangerous to the public health or PROTECTION AND MAINTENANCE safety. § 102–75.965 Who must perform the TAXES AND OTHER OBLIGATIONS protection and maintenance of excess and surplus real property § 102–75.950 Who has the responsibility pending transfer to another Federal for paying property-related obliga- agency or disposal? tions pending transfer or disposal The landholding agency remains re- of the property? sponsible and accountable for excess Except as otherwise provided in § 102- and surplus real property, including re- 75.230, the landholding agency is still lated personal property, and must per- responsible for any and all operational form the protection and maintenance costs and expenses or other property- of such property pending transfer to

265

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00275 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.970 41 CFR Ch. 102 (7–1–11 Edition)

another Federal agency or disposal. payment and/or reimbursement of pro- Guidelines for protection and mainte- tection and maintenance expenses; or nance of excess and surplus real prop- (c) The delay is caused by an Execu- erty are in the GSA Customer Guide to tive agency’s request for an exception Real Property Disposal. The land- from the 100 percent reimbursement re- holding agency is responsible for com- quirement specified in § 102–75.205. In plying with the requirements of the this latter case, the requesting agency National Oil and Hazardous Substances becomes responsible for protection and Pollution Contingency Plan and initi- maintenance expenses incurred because ating or cooperating with others in the of the delay. actions prescribed for the prevention, containment, or remedy of hazardous § 102–75.980 Who is responsible for conditions. protection and maintenance expenses if there is no written agree- § 102–75.970 How long is the land- ment or no Congressional appro- holding agency responsible for the priation to the disposal agency? expense of protection and maintenance of excess and surplus real If there is no written agreement (be- property pending its transfer or tween the landholding agency and the disposal? disposal agency) or no Congressional Generally, the landholding agency is appropriation to the disposal agency, responsible for the cost of protection the landholding agency is responsible and maintenance of excess or surplus for all protection and maintenance ex- property until the property is trans- penses, without any right of contribu- ferred or disposed, but not more than tion or reimbursement from the dis- 15 months. However, the landholding posal agency. agency is responsible for providing and funding protection and maintenance ASSISTANCE IN DISPOSITION during any delay beyond that 15 month period, if the landholding agency— § 102–75.985 Is the landholding agency (a) Requests deferral of the disposal required to assist the disposal agency in the disposition process? beyond the 15 month period; (b) Continues to occupy the property Yes, the landholding agency must co- beyond the 15 month period to the det- operate with the disposal agency in riment of orderly disposal; or showing the property to prospective (c) Otherwise takes actions that re- transferees or purchasers. Unless ex- sult in a delay in the disposition be- traordinary expenses are incurred in yond the 15 months. showing the property, the landholding agency must absorb the entire cost of § 102–75.975 What happens if the prop- such actions. erty is not conveyed or disposed of during this time frame? Subpart E—Abandonment, De- If the property is not transferred to a Federal agency or disposed of during struction, or Donation to Pub- the 15-month period mentioned in § 102– lic Bodies 75.970, then the disposal agency must pay or reimburse the landholding agen- § 102–75.990 May Federal agencies abandon, destroy, or donate to pub- cy for protection and maintenance ex- lic bodies real property? penses incurred from the expiration date of said time period to final dis- Yes, subject to the restrictions in posal, unless— this subpart, any Federal agency hav- (a) There is no written agreement being control of real property that has no tween the landholding agency and the commercial value or for which the esti- disposal agency specifying the max- mated cost of continued care and han- imum amount of protection and main- dling exceeds the estimated proceeds tenance expenses for which the disposal from its sale, may— agency is responsible; (a) Abandon or destroy Government- (b) The disposal agency’s appropria- owned improvements and related per- tion, as authorized by Congress, does sonal property located on privately- not contain a provision to allow for owned land;

266

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00276 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.1030

(b) Destroy Government-owned im- RESTRICTIONS provements and related personal property located on Government-owned § 102–75.1015 Are there any restric- land (abandonment of such property is tions on Federal agencies con- not authorized); or cerning property donations to public bodies? (c) Donate to public bodies any Gov- ernment-owned real property (land and/ Yes, Federal agencies must obtain or improvements and related personal prior concurrence of GSA before donat- property), or interests therein. ing to public bodies— (a) Improvements on land or related DANGEROUS PROPERTY personal property having a current estimated fair market value in excess of § 102–75.995 May Federal agencies dis- $250,000; and pose of dangerous property? (b) Land, regardless of cost. No, property that is dangerous to public health or safety must be made DISPOSAL COSTS harmless or have adequate safeguards in place before it can be abandoned, de- § 102–75.1020 Are public bodies ever required to pay the disposal costs stroyed, or donated to public bodies. associated with donated property? DETERMINATIONS Yes, any public body receiving donated improvements on land or related § 102–75.1000 How is the decision personal property must pay the dis- made to abandon, destroy, or do- posal costs associated with the dona- nate property? tion, such as dismantling, removal, and No property shall be abandoned, de- the cleaning up of the premises. stroyed, or donated by a Federal agency under § 102–75.990, unless a duly au- ABANDONMENT AND DESTRUCTION thorized official of that agency determines, in writing, that— § 102–75.1025 When can a Federal agency abandon or destroy im- (a) The property has no commercial provements on land or related per- value; or sonal property in lieu of donating it (b) The estimated cost of its contin- to a public body? ued care and handling exceeds the esti- A Federal agency may not abandon mated proceeds from its sale. or destroy improvements on land or re- § 102–75.1005 Who can make the deter- lated personal property unless a duly mination within the Federal agency authorized official of that agency finds, on whether a property can be aban- in writing, that donating the property doned, destroyed, or donated? is not feasible. This written finding is Only a duly authorized official of in addition to the determination pre- that agency not directly accountable scribed in §§ 102–75.1000, 102–75.1005, and for the subject property can make the 102–75.1010. If donating the property be- determination. comes feasible at any time prior to actually abandoning or destroying the § 102–75.1010 When is a reviewing au- property, the Federal agency must do- thority required to approve the de- nate it. termination concerning a property that is to be abandoned, destroyed, § 102–75.1030 May Federal agencies or donated? abandon or destroy property in any manner they decide? A reviewing authority must approve determinations made under § 102–75.1000 No, Federal agencies may not aban- before any such disposal, whenever all don or destroy property in a manner the property proposed to be disposed of that is detrimental or dangerous to by a Federal agency has a current esti- public health or safety or that will in- mated fair market value of more than fringe on the rights of other persons. $50,000.

267

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00277 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.1035 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–75.1035 Are there any restric- and a reviewing authority approves tions on Federal agencies con- this finding. The finding must be in ad- cerning the abandonment or de- dition to the determinations prescribed struction of improvements on land in §§ 102–75.1000, 102–75.1005, 102–75.1010, or related personal property? and 102–75.1025. Yes, GSA must concur in an agency’s abandonment or destruction of im- § 102–75.1050 Is there any property for provements on land or related personal which this subpart does not apply? property prior to abandoning or de- Yes, this subpart does not apply to stroying such improvements on land or surplus property assigned for disposal related personal property— to educational or public health institu- (a) That are of permanent type con- tions pursuant to 40 U.S.C. 550(c) or (d). struction; or (b) The retention of which would enhance the value of the underlying land, Subpart F—Delegations if it were to be made available for sale or lease. DELEGATION TO THE DEPARTMENT OF DEFENSE (DOD) § 102–75.1040 May Federal agencies abandon or destroy improvements § 102–75.1055 What is the policy gov- on land or related personal prop- erning delegations of real property erty before public notice is given of disposal authority to the Secretary such proposed abandonment or de- of Defense? struction? GSA delegates to the Secretary of Except as provided in § 102–75.1045, a Defense the authority to determine Federal agency must not abandon or that Federal agencies do not need De- destroy improvements on land or re- partment of Defense controlled excess lated personal property until after it real property and related personal has given public notice of the proposed abandonment or destruction. This no- property having a total estimated fair tice must be given in the area in which market value, including all the compo- the property is located, must contain a nent units of the property, of less than general description of the property to $50,000; and to dispose of the property be abandoned or destroyed, and must by means deemed most advantageous include an offering of the property for to the United States. sale. A copy of the notice must be given to the GSA regional property dis- § 102–75.1060 What must the Secretary posal office for the region in which the of Defense do before determining property is located. that DoD-controlled excess real property and related personal prop- § 102–75.1045 Are there exceptions to erty is not required for the needs of the policy that requires public no- any Federal agency and prior to tice be given before Federal agen- disposal? cies abandon or destroy improve- The Secretary must conduct a Fed- ments on land or related personal eral screening to determine that there property? is no further Federal need or require- Yes, property can be abandoned or ment for the property. destroyed without public notice if— (a) Its value is so low or the cost of § 102–75.1065 When using a delegation its care and handling so great that re- of real property disposal authority taining the property to post public no- under this subpart, is DoD required tice is clearly not economical; to report excess property to GSA? (b) Health, safety, or security consid- No, although the authority in this erations require its immediate aban- delegation must be used following the donment or destruction; or provisions of Chapter 5 of Subtitle I of (c) The assigned mission of the agen- Title 40 of the United States Code and cy might be jeopardized by the delay, and a duly authorized Federal agency its implementing regulations. official finds in writing, with respect to paragraph (a), (b), or (c) of this section,

268

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00278 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.1105

§ 102–75.1070 Can this delegation of DELEGATION TO THE DEPARTMENT OF authority to the Secretary of De- THE INTERIOR fense be redelegated? § 102–75.1095 What is the policy gov- Yes, the Secretary of Defense may re- erning delegations of authority to delegate the authority delegated in the Secretary of the Interior? § 102–75.1055 to any officer or employee GSA delegates authority to the Sec- of the Department of Defense. retary of the Interior to— (a) Maintain custody, control, and DELEGATION TO THE DEPARTMENT OF accountability for mineral resources AGRICULTURE (USDA) in, on, or under Federal real property that the Administrator or his designee § 102–75.1075 What is the policy gov- occasionally designates as currently erning delegations of real property utilized, excess, or surplus to the Gov- disposal authority to the Secretary ernment’s needs; of Agriculture? (b) Dispose of mineral resources by GSA delegates authority to the Sec- lease and to administer those leases retary of Agriculture to determine that that are made; and Federal agencies do not need USDA- (c) Determine that Federal agencies controlled excess real property and re- do not need Department of the Interior lated personal property having a total controlled excess real property and re- estimated fair market value, including lated personal property with an esti- all the component units of the prop- mated fair market value, including all erty, of less than $50,000; and to dispose components of the property, of less of the property by means deemed most than $50,000; and to dispose of the prop- advantageous to the United States. erty by means most advantageous to the United States. § 102–75.1080 What must the Secretary of Agriculture do before deter- § 102–75.1100 Can this delegation of authority to the Secretary of the In- mining that USDA-controlled excess terior be redelegated? real property and related personal property is not required for the Yes, the Secretary of the Interior needs of any Federal agency and may redelegate this authority to any prior to disposal? officer, official, or employee of the De- The Secretary must conduct a Fed- partment of the Interior. eral screening to determine that there § 102–75.1105 What other responsibil- is no further Federal need or require- ities does the Secretary of the Inte- ment for the property. rior have under this delegation of authority? § 102–75.1085 When using a delegation Under this authority, the Secretary of real property disposal authority of the Interior is responsible for— under this subpart, is USDA re- (a) Maintaining proper inventory quired to report excess property to records, as head of the landholding GSA? agency; No, although the authority in this (b) Monitoring the minerals as nec- delegation must be used following the essary, as head of the landholding provisions of Chapter 5 of Subtitle I of agency, to prevent unauthorized min- Title 40 of the United States Code and ing or removal of the minerals; its implementing regulations. (c) Securing any appraisals deemed necessary by the Secretary; § 102–75.1090 Can this delegation of (d) Coordinating with all surface authority to the Secretary of Agri- landowners, Federal or otherwise, to culture be redelegated? prevent unnecessary interference with Yes, the Secretary of Agriculture the surface use; may redelegate authority delegated in (e) Restoring damaged or disturbed § 102–75.1075 to any officer or employee lands after removal of the mineral de- of the Department of Agriculture. posits; (f) Notifying the Administrator of General Services when the disposal of

269

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00279 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.1110 41 CFR Ch. 102 (7–1–11 Edition)

all marketable mineral deposits is § 102–75.1115 Are there any limitations complete; or restrictions on this delegation of (g) Complying with the applicable en- authority? vironmental laws and regulations, in- This authority must be used only in cluding the National Environmental connection with property that the ap- Policy Act of 1969, as amended (42 propriate Secretary determines— U.S.C. 4321 et seq.); and the imple- (a) Comprises a functional unit; menting regulations issued by the (b) Is located within the United Council on Environmental Quality (40 States; and CFR part 1500); section 106 of the Na- (c) Has an acquisition cost of $100,000 tional Historic Preservation Act of or less, provided that the transfer or 1966, as amended (16 U.S.C. 470f); and retransfer does not include property the Coastal Zone Management Act of situated in any area that is recognized 1972 (16 U.S.C. 1451 et seq.) and the De- as an urban area or place as identified partment of Commerce implementing by the most recent decennial census. regulations (15 CFR parts 923 and 930); (h) Forwarding promptly to the Ad- § 102–75.1120 Does the property have ministrator of General Services copies to be Federally screened? of any agreements executed under this No, screening is not required because authority; and it would accomplish no useful purpose, (i) Providing the Administrator of since the property subject to transfer General Services with an annual ac- or retransfer will continue to be used counting of the proceeds received from in the administration of any functions leases executed under this authority. relating to Native Americans.

NATIVE AMERICAN-RELATED § 102–75.1125 Can the transfer/re- DELEGATIONS transfer under this delegation be at no cost or without consideration? § 102–75.1110 What is the policy governing delegations of authority to Yes, transfers/retransfers under this the Secretary of the Interior, the delegation can be at no cost or without Secretary of Health and Human consideration, except— Services, and the Secretary of Edu- (a) Where funds programmed and ap- cation for property used in the ad- propriated for acquisition of the prop- ministration of any Native Amer- erty are available to the Secretary re- ican-related functions? questing the transfer or retransfer; or GSA delegates authority to the Sec- (b) Whenever reimbursement at fair retary of the Interior, the Secretary of market value is required by subpart B Health and Human Services, and the of this part (entitled ‘‘Utilization of Secretary of Education to transfer and Excess Real Property’’). to retransfer to each other, upon request, any of the property of each § 102–75.1130 What action must the agency that is being used and will con- Secretary requesting the transfer tinue to be used in the administration take where funds were not proof any functions relating to the Native grammed and appropriated for acquisition of the property? Americans. The term property, as used in this delegation, includes real prop- The Secretary requesting the trans- erty and such personal property as the fer or retransfer must certify in writ- Secretary making the transfer or re- ing that no funds are available to ac- transfer determines to be related per- quire the property. The Secretary sonal property. The Departments must transferring or retransferring the prop- exercise the authority conferred in this erty may make any determination nec- section following applicable GSA regu- essary that would otherwise be made lations issued pursuant to the provi- by GSA to carry out the authority con- sions of Chapter 5 of Subtitle I of Title tained in this delegation. 40 of the United States Code.

270

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00280 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.1160

§ 102–75.1135 May this delegation of ceptance or rejection of the gift on be- authority to the Secretary of the In- half of the United States at this time. terior, the Secretary of Health and The receiving agency must provide a Human Services, and the Secretary copy of the acknowledgment with the of Education be redelegated? notification and recommendation to Yes, the Secretary of the Interior, the GSA regional property disposal of- the Secretary of Health and Human fice. Services, and the Secretary of Edu- cation may redelegate any of the au- § 102–75.1150 What happens to the gift thority contained in this delegation to if GSA determines it to be accept- any officers or employees of their re- able? spective departments. When GSA determines that the gift is acceptable and can be accepted and Subpart G—Conditional Gifts of used in the form in which it was of- Real Property to Further the fered, GSA must designate an agency and transfer the gift without reim- Defense Effort bursement to this agency to use as the § 102–75.1140 What is the policy gov- donor intended. erning the acceptance or rejection of a conditional gift of real property § 102–75.1155 May an acceptable gift of for a particular defense purpose? property be converted to money? Any Federal agency receiving an GSA can determine whether or not a offer of a conditional gift of real prop- gift of property can and should be con- erty for a particular defense purpose verted to money. After conversion, within the purview of Chapter 582–Pub- GSA must deposit the funds with the lic Law 537 (July 27, 1954) must notify Treasury Department for transfer to an the appropriate GSA regional property appropriate account that will best ef- disposal office and must submit to GSA fectuate the intent of the donor, in ac- a recommendation indicating whether cordance with Treasury Department the Government should accept or reject procedures. the gift. Nothing in this subpart shall be construed as applicable to the ac- Subpart H—Use of Federal Real ceptance of gifts under the provisions Property to Assist the Homeless of other laws. Following receipt of such notification and recommendation, GSA DEFINITIONS must— (a) Consult with the interested agen- § 102–75.1160 What definitions apply to cies before it may accept or reject such this subpart? conditional gifts of real property on be- Applicant means any representative half of the United States or before it of the homeless that has submitted an transfers such conditional gifts of real application to the Department of property to an agency; and Health and Human Services to obtain (b) Advise the donor and the agencies use of a particular suitable property to concerned of the action taken with re- assist the homeless. spect to acceptance or rejection of the Checklist or property checklist means conditional gift and of its final disposi- the form developed by HUD for use by tion. landholding agencies to report the information to be used by HUD in mak- § 102–75.1145 What action must the ing determinations of suitability. Federal agency receiving an offer of Classification means a property’s des- a conditional gift take? ignation as unutilized, underutilized, Prior to notifying the appropriate excess, or surplus. GSA regional property disposal office, Day means one calendar day, includ- the receiving Federal agency must ac- ing weekends and holidays. knowledge receipt of the offer in writ- Eligible organization means a State, ing and advise the donor that the offer unit of local government, or a private, will be referred to the appropriate GSA non-profit organization that provides regional property disposal office. The assistance to the homeless, and that is receiving agency must not indicate ac- authorized by its charter or by State

271

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00281 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.1160 41 CFR Ch. 102 (7–1–11 Edition)

law to enter into an agreement with term of at least one year under the the Federal Government for use of real conditions set forth in the lease docu- property for the purposes of this sub- ment. part. Representatives of the homeless Non-profit organization means an or- interested in receiving a deed for a par- ganization, no part of the net earnings ticular piece of surplus Federal prop- of which inures to the benefit of any erty must be section 501(c)(3) tax ex- member, founder, contributor, or indi- empt. vidual; that has a voluntary board; Excess property means any property that has an accounting system or has under the control of any Executive designated an entity that will main- agency that is not required for the tain a functioning accounting system agency’s needs or the discharge of its for the organization in accordance with responsibilities, as determined by the generally accepted accounting proce- head of the agency pursuant to 40 dures; and that practices non- U.S.C. 524. discrimination in the provision of as- GSA means the United States Gen- eral Services Administration. sistance. HHS means the United States De- Permit means a license granted by a partment of Health and Human Serv- landholding agency to use unutilized or ices. underutilized property for a specific Homeless means— amount of time under terms and condi- (1) An individual or family that lacks tions determined by the landholding a fixed, regular, and adequate night- agency. time residence; or Property means real property con- (2) An individual or family that has a sisting of vacant land or buildings, or a primary nighttime residence that is— portion thereof, that is excess, surplus, (i) A supervised publicly or privately or designated as unutilized or underuti- operated shelter designed to provide lized in surveys by the heads of land- temporary living accommodations (in- holding agencies conducted pursuant to cluding welfare hotels, congregate 40 U.S.C. 524. shelters, and transitional housing for Regional Homeless Coordinator means the mentally ill); a regional coordinator of the Inter- (ii) An institution that provides a agency Council on the Homeless. temporary residence for individuals in- Representative of the Homeless means a tended to be institutionalized; or State or local government agency, or (iii) A public or private place not de- private non-profit organization that signed for, or ordinarily used as, a reg- provides, or proposes to provide, serv- ular sleeping accommodation for ices to the homeless. human beings. This term does not in- Screen means the process by which clude any individual imprisoned or oth- GSA surveys Federal agencies, or erwise detained under an Act of Con- State, local and non-profit entities, to gress or a State law. determine if any such entity has an in- HUD means the United States De- terest in using excess Federal property partment of Housing and Urban Devel- opment. to carry out a particular agency mis- ICH means the Interagency Council sion or a specific public use. on the Homeless. State Homeless Coordinator means a Landholding agency means a Federal State contact person designated by a department or agency with statutory State to receive and disseminate infor- authority to control real property. mation and communications received Lease means an agreement between from the Interagency Council on the either HHS for surplus property, or Homeless in accordance with the landholding agencies in the case of McKinney-Vento Homeless Assistance non-excess properties or properties sub- Act of 1987, as amended (42 U.S.C. ject to the Base Closure and Realign- 11320). ment Act (Pub. L. 100–526, 10 U.S.C. Suitable property means that HUD has 2687), and the applicant, giving rise to determined that a particular property the relationship of lessor and lessee for satisfies the criteria listed in § 102– the use of Federal real property for a 75.1185.

272

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00282 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.1170

Surplus property means any excess (9) Property interests subject to re- real property not required by any Fed- version. eral landholding agency for its needs or (10) Easements. the discharge of its responsibilities, as (11) Property purchased in whole or determined by the Administrator of in part with Federal funds, if title to GSA. the property is not held by a Federal Underutilized means an entire prop- landholding agency as defined in this erty or portion thereof, with or with- part. out improvements, which is used only at irregular periods or intermittently COLLECTING THE INFORMATION by the accountable landholding agency for current program purposes of that § 102–75.1170 How will information be agency, or which is used for current collected? program purposes that can be satisfied (a) Canvass of landholding agencies. On with only a portion of the property. a quarterly basis, HUD will canvass Unsuitable property means that HUD landholding agencies to collect infor- has determined that a particular prop- mation about property described as un- erty does not satisfy the criteria in utilized, underutilized, excess, or sur- § 102–75.1185. plus in surveys conducted by the agen- Unutilized property means an entire cies under 40 U.S.C. 524, Executive property or portion thereof, with or Order 12512, and subpart H of this part. without improvements, not occupied Each canvass will collect information for current program purposes for the on properties not previously reported accountable Executive agency or occu- and about property reported previously pied in caretaker status only. the status or classification of which has changed or for which any of the in- APPLICABILITY formation reported on the property § 102–75.1165 What is the applicability checklist has changed. of this subpart? (1) HUD will request descriptive information on properties sufficient to (a) This part applies to Federal real make a reasonable determination, property that has been designated by under the criteria described below, of Federal landholding agencies as unuti- the suitability of a property for use as lized, underutilized, excess, or surplus, and is, therefore, subject to the provi- a facility to assist the homeless. sions of title V of the McKinney-Vento (2) HUD will direct landholding agen- Homeless Assistance Act, as amended cies to respond to requests for informa- (42 U.S.C. 11411). tion within 25 days of receipt of such (b) The following categories of prop- requests. erties are not subject to this subpart (b) Agency annual report. By Decem- (regardless of whether they may be un- ber 31 of each year, each landholding utilized or underutilized): agency must notify HUD regarding the (1) Machinery and equipment. current availability status and classi- (2) Government-owned, contractor- fication of each property controlled by operated machinery, equipment, land, the agency that— and other facilities reported excess for (1) Was included in a list of suitable sale only to the using contractor and properties published that year by HUD; subject to a continuing military re- and quirement. (2) Remains available for application (3) Properties subject to special legis- for use to assist the homeless, or has lation directing a particular action. become available for application dur- (4) Properties subject to a court ing that year. order. (c) GSA inventory. HUD will collect (5) Property not subject to survey re- information, in the same manner as de- quirements of Executive Order 12512 scribed in paragraph (a) of this section, (April 29, 1985). from GSA regarding property that is in (6) Mineral rights interests. GSA’s current inventory of excess or (7) Air Space interests. surplus property. (8) Indian Reservation land subject to (d) Change in status. If the informa- 40 U.S.C. 523. tion provided on the property checklist

273

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00283 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.1175 41 CFR Ch. 102 (7–1–11 Edition)

changes subsequent to HUD’s deter- (d) Written record of suitability determination of suitability, and the prop- mination. HUD will assign an identifica- erty remains unutilized, underutilized, tion number to each property reviewed excess or surplus, the landholding for suitability. HUD will maintain a agency must submit a revised property written public record of the following: checklist in response to the next quar- (1) The suitability determination for terly canvass. HUD will make a new a particular piece of property, and the determination of suitability and, if it reasons for that determination; and differs from the previous determina- (2) The landholding agency’s response tion, republish the property informa- to the determination pursuant to the tion in the FEDERAL REGISTER. For ex- requirements of § 102–75.1190(a). ample, property determined unsuitable (e) Property determined unsuitable. for national security concerns may no Property that is reviewed by HUD longer be subject to security restric- under this section and that is deter- tions, or property determined suitable mined unsuitable for use to assist the may subsequently be found to be con- homeless may not be made available taminated. for any other purpose for 20 days after publication in the FEDERAL REGISTER SUITABILITY DETERMINATION of a notice of unsuitability to allow for § 102–75.1175 Who issues the suit- review of the determination at the re- ability determination? quest of a representative of the homeless. (a) Suitability determination. Within 30 days after the receipt of information (f) Procedures for appealing from landholding agencies regarding unsuitability determinations. (1) To re- properties that were reported pursuant quest review of a determination of to the canvass described in § 102– unsuitability, a representative of the 75.1170(a), HUD will determine, under homeless must contact HUD within 20 criteria set forth in § 102–75.1185, which days of publication of notice in the properties are suitable for use as facili- FEDERAL REGISTER that a property is ties to assist the homeless and report unsuitable. Requests may be submitted its determination to the landholding to HUD in writing or by calling 1–800– agency. Properties that are under 927–7588 (Toll Free). Written requests lease, contract, license, or agreement must be received no later than 20 days by which a Federal agency retains a after notice of unsuitability is pub- real property interest or which are lished in the FEDERAL REGISTER. scheduled to become unutilized or un- (2) Requests for review of a deter- derutilized will be reviewed for suit- mination of unsuitability may be made ability no earlier than six months prior only by representatives of the home- to the expected date when the property less, as defined in § 102–75.1160. will become unutilized or underuti- (3) The request for review must speci- lized, except that properties subject to fy the grounds on which it is based, the Base Closure and Realignment Act i.e., that HUD has improperly applied may be reviewed up to eighteen months the criteria or that HUD has relied on prior to the expected date when the incorrect or incomplete information in property will become unutilized or un- making the determination (e.g., that derutilized. property is in a floodplain but not in a (b) Scope of suitability. HUD will de- floodway). termine the suitability of a property (4) Upon receipt of a request to re- for use as a facility to assist the home- view a determination of unsuitability, less without regard to any particular HUD will notify the landholding agen- use. cy that such a request has been made, (c) Environmental information. HUD request that the agency respond with will evaluate the environmental infor- any information pertinent to the re- mation contained in property check- view, and advise the agency that it lists forwarded to HUD by the land- should refrain from initiating disposal holding agencies solely for the purpose procedures until HUD has completed of determining suitability of properties its reconsideration regarding under the criteria in § 102–75.1185. unsuitability.

274

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00284 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.1185

(i) HUD will act on all requests for in GSA’s inventory, GSA will transmit review within 30 days of receipt of the to HUD within 45 days a response that landholding agency’s response and will includes the following for each identi- notify the representative of the home- fied property: less and the landholding agency in (1) A statement that there is no other writing of its decision. compelling Federal need for the prop- (ii) If a property is determined suit- erty and, therefore, the property will able as a result of the review, HUD will be determined surplus; or request the landholding agency’s deter- (2) A statement that there is further mination of availability pursuant to and compelling Federal need for the § 102–75.1190(a), upon receipt of which property (including a full explanation HUD will promptly publish the deter- of such need) and that, therefore, the mination in the FEDERAL REGISTER. If property is not presently available for the determination of unsuitability use to assist the homeless. stands, HUD will inform the represent- (f) When an excess property is deter- ative of the homeless of its decision. mined suitable and available and notice is published in the FEDERAL REG- REAL PROPERTY REPORTED EXCESS TO ISTER, GSA will concurrently notify GSA HHS, HUD, State and local government § 102–75.1180 For the purposes of this units, known homeless assistance pro- subpart, what is the policy con- viders that have expressed interest in cerning real property reported ex- the particular property, and other or- cess to GSA? ganizations, as appropriate, concerning (a) Each landholding agency must suitable properties. submit a report to GSA of properties it (g) Upon submission of a Report of determines excess. Each landholding Excess to GSA, GSA may screen the agency must also provide a copy of property for Federal use. In addition, HUD’s suitability determination, if GSA may screen State and local gov- any, including HUD’s identification ernmental units and eligible non-profit number for the property. organizations to determine interest in (b) If a landholding agency reports a the property in accordance with cur- property to GSA that has been re- rent regulations. (See GSA Customer viewed by HUD for homeless assistance Guide to Real Property Disposal.) suitability and HUD determined the (h) The landholding agency will re- property suitable, GSA will screen the tain custody and accountability and property pursuant to § 102–75.1180(g) and will protect and maintain any property will advise HUD of the availability of that is reported excess to GSA as pro- the property for use by the homeless as vided in § 102–75.965. provided in § 102–75.1180(e). In lieu of the above, GSA may submit a new SUITABILITY CRITERIA checklist to HUD and follow the procedures in § 102–75.1180(c) through § 102– § 102–75.1185 What are suitability cri- 75.1180(g). teria? (c) If a landholding agency reports a (a) All properties, buildings, and land property to GSA that has not been re- will be determined suitable unless a viewed by HUD for homeless assistance property’s characteristics include one suitability, GSA will complete a prop- or more of the following conditions: erty checklist, based on information (1) National security concerns. A prop- provided by the landholding agency, erty located in an area to which the and will forward this checklist to HUD general public is denied access in the for a suitability determination. This interest of national security (e.g., checklist will reflect any change in where a special pass or security clear- classification, i.e., from unutilized or ance is a condition of entry to the underutilized to excess. property) will be determined unsuit- (d) Within 30 days after GSA’s sub- able. Where alternative access can be mission, HUD will advise GSA of the provided for the public without com- suitability determination. promising national security, the prop- (e) When GSA receives a letter from erty will not be determined unsuitable HUD listing suitable excess properties on this basis.

275

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00285 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.1190 41 CFR Ch. 102 (7–1–11 Edition)

(2) Property containing flammable or DETERMINATION OF AVAILABILITY explosive materials. A property located within 2,000 feet of an industrial, com- § 102–75.1190 What is the policy con- mercial, or Federal facility handling cerning determination of availability statements? flammable or explosive material (excluding underground storage) will be (a) Within 45 days after receipt of a determined unsuitable. Above ground letter from HUD pursuant to § 102– containers with a capacity of 100 gal- 75.1170(a), each landholding agency lons or less, or larger containers that must transmit to HUD a statement of provide the heating or power source for one of the following: the property, and that meet local safe- (1) In the case of unutilized or under- ty, operation, and permitting stand- utilized property— ards, will not affect whether a par- (i) An intention to declare the prop- ticular property is determined suitable erty excess; or unsuitable. Underground storage, (ii) An intention to make the property available for use to assist the gasoline stations, and tank trucks are homeless; or not included in this category, and their (iii) The reasons why the property presence will not be the basis of an cannot be declared excess or made unsuitability determination unless available for use to assist the home- there is evidence of a threat to per- less. The reasons given must be dif- sonal safety as provided in paragraph ferent than those listed as suitability (a)(5) of this section. criteria in § 102–75.1185. (3) Runway clear zone and military air- (2) In the case of excess property that field clear zone. A property located had previously been reported to GSA— within an airport runway clear zone or (i) A statement that there is no com- military airfield clear zone will be de- pelling Federal need for the property termined unsuitable. and that, therefore, the property will (4) Floodway. A property located in be determined surplus; or the floodway of a 100-year floodplain (ii) A statement that there is a fur- will be determined unsuitable. If the ther and compelling Federal need for floodway has been contained or cor- the property (including a full expla- rected, or if only an incidental portion nation of such need) and that, thereof the property not affecting the use of fore, the property is not presently the remainder of the property is in the available for use to assist the home- floodway, the property will not be de- less. termined unsuitable. (b) [Reserved] (5) Documented deficiencies. A property with a documented and extensive PUBLIC NOTICE OF DETERMINATION condition(s) that represents a clear § 102–75.1195 What is the policy con- threat to personal physical safety will cerning making public the notice of be determined unsuitable. Such condi- determination? tions may include, but are not limited (a) No later than 15 days after the to, contamination, structural damage, last–45 day period has elapsed for re- extensive deterioration, friable asbes- ceiving responses from the landholding tos, PCBs, natural hazardous sub- agencies regarding availability, HUD stances such as radon, periodic flood- will publish in the FEDERAL REGISTER a ing, sinkholes, or earth slides. list of all properties reviewed, includ- (6) Inaccessible. A property that is in- ing a description of the property, its accessible will be determined unsuit- address, and classification. The fol- able. An inaccessible property is one lowing designations will be made: that is not accessible by road (includ- (1) Properties that are suitable and ing property on small off-shore islands) available. or is land locked (e.g., can be reached (2) Properties that are suitable and only by crossing private property and unavailable. there is no established right or means (3) Properties that are suitable and of entry). to be declared excess. (b) [Reserved] (4) Properties that are unsuitable.

276

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00286 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.1200

(b) Information about specific prop- (3) The expression of interest should erties can be obtained by contacting identify the specific property, briefly HUD at the following toll free number: describe the proposed use, the name of 1–800–927–7588. the organization, and indicate whether (c) HUD will transmit to the ICH a it is a public body or a private, non- copy of the list of all properties pub- profit organization. The expression of lished in the FEDERAL REGISTER. The interest must be sent to the Division of ICH will immediately distribute to all Health Facilities Planning (DHFP) of state and regional homeless coordina- the Department of Health and Human tors area-relevant portions of the list. Services at the following address: Di- The ICH will encourage the state and rector, Division of Health Facilities regional homeless coordinators to dis- Planning, Public Health Service, Room seminate this information widely. 17A–10, Parklawn Building, 5600 Fishers (d) No later than February 15 of each Lane, Rockville, Maryland 20857. HHS year, HUD will publish in the FEDERAL will notify the landholding agency (for REGISTER a list of all properties re- unutilized and underutilized prop- ported pursuant to § 102–75.1170(b). erties) or GSA (for excess and surplus (e) HUD will publish an annual list of properties) when an expression of inter- properties determined suitable, but est has been received for a particular that agencies reported unavailable, in- property. cluding the reasons such properties are (4) An expression of interest may be not available. sent to HHS any time after the 60-day (f) Copies of the lists published in the holding period has expired. In such a FEDERAL REGISTER will be available for case, an application submitted pursu- review by the public in the HUD head- ant to this expression of interest may quarters building library (room 8141); be approved for use by the homeless area-relevant portions of the lists will if— be available in the HUD regional of- (i) No application or written expres- fices and in major field offices. sion of interest has been made under any law for use of the property for any APPLICATION PROCESS purpose; and § 102–75.1200 How may representatives (ii) In the case of excess or surplus of the homeless apply for the use of property, GSA has not received a bona properties to assist the homeless? fide offer to purchase that property or (a) Holding period. (1) Properties pub- advertised for the sale of the property lished as available for application for by public auction. use to assist the homeless shall not be (b) Application requirements. Upon re- available for any other purpose for a ceipt of an expression of interest, period of 60 days beginning on the date DHFP will send an application packet of publication. Any representative of to the interested entity. The applica- the homeless interested in any under- tion packet requires the applicant to utilized, unutilized, excess or surplus provide certain information, including Federal property for use as a facility to the following: assist the homeless must send to HHS (1) Description of the applicant organi- a written expression of interest in that zation. The applicant must document property within 60 days after the prop- that it satisfies the definition of a erty has been published in the FEDERAL ‘‘representative of the homeless,’’ as REGISTER. specified in § 102–75.1160. The applicant (2) If a written expression of interest must document its authority to hold to apply for suitable property for use real property. Private, non-profit orga- to assist the homeless is received by nizations applying for deeds must docu- HHS within the 60-day holding period, ment that they are section 501(c)(3) such property may not be made avail- tax-exempt. able for any other purpose until the (2) Description of the property desired. date HHS or the appropriate land- The applicant must describe the prop- holding agency has completed action erty desired and indicate that any on the application submitted pursuant modifications made to the property to that expression of interest. will conform to local use restrictions,

277

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00287 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.1200 41 CFR Ch. 102 (7–1–11 Edition)

except for, in the case of leasing the comply with Federal historic preserva- property, local zoning regulations. tion requirements. (3) Description of the proposed program. (8) Environmental information. The ap- The applicant must fully describe the plicant must provide sufficient infor- proposed program and demonstrate mation to allow HHS to analyze the po- how the program will address the needs tential impact of the applicant’s proof the homeless population to be as- posal on the environment, in accord- sisted. The applicant must fully de- ance with the instructions provided scribe what modifications will be made with the application packet. HHS will to the property before the program be- assist applicants in obtaining any per- comes operational. tinent environmental information in (4) Ability to finance and operate the the possession of HUD, GSA, or the proposed program. The applicant must landholding agency. specifically describe all anticipated (9) Local government notification. The costs and sources of funding for the applicant must indicate that it has in- proposed program. The applicant must formed, in writing, the applicable unit indicate that it can assume care, cus- of general local government respon- tody, and maintenance of the property sible for providing sewer, water, police, and that it has the necessary funds or and fire services of its proposed pro- the ability to obtain such funds to gram. carry out the approved program of use (10) Zoning and local use restrictions. for the property. The applicant must indicate that it (5) Compliance with non-discrimination will comply with all local use restric- requirements. Each applicant and lessee tions, including local building code re- under this part must certify in writing quirements. Any applicant applying for that it will comply with the require- a lease or permit for a particular prop- ments of the Fair Housing Act (42 erty is not required to comply with U.S.C. 3601–3619) and implementing reg- local zoning requirements. Any appli- ulations; and as applicable, Executive cant applying for a deed of a particular Order 11063 (Equal Opportunity in property, pursuant to § 102–75.1200(b)(3), Housing) and implementing regula- must comply with local zoning require- tions; Title VI of the Civil Rights Act ments, as specified in 45 CFR part 12. of 1964 (42 U.S.C. 2000d to d–4) (Non- (c) Scope of evaluations. Due to the discrimination in Federally-Assisted short time frame imposed for evalu- Programs) and implementing regula- ating applications, HHS’ evaluation tions; the prohibitions against dis- will, generally, be limited to the infor- crimination on the basis of age under mation contained in the application. the Age Discrimination Act of 1975 (42 (d) Deadline. Completed applications U.S.C. 6101–6107) and implementing reg- must be received by DHFP, at the ulations; and the prohibitions against above address, within 90 days after an otherwise qualified individuals with expression of interest is received from handicaps under section 504 of the Re- a particular applicant for that prop- habilitation Act of 1973 (29 U.S.C. 794) erty. Upon written request from the and implementing regulations. The ap- applicant, HHS may grant extensions, plicant must state that it will not dis- provided that the appropriate land- criminate on the basis of race, color, holding agency concurs with the exten- national origin, religion, sex, age, fa- sion. Because each applicant will have milial status, or disability in the use of a different deadline based on the date the property, and will maintain the re- the applicant submitted an expression quired records to demonstrate compli- of interest, applicants should contact ance with Federal laws. the individual landholding agency to (6) Insurance. The applicant must cer- confirm that a particular property re- tify that it will insure the property mains available prior to submitting an against loss, damage, or destruction in application. accordance with the requirements of 45 (e) Evaluations. (1) Upon receipt of an CFR § 12.9. application, HHS will review it for (7) Historic preservation. Where appli- completeness and, if incomplete, may cable, the applicant must provide in- return it or ask the applicant to fur- formation that will enable HHS to nish any missing or additional required

278

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00288 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.1205

information prior to final evaluation of ACTION ON APPROVED APPLICATIONS the application. (2) HHS will evaluate each completed § 102–75.1205 What action must be application within 25 days of receipt taken on approved applications? and will promptly advise the applicant (a) Unutilized and underutilized prop- of its decision. Applications are evalu- erties. (1) When HHS approves an appli- ated on a first-come, first-serve basis. cation, it will so notify the applicant HHS will notify all organizations that and forward a copy of the application have submitted expressions of interest to the landholding agency. The land- for a particular property regarding holding agency will execute the lease, whether the first application received or permit document, as appropriate, in for that property has been approved or consultation with the applicant. disapproved. All applications will be (2) The landholding agency maintains reviewed on the basis of the following the discretion to decide the following: elements, which are listed in descend- (i) The length of time the property ing order of priority, except that para- will be available. (Leases and permits graphs (e)(2)(iv) and (e)(2)(v) of this sec- will be for a period of at least one year, tion are of equal importance: unless the applicant requests a shorter (i) Services offered. The extent and term.) range of proposed services, such as (ii) Whether to grant use of the prop- meals, shelter, job training, and coun- erty pursuant to a lease or permit. seling. (iii) The terms and conditions of the (ii) Need. The demand for the pro- lease or permit document. gram and the degree to which the (b) Excess and surplus properties. (1) available property will be fully uti- When HHS approves an application, it lized. will so notify the applicant and request that GSA assign the property to HHS (iii) Implementation time. The amount for leasing. Upon receipt of the assign- of time necessary for the proposed pro- ment, HHS will execute a lease in ac- gram to become operational. cordance with the procedures and re- (iv) Experience. Demonstrated prior quirements set out in 45 CFR part 12. success in operating similar programs In accordance with § 102–75.965, custody and recommendations attesting to that and accountability of the property will fact by Federal, State, and local au- remain throughout the lease term with thorities. the agency that initially reported the (v) Financial ability. The adequacy of property as excess. funding that will likely be available to (2) Prior to assignment to HHS, GSA run the program fully and properly and may consider other Federal uses and to operate the facility. other important national needs; how- (3) Additional evaluation factors may ever, in deciding the disposition of sur- be added as deemed necessary by HHS. plus real property, GSA will generally If additional factors are added, the ap- give priority of consideration to uses plication packet will be revised to in- to assist the homeless. GSA may con- clude a description of these additional sider any competing request for the factors. property made under 40 U.S.C. 550 (edu- (4) If HHS receives one or more com- cation, health, public park or recre- peting applications for a property with- ation, and historic monument uses) that is so meritorious and compelling in 5 days of the first application, HHS that it outweighs the needs of the will evaluate all completed applica- homeless, and HHS may likewise con- tions simultaneously. HHS will rank sider any competing request made approved applications based on the ele- under 40 U.S.C. 550(c) or (d) (education ments listed in § 102–75.1200(e)(2) and and health uses). notify the landholding agency, or GSA, (3) Whenever GSA or HHS decides in as appropriate, of the relative ranks. favor of a competing request over a request for property for homeless assistance use as provided in paragraph (b)(2) of this section, the agency making the

279

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00289 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.1210 41 CFR Ch. 102 (7–1–11 Edition)

decision will transmit to the appro- holding agency may proceed with dis- priate committees of the Congress an posal action in accordance with appli- explanatory statement that details the cable law. need satisfied by conveyance of the surplus property, and the reasons for NO APPLICATIONS APPROVED determining that such need was so meritorious and compelling as to out- § 102–75.1215 What action must be weigh the needs of the homeless. taken if there is no expression of in- (4) Deeds. Surplus property may be terest? conveyed to representatives of the (a) At the end of the 60-day holding homeless pursuant to 40 U.S.C. 550, and period described in § 102–75.1200(a), HHS section 501(f) of the McKinney-Vento will notify GSA, or the landholding Homeless Assistance Act, as amended, agency, as appropriate, if an expression 42 U.S.C. 11411. Representatives of the of interest has been received for a par- homeless must complete the applica- ticular property. Where there is no ex- tion packet pursuant to the requirements of § 102–75.1200 and in accordance pression of interest, GSA or the land- with the requirements of 45 CFR part holding agency, as appropriate, will 12. proceed with disposal in accordance (c) Completion of lease term and rever- with applicable law. sion of title. Lessees and grantees will (b) Upon advice from HHS that all be responsible for the protection and applications have been disapproved, or maintenance of the property during the if no completed applications or re- time that they possess the property. quests for extensions have been re- Upon termination of the lease term or ceived by HHS within 90 days from the reversion of title to the Federal Gov- date of the last expression of interest, ernment, the lessee or grantee will be disposal may proceed in accordance responsible for removing any improve- with applicable law. ments made to the property and will be responsible for restoration of the property. If such improvements are not re- Subpart I—Screening of Federal moved, they will become the property Real Property of the Federal Government. GSA or the landholding agency, as appropriate, § 102–75.1220 How do landholding will assume responsibility for protec- agencies find out if excess Federal tion and maintenance of a property real property is available? when the lease terminates or title re- If agencies report excess real and reverts. lated personal property to GSA, GSA conducts a ‘‘Federal screening’’ for the UNSUITABLE PROPERTIES property. Federal screening consists of § 102–75.1210 What action must be developing a ‘‘Notice of Availability’’ taken on properties determined un- and circulating the ‘‘Notice’’ among all suitable for homeless assistance? Federal landholding agencies for a The landholding agency will defer, maximum of 30 days. for 20 days after the date that notice of a property is published in the FEDERAL § 102–75.1225 What details are provided in the ‘‘Notice of Avail- REGISTER, action to dispose of prop- ability’’? erties determined unsuitable for homeless assistance. HUD will inform land- The ‘‘Notice of Availability’’ de- holding agencies or GSA, if a rep- scribes the physical characteristics of resentative of the homeless files an ap- the property; it also provides informa- peal of unsuitability pursuant to § 102– tion on location, hazards or restric- 75.1175(f)(4). HUD will advise the agen- tions, contact information, and a date cy that it should refrain from initi- by which an interested Federal agency ating disposal procedures until HUD must respond in writing to indicate a has completed its reconsideration proc- definite or potential need for the prop- ess regarding unsuitability. Thereafter, erty. or if no appeal has been filed after 20 days, GSA or the appropriate land-

280

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00290 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–75.1260

§ 102–75.1230 How long does an agency § 102–75.1255 What happens when have to indicate its interest in the more than one agency has a valid property? interest in the property? Generally, agencies have 30 days to GSA will attempt to facilitate an eq- express written interest in the prop- uitable solution between the agencies erty. However, sometimes GSA has involved. However, the Administrator cause to conduct an expedited screen- has final decision making authority in ing of the real property and the time determining which requirement aligns allotted for responding is less than 30 with the Federal Government’s best in- days. The Notice of Availability always terests. contains a ‘‘respond by’’ date. § 102–75.1260 Does GSA conduct Fed- § 102–75.1235 Where should an agency eral screening on every property re- send its written response to the ported as excess real property? ‘‘Notice of Availability’’? No. GSA may waive the Federal Look for the contact information screening for excess real property when provided in the Notice of Availability. it determines that doing so is in the Most likely, an agency will be directed best interest of the Federal Govern- to contact one of GSA’s regional of- ment. fices. Below is a sample list of some of the factors GSA may consider when mak- § 102–75.1240 Who, from the interested ing the decision to waive Federal landholding agency, should submit screening. This list is a representative the written response to GSA’s ‘‘No- sample and is not all-inclusive: tice of Availability’’? (a) There is a known Federal need; An authorized official of the land- (b) The property is located within the holding agency must sign the written boundaries of tribal lands; response to the Notice of Availability. (c) The property has known disposal An ‘‘authorized official’’ is one who is limitations precluding further Federal responsible for acquisition and/or dis- use (e.g., title and/or utilization re- posal decisions (e.g., head of the agency strictions; reported excess specifically or official designee). for participation in the Relocation Pro- gram; reported excess for transfer to § 102–75.1245 What happens after the the current operating contractor who landholding agency properly re- will continue production according to sponds to a ‘‘Notice of Availability’’? the terms of the disposal documents; The landholding agency has 60 days directed for disposal by law or special (from the expiration date of the ‘‘No- legislation); tice of Availability’’) to submit a for- (d) The property will be transferred mal transfer request for the property. to a ‘‘potentially responsible party’’ Absent a formal request for transfer (PRP) that stored, released, or disposed within the prescribed 60 days, GSA of hazardous substances at the Govern- may, at its discretion, pursue other ment-owned facility; disposal options. (e) The property is an easement; (f) The excess property is actually a § 102–75.1250 What if the agency is not leasehold interest where there are Gov- quite sure it wants the property ernment-owned improvements with and needs more time to decide? substantial value and cannot be easily If the written response to the ‘‘No- removed; tice of Availability’’ indicates a poten- (g) Government-owned improvements tial need, then the agency has an addi- on Government-owned land, where the tional 30 days (from the expiration date land is neither excess nor expected to of the ‘‘Notice of Availability’’) to de- become excess; or termine whether or not its has a defi- (h) Screening for public benefit uses, nite requirement for the property, and except for the McKinney-Vento home- then 60 days to submit a transfer re- less screening, for specific property dis- quest. posal considerations (see § 102–75.351).

281

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00291 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–75.1265 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–75.1265 Are extensions granted (b) Wildlife Conservation under Pub. to the Federal screening and re- L. 80–537. sponse timeframes? (c) Federal Correctional facilities. Generally, no. GSA believes the time- (d) Joint Surveillance System. frames are sufficient for agencies to make a decision and respond. Requests § 102–75.1280 What happens if the for extensions must be strongly justi- property has already been declared surplus and an agency discovers a fied and approved by the appropriate need for it? GSA Regional Administrator. For example, agencies may request an exten- GSA can redesignate surplus prop- sion of time to submit their formal erty as excess property, if the agency transfer request if they are not requests the property for use in direct promptly provided GSA’s estimate of support of its mission and GSA is satis- FMV after submission of the initial ex- fied that this transfer would be in the pression of interest. Agencies request- best interests of the Federal Govern- ing extensions must also submit an ment. agreement accepting responsibility for providing and funding protection and § 102–75.1285 How does GSA transfer maintenance for the requested prop- excess real property to the requesting agency? erty during the period of the extension until the property is transferred to the GSA transfers the property via letter requesting agency or the requesting assigning ‘‘custody and account- agency notifies GSA that it is no ability’’ for the property to the re- longer interested in the property. This questing agency. Title to the property assumption of protection and mainte- is held in the name of the United nance responsibility also applies to ex- States; however, the requesting agency tensions associated with a requesting becomes the landholding agency and is agency’s request for an exception from responsible for providing and funding the 100 percent reimbursement require- protection and maintenance for the ment (see § 102–75.205). property.

§ 102–75.1270 How does an agency re- § 102–75.1290 What happens if the quest a transfer of Federal real landholding agency requesting the property? property does not promptly accept custody and accountability? Agencies must use GSA Form 1334, Request for Transfer of Excess Real (a) The requesting agency must as- and Related Personal Property. sume protection and maintenance responsibilities for the property within 30 § 102–75.1275 Does a requesting agency days of the date of the letter assigning have to pay for excess real prop- custody and accountability for the erty? property. Yes. GSA is required by law to obtain (b) After notifying the requesting full fair market value (as determined agency, GSA may, at its discretion, by the Administrator) for all real prop- pursue other disposal options. erty (see § 102–75.190), except when a transfer without reimbursement has PART 102–76—DESIGN AND been authorized (see § 102–75.205). GSA, CONSTRUCTION upon receipt of a valid expression of interest, will promptly provide each in- Subpart A—General Provisions terested landholding agency with an estimate of fair market value for the Sec. property. GSA may transfer property 102–76.5 What is the scope of this part? without reimbursement, if directed to 102–76.10 What basic design and construc- do so by law or special legislation and tion policy governs Federal agencies? for the following purposes: Subpart B—Design and Construction (a) Migratory Bird Management under Pub. L. 80–537, as amended by 102–76.15 What are design and construction Pub. L. 92–432. services?

282

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00292 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–76.10

102–76.20 What issues must Federal agencies under 40 U.S.C. 581 and 583); 42 U.S.C. 4152; consider in providing site planning and E.O. 12411, 48 FR 13391, 3 CFR, 1983 Comp., p. landscape design services? 155; E.O. 12512, 50 FR 18453, 3 CFR, 1985 102–76.25 What standards must Federal Comp., p. 340. agencies meet in providing architectural and interior design services? SOURCE: 70 FR 67845, Nov. 8, 2005, unless 102–76.30 What seismic safety standards otherwise noted. must Federal agencies follow in the design and construction of Federal facili- Subpart A—General Provisions ties? § 102–76.5 What is the scope of this NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 part? 102–76.35 What is the purpose of the Na- The real property policies contained tional Environmental Policy Act of 1969, in this part apply to Federal agencies, as amended (NEPA)? including GSA’s Public Buildings Serv- 102–76.40 To which real property actions ice (PBS), operating under, or subject does NEPA apply? to, the authorities of the Adminis- 102–76.45 What procedures must Federal trator of General Services. The accessi- agencies follow to implement the re- bility standards in subpart C of this quirements of NEPA? part apply to Federal agencies and SUSTAINABLE DEVELOPMENT other entities whose facilities are sub- 102–76.50 What is sustainable development? ject to the Architectural Barriers Act. 102–76.55 What sustainable development [70 FR 67845, Nov. 8, 2005, as amended at 72 principles must Federal agencies apply FR 5943, Feb. 8, 2007] to the siting, design, and construction of new facilities? § 102–76.10 What basic design and construction policy governs Federal Subpart C—Architectural Barriers Act agencies? 102–76.60 To which facilities does the Archi- Federal agencies, upon approval from tectural Barriers Act Apply? GSA, are bound by the following basic 102–76.65 What standards must facilities design and construction policies: subject to the Architectural Barriers Act meet? (a) Provide the highest quality serv- 102–76.70 When are the costs of alterations ices for designing and constructing new to provide an accessible path of travel to Federal facilities and for repairing and an altered area containing a primary altering existing Federal facilities. function disproportionate to the costs of These services must be timely, effi- the overall alterations for facilities sub- cient, and cost effective. ject to the standards in § 102–76.65(a)? 102–76.75 What costs are included in the (b) Use a distinguished architectural costs of alterations to provide an acces- style and form in Federal facilities sible path of travel to an altered area that reflects the dignity, enterprise, containing a primary function for facili- vigor and stability of the Federal Gov- ties subject to the standards in § 102– ernment. 76.65(a)? (c) Follow nationally recognized 102–76.80 What is required if the costs of al- model building codes and other appli- terations to provide an accessible path of cable nationally recognized codes that travel to an altered area containing a primary function are disproportionate to govern Federal construction to the the costs of the overall alterations for fa- maximum extent feasible and consider cilities subject to the standards in § 102– local building code requirements. (See 76.65(a)? 40 U.S.C. 3310 and 3312.) 102–76.85 What is a primary function area (d) Design Federal buildings to have for purposes of providing an accessible a long life expectancy and accommo- route in leased facilities subject to the date periodic changes due to renova- standards in § 102–76.65(a)? 102–76.90 Who has the authority to waive or tions. modify the standards in § 102–76.65(a)? (e) Make buildings cost effective, en- 102–76.95 What recordkeeping responsibil- ergy efficient, and accessible to and us- ities do Federal agencies have? able by the physically disabled. AUTHORITY: 40 U.S.C. 121(c) (in furtherance (f) Provide for building service equip- of the Administrator’s authorities under 40 ment that is accessible for mainte- U.S.C. 3301–3315 and elsewhere as included nance, repair, or replacement without

283

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00293 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–76.15 41 CFR Ch. 102 (7–1–11 Edition)

significantly disturbing occupied (g) Consider the vulnerability of the space. facility as well as the security needs of (g) Consider ease of operation when the occupying agencies, consistent selecting mechanical and electrical with the Interagency Security Com- equipment. mittee standards and guidelines. (h) Agencies must follow the prospectus submission and approval policy § 102–76.25 What standards must Fed- identified in §§ 102–73.35 and 102–73.40 of eral agencies meet in providing ar- this chapter. chitectural and interior design services? Subpart B—Design and Federal agencies must design distinc- Construction tive and high quality Federal facilities that meet all of the following stand- § 102–76.15 What are design and con- ards: struction services? (a) Reflect the local architecture in Design and construction services buildings through the use of building are— form, materials, colors, or detail. Ex- (a) Site planning and landscape de- press a quality of permanence in the sign; building interior similar to the build- (b) Architectural and interior design; ing exterior. and (b) Provide individuals with disabil- (c) Engineering systems design. ities ready access to, and use of, the facilities in accordance with the stand- § 102–76.20 What issues must Federal ards in § 102–76.65. agencies consider in providing site (c) Use metric specifications in con- planning and landscape design struction where the metric system is services? the accepted industry standard, and to In providing site planning and design the extent that such usage is economi- services, Federal agencies must— cally feasible and practical. (a) Make the site planning and land- (d) Provide for the design of security scape design a direct extension of the systems to protect Federal workers building design; and visitors and to safeguard facilities (b) Make a positive contribution to against criminal activity and/or ter- the surrounding landscape; rorist activity. Security design must (c) Consider requirements (other than support the continuity of Government procedural requirements) of local zon- operations during civil disturbances, ing laws and laws relating to setbacks, natural disasters and other emergency height, historic preservation, and aes- situations. thetic qualities of a building; (e) Design and construct facilities (d) Identify areas for future building that meet or exceed the energy per- expansion in the architectural and site formance standards applicable to Fed- design concept for all buildings where eral buildings in 10 CFR part 435. an expansion need is identified to exist; (e) Create a landscape design that is § 102–76.30 What seismic safety stand- a pleasant, dynamic experience for oc- ards must Federal agencies follow cupants and visitors to Federal facili- in the design and construction of ties and, where appropriate, encourage Federal facilities? public access to and stimulate pedes- Federal agencies must follow the trian traffic around the facilities. Co- seismic safety standards identified in ordinate the landscape design with the § 102–80.45 of this chapter. architectural characteristics of the building; NATIONAL ENVIRONMENTAL POLICY ACT (f) Comply with the requirements of OF 1969 the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321 et § 102–76.35 What is the purpose of the seq., and the National Historic Preser- National Environmental Policy Act vation Act of 1966, as amended, 16 of 1969, as amended (NEPA)? U.S.C. 470 et seq., for each project; and The purpose of NEPA is to—

284

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00294 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–76.65

(a) Declare a national policy which agencies must apply sustainable devel- will encourage productive and enjoy- opment principles to the siting, design, able harmony between man and his en- and construction of new facilities, vironment; which include— (b) Promote efforts which will pre- (a) Optimizing site potential; vent or eliminate damage to the envi- (b) Minimizing non-renewable energy ronment and biosphere and stimulate consumption; the health and welfare of man; (c) Using environmentally preferable (c) Enrich the understanding of the products; ecological systems and natural re- (d) Protecting and conserving water; sources important to the Nation; and (e) Enhancing indoor environmental (d) Establish a Council on Environ- quality; and mental Quality (CEQ). (f) Optimizing operational and main- § 102–76.40 To which real property ac- tenance practices. tions does NEPA apply? NEPA applies to actions that may Subpart C—Architectural Barriers have an impact on the quality of the Act human environment, including leasing, acquiring, developing, managing and § 102–76.60 To which facilities does the disposing of real property. Architectural Barriers Act apply? (a) The Architectural Barriers Act § 102–76.45 What procedures must Fed- applies to any facility that is intended eral agencies follow to implement for use by the public or that may result the requirements of NEPA? in the employment or residence therein Federal agencies must follow the proof individuals with disabilities, which cedures identified in the Council on is to be— Environmental Quality’s NEPA imple- (1) Constructed or altered by, or on menting regulations, 40 CFR 1500–1508. behalf of, the United States; In addition, Federal agencies must fol- (2) Leased in whole or in part by the low the standards that they have pro- United States; mulgated to implement CEQ’s regula- (3) Financed in whole or in part by a tions. grant or loan made by the United States, if the building or facility is SUSTAINABLE DEVELOPMENT subject to standards for design, con- § 102–76.50 What is sustainable devel- struction, or alteration issued under opment? the authority of the law authorizing Sustainable development means inte- such a grant or loan; or grating the decision-making process (4) Constructed under the authority across the organization, so that every of the National Capital Transportation decision is made to promote the great- Act of 1960, the National Capital Trans- est long-term benefits. It means elimi- portation Act of 1965, or Title III of the nating the concept of waste and build- Washington Metropolitan Area Transit ing on natural processes and energy Regulation Compact. flows and cycles; and recognizing the (b) The Architectural Barriers Act interrelationship of our actions with does not apply to any privately owned the natural world. residential facility unless leased by the Government for subsidized housing pro- § 102–76.55 What sustainable develop- grams, and any facility on a military ment principles must Federal agen- reservation designed and constructed cies apply to the siting, design, and primarily for use by able bodied mili- construction of new facilities? tary personnel. In keeping with the objectives of Ex- ecutive Order 13123, ‘‘Greening of the § 102–76.65 What standards must facili- Government Through Efficient Energy ties subject to the Architectural Management,’’ and Executive Order Barriers Act meet? 13101, ‘‘Greening of the Government (a) GSA adopts Appendices C and D Through Waste Prevention, Recycling, to 36 CFR part 1191 (ABA Chapters 1 and Federal Acquisition,’’ Federal and 2, and Chapters 3 through 10) as the

285

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00295 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–76.70 41 CFR Ch. 102 (7–1–11 Edition)

Architectural Barriers Act Accessi- § 102–76.70 When are the costs of alter- bility Standard (ABAAS). Facilities ations to provide an accessible path subject to the Architectural Barriers of travel to an altered area con- Act (other than facilities described in taining a primary function disproportionate to the costs of the paragraphs (b) and (c) of this section) overall alterations for facilities sub- must comply with ABAAS as set forth ject to the standards in § 102– below: 76.65(a)? (1) For construction or alteration of For facilities subject to the stand- facilities subject to the Architectural ards in § 102–76.65(a), the costs of alter- Barriers Act (other than Federal lease- ations to provide an accessible path of construction and other lease actions travel to an altered area containing a described in paragraphs (a)(2) and (3), primary function are disproportionate respectively, of this section), compli- to the costs of the overall alterations ance with ABAAS is required if the when they exceed 20 percent of the construction or alteration commenced costs of the alterations to the primary after May 8, 2006. If the construction or function area. If a series of small alter- alteration of such a facility com- ations are made to areas containing a menced on or before May 8, 2006, com- primary function and the costs of any pliance with the Uniform Federal Ac- of the alterations considered individ- cessibility Standards (UFAS) is re- ually would not result in providing an quired. accessible path of travel to the altered areas, the total costs of the alterations (2) For Federal lease-construction ac- made within the three year period after tions subject to the Architectural Bar- the initial alteration must be consid- riers Act, where the Government ex- ered when determining whether the pressly requires new construction to costs of alterations to provide an ac- meet its needs, compliance with cessible path of travel to the altered ABAAS is required for all such leases areas are disproportionate. Facilities awarded on or after June 30, 2006. for which new leases are entered into UFAS compliance is required for all must comply with F202.6 of the Archi- such leases awarded before June 30, tectural Barriers Act Accessibility 2006. Standard without regard to whether (3) For all other lease actions subject the costs of alterations to comply with to the Architectural Barriers Act F202.6 are disproportionate to the costs (other than those described in para- of the overall alterations. graph (a)(2) of this section), compliance with ABAAS is required for all such § 102–76.75 What costs are included in the costs of alterations to provide leases awarded pursuant to solicita- an accessible path of travel to an al- tions issued after February 6, 2007. tered area containing a primary UFAS compliance is required for all function for facilities subject to the such leases awarded pursuant to solici- standards in § 102–76.65(a)? tations issued on or before February 6, For facilities subject to the stand- 2007. ards in § 102–76.65(a), the costs of alter- (b) Residential facilities subject to ations to provide an accessible path of the Architectural Barriers Act must travel to an altered area containing a meet the standards prescribed by the primary function include the costs as- Department of Housing and Urban De- sociated with— velopment. (a) Providing an accessible route to (c) Department of Defense and United connect the altered area and site ar- States Postal Service facilities subject rival points, including but not limited to the Architectural Barriers Act must to interior and exterior ramps, ele- meet the standards prescribed by those vators and lifts, and curb ramps; (b) Making entrances serving the al- agencies. tered area accessible, including but not [70 FR 67845, Nov. 8, 2005, as amended at 71 limited to widening doorways and in- FR 52499, Sept. 6, 2006; 72 FR 5943, Feb. 8, stalling accessible hardware; 2007] (c) Making restrooms serving the altered area accessible, including, but

286

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00296 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–77

not limited to, enlarging toilet stalls, Federal agency using the leased facil- installing grab bars and accessible fau- ity are carried out. cet controls, and insulating pipes under lavatories; § 102–76.90 Who has the authority to (d) Making public telephones serving waive or modify the standards in the altered area accessible, including, § 102–76.65(a)? but not limited to, placing telephones The Administrator of General Serv- at an accessible height, and installing ices has the authority to waive or mod- amplification devices and TTYs; ify the standards in § 102–76.65(a) on a (e) Making drinking fountains serv- case-by-case basis if the agency head or ing the altered area accessible; and GSA department head submits a re- (f) Making parking spaces serving the quest for waiver or modification and altered area accessible. the Administrator determines that the waiver or modification is clearly nec- § 102–76.80 What is required if the essary. costs of alterations to provide an accessible path of travel to an al- § 102–76.95 What recordkeeping re- tered area containing a primary sponsibilities do Federal agencies function are disproportionate to the have? costs of the overall alterations for facilities subject to the standards in (a) The head of each Federal agency § 102–76.65(a)? must ensure that documentation is For facilities subject to the stand- maintained on each contract, grant or ards in § 102–76.65(a), if the costs of al- loan for the design, construction or alterations to provide an accessible path teration of a facility and on each lease of travel to an altered area containing for a facility subject to the standards a primary function are dispropor- in § 102–76.65(a) containing one of the tionate to the costs of the overall al- following statements: terations, the path of travel must be (1) The standards have been or will be made accessible to the extent possible incorporated in the design, the con- without exceeding 20 percent of the struction or the alteration. costs of the alterations to the primary (2) The grant or loan has been or will function area. Priority should be given be made subject to a requirement that to those elements that will provide the the standards will be incorporated in greatest access in the following order: the design, the construction or the al- (a) An accessible route and an acces- teration. sible entrance; (3) The leased facility meets the (b) At least one accessible restroom standards, or has been or will be al- for each sex or a single unisex rest- tered to meet the standards. room; (4) The standards have been waived (c) Accessible telephones; or modified by the Administrator of (d) Accessible drinking fountains; General Services, and a copy of the and waiver or modification is included with (e) Accessible parking spaces. the statement. (b) If a determination is made that a § 102–76.85 What is a primary function facility is not subject to the standards area for purposes of providing an in § 102–76.65(a) because the Architec- accessible route in leased facilities tural Barriers Act does not apply to subject to the standards in § 102– the facility, the head of the Federal 76.65(a)? agency must ensure that documenta- For purposes of providing an acces- tion is maintained to justify the deter- sible route in leased facilities subject mination. to the standards in § 102–76.65(a), a primary function area is an area that con- PART 102–77—ART-IN- tains a major activity for which the ARCHITECTURE leased facility is intended. Primary function areas include areas where Subpart A—General Provisions services are provided to customers or the public, and offices and other work Sec. areas in which the activities of the 102–77.5 What is the scope of this part?

287

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00297 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–77.5 41 CFR Ch. 102 (7–1–11 Edition)

102–77.10 What basic Art-in-Architecture termined by the Administrator of Gen- policy governs Federal agencies? eral Services.

Subpart B—Art-in-Architecture § 102–77.20 With whom should Federal agencies collaborate with when 102–77.15 Who funds the Art-in-Architecture commissioning and selecting art for efforts? Federal buildings? 102–77.20 With whom should Federal agencies collaborate when commissioning and To the maximum extent practicable, selecting art for Federal buildings? Federal agencies should seek the sup- 102–77.25 Do Federal agencies have respon- port and involvement of local citizens sibilities to provide national visibility in selecting appropriate artwork. Fed- for Art-in-Architecture? eral agencies should collaborate with AUTHORITY: 40 U.S.C. 121 and 3306. the artist and community to produce works of art that reflect the cultural, SOURCE: 70 FR 67847, Nov. 8, 2005, unless intellectual, and historic interests and otherwise noted. values of a community. In addition, Federal agencies should work collabo- Subpart A—General Provisions ratively with the architect of the building and art professionals, when § 102–77.5 What is the scope of this commissioning and selecting art for part? Federal buildings. Federal agencies The real property policies contained should commission artwork that is di- in this part apply to Federal agencies, verse in style and media. including GSA’s Public Buildings Serv- ice (PBS), operating under, or subject § 102–77.25 Do Federal agencies have to, the authorities of the Adminis- responsibilities to provide national trator of General Services. visibility for Art-in-Architecture? Yes, Federal agencies should provide § 102–77.10 What basic Art-in-Architec- Art-in-Architecture that receives ap- ture policy governs Federal agen- propriate national and local visibility cies? to facilitate participation by a large Federal agencies must incorporate and diverse group of artists rep- fine arts as an integral part of the resenting a wide variety of types of total building concept when designing artwork. new Federal buildings, and when making substantial repairs and alterations PART 102–78—HISTORIC to existing Federal buildings, as appro- PRESERVATION priate. The selected fine arts, including painting, sculpture, and artistic work Subpart A—General Provisions in other media, must reflect the national cultural heritage and emphasize Sec. the work of living American artists. 102–78.5 What is the scope of this part? 102–78.10 What basic historic preservation policy governs Federal agencies? Subpart B—Art-in-Architecture Subpart B—Historic Preservation § 102–77.15 Who funds the Art-in-Archi- tecture efforts? 102–78.15 What are historic properties? 102–78.20 Are Federal agencies required to To the extent not prohibited by law, identify historic properties? Federal agencies must fund the Art-in- 102–78.25 What is an undertaking? Architecture efforts by allocating a 102–78.30 Who are consulting parties? portion of the estimated cost of con- 102–78.35 Are Federal agencies required to structing or purchasing new Federal involve consulting parties in their his- buildings, or of completing major re- toric preservation activities? pairs and alterations of existing build- 102–78.40 What responsibilities do Federal ings. Funding for qualifying projects, agencies have when an undertaking adversely affects an historic or cultural including new construction, building property? purchases, other building acquisition, 102–78.45 What are Federal agencies’ respon- or prospectus-level repair and alter- sibilities concerning nomination of prop- ation projects, must be in a range de- erties to the National Register?

288

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00298 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–78.30

102–78.50 What historic preservation serv- Subpart B—Historic Preservation ices must Federal agencies provide? 102–78.55 For which properties must Federal § 102–78.15 What are historic prop- agencies provide historic preservation erties? services? Historic properties are those that are 102–78.60 When leasing space, are Federal agencies able to give preference to space included in, or eligible for inclusion in, in historic properties or districts? the National Register of Historic 102–78.65 What are Federal agencies’ his- Places (National Register) as more spe- toric preservation responsibilities when cifically defined at 36 CFR 800.16. disposing of real property under their control? § 102–78.20 Are Federal agencies re- 102–78.70 What are an agency’s historic pres- quired to identify historic properties? ervation responsibilities when disposing of another Federal agency’s real prop- Yes, Federal agencies must identify erty? all National Register or National Reg- ister-eligible historic properties under AUTHORITY: 16 U.S.C. 470h–2; 40 U.S.C. 121(c) and 581. their control. In addition, Federal agencies must apply National Register SOURCE: 70 FR 67848, Nov. 8, 2005, unless Criteria (36 CFR part 63) to properties otherwise noted. that have not been previously evaluated for National Register eligibility Subpart A—General Provisions and that may be affected by the undertakings of Federally sponsored activi- § 102–78.5 What is the scope of this ties. part? § 102–78.25 What is an undertaking? The real property policies contained in this part apply to Federal agencies, The term undertaking means a including GSA’s Public Buildings Serv- project, activity, or program funded in ice (PBS), operating under, or subject whole or in part under the direct or in- to, the authorities of the Adminis- direct jurisdiction of a Federal agency, trator of General Services. The policies including those— (a) Carried out by or on behalf of the in this part are in furtherance of GSA’s agency; preservation program under section 110 (b) Carried out with Federal financial of the National Historic Preservation assistance; or Act of 1966, as amended (16 U.S.C. 470) (c) Requiring a Federal permit, li- and apply to properties under the juris- cense, or approval. diction or control of the Administrator and to any Federal agencies operating, § 102–78.30 Who are consulting par- maintaining or protecting such prop- ties? erties under a delegation of authority As more particularly described in 36 from the Administrator. CFR 800.2(c), consulting parties are those parties having consultative roles § 102–78.10 What basic historic preser- in the Section 106 process (i.e., Section vation policy governs Federal agen- 106 of the National Historic Preserva- cies? tion Act), which requires Federal agen- To protect, enhance and preserve his- cies to take into account the effects of toric and cultural property under their their undertakings on historic prop- control, Federal agencies must con- erties and afford the Council a reason- sider the effects of their undertakings able opportunity to comment on such on historic and cultural properties and undertakings. Specifically, consulting give the Advisory Council on Historic parties include the State Historic Pres- Preservation (Advisory Council), the ervation Officer; the Tribal Historic State Historic Preservation Officer Preservation Officer; Indian tribes and Native Hawaiian organizations; rep- (SHPO), and other consulting parties a resentatives of local governments; ap- reasonable opportunity to comment re- plicants for Federal assistance, per- garding the proposed undertakings. mits, licenses, and other approvals; other individuals and organizations

289

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00299 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–78.35 41 CFR Ch. 102 (7–1–11 Edition)

with a demonstrated interest in the un- (b) Investigate for historic and cul- dertaking; and the Advisory Council (if tural factors all proposed sites for di- it elects to participate in the consulta- rect and leased construction. tion). § 102–78.55 For which properties must § 102–78.35 Are Federal agencies re- Federal agencies assume historic quired to involve consulting parties preservation responsibilities? in their historic preservation activi- Federal agencies must assume his- ties? toric preservation responsibilities for Yes, Federal agencies must solicit in- real property assets under their cus- formation from consulting parties to tody and control. Federal agencies oc- carry out their responsibilities under cupying space in buildings under the historic and cultural preservation laws custody and control of other Federal and regulations. Federal agencies must agencies must obtain approval from invite the participation of consulting the agency having custody and control parties through their normal public no- of the building. tification processes. § 102–78.60 When leasing space, are § 102–78.40 What responsibilities do Federal agencies able to give pref- Federal agencies have when an un- erence to space in historic prop- dertaking adversely affects a his- erties or districts? toric or cultural property? Yes, Executive Order 13006 requires Federal agencies must not perform Federal agencies that have a mission an undertaking that could alter, de- requirement to locate in an urban area stroy, or modify an historic or cultural to give first consideration to space in property until they have consulted historic buildings and districts inside with the SHPO and the Advisory Coun- central business areas. Agencies may cil. Federal agencies must minimize all give a price preference of up to 10 per- adverse impacts of their undertakings on historic or cultural properties to cent to space in historic buildings and the extent that it is feasible and pru- districts, in accordance with §§ 102– dent to do so. Federal agencies must 73.120 and 102–73.125 of this chapter. follow the specific guidance on the pro- § 102–78.65 What are Federal agencies’ tection of historic and cultural prop- historic preservation responsibil- erties in 36 CFR part 800. ities when disposing of real property under their control? § 102–78.45 What are Federal agencies’ responsibilities concerning nomina- Federal agencies must— tion of properties to the National (a) To the extent practicable, estab- Register? lish and implement alternatives for Federal agencies must nominate to historic properties, including adaptive the National Register all properties use, that are not needed for current or under their control determined eligible projected agency purposes. Agencies for inclusion in the National Register. are required to get the Secretary of the Interior’s approval of the plans of § 102–78.50 What historic preservation transferees of surplus Federally-owned services must Federal agencies pro- historic properties; and vide? (b) Review all proposed excess ac- Federal agencies must provide the tions to identify any properties listed following historic preservation serv- in or eligible for listing in the National ices: Register. Federal agencies must not (a) Prepare a Historic Building Pres- perform disposal actions that could re- ervation Plan for each National Reg- sult in the alteration, destruction, or ister or National Register-eligible modification of an historic or cultural property under their control. When ap- property until Federal agencies have proved by consulting parties, such consulted with the SHPO and the Advi- plans become a binding management sory Council. plan for the property.

290

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00300 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–79

§ 102–78.70 What are an agency’s his- 102–79.55 Is there a general hierarchy of con- toric preservation responsibilities sideration that agencies must follow in when disposing of another Federal their utilization of space? agency’s real property? 102–79.60 Are agencies required to use historic properties available to the agency? Federal agencies must not accept property declared excess by another OUTLEASING Federal agency nor act as an agent for 102–79.65 May Executive agencies outlease transfer or sale of such properties until space on major public access levels, the holding agency provides evidence courtyards and rooftops of public build- that the Federal agency has met its ings? National Historic Preservation Act responsibilities. SITING ANTENNAS ON FEDERAL PROPERTY 102–79.70 May Executive agencies assess fees PART 102–79—ASSIGNMENT AND against other Executive agencies for antenna placements and supporting serv- UTILIZATION OF SPACE ices? 102–79.75 May Executive agencies assess fees Subpart A—General Provisions for antenna placements against public service organizations for antenna site Sec. outleases on major pedestrian access lev- 102–79.5 What is the scope of this part? els, courtyards, and rooftops of public 102–79.10 What basic assignment and utiliza- buildings? tion of space policy governs an Executive 102–79.80 May Executive agencies assess fees agency? for antenna placements against telecommunication service providers for an- Subpart B—Assignment and Utilization of tenna site outleases on major pedestrian Space access levels, courtyards, and rooftops of public buildings? 102–79.15 What objectives must an Executive 102–79.85 What policy must Executive agen- agency strive to meet in providing as- cies follow concerning the placement of signment and utilization of space serv- commercial antennas on Federal prop- ices? erty? 102–79.90 What criteria must Executive ASSIGNMENT OF SPACE agencies consider when evaluating an- 102–79.20 What standard must Executive tenna siting requests? agencies promote when assigning space? 102–79.95 Who is responsible for the costs associated with providing access to an- CHILD CARE tenna sites? 102–79.100 What must Federal agencies do 102–79.25 May Federal agencies allot space with antenna siting fees that they col- in Federal buildings for the provision of lect? child care services? INTEGRATED WORKPLACE FITNESS CENTERS 102–79.105 What is the Integrated Work- 102–79.30 May Federal agencies allot space place? in Federal buildings for establishing fit- 102–79.110 What Integrated Workplace pol- ness centers? icy must Federal agencies strive to pro- 102–79.35 What elements must Federal agen- mote? cies address in their planning effort for 102–79.111 Where may Executive agencies establishing fitness programs? find additional information on Inte- grated Workplace concepts? FEDERAL CREDIT UNIONS 102–79.40 Can Federal agencies allot space in PUBLIC ACCESS DEFIBRILLATION PROGRAMS Federal buildings to Federal credit 102–79.115 What guidelines must an agency unions? follow if it elects to establish a public ac- 102–79.45 What type of services may Federal cess defibrillation program in a Federal agencies provide without charge to Fed- facility? eral credit unions? AUTHORITY: 40 U.S.C. 121(c); E.O. 12411, 48 UTILIZATION OF SPACE FR 13391, 3 CFR, 1983 Comp., p. 155; and E.O. 12512, 50 FR 18453, 3 CFR, 1985 Comp., p. 340. 102–79.50 What standard must Executive agencies promote in their utilization of SOURCE: 70 FR 67849, Nov. 8, 2005, unless space? otherwise noted.

291

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00301 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–79.5 41 CFR Ch. 102 (7–1–11 Edition)

Subpart A—General Provisions CHILD CARE

§ 102–79.5 What is the scope of this § 102–79.25 May Federal agencies allot part? space in Federal buildings for the provision of child care services? The real property policies contained in this part apply to Federal agencies, Yes, in accordance with 40 U.S.C. 590, including GSA’s Public Buildings Serv- Federal agencies can allot space in Federal buildings to individuals or en- ice (PBS), operating under, or subject tities who will provide child care serv- to, the authorities of the Adminis- ices to Federal employees if such— trator of General Services. (a) Space is available; § 102–79.10 What basic assignment and (b) Agency determines that such utilization of space policy governs space will be used to provide child care an Executive agency? services to children of whom at least 50 percent have one parent or guardian Executive agencies must provide a who is a Federal Government em- quality workplace environment that ployee; and supports program operations, preserves (c) Agency determines that such indi- the value of real property assets, meets vidual or entity will give priority for the needs of the occupant agencies, and available child care services in such provides child care and physical fitness space to Federal employees. facilities in the workplace when adequately justified. An Executive agency FITNESS CENTERS must promote maximum utilization of Federal workspace, consistent with § 102–79.30 May Federal agencies allot mission requirements, to maximize its space in Federal buildings for es- value to the Government. tablishing fitness centers? Yes, in accordance with 5 U.S.C. 7901, Subpart B—Assignment and Federal agencies can allot space in Utilization of Space Federal buildings for establishing fitness programs. § 102–79.15 What objectives must an Executive agency strive to meet in § 102–79.35 What elements must Fed- providing assignment and utiliza- eral agencies address in their plan- tion of space services? ning effort for establishing fitness programs? Executive agencies must provide assignment and utilization services that Federal agencies must address the following elements in their planning will maximize the value of Federal real effort for establishing fitness pro- property resources and improve the grams: productivity of the workers housed (a) A survey indicating employee in- therein. terest in the program. ASSIGNMENT OF SPACE (b) A three-to five-year implementation plan demonstrating long-term § 102–79.20 What standard must Execu- commitment to physical fitness/health tive agencies promote when assign- for employees. ing space? (c) A health related orientation, in- Executive agencies must promote the cluding screening procedures, individ- optimum use of space for each assign- ualized exercise programs, identifica- ment at an economical cost to the Gov- tion of high-risk individuals, and ap- ernment, provide quality workspace propriate follow-up activities. that is delivered and occupied in a (d) Identification of a person skilled timely manner, and assign space based in prescribing exercise to direct the fitness program. on mission requirements. (e) An approach that will consider key health behavior related to degen- erative disease, including smoking and nutrition.

292

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00302 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–79.65

(f) A modest facility that includes maximize the productive use of vacant only the essentials necessary to con- space through the issuance of permits, duct a program involving cardio- licenses or leases to non-Federal enti- vascular and muscular endurance, ties to the extent authorized by law. strength activities, and flexibility. (For vacant property determined ex- (g) Provision for equal opportunities cess to agency needs, refer to part 102- for men and women, and all employees, 75, Real Property Disposal.) regardless of grade level. § 102–79.55 Is there a general hier- FEDERAL CREDIT UNIONS archy of consideration that agencies must follow in their utilization § 102–79.40 Can Federal agencies allot of space? space in Federal buildings to Fed- Yes, Federal agencies must— eral credit unions? (a) First utilize space in Government- Yes, in accordance with 12 U.S.C. owned and Government-leased build- 1770, Federal agencies may allot space ings; and in Federal buildings to Federal credit (b) If there is no suitable space in unions without charge for rent or serv- Government-owned and Government- ices if— leased buildings, utilize space in build- (a) At least 95 percent of the member- ings under the custody and control of ship of the credit union to be served by the U.S. Postal Service; and the allotment of space is composed of (c) If there is no suitable space in persons who either are presently Fed- buildings under the custody and con- eral employees or were Federal em- trol of the U.S. Postal Service, agen- ployees at the time of admission into cies may acquire real estate by lease, the credit union, and members of their purchase, or construction, as specified families; and in part 102–73 of this chapter. (b) Space is available. § 102–79.60 Are agencies required to § 102–79.45 What type of services may use historic properties available to Federal agencies provide without the agency? charge to Federal credit unions? Yes, Federal agencies must assume Federal agencies may provide with- responsibility for the preservation of out charge to Federal credit union the historic properties they own or services such as— control. Prior to acquiring, con- (a) Lighting; structing or leasing buildings, agencies (b) Heating and cooling; must use, to the maximum extent fea- (c) Electricity; sible, historic properties already owned (d) Office furniture; or leased by the agency (16 U.S.C. 470h– (e) Office machines and equipment; 2). (f) Telephone service (including installation of lines and equipment and OUTLEASING other expenses associated with telephone service); and § 102–79.65 May Executive agencies (g) Security systems (including in- outlease space on major public access levels, courtyards and rooftops stallation and other expenses associ- of public buildings? ated with security systems). Yes. Authority to execute such UTILIZATION OF SPACE outleases may be delegated by the Ad- ministrator based on authorities pro- § 102–79.50 What standard must Execu- vided by the Public Buildings Coopera- tive agencies promote in their utili- tive Use Act (40 U.S.C. § 581(h)), the zation of space? proceeds of which are to be deposited Executive agencies, when acquiring into GSA’s Federal Buildings Fund. or utilizing Federally owned or leased Using such authority, Executive agen- space under Title 40 of the United cies, upon approval from GSA, may— States Code, must promote efficient (a) Enter into leases of space on utilization of space. Where there is no major public access levels, courtyards Federal agency space need, Executive and rooftops of any public building agencies must make every effort to with persons, firms, or organizations

293

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00303 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–79.70 41 CFR Ch. 102 (7–1–11 Edition)

engaged in commercial, cultural, edu- ments in the vicinity of the public cational, or recreational activities (as building and the proceeds from such defined in 40 U.S.C. 3306); charges or fees must be credited to (b) Establish rental rates for such GSA’s Federal Buildings Fund. leased space equivalent to the prevailing commercial rate for com- § 102–79.80 May Executive agencies as- parable space devoted to a similar pur- sess fees for antenna placements pose in the vicinity of the building; and against telecommunication service (c) Use leases that contain terms and providers for antenna site outleases conditions that the Administrator on major pedestrian access levels, deems necessary to promote competi- courtyards, and rooftops of public tion and protect the public interest. buildings? Yes. GSA, or other Executive agen- SITING ANTENNAS ON FEDERAL cies, upon approval from GSA, may PROPERTY charge fees based on market value to telecommunication service providers § 102–79.70 May Executive agencies assess fees against other Executive for antenna placements in public build- agencies for antenna placements ings. Market value should be equiva- and supporting services? lent to the prevailing commercial rate Yes. Executive agencies, upon ap- for comparable space for commercial proval from GSA, may assess fees for antenna placements in the vicinity of placement of antennas and supporting the public building. Such fees must be services against other agencies (that credited to GSA’s Federal Buildings own these antennas) under 40 U.S.C. Fund. 586(c) and 40 U.S.C. 121(e). Unless a dif- fering rate has been approved by the § 102–79.85 What policy must Execu- Administrator, such fees or charges tive agencies follow concerning the must approximate commercial charges placement of commercial antennas for comparable space and services (i.e., on Federal property? market rates). The proceeds from such Executive agencies will make an- charges or fees must be credited to the tenna sites available on a fair, reason- appropriation or fund initially charged able, and nondiscriminatory basis. Col- for providing the space or services. Any location of antennas should be encour- amounts in excess of actual operating aged where there are multiple antenna and maintenance costs must be cred- siting requests for the same location. ited to miscellaneous receipts unless In cases where this is not feasible and otherwise provided by law. The charges space availability precludes accommo- or fees assessed by the Administrator dating all antenna siting applicants, for the placement of antennas and sup- competitive procedures may be used. porting services in GSA-controlled This should be done in accordance with space are generally credited to GSA’s applicable Federal, State and local Federal Buildings Fund. laws and regulations, and consistent § 102–79.75 May Executive agencies as- with national security concerns. In sess fees for antenna placements making antenna sites available, agen- against public service organizations cies must avoid electromagnetic inter- for antenna site outleases on major modulations and interferences. To the pedestrian access levels, court- maximum extent practicable, when yards, and rooftops of public buildings? placing antennas for the provision of telecommunication services to the Yes. Executive agencies in GSA-con- Federal Government, agencies should trolled space, upon approval from GSA, use redundant and physically separate may assess fees for antenna placements against public service organizations entry points into the building and under 40 U.S.C. 581(h) and 40 U.S.C. physically diverse local network facili- 121(e). Such fees or rental rates must ties in accordance with guidance issued be equivalent to the prevailing com- by the Office of Management and Budg- mercial rate for comparable space de- et. voted to commercial antenna place-

294

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00304 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–79.100

§ 102–79.90 What criteria must Execu- use redundant and physically separate tive agencies consider when evalu- entry points into the building and ating antenna siting requests? physically diverse local network facili- When evaluating antenna siting re- ties in accordance with guidance issued quests, Executive agencies must con- by the Office of Management and Budg- sider issues such as— et. In addition, the National Capital (a) Public health and safety with re- Planning Commission should be con- spect to the antenna installation and sulted for siting requests within the maintenance; Washington, D.C. metropolitan area. (b) Aesthetics; (c) Effects on historic districts, sites, § 102–79.95 Who is responsible for the buildings, monuments, structures, or costs associated with providing ac- other objects pursuant to the National cess to antenna sites? Historic Preservation Act of 1966, as The telecommunications service pro- amended, and implementing regula- vider is responsible for any reasonable tions; costs to Federal agencies associated (d) Protection of natural and cultural with providing access to antenna sites, resources (e.g., National Parks and including obtaining appropriate clear- Wilderness areas, National Wildlife ance of provider personnel for access to Refuge systems); buildings or land deemed to be security (e) Compliance with the appropriate sensitive as is done with service con- level of review and documentation as tractor personnel. OMB Circular A–25, necessary under the National Environ- entitled ‘‘User Charges,’’ revised July mental Policy Act of 1969, as amended, 8, 1993, provides guidelines that agen- and implementing regulations of each cies should use to assess fees for Gov- Federal department and agency respon- ernment services and for the sale or sible for the antenna siting project, use of Government property or re- and the Federal Aviation Administra- sources. For antenna sites on non-GSA tion, the National Telecommunications property, see also the Department of and Information Administration, and Commerce Report on ‘‘Improving other relevant departments and agen- Rights-of-Way Management Across cies; Federal Lands: A Roadmap for Greater (f) Compliance with the Federal Com- Broadband Deployment’’ (April 2004) munications Commission’s (FCC) beginning at page 26. Under 40 U.S.C. guidelines for radiofrequency exposure, 1314, GSA is covered in granting ease- ET Docket No. 93–62, entitled ‘‘Guide- ments and permits to support the in- lines for Evaluating the Environmental stallation of antennas and cabling Effects of Radiofrequency Radiation,’’ across raw land in support of con- issued August 1, 1996, and any other structing new and improving existing order on reconsideration relating to ra- telecommunication infrastructures diofrequency guidelines and their en- provided that such installation does forcement. These are updated guide- not negatively impact on the Govern- lines for meeting health concerns that ment. reflect the latest scientific knowledge in this area, and are supported by Fed- § 102–79.100 What must Federal agen- eral health and safety agencies such as cies do with antenna siting fees the Environmental Protection Agency that they collect? and the Food and Drug Administration; The account into which an antenna and siting fee is to be deposited depends on (g) Any requirements of the Federal the authority under which the antenna agency managing the facility, FCC, site is made available and the fee as- Federal Aviation Administration, Na- sessed. For GSA-controlled property tional Telecommunications and Infor- outleased under 40 U.S.C. 581(h) or sec- mation Administration, and other rel- tion 412 of Division H of public law 108– evant departments and agencies. To 447, the fee is to be deposited into the maximum extent practicable, when GSA’s Federal Building Fund. For sur- placing antennas for the provision of plus property outleased under 40 U.S.C. telecommunication services to the 543, the fee is to be deposited in accord- Federal Government, agencies should ance with the provisions of Subchapter

295

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00305 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–79.105 41 CFR Ch. 102 (7–1–11 Edition)

IV of Chapter 5 of Subtitle I of Title 40 (i) Support alternative workplace ar- of the United States Code. For siting rangements, including telecommuting, fees collected under other statutory hoteling, virtual offices, and other dis- authorities, the fees might be deposited tributive work arrangements (see part into miscellaneous receipts, an account 102–74, subpart F—Telework). of the landholding agency, or as otherwise provided by law. Federal agencies § 102–79.111 Where may Executive should consult with their agency’s agencies find additional informa- legal advisors before depositing an- tion on Integrated Workplace concepts? tenna proceed from sites on agency- controlled Federal property. The GSA Office of Governmentwide Policy provides additional guidance in INTEGRATED WORKPLACE its publication entitled ‘‘Innovative Workplace Strategies.’’ § 102–79.105 What is the Integrated Workplace? PUBLIC ACCESS DEFIBRILLATION The Integrated Workplace, developed PROGRAMS by the GSA Office of Governmentwide Policy, is a comprehensive, multidisci- § 102–79.115 What guidelines must an agency follow if it elects to estab- plinary approach to developing work- lish a public access defibrillation space and work strategies that best program in a Federal facility? support an organization’s strategic Federal agencies electing to establish business goals and work processes, and a public access defibrillation program have the flexibility to accommodate in a Federal facility must follow the the changing needs of the occupants and the organization. Integrated Work- guidelines, entitled ‘‘Guidelines for place concepts support the objectives Public Access Defibrillation Programs of Executive Order 13327, ‘‘Federal Real in Federal Facilities,’’ which can be ob- Property Asset Management,’’ which tained from the Office of Government- calls for the enhancement of Federal wide Policy, Office of Real Property agency productivity through an im- (MP), General Services Administra- proved working environment. tion, 1800 F Street, NW, Washington, DC 20405. § 102–79.110 What Integrated Work- place policy must Federal agencies PART 102–80—SAFETY AND strive to promote? ENVIRONMENTAL MANAGEMENT Federal agencies must strive to design work places that— Subpart A—General Provisions (a) Are developed using sustainable development concepts (see § 102–76.55); Sec. (b) Align with the organization’s mis- 102–80.5 What is the scope of this part? 102–80.10 What are the basic safety and envi- sion and strategic plan; ronmental management policies for real (c) Serve the needs and work prac- property? tices of the occupants; (d) Can be quickly and inexpensively Subpart B—Safety and Environmental adjusted by the user to maximize his or Management her productivity and satisfaction; (e) Are comfortable, efficient, and ASBESTOS technologically advanced and allow 102–80.15 What are Federal agencies’ respon- people to accomplish their work in the sibilities concerning the assessment and most efficient way; management of asbestos? (f) Meet the office’s needs and can RADON justify its cost through the benefits gained; 102–80.20 What are Federal agencies’ responsibilities concerning the abatement of (g) Are developed with an integrated radon? building systems approach; (h) Are based on a life cycle cost INDOOR AIR QUALITY analysis that considers both facility 102–80.25 What are Federal agencies’ respon- and human capital costs over a sub- sibilities concerning the management of stantial time period; and indoor air quality?

296

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00306 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–80.5

LEAD 102–80.95 Is the Fire Administration Author- ization Act of 1992 applicable to all Fed- 102–80.30 What are Federal agencies’ responsibilities concerning lead? eral agencies?

HAZARDOUS MATERIALS AND WASTES AUTOMATIC SPRINKLER SYSTEMS 102–80.35 What are Federal agencies’ respon- 102–80.100 What performance objective sibilities concerning the monitoring of should an automatic sprinkler system be hazardous materials and wastes? capable of meeting?

UNDERGROUND STORAGE TANKS EQUIVALENT LEVEL OF SAFETY ANALYSIS 102–80.40 What are Federal agencies’ respon- 102–80.105 What information must be in- sibilities concerning the management of cluded in an equivalent level of safety underground storage tanks? analysis? 102–80.110 What must an equivalent level of SEISMIC SAFETY safety analysis indicate? 102–80.45 What are Federal agencies’ respon- 102–80.115 Is there more than one option for sibilities concerning seismic safety in establishing that an equivalent level of Federal facilities? safety exists? 102–80.120 What analytical and empirical RISKS AND RISK REDUCTION STRATEGIES tools should be used to support the life 102–80.50 Are Federal agencies responsible safety equivalency evaluation? for identifying/estimating risks and for 102–80.125 Who has the responsibility for de- appropriate risk reduction strategies? termining the acceptability of each 102–80.55 Are Federal agencies responsible equivalent level of safety analysis? for managing the execution of risk reduc- 102–80.130 Who must perform the equivalent tion projects? level of safety analysis? FACILITY ASSESSMENTS 102–80.135 Who is a qualified fire protection engineer? 102–80.60 Are Federal agencies responsible for performing facility assessments? ROOM OF ORIGIN INCIDENT INVESTIGATION 102–80.140 What is meant by ‘‘room of ori- 102–80.65 What are Federal agencies’ respon- gin’’? sibilities concerning the investigation of FLASHOVER incidents, such as fires, accidents, injuries, and environmental incidents? 102–80.145 What is meant by ‘‘flashover’’?

RESPONSIBILITY FOR INFORMING TENANTS REASONABLE WORST CASE FIRE SCENARIO 102–80.70 Are Federal agencies responsible 102–80.150 What is meant by ‘‘reasonable for informing their tenants of the condi- worst case fire scenario’’? tion and management of their facility safety and environment? AUTHORITY: 40 U.S.C. 121(c) and 581–593.

ASSESSMENT OF ENVIRONMENTAL ISSUES SOURCE: 70 FR 67852, Nov. 8, 2005, unless otherwise noted. 102–80.75 Who assesses environmental issues in Federal construction and lease construction projects? Subpart A—General Provisions

Subpart C—Accident and Fire Prevention § 102–80.5 What is the scope of this part? 102–80.80 With what general accident and fire prevention policy must Federal The real property policies contained agencies comply? in this part apply to Federal agencies, including GSA’s Public Buildings Serv- STATE AND LOCAL CODES ice (PBS), operating under, or subject 102–80.85 Are Federally owned and leased to, the authorities of the Adminis- buildings exempt from State and local trator of General Services. The respon- code requirements in fire protection? sibilities for safety and environmental FIRE ADMINISTRATION AUTHORIZATION ACT OF management under this part are in- 1992 tended to apply to GSA or those Fed- 102–80.90 Is the Fire Administration Author- eral agencies operating in GSA space ization Act of 1992 (Pub. L. 102–522) rel- pursuant to a GSA delegation of au- evant to fire protection engineering? thority.

297

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00307 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–80.10 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–80.10 What are the basic safety or lease, except as identified in para- and environmental management graph (a) of this section. policies for real property? (e) Communicate all written and oral The basic safety and environmental asbestos information about the leased management policies for real property space to tenants. are that Federal agencies must— RADON (a) Provide for a safe and healthful work environment for Federal employ- § 102–80.20 What are Federal agencies’ ees and the visiting public; responsibilities concerning the (b) Protect Federal real and personal abatement of radon? property; Federal agencies have the following (c) Promote mission continuity; responsibilities concerning the abate- (d) Provide reasonable safeguards for ment of radon in space when radon lev- emergency forces if an incident occurs; els exceed current EPA standards: (e) Assess risk; (a) Retest abated areas and make les- (f) Make decision makers aware of sors retest, as required, abated areas to risks; and adhere to EPA standards. (g) Act promptly and appropriately (b) Test non-public water sources (in in response to risk. remote areas for projects such as border stations) for radon according to Subpart B—Safety and EPA guidance. Radon levels that ex- Environmental Management ceed current applicable EPA standards must be mitigated. Federal agencies ASBESTOS must retest, as required, to adhere to EPA standards. § 102–80.15 What are Federal agencies’ responsibilities concerning the as- INDOOR AIR QUALITY sessment and management of asbestos? § 102–80.25 What are Federal agencies’ responsibilities concerning the Federal agencies have the following management of indoor air quality? responsibilities concerning the assess- Federal agencies must assess indoor ment and management of asbestos: air quality of buildings as part of their (a) Inspect and assess buildings for safety and environmental facility as- the presence and condition of asbestos- sessments. Federal agencies must re- containing materials. Space to be spond to tenant complaints on air qual- leased must be free of all asbestos con- ity and take appropriate corrective ac- taining materials, except undamaged tion where air quality does not meet asbestos flooring in the space or applicable standards. undamaged boiler or pipe insulation outside the space, in which case an as- LEAD bestos management program conforming to U.S. Environmental Protec- § 102–80.30 What are Federal agencies’ tion Agency (EPA) guidance must be responsibilities concerning lead? implemented. Federal agencies have the following (b) Manage in-place asbestos that is responsibilities concerning lead in in good condition and not likely to be buildings: disturbed. (a) Test space for lead-based paint in (c) Abate damaged asbestos and as- renovation projects that require sand- bestos likely to be disturbed. Federal ing, welding or scraping painted sur- agencies must perform a pre-alteration faces. asbestos assessment for activities that (b) Not remove lead based paint from may disturb asbestos. surfaces in good condition. (d) Not use asbestos in new construc- (c) Test all painted surfaces for lead tion, renovation/modernization or re- in proposed or existing child care cen- pair of their owned or leased space. Un- ters. less approved by GSA, Federal agencies (d) Abate lead-based paint found in must not obtain space with asbestos accordance with U.S. Department of through purchase, exchange, transfer, Housing and Urban Development (HUD)

298

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00308 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–80.60

Lead-Based Paint Guidelines, available SEISMIC SAFETY by writing to HUD USER, P.O. Box 6091, Rockville, MD 20850. § 102–80.45 What are Federal agencies’ (e) Test potable water for lead in all responsibilities concerning seismic safety in Federal facilities? drinking water outlets. (f) Take corrective action when lead Federal agencies must follow the levels exceed the HUD Guidelines. standards issued by the Interagency Committee on Seismic Safety in Con- HAZARDOUS MATERIALS AND WASTES struction (ICSSC) as the minimum level acceptable for use by Federal § 102–80.35 What are Federal agencies’ agencies in assessing the seismic safety responsibilities concerning the of their owned and leased buildings and monitoring of hazardous materials in mitigating unacceptable seismic and wastes? risks in those buildings. Federal agencies’ responsibilities concerning the monitoring of haz- RISKS AND RISK REDUCTION STRATEGIES ardous materials and wastes are as follows: § 102–80.50 Are Federal agencies re- (a) Monitor the transport, use, and sponsible for identifying/estimating risks and for appropriate risk re- disposition of hazardous materials and duction strategies? waste in buildings to provide for compliance with GSA, Occupational Safety Yes, Federal agencies must identify and Health Administration (OSHA), and estimate safety and environmental Department of Transportation, EPA, management risks and appropriate risk and applicable State and local require- reduction strategies for buildings. Fed- ments. In addition to those operating eral agencies occupying as well as op- in GSA space pursuant to a delegation erating buildings must identify any of authority, tenants in GSA space safety and environmental management must comply with these requirements. risks and report or correct the situation, as appropriate. Federal agencies (b) In leased space, include in all must use the applicable national codes agreements with the lessor require- and standards as a guide for their ments that hazardous materials stored building operations. in leased space are kept and maintained according to applicable Federal, § 102–80.55 Are Federal agencies re- State, and local environmental regula- sponsible for managing the execu- tions. tion of risk reduction projects? Yes, Federal agencies must manage UNDERGROUND STORAGE TANKS the execution of risk reduction projects § 102–80.40 What are Federal agencies’ in buildings they operate. Federal responsibilities concerning the agencies must identify and take appro- management of underground stor- priate action to eliminate hazards and age tanks? regulatory noncompliance. Federal agencies have the following FACILITY ASSESSMENTS responsibilities concerning the management of underground storage tanks § 102–80.60 Are Federal agencies re- in real property: sponsible for performing facility as- (a) Register, manage and close under- sessments? ground storage tanks, including heat- Yes, Federal agencies must evaluate ing oil and fuel oil tanks, in accordance facilities to comply with GSA’s safety with GSA, EPA, and applicable State and environmental program and appli- and local requirements. cable Federal, State and local environ- (b) Require the party responsible for mental laws and regulations. Federal tanks they use but do not own to fol- agencies should conduct these evalua- low these requirements and to be re- tions in accordance with schedules that sponsible for the cost of compliance. are compatible with repair and alteration and leasing operations.

299

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00309 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–80.65 41 CFR Ch. 102 (7–1–11 Edition)

INCIDENT INVESTIGATION agement criteria identified in this part; § 102–80.65 What are Federal agencies’ (b) Not expose occupants and visitors responsibilities concerning the in- to unnecessary risks; vestigation of incidents, such as fires, accidents, injuries, and envi- (c) Provide safeguards that minimize ronmental incidents? personal harm, property damage, and Federal agencies have the following impairment of Governmental oper- responsibilities concerning the inves- ations, and that allow emergency tigation of incidents, such as fires, ac- forces to accomplish their missions ef- cidents, injuries, and environmental in- fectively; cidents in buildings they operate: (d) Follow accepted fire prevention (a) Investigate all incidents regard- practices in operating and managing less of severity. buildings; (b) Form Boards of Investigation for (e) To the maximum extent feasible, incidents resulting in serious injury, comply with one of the nationally rec- death, or significant property losses. ognized model building codes and with other nationally-recognized codes in RESPONSIBILITY FOR INFORMING their construction or alteration of each TENANTS building in accordance with 40 U.S.C. 3312; and § 102–80.70 Are Federal agencies re- (f) Use the applicable national codes sponsible for informing their tenants of the condition and manage- and standards as a guide for their ment of their facility safety and en- building operations. vironment? STATE AND LOCAL CODES Yes, Federal agencies must inform their tenants of the condition and man- § 102–80.85 Are Federally owned and agement of their facility safety and en- leased buildings exempt from State vironment. Agencies operating GSA and local code requirements in fire buildings must report any significant protection? facility safety or environmental con- Federally owned buildings are gen- cerns to GSA. erally exempt from State and local ASSESSMENT OF ENVIRONMENTAL ISSUES code requirements in fire protection; however, in accordance with 40 U.S.C. § 102–80.75 Who assesses environ- 3312, each building constructed or al- mental issues in Federal construc- tered by a Federal agency must be con- tion and lease construction structed or altered, to the maximum projects? extent feasible, in compliance with one Federal agencies must assess re- of the nationally recognized model quired environmental issues through- building codes and with other nation- out planning and project development ally recognized codes. Leased buildings so that the environmental impacts of a are subject to local code requirements project are considered during the deci- and inspection. sion making process. FIRE ADMINISTRATION AUTHORIZATION Subpart C—Accident and Fire ACT OF 1992 Prevention § 102–80.90 Is the Fire Administration § 102–80.80 With what general accident Authorization Act of 1992 (Public and fire prevention policy must Law 102–522) relevant to fire pro- Federal agencies comply? tection engineering? Federal agencies must— Yes, the Fire Administration Author- (a) Comply with the occupational ization Act of 1992 (Pub. L. 102–522) re- safety and health standards established quires sprinklers or an equivalent level in the Occupational Safety and Health of safety in certain types of Federal Act of 1970 (Pub. L. 91–596); Executive employee office buildings, Federal em- Order 12196; 29 CFR part 1960; and appli- ployee housing units, and Federally as- cable safety and environmental man- sisted housing units (15 U.S.C. 2227).

300

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00310 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–80.115

§ 102–80.95 Is the Fire Administration quacy, and reliability of all building Authorization Act of 1992 applica- systems impacting fire growth, occu- ble to all Federal agencies? pant knowledge of the fire, and time Yes, the Fire Administration Author- required to reach a safety area will ization Act applies to all Federal agen- have to be examined. In particular, the cies and all Federally owned and leased impact of sprinklers on the develop- buildings in the United States. ment of hazardous conditions in the area of interest will have to be as- AUTOMATIC SPRINKLER SYSTEMS sessed.

§ 102–80.100 What performance objec- § 102–80.115 Is there more than one op- tive should an automatic sprinkler tion for establishing that an equiva- system be capable of meeting? lent level of safety exists? The performance objective of the automatic sprinkler system is that it Yes, the following are three options must be capable of protecting human for establishing that an equivalent lives. Sprinklers should be capable of level of safety exists: controlling the spread of fire and its ef- (a) In the first option, the margin of fects beyond the room of origin. A safety provided by various alternatives functioning sprinkler system should is compared to that obtained for a code activate prior to the onset of flashover. complying building with complete sprinkler protection. The margin of EQUIVALENT LEVEL OF SAFETY safety is the difference between the ANALYSIS available safe egress time and the required safe egress time. Available safe § 102–80.105 What information must be egress time is the time available for included in an equivalent level of safety analysis? evacuation of occupants to an area of safety prior to the onset of untenable The equivalent level of life safety conditions in occupied areas or the evaluation is to be performed by a egress pathways. The required safe qualified fire protection engineer. The egress time is the time required by oc- analysis should include a narrative dis- cupants to move from their positions cussion of the features of the building at the start of the fire to areas of safe- structure, function, operational sup- ty. Available safe egress times would port systems and occupant activities be developed based on analysis of a that impact fire protection and life number of assumed reasonable worst safety. Each analysis should describe potential reasonable worst case fire case fire scenarios including assess- scenarios and their impact on the ment of a code complying fully building occupants and structure. Spe- sprinklered building. Additional anal- cific issues that must be addressed in- ysis would be used to determine the exclude rate of fire growth, type and lo- pected required safe egress times for cation of fuel items, space layout, the various scenarios. If the margin of building construction, openings and safety plus an appropriate safety factor ventilation, suppression capability, de- is greater for an alternative than for tection time, occupant notification, oc- the fully sprinklered building, then the cupant reaction time, occupant mobil- alternative should provide an equiva- ity, and means of egress. lent level of safety. (b) A second alternative is applicable § 102–80.110 What must an equivalent for typical office and residential sce- level of safety analysis indicate? narios. In these situations, complete To be acceptable, the analysis must sprinkler protection can be expected to indicate that the existing and/or pro- prevent flashover in the room of fire posed safety systems in the building origin, limit fire size to no more than provide a period of time equal to or 1 megawatt (950 Btu/sec), and prevent greater than the amount of time avail- flames from leaving the room of origin. able for escape in a similar building The times required for each of these complying with the Fire Administra- conditions to occur in the area of inter- tion Authorization Act. In conducting est must be determined. The shortest these analyses, the capability, ade- of these three times would become the

301

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00311 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–80.120 41 CFR Ch. 102 (7–1–11 Edition)

time available for escape. The dif- partments or other local authorities ference between the minimum time for use in developing pre-fire plans. available for escape and the time required for evacuation of building occu- § 102–80.130 Who must perform the pants would be the target margin of equivalent level of safety analysis? safety. Various alternative protection A qualified fire protection engineer strategies would have to be evaluated must perform the equivalent level of to determine their impact on the times safety analysis. at which hazardous conditions developed in the spaces of interest and the § 102–80.135 Who is a qualified fire times required for egress. If a combina- protection engineer? tion of fire protection systems provides a margin of safety equal to or greater A qualified fire protection engineer is than the target margin of safety, then defined as an individual with a thor- the combination could be judged to ough knowledge and understanding of provide an equivalent level of safety. the principles of physics and chemistry (c) As a third option, other technical governing fire growth, spread, and sup- analysis procedures, as approved by the pression, meeting one of the following responsible agency head, can be used to criteria: show equivalency. (a) An engineer having an under- graduate or graduate degree from a col- § 102–80.120 What analytical and empirical tools should be used to sup- lege or university offering a course of port the life safety equivalency study in fire protection or fire safety evaluation? engineering, plus a minimum of 4 years Analytical and empirical tools, in- work experience in fire protection en- cluding fire models and grading sched- gineering. ules such as the Fire Safety Evaluation (b) A professional engineer (P.E. or System (Alternative Approaches to similar designation) registered in Fire Life Safety, NEPA 101A) should be used Protection Engineering. to support the life safety equivalency (c) A professional engineer (P.E. or evaluation. If fire modeling is used as similar designation) registered in a re- part of an analysis, an assessment of lated engineering discipline and hold- the predictive capabilities of the fire ing Member grade status in the Inter- models must be included. This assess- national Society of Fire Protection En- ment should be conducted in accord- gineers. ance with the American Society for Testing and Materials Standard Guide ROOM OF ORIGIN for Evaluating the Predictive Capa- bility of Fire Models (ASTM E 1355). § 102–80.140 What is meant by ‘‘room of origin’’? § 102–80.125 Who has the responsibility for determining the acceptability of Room of origin means an area of a each equivalent level of safety anal- building where a fire can be expected ysis? to start. Typically, the size of the area The head of the agency responsible will be determined by the walls, floor, for physical improvements in the facil- and ceiling surrounding the space. ity or providing Federal assistance or a However, this could lead to unaccept- designated representative will deter- ably large areas in the case of open mine the acceptability of each equiva- plan office space or similar arrange- lent level of safety analysis. The deter- ments. Therefore, the maximum allow- mination of acceptability must include able fire area should be limited to 200 a review of the fire protection engi- m2 (2000 ft2), including intervening neer’s qualifications, the appropriate- spaces. In the case of residential units, ness of the fire scenarios for the facil- an entire apartment occupied by one ity, and the reasonableness of the as- tenant could be considered as the room sumed maximum probable loss. Agen- of origin to the extent it did not exceed cies should maintain a record of each the 200 m2 (2000 ft2) limitation. accepted equivalent level of safety analysis and provide copies to fire de-

302

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00312 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–81.20

FLASHOVER AUTHORITY: 40 U.S.C. 121(c), 581–593, and 1315.

§ 102–80.145 What is meant by SOURCE: 70 FR 67856, Nov. 8, 2005, unless ‘‘flashover’’? otherwise noted. Flashover means fire conditions in a confined area where the upper gas Subpart A—General Provisions layer temperature reaches 600 °C (1100 °F) and the heat flux at floor level ex- § 102–81.5 What is the scope of this ceeds 20 kW/m2 (1.8 Btu/ft2/sec). part? The real property policies contained REASONABLE WORST CASE FIRE in this part apply to Federal agencies, SCENARIO including GSA’s Public Buildings Serv- § 102–80.150 What is meant by ‘‘reason- ice (PBS), operating under, or subject able worst case fire scenario’’? to, the authorities of the Adminis- trator of General Services. Reasonable worst case fire scenario means a combination of an ignition § 102–81.10 What basic security policy source, fuel items, and a building loca- governs Federal agencies? tion likely to produce a fire that would have a significant adverse impact on Federal agencies on Federal property the building and its occupants. The de- under the charge and control of the Ad- velopment of reasonable worst case ministrator and having a security dele- scenarios must include consideration of gation of authority from the Secretary types and forms of fuels present (e.g., of the Department of Homeland Secu- furniture, trash, paper, chemicals), po- rity must provide for the security and tential fire ignition locations (e.g., protection of the real estate they oc- bedroom, office, closet, corridor), occu- cupy, including the protection of per- pant capabilities (e.g., awake, intoxi- sons within the property. cated, mentally or physically im- paired), numbers of occupants, detec- Subpart B—Security tion and suppression system adequacy and reliability, and fire department ca- § 102–81.15 Who is responsible for upgrading and maintaining security pabilities. A quantitative analysis of standards in each existing Feder- the probability of occurrence of each ally owned and leased facility? scenario and combination of events will be necessary. In a June 28, 1995, Presidential Policy Memorandum for Executive Depart- ments and Agencies, entitled ‘‘Upgrad- PART 102–81—SECURITY ing Security at Federal Facilities’’ (see the Weekly Compilation of Presi- Subpart A—General Provisions dential Documents, vol. 31, p. 1148), the Sec. President directed that Executive 102–81.5 What is the scope of this part? agencies must, where feasible, upgrade 102–81.10 What basic security policy governs and maintain security in facilities they Federal agencies? own or lease under their own authority to the minimum standards specified in Subpart B—Security the Department of Justice’s June 28, 102–81.15 Who is responsible for upgrading 1995, study entitled ‘‘Vulnerability As- and maintaining security standards in sessment of Federal Facilities.’’ The each existing Federally owned and leased study may be obtained by writing to facility? the Superintendent of Documents, P.O. 102–81.20 Are the security standards for new Box 371954, Pittsburgh, PA 15250–7954. Federally owned and leased facilities the same as the standards for existing Feder- § 102–81.20 Are the security standards ally owned and leased facilities? for new Federally owned and leased 102–81.25 Do the Interagency Security Com- facilities the same as the standards mittee Security Design Criteria apply to for existing Federally owned and all new Federally owned and leased fa- leased facilities? cilities? 102–81.30 What information must job appli- No, the minimum standards specified cants at child care centers reveal? in the Department of Justice’s June 28,

303

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00313 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–81.25 41 CFR Ch. 102 (7–1–11 Edition)

1995, study entitled ‘‘Vulnerability As- any arrests and convictions on the job sessment of Federal Facilities’’ identi- application. Employment at a child fies the minimum-security standards care facility means any position that that agencies must adhere to for all ex- involves work with minor children, isting owned and leased Federal facili- such as a teacher, daycare worker, or ties. As specified in § 102–81.25, new Fed- school administrator. erally owned and leased facilities must be designed to meet the standards iden- PART 102–82—UTILITY SERVICES tified in the document entitled ‘‘Inter- agency Security Committee Security Subpart A—General Provisions Design Criteria for New Federal Office Buildings and Major Modernization Sec. Projects,’’ dated May 28, 2001. The secu- 102–82.5 What is the scope of this part? rity design criteria for new facilities 102–82.10 What basic utility services policy takes into consideration technology govern Executive agencies? developments, new cost consideration, the experience of practitioners apply- Subpart B—Utility Services ing the criteria, and the need to bal- 102–82.15 What utility services must Execu- ance security requirements with public tive agencies provide? building environments that remain 102–82.20 What are Executive agencies’ rate lively, open, and accessible. intervention responsibilities? 102–82.25 What are Executive agencies’ re- § 102–81.25 Do the Interagency Secu- sponsibilities concerning the procure- rity Committee Security Design Cri- ment of utility services? teria apply to all new Federally owned and leased facilities? AUTHORITY: 40 U.S.C. 121(c) and 501. No, the Interagency Security Com- SOURCE: 70 FR 67856, Nov. 8, 2005, unless mittee Security Design Criteria— otherwise noted. (a) Apply to new construction of general purpose office buildings and new or Subpart A—General Provisions lease-construction of courthouses occupied by Federal employees in the § 102–82.5 What is the scope of this United States and not under the juris- part? diction and/or control of the Depart- The real property policies contained ment of Defense. The criteria also in this part apply to Federal agencies, apply to lease-construction projects including GSA’s Public Buildings Serv- being submitted to Congress for appro- ice (PBS), operating under, or subject priations or authorization. Where pru- to, the authorities of the Adminis- dent and appropriate, the criteria trator of General Services. apply to major modernization projects; and § 102–82.10 What basic utility services (b) Do not apply to airports, prisons, policy govern Executive agencies? hospitals, clinics, and ports of entry, or Executive agencies procuring, man- to unique facilities such as those clas- aging or supplying utility services sified by the Department of Justice under Title 40 of the United States Vulnerability Assessment Study as Code must provide or procure services Level V. Nor will the criteria overrule that promote economy and efficiency existing Federal laws and statutes, and with due regard to the mission respon- other agency standards that have been sibilities of the agencies concerned. developed for special facilities, such as border stations and child care centers. Subpart B—Utility Services § 102–81.30 What information must job applicants at child care centers re- § 102–82.15 What utility services must veal? Executive agencies provide? Anyone who applies for employment Executive agencies must negotiate (including volunteer positions) at a with public utilities to procure utility child care facility, located on Feder- services and, where appropriate, pro- ally controlled property (including vide rate intervention services in pro- Federally leased property), must reveal ceedings (see §§ 102–72.100 and 102–72.105

304

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00314 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–83

of this chapter) before Federal and Subpart B—Location of Space State utility regulatory bodies. DELINEATED AREA § 102–82.20 What are Executive agen- 102–83.20 What is a delineated area? cies’ rate intervention responsibil- 102–83.25 Who is responsible for identifying ities? the delineated area within which a Fed- Where the consumer interests of the eral agency wishes to locate specific activities? Federal Government will be signifi- 102–83.30 In addition to its mission and pro- cantly affected and upon receiving a gram requirements, are there any other delegation of authority from GSA, Ex- issues that Federal agencies must con- ecutive agencies must provide rep- sider in identifying the delineated area? resentation in proceedings involving 102–83.35 Are Executive agencies required to utility services before Federal and consider whether the central business State regulatory bodies. Specifically, area will provide for adequate competition when acquiring leased space? these responsibilities include insti- 102–83.40 Who must approve the final delin- tuting formal or informal action before eated area? Federal and State regulatory bodies to 102–83.45 Where may Executive agencies contest the level, structure, or applica- find guidance on appealing GSA’s deci- bility of rates or service terms of util- sions and recommendations concerning ity suppliers. The Secretary of Defense delineated areas? is independently authorized to take RURAL AREAS such actions without a delegation from GSA, when the Secretary determines 102–83.50 What is the Rural Development Act of 1972? such actions to be in the best interests 102–83.55 What is a rural area? of national security. 102–83.60 What is an urbanized area? 102–83.65 Are Executive agencies required to § 102–82.25 What are Executive agen- give first priority to the location of new cies’ responsibilities concerning the offices and other facilities in rural areas? procurement of utility services? URBAN AREAS Executive agencies, operating under a utility services delegation from GSA, 102–83.70 What is Executive Order 12072? or the Secretary of Defense, when the 102–83.75 What is Executive Order 13006? Secretary determines it to be in the 102–83.80 What is an urban area? 102–83.85 What is a central business area? best interests of national security, 102–83.90 Do Executive Orders 12072 and must provide for the procurement of 13006 apply to rural areas? utility services (such as commodities 102–83.95 After an agency has identified that and utility rebate programs), as re- its geographic service area and delin- quired, and must procure from sources eated area are in an urban area, what is of supply that are the most advan- the next step for an agency? tageous to the Federal Government in 102–83.100 Why must agencies consider available space in properties under the terms of economy, efficiency, reli- custody and control of the U.S. Postal ability, or quality of service. Executive Service? agencies, upon receiving a delegation 102–83.105 What happens if there is no avail- of authority from GSA, may enter into able space in non-historic buildings contracts for utility services for peri- under the custody and control of the U.S. ods not exceeding ten years (40 U.S.C. Postal Service? 501(b)(1)(B)). 102–83.110 When an agency’s mission and program requirements call for the location in an urban area, are Executive PART 102–83—LOCATION OF agencies required to give first consider- SPACE ation to central business areas? 102–83.115 What is a central city? Subpart A—General Provisions 102–83.120 What happens if an agency has a need to be in a specific urban area that is Sec. not a central city in a metropolitan 102–83.5 What is the scope of this part? area? 102–83.10 What basic location of space policy PREFERENCE TO HISTORIC PROPERTIES governs an Executive agency? 102–83.15 Is there a general hierarchy of con- 102–83.125 Are Executive agencies required sideration that agencies must follow in to give preference to historic properties their utilization of space? when acquiring leased space?

305

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00315 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–83.5 41 CFR Ch. 102 (7–1–11 Edition)

APPLICATION OF SOCIOECONOMIC § 102–83.25 Who is responsible for CONSIDERATIONS identifying the delineated area 102–83.130 When must agencies consider the within which a Federal agency impact of a location decision on low- and wishes to locate specific activities? moderate-income employees? Each Federal agency is responsible 102–83.135 With whom must agencies consult in determining the availability of low- for identifying the delineated area and moderate-income housing? within which it wishes to locate spe- APPENDIX TO PART 102–83—MEMORANDUM OF cific activities, consistent with its mis- UNDERSTANDING BETWEEN THE DEPART- sion and program requirements, and in MENT OF HOUSING AND URBAN DEVELOP- accordance with all applicable laws, MENT AND THE GENERAL SERVICES ADMIN- regulations, and Executive Orders. ISTRATION CONCERNING LOW- AND MOD- ERATE-INCOME HOUSING § 102–83.30 In addition to its mission AUTHORITY: 40 U.S.C. 121(c); E.O. 12072; and and program requirements, are E.O. 13006. there any other issues that Federal agencies must consider in identi- SOURCE: 70 FR 67857, Nov. 8, 2005, unless fying the delineated area? otherwise noted. Yes, Federal agencies must also con- Subpart A—General Provisions sider real estate, labor, and other operational costs and applicable local in- § 102–83.5 What is the scope of this centives, when identifying the delin- part? eated area. The real property policies contained in this part apply to Federal agencies, § 102–83.35 Are Executive agencies re- including GSA’s Public Buildings Serv- quired to consider whether the central business area will provide for ice (PBS), operating under, or subject adequate competition when acquir- to, the authorities of the Adminis- ing leased space? trator of General Services. In accordance with the Competition § 102–83.10 What basic location of in Contracting Act of 1984, as amended space policy governs an Executive (41 U.S.C. 253(a)), Executive agencies agency? must consider whether restricting the Each Executive agency is responsible delineated area for obtaining leased for identifying its geographic service space to the central business area area and the delineated area within (CBA) will provide for adequate com- which it wishes to locate specific ac- petition when acquiring leased space. tivities, consistent with its mission Where an Executive agency determines and program requirements, and in ac- that the delineated area must be ex- cordance with all applicable statutes, panded beyond the CBA to provide ade- regulations and policies. quate competition, the agency may expand the delineated area in consulta- § 102–83.15 Is there a general hierarchy of consideration that agen- tion with local officials. Executive cies must follow in their utilization agencies must continue to include the of space? CBA in such expanded areas. Yes, Federal agencies must follow the hierarchy of consideration identi- § 102–83.40 Who must approve the final delineated area? fied in § 102–79.55 of this chapter. Federal agencies conducting the pro- Subpart B—Location of Space curement must approve the final delineated area for site acquisitions and DELINEATED AREA lease actions and must confirm that the final delineated area complies with § 102–83.20 What is a delineated area? the requirements of all applicable laws, Delineated area means the specific regulations, and Executive Orders. boundaries within which space will be obtained to satisfy an agency space requirement.

306

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00316 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–83.85

§ 102–83.45 Where may Executive agen- hierarchy specified in § 102–79.55 of this cies find guidance on appealing chapter. GSA’s decisions and recommendations concerning delineated areas? URBAN AREAS GSA’s PBS provides guidance in its Customer Guide to Real Property on § 102–83.70 What is Executive Order 12072? the process for appealing GSA’s decisions and recommendations concerning Executive Order 12072, entitled ‘‘Fed- delineated areas. eral Space Management,’’ requires all Executive agencies that have a mission RURAL AREAS requirement to locate in an urban area to give first consideration to locating § 102–83.50 What is the Rural Develop- Federal facilities in central business ment Act of 1972? areas, and/or adjacent areas of similar The Rural Development Act of 1972, character, to use them to make down- as amended (7 U.S.C. 2204b–1), directs towns attractive places to work, con- Federal agencies to develop policies serve existing resources, and encourage and procedures to give first priority to redevelopment. It also directs Execu- the location of new offices and other tive agencies to consider opportunities Federal facilities in rural areas. The for locating cultural, educational, rec- intent of the Rural Development Act is reational, or commercial activities to revitalize and develop rural areas within the proposed facility. and to help foster a balance between rural and urban America. § 102–83.75 What is Executive Order 13006? § 102–83.55 What is a rural area? Executive Order 13006, entitled ‘‘Lo- As defined in 7 U.S.C. 1991(a)(13)(A), cating Federal Facilities on Historic rural area means any area other than— Properties in Our Nation’s Central Cit- (a) A city or town that has a popu- ies,’’ requires all Executive agencies lation of greater than 50,000 inhab- that have a mission requirement to lo- itants; and cate in an urban area to give first con- (b) The urbanized area contiguous sideration to locating Federal facilities and adjacent to such a city or town. in historic buildings and districts with- § 102–83.60 What is an urbanized area? in central business areas. It also directs Executive agencies to remove An urbanized area is a statistical ge- regulatory barriers, review their poli- ographic area defined by the Census cies, and build new partnerships with Bureau, consisting of a central place(s) the goal of enhancing participation in and adjacent densely settled territory the National Historic Preservation pro- that together contain at least 50,000 gram. people, generally with an overall population density of at least 1,000 people § 102–83.80 What is an urban area? per square mile. Urban area means any metropolitan § 102–83.65 Are Executive agencies re- area (MA) as defined by the Office of quired to give first priority to the Management and Budget (OMB) in location of new offices and other fa- OMB Bulletin No. 99–04, or succeeding cilities in rural areas? OMB Bulletin, that does not meet the Yes, Executive agencies must give definition of rural area in § 102–83.55. first priority to the location of new offices and other facilities in rural areas § 102–83.85 What is a central business in accordance with the Rural Develop- area? ment Act (7 U.S.C. 2204b–1), unless Central business area (CBA) means their mission or program requirements the centralized community business call for locations in an urban area. area and adjacent areas of similar First priority to the location of new of- character, including other specific fices and other facilities in rural areas areas that may be recommended by must be given in accordance with the

307

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00317 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–83.90 41 CFR Ch. 102 (7–1–11 Edition)

local officials in accordance with Exec- able space in non-historic agency-con- utive Order 12072. The CBAs are des- trolled properties specified in para- ignated by local government and not graph (d) of this section. by Federal agencies. (f) Then consider non-historic properties under the custody and control of § 102–83.90 Do Executive Orders 12072 and 13006 apply to rural areas? the U.S. Postal Service, if there is no available space in historic properties No, Executive Orders 12072 and 13006 under the custody and control of the only apply to agencies looking for U.S. Postal Service specified in para- space in urban areas. graph (e) of this section. § 102–83.95 After an agency has identified that its geographic service area § 102–83.100 Why must agencies con- and delineated area are in an urban sider available space in properties area, what is the next step for an under the custody and control of agency? the U.S. Postal Service? After an agency identifies its geo- See § 102–73.20 of this chapter. graphic service area and delineated area within which it wishes to locate § 102–83.105 What happens if there is specific activities are in an urban area no available space in non-historic (i.e., determined that the agency’s mis- buildings under the custody and sion requirements dictate a need to lo- control of the U.S. Postal Service? cate its facility in an urban area), Fed- If no suitable space in non-historic eral agencies must seek space in his- buildings under the custody and con- toric properties already under agency trol of the U.S. Postal Service is avail- control, in accordance with section 110 able, agencies may then acquire real of the National Historic Preservation estate by purchase, lease, or construc- Act. The National Historic Preserva- tion, in accordance with FMR part 102– tion Act provides that prior to pur- 73. chasing, constructing or leasing new space, Federal agencies must— § 102–83.110 When an agency’s mission (a) Consider agency-controlled his- and program requirements call for toric properties within historic dis- the location in an urban area, are tricts inside CBAs when locating Fed- Executive agencies required to give eral operations, in accordance with Ex- first consideration to central busi- ecutive Order 13006 (which, by ref- ness areas? erence, also incorporates the require- Yes, if an agency has a specific loca- ments in Executive Order 12072 and the tion need to be in an urban area, then Rural Development Act of 1972); Executive Orders 12072 and 13006 re- (b) Then consider agency-controlled quire that agencies should give first developed or undeveloped sites within consideration to locating in a historic historic districts, if no suitable agency- building in a historic district in the controlled historic property specified CBA of a central city of the appro- in paragraph (a) of this section is avail- priate metropolitan area. If no such able; (c) Then consider agency-controlled space is available, agencies must give historic properties outside of historic consideration to locating in a non-his- districts, if no suitable agency-con- toric building in a historic district in trolled site exists within a historic dis- the CBA of a central city of the appro- trict as specified in paragraph (b) of priate metropolitan area. If no such this section; space is available, agencies must give (d) Then consider non-historic agen- consideration to locating in a historic cy-controlled properties, if no suitable building outside of a historic district in agency-controlled historic properties the CBA of a central city of the appro- outside of historic districts exist as priate metropolitan area. If no such specified in paragraph (c) of this sec- space is available, agencies should give tion; consideration to locating in a non-his- (e) Then consider historic properties toric building outside of a historic dis- under the custody and control of the trict in the CBA of a central city of the U.S. Postal Service, if there is no avail- appropriate metropolitan area.

308

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00318 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–83, App.

§ 102–83.115 What is a central city? § 102–83.135 With whom must agencies consult in determining the avail- Central cities are those central cities ability of low- and moderate-income defined by OMB in OMB Bulletin No. housing? 99–04, or succeeding OMB Bulletin. Federal agencies must consult with § 102–83.120 What happens if an agen- the U.S. Department of Housing and cy has a need to be in a specific Urban Development (HUD) in accord- urban area that is not a central city ance with the Memorandum of Under- in a metropolitan area? standing (MOU) between HUD and If an agency has a need to be in a spe- GSA. The text of the HUD-GSA MOU is located in the appendix to this part. cific urban area that is not a central city in a metropolitan area, then the APPENDIX TO PART 102–83—MEMO- agency must give first consideration to RANDUM OF UNDERSTANDING BE- locating in a historic building in a his- TWEEN THE DEPARTMENT OF HOUS- toric district in the CBA of the appro- ING AND URBAN DEVELOPMENT AND priate metropolitan area. If no such THE GENERAL SERVICES ADMINIS- space is available, agencies must give TRATION CONCERNING LOW- AND consideration to locating in a non-his- MODERATE-INCOME HOUSING toric building in a historic district in the CBA of the appropriate metropoli- Purpose. The purpose of the memorandum tan area. If no such space is available, of understanding is to provide an effective, agencies must give consideration to lo- systematic arrangement under which the Federal Government, acting through HUD cating in a historic building outside of and GSA, will fulfill its responsibilities a historic district in the CBA of the ap- under law, and as a major employer, in ac- propriate metropolitan area. If no such cordance with the concepts of good manage- space is available, agencies should give ment, to assure for its employees the avail- consideration to locating in a non-his- ability of low- and moderate-income housing toric building outside of a historic dis- without discrimination because of race, color, religion, or national origin, and to trict in the CBA of the appropriate consider the need for development and rede- metropolitan area. velopment of areas and the development of new communities and the impact on improv- PREFERENCE TO HISTORIC PROPERTIES ing social and economic conditions in the area, whenever Federal Government facili- § 102–83.125 Are Executive agencies re- ties locate or relocate at new sites, and to quired to give preference to his- use its resources and authority to aid in the toric properties when acquiring achievement of these objectives. leased space? 1. Title VIII of the Civil Rights Act of 1968 Yes, Federal agencies must give a (42 U.S.C. 3601) states, in section 801, that ‘‘It is the policy of the United States to provide, price preference when acquiring space within constitutional limitations, for fair using either the lowest price tech- housing throughout the United States.’’ Sec- nically acceptable or the best value tion 808(a) places the authority and responsi- tradeoff source selection process. See bility for administering the Act in the Sec- part 102–73 of this chapter for addi- retary of Housing and Urban Development. tional guidance. Section 808(d) requires all Executive departments and agencies to administer their programs and activities relating to housing and APPLICATION OF SOCIOECONOMIC urban development in a manner affirma- CONSIDERATIONS tively to further the purposes of title VIII (fair housing) and to cooperate with the Sec- § 102–83.130 When must agencies con- retary to further such purposes. Section sider the impact of location deci- 808(e)(5) provides that the Secretary of HUD sions on low- and moderate-income shall administer the programs and activities employees? relating to housing and urban development Federal agencies proposing locations in a manner affirmatively to further the for Federal construction or major lease policies of title VIII. 2. Section 2 of the Housing Act of 1949 (42 actions involving the relocation of a U.S.C. 1441) declares the national policy of major work force must consider the ‘‘* * * the realization as soon as feasible of impact on employees with low and the goal of a decent home and a suitable liv- moderate incomes. ing environment for every American family

309

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00319 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–83, App. 41 CFR Ch. 102 (7–1–11 Edition)

* * *.’’ This goal was reaffirmed in the Hous- housing assistance, rent supplements, below ing and Urban Development Act of 1968 (sec- market interest rates, and low-rent public tions 2 and 1601; 12 U.S.C. 1701t and 42 U.S.C. housing. Additional HUD program respon- 1441a). sibilities which relate or impinge upon hous- 3. By virtue of the Public Buildings Act of ing and community development include 1959, as amended; the Federal Property and comprehensive planning assistance, metro- Administrative Services Act of 1949, as politan area planning coordination, new amended; and Reorganization Plan No. 18 of communities, relocation, urban renewal, 1950, the Administrator of General Services model cities, rehabilitation loans and grants, is given certain authority and responsibility neighborhood facilities grants, water and in connection with planning, developing, and sewer grants, open space, public facilities constructing Government-owned public loans, Operation BREAKTHROUGH, code en- buildings for housing Federal agencies, and forcement, workable programs, and others. for acquiring leased space for Federal agency 8. In view of its responsibilities described use. in paragraphs 1 and 7 above, HUD possesses 4. Executive Order 11512, February 27, 1970, the necessary expertise to investigate, deter- sets forth the policies by which the Adminis- mine, and report to GSA on the availability trator of General Services and the heads of of low- and moderate-income housing on a Executive agencies will be guided in the ac- nondiscriminatory basis and to make find- quisition of both federally owned and leased ings as to such availability with respect to office buildings and space. proposed locations for a federally-con- 5. While Executive Order No. 11512 provides structed building or leased space which that material consideration will be given to would be consistent with such reports. HUD the efficient performance of the missions and also possesses the necessary expertise to ad- programs of the Executive agencies and the vise GSA and other Federal agencies with re- nature and functions of the facilities inspect to actions which would increase the volved, there are six other guidelines set availability of low- and moderate-income forth, including: housing on a nondiscriminatory basis, once a • The need for development and redevelop- site has been selected for a federally-con- ment of areas and the development of new structed building or a lease executed for communities, and the impact a selection will space, as well as to assist in increasing the have on improving social and economic con- availability of such housing through its own ditions in the area; and programs such as those described in para- • The availability of adequate low- and moderate-income housing, adequate access graph 7 above. from other areas of the urban center, and 9. HUD and GSA agree that: adequacy of parking. (a) GSA will pursue the achievement of 6. General Services Administration (GSA) low- and moderate-income housing objec- recognizes its responsibility, in all its deter- tives and fair housing objectives, in accord- minations with respect to the construction ance with its responsibilities recognized in of Federal buildings and the acquisition of paragraph 6 above, in all determinations, leased space, to consider to the maximum tentative and final, with respect to the loca- possible extent the availability of low- and tion of both federally constructed buildings moderate-income housing without discrimi- and leased buildings and space, and will nation because of race, color, religion, or na- make all reasonable efforts to make this pol- tional origin, in accordance with its duty af- icy known to all persons, organizations, firmatively to further the purposes of title agencies and others concerned with federally VIII of the Civil Rights Act of 1968 and with owned and leased buildings and space in a the authorities referred to in paragraph 2 manner which will aid in achieving such ob- above, and the guidelines referred to in para- jectives. graph 5 above, and consistent with the au- (b) In view of the importance to the thorities cited in paragraphs 3 and 4 above. achievement of the objectives of this memo- In connection with the foregoing statement, randum of agreement of the initial selection it is recognized that all the guidelines must of a city or delineation of a general area for be considered in each case, with the ultimate location of public buildings or leased space, decision to be made by the Administrator of GSA will provide the earliest possible notice General Services upon his determination to HUD of information with respect to such that such decision will improve the manage- decisions so that HUD can carry out its re- ment and administration of governmental sponsibilities under this memorandum of activities and services, and will foster the agreement as effectively as possible. programs and policies of the Federal Govern- (c) Government-owned Public Buildings ment. Projects. (1) In the planning for each new pub- 7. In addition to its fair housing respon- lic buildings project under the Public Build- sibilities, the responsibilities of HUD include ings Act of 1959, during the survey prelimi- assisting in the development of the Nation’s nary to the preparation and submission of a housing supply through programs of mort- project development report, representatives gage insurance, home ownership and rental of the regional office of GSA in which the

310

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00320 Fmt 8010 Sfmt 8002 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–84

project is proposed will consult with, and re- (f) In the event a decision is made by GSA ceive advice from, the regional office of as to the location of a federally constructed HUD, and local planning and housing au- building or leased space, and HUD has made thorities concerning the present and planned findings, expressed in the advice given or a availability of low- and moderate-income report made to GSA, that the availability to housing on a nondiscriminatory basis in the such location of low- and moderate-income area where the project is to be located. Such housing on a nondiscriminatory basis is in- advice will constitute the principal basis for adequate, the GSA shall provide the DHUD GSA’s consideration of the availability of with a written explanation why the location such housing in accordance with paragraphs was selected. 6 and 9(a). A copy of the prospectus for each (g) Whenever the advice or report provided project which is authorized by the Commit- by HUD in accordance with paragraph 9(c)(1), tees on Public Works of the Congress in ac- 9(c)(2), or 9(d) with respect to an area or site cordance with the requirements of section indicates that the supply of low-and mod- 7(a) of the Public Buildings Act of 1959, will erate-income housing on a nondiscrim- be provided to HUD. inatory basis is inadequate to meet the needs (2) When a site investigation for an author- of the personnel of the agency involved, GSA ized public buildings project is conducted by and HUD will develop an affirmative action regional representatives of GSA to identify a plan designed to insure that an adequate site on which the public building will be con- supply of such housing will be available be- structed, a representative from the regional fore the building or space is to be occupied or within a period of 6 months thereafter. The office of HUD will participate in the site in- plan should provide for commitments from vestigation for the purposes of providing a the community involved to initiate and report on the availability of low- and mod- carry out all feasible efforts to obtain a suf- erate-income housing on a nondiscrim- ficient quantity of low- and moderate-in- inatory basis in the area of the investiga- come housing available to the agency’s per- tion. Such report will constitute the prin- sonnel on a nondiscriminatory basis with cipal basis for GSA’s consideration of the adequate access to the location of the build- availability of such housing in accordance ing or space. It should include commitments with paragraphs 6 and 9(a). by the local officials having the authority to (d) Major lease actions having a significant remove obstacles to the provision of such socioeconomic impact on a community: At housing, when such obstacles exist, and to the time GSA and the agencies who will oc- take effective steps to assure its provision. cupy the space have tentatively delineated The plan should also set forth the steps pro- the general area in which the leased space posed by the agency to develop and imple- must be located in order that the agencies ment a counseling and referral service to may effectively perform their missions and seek out and assist its personnel to obtain programs, the regional representative of such housing. As part of any plan during, as HUD will be consulted by the regional rep- well as after its development, HUD agrees to resentative of GSA who is responsible for the give priority consideration to applications leasing action to obtain advice from HUD for assistance under its housing programs for concerning the availability of low- and mod- the housing proposed to be provided in ac- erate-income housing on a nondiscrim- cordance with the plan. inatory basis to the delineated area. Such 10. This memorandum will be reviewed at advice will constitute the principal basis for the end of one year, and modified to incor- GSA’s consideration of the availability of porate any provision necessary to improve such housing in accordance with paragraphs its effectiveness in light of actual experi- 6 and 9(a). Copies of lease-construction ence. prospectuses approved by the Committees on Public Works of the Congress in conformity with the provisions of the Independent Of- PART 102–84—ANNUAL REAL fices and Department of Housing and Urban PROPERTY INVENTORIES Development appropriation acts, will be provided to HUD. Sec. (e) GSA and HUD will each issue internal 102–84.5 What is the scope of this part? operating procedures to implement this 102–84.10 What is the purpose of the Annual memorandum of understanding within a rea- Real Property Inventory program? sonable time after its execution. These pro- 102–84.15 Why must I provide information cedures shall recognize the right of HUD, in for the Annual Real Property Inventory? the event of a disagreement between HUD 102–84.20 Where should I obtain the data re- and GSA representatives at the area or required to be reported for the Annual Real gional level, to bring such disagreement to Property Inventory? the attention of GSA officials at head- 102–84.25 Is it necessary for my agency to quarters in sufficient time to assure full con- designate an official to serve as the point sideration of HUD’s views, prior to the mak- of contact for the real property inven- ing of a determination by GSA. tories?

311

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00321 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–84.5 41 CFR Ch. 102 (7–1–11 Edition)

102–84.30 Is it necessary for my agency to ment maintain an Annual Real Prop- certify the accuracy of its real property erty Inventory. inventory submission? (b) Executive Order 12411, Govern- 102–84.35 Which agencies must submit a re- ment Work Space Management Re- port for inclusion in the Annual Real Property Inventory? forms, dated March 29, 1983 (48 FR 102–84.40 What types of real property must I 13391, 3 CFR, 1983 Comp., p. 155), re- report for the Annual Real Property In- quires that Executive agencies: ventory? (1) Produce and maintain a total in- 102–84.45 What types of real property are ex- ventory of work space and related fur- cluded from reporting for the Annual nishings and declare excess to the Ad- Real Property Inventory? ministrator of General Services all 102–84.50 May the GSA Form 1166 be used to report information? such holdings that are not necessary to 102–84.55 When are the Annual Real Prop- satisfy existing or known and verified erty Inventory Reports due? planned programs; and (2) Establish information systems, AUTHORITY: 40 U.S.C. 121(c) implement inventory controls and con- SOURCE: 73 FR 2167, Jan. 14, 2008, unless duct surveys, in accordance with proce- otherwise noted. dures established by the Administrator of General Services, so that a govern- § 102–84.5 What is the scope of this part? mentwide reporting system may be developed. GSA’s policies contained in this part (c) Executive Order 13327, Federal apply to all Federal agencies. This part Real Property Asset Management, dated prescribes guidance that all Federal February 4, 2004, requires that the Ad- agencies must follow in preparing and ministrator of General Services, in submitting annual real property inven- consultation with the Federal Real tory information for real property Property Council, establish and main- owned, leased or otherwise managed by tain a single, comprehensive and de- the United States. Detailed guidance scriptive database of all real property implementing these policies is con- under the custody and control of all ex- tained in the annual Guidance for Real ecutive branch agencies, except when Property Inventory Reporting, issued by otherwise required for reasons of na- the Federal Real Property Council and tional security. The Executive Order published by GSA. authorizes the Administrator to collect from each Executive agency such de- § 102–84.10 What is the purpose of the scriptive information, except for classi- Annual Real Property Inventory fied information, as the Administrator program? considers will best describe the nature, The purpose of the Annual Real Prop- use, and extent of the real property erty Inventory program is to: holdings of the Federal Government. (a) Promote efficient and economical use of Federal real property assets. § 102–84.20 Where should I obtain the (b) Increase the level of agency ac- data required to be reported for the countability for asset management. Annual Real Property Inventory? (c) Allow for comparing and You should obtain data reported for benchmarking across various types of the Annual Real Property Inventory real property assets. from the most accurate real property (d) Give decision makers the accu- asset management and financial man- rate, reliable data needed to make agement records maintained by your asset management decisions, including agency. disposing of unneeded federal assets. § 102–84.25 Is it necessary for my agen- § 102–84.15 Why must I provide infor- cy to designate an official to serve mation for the Annual Real Prop- as the point of contact for the real erty Inventory? property inventories? You must provide information for the Yes. You must designate an official Annual Real Property Inventory be- to serve as your agency’s point of con- cause: tact for the Annual Real Property In- (a) The Senate Committee on Appro- ventories. We recommend that you des- priations requests that the Govern- ignate the same point of contact for

312

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00322 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–84.50

the Federally-owned and leased real would include land acquired by treaty property inventory, although separate or long-term lease (e.g., 99-year lease), points of contact are permitted. You and that your agency considers equiva- must advise the General Services Ad- lent to Federally-owned land; ministration, Office of Government- (c) Buildings or other structures and wide Policy, Office of Real Property facilities owned by or leased to the (MP), 1800 F Street, NW., Washington, Government, whether or not located on DC 20405, in writing, of the name(s) of Government-owned land; these representative(s) and any subse- (d) Excess and surplus real property; quent changes. (e) Leased real property (including leased land, leased buildings, leased § 102–84.30 Is it necessary for my agen- other structures and facilities, or any cy to certify the accuracy of its real property inventory submission? combination thereof); (f) Real property leased rent free or Yes. Your agency’s official des- for a nominal rental rate, if the real ignated in accordance with § 102–84.25 property is considered significant by must certify the accuracy of the real the reporting agency; and property information submitted to (g) Real property where title is held GSA. by a State or foreign government, but § 102–84.35 Which agencies must sub- rights for use have been granted to a mit a report for inclusion in the An- Federal entity in an arrangement other nual Real Property Inventory? than a leasehold. Each agency that has jurisdiction, § 102–84.45 What types of real property custody, control, or otherwise manages are excluded from reporting for the Federal real property or enters into Annual Real Property Inventory? leases, is responsible for submitting The following real property assets the real property inventory informa- are excluded from Executive Order tion. Additional information on the re- 13327 and reporting is optional: sponsibility for reporting inventory (a) Land easements or rights-of-way data is contained in the annual Guid- ance for Real Property Inventory Re- held by the Federal Government. porting. (b) Public domain land (including lands withdrawn for military purposes) § 102–84.40 What types of real property or land reserved or dedicated for na- must I report for the Annual Real tional forest, national park, or na- Property Inventory? tional wildlife refuge purposes, except You must report for the Annual Real for improvements on those lands. Property Inventory all land, buildings, (c) Land held in trust or restricted- and other structures and facilities fee status for individual Indians or In- owned by the United States (including dian tribes. wholly-owned Federal Government cor- (d) Land, and interests in land, that porations) throughout the world, all are withheld from the scope of Execu- real property leased by the United tive Order 13327 by agency heads for States from private individuals, orga- reasons of national security, foreign nizations, and municipal, county, policy or public safety. State, and foreign governments, and all real property otherwise managed by § 102–84.50 May the GSA Form 1166 be the United States where the ownership used to report information? interest is held by a State or foreign No. Agencies must submit informa- government. Property to be reported tion in accordance with the electronic includes, but is not limited to: format outlined in the annual report- (a) Real property acquired by pur- ing instructions by either submitting chase, construction, donation, eminent an XML file in a predetermined format domain proceedings, or any other or by entering the data manually into method; the online Federal Real Property Pro- (b) Real property in which the Gov- file system. For more information on ernment has a long-term interest con- format requirements, or any other in- sidered by the reporting agency as formation and guidance on the Annual being equivalent to ownership. This Real Property Inventory, contact

313

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00323 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–84.55 41 CFR Ch. 102 (7–1–11 Edition)

GSA’s Office of Governmentwide Pol- Subpart C—Tenant Improvement icy, Office of Real Property (MP), 1800 Allowance F Street, NW., Washington, DC 20405, 102–85.90 What is a tenant improvement al- or by telephone at (202) 501–0856. lowance? 102–85.95 Who pays for the TI allowance? § 102–84.55 When are the Annual Real 102–85.100 How does a customer agency pay Property Inventory reports due? for tenant improvements? You must prepare the Annual Real 102–85.105 How does an agency pay for cus- Property Inventory information pre- tomer alterations that exceed the TI allowance? scribed in § 102–84.50 as of the last day 102–85.110 Can the allowance amount be of each fiscal year. This information changed? must be submitted electronically to the General Services Administration, Subpart D—Rent Charges Office of Governmentwide Policy, Of- fice of Real Property (MP), 1800 F 102–85.115 How is the Rent determined? 102–85.120 What is ‘‘shell Rent’’? Street, NW., Washington, DC 20405, no 102–85.125 What alternate methods may be later than December 15 of each year. used to establish Rent in Federally owned space? PART 102–85—PRICING POLICY 102–85.130 How are exemptions from Rent granted? FOR OCCUPANCY IN GSA SPACE 102–85.135 What if space and services are provided by other executive agencies? Subpart A—Pricing Policy—General 102–85.140 How are changes in Rent reflected in OAs? Sec. 102–85.145 When are customer agencies re- 102–85.5 By what authority is the pricing sponsible for Rent charges? policy in this part prescribed? 102–85.150 How will Rent charges be re- 102–85.10 What is the scope of this part? flected on the customer agency’s Rent 102–85.15 What are the basic policies for bill? charging Rent for space and services? 102–85.155 What does a customer agency do 102–85.20 What does an Occupancy Agree- if it does not agree with a Rent bill? ment (OA) do? 102–85.160 How does a customer agency 102–85.25 What is the basic principle gov- know how much to budget for Rent? erning OAs? 102–85.30 Are there special rules for certain Subpart E—Standard Levels of Service Federal customers? 102–85.165 What are standard levels of serv- 102–85.35 What definitions apply to this ice? part? 102–85.170 Can flexitime and other alter- 102–85.40 What are the major components of native work schedules cost the customer the pricing policy? agency more? 102–85.175 Are the standard level services for Subpart B—Occupancy Agreement cleaning, mechanical operation, and maintenance identified in an OA? 102–85.45 When is an Occupancy Agreement 102–85.180 Can there be other standard serv- required? ices? 102–85.50 When does availability of funding 102–85.185 Can space be exempted from the have to be certified? standard levels of service? 102–85.55 What are the terms and conditions 102–85.190 Can GSA Rent be adjusted when included in an OA? standard levels of service are performed 102–85.60 Who can execute an OA? by other customer agencies? 102–85.65 How does an OA obligate the customer agency? Subpart F—Special Services 102–85.70 Are the standard OA terms appro- 102–85.195 Does GSA provide special serv- priate for non-cancelable space? ices? 102–85.75 When can space assignments be terminated? Subpart G—Continued Occupancy, 102–85.80 Who is financially responsible for Relocation and Forced Moves expenses resulting from tenant non-performance? 102–85.200 Can customer agencies continue 102–85.85 What if a customer agency partici- occupancy of space or must they relocate pates in a consolidation? at the end of an OA?

314

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00324 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–85.15

102–85.205 What happens if a customer agen- (14) National Historic Preservation cy continues occupancy after the expira- Act of 1966 as amended (16 U.S.C. 461 et tion of an OA? seq.); 102–85.210 What if a customer agency has to (15) Executive Order 12072 of August relocate? 102–85.215 What if another customer agency 16, 1978 (43 FR 36869); forces a GSA customer to move? (16) Executive Order 12411 of March 102–85.220 Can a customer agency forced to 29, 1983 (48 FR 13391); relocate waive the reimbursements? (17) Executive Order 12512 of April 29, 102–85.225 What are the funding responsibil- 1985 (50 FR 18453); ities for relocations resulting from emer- (18) Executive Order 13005 of May 21, gencies? 1996 (61 FR 26069); and AUTHORITY: 40 U.S.C. 486(c). (19) Executive Order 13006 of May 21, SOURCE: 66 FR 23169, May 8, 2001, unless 1996 (61 FR 26071). otherwise noted. § 102–85.10 What is the scope of this Subpart A—Pricing Policy— part? General (a) This part describes GSA policy and principles for the assignment and § 102–85.5 By what authority is the occupancy of space under its control pricing policy in this part pre- and the rights and obligations of GSA scribed? and the customer agencies that request (a) General authority is granted in or occupy such space pursuant to GSA the Federal Property and Administra- Occupancy Agreements (OA). tive Services Act of 1949, as amended, (b) Space managed by agencies under Sec. 205(c) and 210(j), 63 Stat. 390 and 86 delegation of authority from GSA is Stat. 219; (40 U.S.C. 486(c) and 40 U.S.C. subject to the provisions of this part. 490(j), respectively). (c) This part is not applicable to: (b) This part implements the applica- (1) Licenses, permits or leases with ble provisions of Federal law, includ- non-Federal entities under the Public ing, but not limited to, the: Buildings Cooperative Use Act (40 (1) Federal Property and Administra- U.S.C. 490(a)(16–19)); or tive Services Act of 1949, 63 Stat. 377, as (2) The disposal of surplus lease space amended; under section 210(h)(2) of the Federal (2) Act of July 1, 1898 (40 U.S.C. 285); Property and Administrative Services (3) Act of April 28, 1902 (40 U.S.C. 19); Act of 1949, as amended (40 U.S.C. (4) Act of August 27, 1935 (40 U.S.C. 490(h)(2)). 304c); (5) Public Buildings Act of 1959, as § 102–85.15 What are the basic policies amended (40 U.S.C. 601–619); for charging Rent for space and (6) Public Buildings Amendments of services? 1972, Pub. L. 92–313, (86 Stat. 219); (a) GSA will charge for space and (7) Rural Development Act of 1972, services furnished by GSA (unless oth- Pub. L. 92–419, (86 Stat. 674); erwise exempted by the Administrator (8) Reorganization Plan No. 18 of 1950 of General Services) a Rent charge (40 U.S.C. 490 note); which will approximate commercial (9) Title VIII of the Civil Rights Act charges for comparable space and serv- of 1968 (42 U.S.C. 3601 et seq.); ices. Rent for all assignments for GSA- (10) National Environmental Policy controlled space will be priced accord- Act of 1969, as amended (42 U.S.C. 4321 ing to the principles of the pricing pol- et seq.); icy in this part. These principles are (11) Intergovernmental Cooperation reflected in the following elements of Act of 1968 and the Federal Urban Land GSA Rent charges: Use Act (42 U.S.C. 4201–4244; 40 U.S.C. (1) ‘‘Shell’’ Rent based on approxi- 531–535); mate commercial charges for com- (12) Public Buildings Cooperative Use parable space and services for Feder- Act of 1976, as amended (40 U.S.C. ally owned space (accomplished using 490(a)(16)–(19), 601a and 612a); appraisal procedures); (13) Public Buildings Amendments of (2) Rent based on actual cost of the 1988, Pub. L. 100–678, (102 Stat. 4049); lease, including the costs (if any) of

315

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00325 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–85.20 41 CFR Ch. 102 (7–1–11 Edition)

services not provided by the lessor, § 102–85.25 What is the basic principle plus a GSA fee; governing OAs? (3) Amortization of any tenant im- The basic principle governing OAs is provement allowance used; to adopt the private sector practice of (4) Any applicable real estate taxes, capturing in a written document the operating costs, parking, security and business terms to which GSA and a joint use fees; and customer agency agree concerning in- (5) For certain projects involving new dividual space assignments. construction or major renovation of Federally-owned buildings, a return on § 102–85.30 Are there special rules for investment pricing approach if an ap- certain Federal customers? praisal-determined rental value does Yes, in lieu of OAs, GSA is able to not provide a minimum return (OMB enter into agreements with customer discount rate for calculating the agencies that reflect the parties par- present value of yearly costs plus 2%) ticular needs. For example, the space on the cost of the prospective capital and services provided to the U.S. House investment. Each specific use of Re- of Representatives and the U.S. Senate turn on Investment (ROI) pricing must are governed by existing memoranda of be approved by OMB and duly recorded agreement (MOA). When there are conflicts between the provisions of this in an Occupancy Agreement (OA) with part and MOAs, the MOAs prevail. the customer agency. Once the ROI methodology is employed to establish § 102–85.35 What definitions apply to Rent for a capital investment, the ROI this part? method must be retained for the dura- The following definitions apply to tion of the OA term. this part: (b) Special services not included in Accept space or acceptance of space the standard levels of service may be means a commitment from an agency provided by GSA on a reimbursable to occupy specified GSA-controlled basis. GSA may also furnish alter- space. ations on a reimbursable basis in build- Agency-controlled and/or operated ings where GSA is responsible for alter- space means: ations only. (1) Space that is owned, leased, or (c) The financial terms and condi- otherwise controlled or operated by tions under which GSA assigns, and a Federal agencies under any authority customer agency occupies, each block other than the Federal Property and of GSA-controlled space, shall be docu- Administrative Services Act of 1949, as mented in a written OA. amended; and (2) it also includes agency-acquired § 102–85.20 What does an Occupancy space for which acquisition authority Agreement (OA) do? has been delegated or otherwise grant- An OA defines GSA’s relationship ed to the agency by GSA. It does not with each customer agency and: include space covered by an OA. (a) Establishes specific financial Assign or assignment is defined in the terms, provisions, rights, and obliga- definition for space assignment. tions of GSA and its customer for each Building shell means the complete en- space assignment; veloping structure, the base-building systems, and the finished common (b) Minimizes exposure to future un- areas (building common and floor com- known costs for both GSA and cus- mon) of a building that bound the ten- tomer agencies; ant areas. (c) Stabilizes Rent payments to the Customer agency means any depart- extent reasonable and desired by cus- ment, agency, or independent estab- tomers; and lishment in the Federal Government, (d) Allows tailoring of space and re- including any wholly-owned corpora- lated services to meet customer agency tion; any executive agency or any es- needs. tablishment in the legislative or judicial branch of the Government (except

316

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00326 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–85.35

the Senate, the House of Representa- eral use space, but that is within a tives, and the Architect of the Capitol, building where predominantly general and any activities under his direction). use space is located. Emergency relocation is a customer GSA-controlled space means Federally move that results from an extraor- controlled space under the custody or dinary event such as a fire, natural dis- control of GSA. It includes space for aster, or immediate threat to the which GSA has delegated operational, health and safety of occupants that maintenance, or protection authority renders a current space assignment un- to the customer agency. usable and requires that it be vacated, GSA-delegated space (or GSA delegated permanently or temporarily. building) means GSA-controlled space Federal Buildings Fund means the for which GSA has delegated oper- fund into which Rent charges and other ational, maintenance or protection au- revenues are deposited, and collections thority to the customer agency. cited in section 210(j) of the Federal GSA-initiated move means any reloca- Property and Administrative Services tion action in GSA-controlled space Act of 1949, as amended (U.S.C. 490(j)), that: and from which monies are available for expenditures for real property man- (1) Is involuntary to the customer agement and related activities in such agency and required to be effective amounts as are specified in annual ap- prior to the expiration of an effective propriations acts without regard to fis- OA, or in the case of leased space, prior cal year limitations. to the expiration of the lease; or Federally controlled space means (2) Is an emergency relocation initi- workspace for which the United States ated by GSA. Government has a right of occupancy Initial space alteration (ISA). See defi- by ownership, by lease, or by any other nition of ‘‘tenant improvement.’’ means, such as by contract, barter, li- Initial space layout means the specific cense, easement, permit, requisition, or placement of workstations, furniture condemnation. Such workspace ex- and equipment within new space as- cludes space owned or leased by private signments. sector entities performing work on Inventory means a summary or Government contracts. itemized list of the real property, and Federally owned space means space, associated descriptive information, the title to which is vested in the that is under the control of a Federal United States Government or which agency. will vest automatically according to an Joint-use space means common space existing agreement. within a Federally controlled facility, Forced move means the involuntary not specifically assigned to any one physical relocation, from one space as- agency, and available for use by mul- signment to another, of a customer tiple agencies, such as cafeterias, audi- agency housed in GSA-controlled space toriums, conference rooms, credit initiated by another customer agency unions, visitor parking spaces, snack or by GSA, before the expiration of a bars, certain wellness/physical fitness lease or an OA term. (See also the defi- facilities, and child care centers. nition of GSA-initiated move.) General use space means all types of Leased space means space for which space other than ‘‘warehouse,’’ ‘‘park- the United States Government has a ing,’’ or ‘‘unique’’ space, as defined right of use and occupancy by virtue of elsewhere in this part. Examples of having acquired a leasehold interest. general use space are: Non-cancelable space means space (1) Office and office-related space that, due to its layout, design, loca- such as file areas, libraries, meeting tion, or other characteristics, is un- rooms, computer rooms, mail rooms, likely to be needed by another GSA training and conference, automated customer agency. Typical conditions data processing operations, court- that might cause space to be defined as rooms, and judicial chambers; and non-cancelable are: (2) Storage space that contains dif- (1) Special space construction fea- ferent quality and finishes from gen- tures;

317

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00327 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–85.35 41 CFR Ch. 102 (7–1–11 Edition)

(2) Lack of any realistic Federal need of four types of space—General Use, for the space other than by the re- Warehouse, Unique, or Parking—even questing agency; and though some smaller portions of the (3) Remote location or unusual term space may be used for one or more of (short or long) desired by the agency. the other types of uses. Occupancy Agreement (OA) means a Rent means the amounts charged by written agreement descriptive of the fi- GSA for space and related services to nancial terms and conditions under the customer agencies with tenancy in which GSA assigns, and a customer GSA-controlled space. The word agency occupies, the GSA-controlled ‘‘Rent’’ is capitalized to differentiate it space identified therein. from the contract ‘‘rent’’ that GSA Parking or parking space means sur- pays lessors. face land, structures, or areas within Rentable square footage means the structures designed and designated for amount of space as defined in ‘‘Build- the purpose of parking vehicles. ing Owners and Managers Association Personnel means the peak number of (BOMA)/American National Standards persons to be housed during a single Institute (ANSI) Standard Z65.1–1996.’’ shift, regardless of how many The BOMA/ANSI standard also defines workstations are provided for them. In ‘‘gross,’’ ‘‘office area,’’ ‘‘floor com- addition to permanent employees of mon,’’ and ‘‘building common’’ areas. the agency, personnel includes tem- Any references to these terms in this poraries, part-time, seasonal, and con- part refer to the BOMA/ANSI standard tractual employees, budgeted vacan- definitions. This standard has been cies, and employees of other agencies adopted in accordance with GSA’s in- and organizations who are housed in a terest in conforming its practices to space assignment. nationally recognized industry stand- Portfolio leases mean long term or ards to the extent possible. ‘‘master’’ leases, usually negotiated to NOTE TO THE DEFINITION OF RENTABLE house several agencies whose indi- SQUARE FOOTAGE: Rentable square footage vidual term requirements differ from generally includes square footage of areas the terms of the underlying GSA lease occupied by customers plus a prorated share with the lessor, and from each other. of floor common areas such as elevator lobbies, building corridors, public restrooms, These may also be leases housing sin- utility closets, and machine rooms. Rentable gle agencies, but which entail for GSA square footage also includes a prorated share responsibilities (burdens and benefits) of building common areas located through- which mimic an ownership position, or out the building. Examples of building com- equity rights, even though no equity mon space include ground floor entrance interest or ownership liability exists. lobby, enclosed atrium, loading dock, and An example of the latter would be long mail room. term renewal options on a lease which, Request for space or space request in order to enjoy, involve substantial means a written or electronically sub- capital outlays by GSA to improve the mitted document or an oral request, building infrastructure. In both these within which an agency’s space needs cases, GSA is assuming risks or capital are summarized. A request for space is expenditures outside of the conven- requisite for development of an OA. tions of single transactions or occupan- Thus, it must be submitted to GSA by cies. Accordingly, for a portfolio lease, a duly authorized official of the cus- it is not appropriate merely to pass tomer agency, and it must be accom- through to the customer agency(ies) panied by documentation of the cus- the rental rate of the underlying GSA tomer agency’s ability to fund pay- lease. Portfolio leases are treated for ment of required Rent charges. pricing purposes as owned space, with Return on Investment (ROI) pricing is Rent set by appraisal. one possible methodology used to es- Predominant use means the use to tablish a Rent rate for certain owned which the greatest portion of a loca- space. Typically, ROI pricing is a Rent tion is put. Predominant use is deter- rate that ensures GSA a reasonable re- mined by the Public Buildings Service turn on its cost to acquire and improve (PBS), GSA, and will typically result the asset. ROI pricing may be used in the designation of a location as one where no other comparable commercial

318

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00328 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–85.35

space is available or no other appraisal permit nationwide or regional applica- method would be appropriate. It may tion, that is used as a basis for estab- also be used in cases in which an ap- lishing that agency’s space require- praisal-based rental rate will not meet ments. An SAS may describe special GSA’s minimum return requirements GSA and customer agency funding re- for the planned level of investment. sponsibilities, although such respon- Security fees mean Rent charges for sibilities will be covered in OAs for building services provided by GSA’s space assignments. An SAS may also Federal Protective Service. Security be developed between GSA and cus- fees are comprised of basic and build- tomer agencies on a regional level to ing specific charges. standardize or simplify transactions, (a) A basic security fee is assessed in provided that the terms of a regional all PBS-controlled properties where SAS are consistent with the terms of the Federal Protective Service (FPS) that agency’s national SAS and the provides security services. The rate is terms of this part. set annually on a per-square-foot basis. Space assignment or assignments The charge includes the following serv- means a transaction between GSA and ices: a customer agency that results in a (1) General law enforcement on PBS- customer agency’s right to occupy cer- controlled property; tain GSA-controlled space, usually in (2) Physical security assessments; return for customer agency payment(s) (3) Crime prevention and awareness to GSA for use of the space. Space as- training; signment rights, obligations, and re- (4) Advice and assistance to building sponsibilities not covered in this part, security committees; or in the customer guides, are formal- (5) Intelligence sharing program; ized in an OA. (6) Criminal investigation; Space planning means the process of (7) Assistance and coordination in using recognized professional tech- Occupancy Emergency Plan develop- niques of planning, layout and interior ment; design to determine the best internal (8) Coordination of mobilization and location and the most efficient con- response to terrorist threat or civil dis- figuration for satisfying agency space turbance; needs. (9) Program administration for security guard contracts; and Space program of requirements means a (10) Megacenter operations for moni- summary statement of an agency’s toring building perimeter alarms and space needs. These requirements will dispatching appropriate law enforce- generally include information about lo- ment response. cation, square footage, construction re- (b) The building specific security quirements, and duration of the agen- charge is comprised of two elements: cy’s space need. They may be identified Operating expenses and amortized cap- in any format mutually agreeable to ital costs. Building specific charges, GSA and the agency. whether operating expenses or capital Special space means space which has costs, are distributed overall federal unusual architectural/construction fea- users by building or facility in direct tures, requires the installation of spe- proportion to each customer agency’s cial equipment, or requires dispropor- percentage of federal occupancy. As tionately high or low costs to con- with joint use charges, the distribution struct, maintain and/or operate as of building-specific charges among cus- compared to office or storage space. tomer agencies is not re-adjusted for Special space generally refers to space vacancy. which has construction features, fin- Space means a defined area within a ishes, services, utilities, or other addi- building and/or parcel of land. (Per- tional costs beyond those specified in sonal property and furniture are not the customer general allowance (e.g., included.) courtrooms, laboratories). Space allocation standard (SAS) means Standard level of service. See § 102– a standard agreed upon by GSA and a 85.165 for the definition of standard customer agency, written in terms that level of service.

319

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00329 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–85.40 41 CFR Ch. 102 (7–1–11 Edition)

Telecommunications means electronic not air-conditioned, and is cleaned to processing of information, either voice lesser standards than office space. or data or both, over a wide variety of Workspace means Federally con- media, (e.g., copper wire, microwave, trolled space in buildings and struc- fiber optics, radio frequencies), be- tures (permanent, semi-permanent, or tween individuals or offices within a temporary) that provides an acceptable building (e.g., local area networks), be- environment for the performance of tween buildings, and between cities. agency mission requirements by em- Tenant improvement (TI) means a fin- ployees or by other persons occupying ished component of an interior block of it. space. Tenant improvements represent additions to or alterations of the build- § 102–85.40 What are the major compo- ing shell that adapt the workspace to nents of the pricing policy? the specific uses of the customer. If The major components of the pricing made at initial occupancy, the TIs are policy are: known as initial space alterations or (a) An OA between a customer agen- ISAs. cy and GSA; Tenant improvement (TI) allowance (b) Tenant improvement allowance; means the dollar amount, including de- and sign, labor, materials, contractor costs (c) The establishment of Rent the (if contractors are used), management, agency pays to GSA based on the OA and inspection, that GSA will spend to for: construct, alter, and finish space for (1) Leased space, a pass-through to customer occupancy (excluding per- the customer agency of the underlying sonal property and furniture, which are GSA lease contract costs, and a PBS customer agency responsibilities) at fee; or initial occupancy. The dollar amounts (2) GSA-owned space, Rent deter- for the allowances are different for mined by appraisal. each agency and bureau to accommodate agencies’ different mission needs. Subpart B—Occupancy The dollar amounts also may vary by Agreement locations reflecting different costs in different markets. The PBS bill will § 102–85.45 When is an Occupancy only reflect the actual amount the cus- Agreement required? tomers spend, not the allowance. The An Occupancy Agreement (OA) is re- amount of the TI allowance is deter- quired for each customer agency’s mined by GSA. Agencies can request space assignment. The OA must be that GSA revise the TI allowance agreed to by GSA and the customer amount by project or categorically for agency prior to GSA’s commitment of an entire bureau. The cost of replace- funds for occupancy and formal assignment of tenant improvements is borne ment of space. by the customer agency. Unique space means space for which § 102–85.50 When does availability of there is no commercial market com- funding have to be certified? parable (e.g., border stations). The customer agency must sign an Warehouse or warehouse space means OA prior to GSA’s making any major space contained in a structure pri- contractual commitments associated marily intended for the housing of with the space request. Typically, this files, records, equipment, or other per- should occur at the earliest possible sonal property, and is not primarily in- opportunity-i.e., when funds become tended for housing personnel and office available. However, in no event shall operations. Warehouse space generally certification occur later than just prior is designed and constructed to lower to the award of the contract to a de- specifications than office buildings, sign architect in the case of Federal with features such as exposed ceilings, construction or renovation in Feder- unfinished perimeter and few dividing ally owned space or prior to the award partitions. Warehouse space also is of a lease. This serves as a customer usually heated to a lesser degree but agency’s funding commitment unless

320

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00330 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–85.75

certification is provided on another agencies for space assignments in document. owned or leased space, that are unusual in size, location, duration, public inter- § 102–85.55 What are the terms and est, or other factors. Each agency de- conditions included in an OA? cides its appropriate signatory level. The terms and conditions are modeled after commercial practice. They § 102–85.65 How does an OA obligate are intended to reflect a full mutual the customer agency? understanding of the financial terms An OA obligates the executing cus- and agreement of the parties. The OA tomer agency to fund the current-year describes the actual space and services Rent obligation owed GSA, as well as to be provided and all associated actual to reimburse GSA for any other bona costs to the customer during the term fide obligations that GSA may have in- of occupancy. The OA does not include curred on behalf of the customer agen- any general provisions or terms con- cy. Although the OA is an interagency tained in this part. OAs typically de- agreement, memorializing the under- scribe the following, depending on standing of GSA and its customer whether the space is leased or Feder- agency, the OA may not be construed ally owned: as obligating future year customer (a) Assigned square footage; agency funds until they are legally (b) Shell Rent and term of occu- available. A multi-year OA commit- pancy; ment assumes the customer agency (c) Amortized amount of customer al- will seek the necessary funding lowance used; through budget and appropriations (d) Operating costs and escalations; processes. (e) One time charges; e.g., lump sum payments by the customer; § 102–85.70 Are the standard OA terms (f) Real estate tax and escalations; appropriate for non-cancelable (g) Parking and escalations; space? (h) Additional/reduced services; (i) Security services and associated Yes, most of the standard terms Rent; apply; however, the right to cancel (j) Joint use space and associated upon a 4-month (120 day) notice is not Rent; available. See § 102–85.35 for the defini- (k) PBS fee; tion of non-cancelable space. (l) Customer rights and provisions for occupancy after OA expiration; § 102–85.75 When can space assignments be terminated? (m) Cancellation provisions if different from this part or the customer (a) Customer agencies can terminate service guides; any space assignments, except those (n) Any special circumstances associ- designated as non-cancelable, with the ated with the occupancy, such as envi- following stipulations: ronmental responsibilities, unusual use (1) The agency must give GSA writ- restrictions, or agreements with local ten notice at least four months prior to authorities; termination. (o) Emergency relocations; (2) The agency is responsible for re- (p) Clauses specific to the agreement; imbursing GSA for the unpaid balance (q) Other Rent, e.g., charges for an- of the cost of tenant improvements, tenna sites, land; generally prior to GSA releasing the (r) Agency standard clauses; and agency from the space assignment. In (s) General clauses defining the obli- the event the customer agency re- gations of both parties. ceived a rent concession (e.g., free rent) at the inception of the assign- § 102–85.60 Who can execute an OA? ment as part of the consideration for Authorized GSA and customer agen- the entire lease term, then the amount cy officials who can commit or obligate of the concession applicable to the re- the funds of their respective agencies maining term must be repaid to GSA. can execute an OA. Higher level sig- (3) If the space to be vacated is ready natories may be appropriate from both for occupancy by another customer and

321

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00331 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–85.80 41 CFR Ch. 102 (7–1–11 Edition)

marketable, GSA accepts the termi- Subpart C—Tenant Improvement nation of assignment. Allowance (4) If the agency has vacated all of the space and removed all personal § 102–85.90 What is a tenant improve- property and equipment from the space ment allowance? by the cancellation date in the written A tenant improvement (TI) allowance notice, the agency will be released ef- enables the customer agency to design, fective that date from further Rent configure and build out space to sup- payments. port its program operations. It is based (5) An agency may terminate a GSA on local market construction costs and space assignment with less than a four- the specific bureau’s historical use of month advance written notice to GSA, space. (See also the definition at § 102– if: 85.35.) (i) Either GSA or the terminating § 102–85.95 Who pays for the TI allow- agency has identified another agency ance? customer for the assigned space and The customer agency pays for the that substitute agency wants and is amount of the tenant improvement al- able to fully assume the Rent pay- lowance actually used. ments due from the terminating agency; and § 102–85.100 How does a customer (ii) The terminating agency con- agency pay for tenant improve- tinues to pay Rent until the new agen- ments? cy starts paying Rent. To pay for the installation of tenant (b) GSA can terminate space assign- improvements, the customer agency ments according to GSA regulations may spend an amount not to exceed for emergency or forced moves. the tenant allowance. The amount (c) OAs terminate automatically at spent by the customer agency for TIs is expiration. amortized over a period of time specified in the OA, not to exceed the useful § 102–85.80 Who is financially respon- life of the improvements. This amorti- sible for expenses resulting from zation payment is in addition to the tenant non-performance? shell rent and services. The customer agencies are finan- § 102–85.105 How does an agency pay cially responsible for expenses incurred for customer alterations that ex- by the Government as a result of any ceed the TI allowance? failure on their part to fulfill a com- Amounts exceeding the TI allowance mitment outlined in an OA or other are paid in a one-time lump sum and written agreements in advance of, or in are not amortized over the term of the addition to, the OA. Customer agencies occupancy. The agency certifies lump are also financially responsible for re- sum funds are available prior to GSA vised design costs and any additional proceeding with the work. costs resulting from changes to space requirements or space layouts made by § 102–85.110 Can the allowance the agency after a lease, alteration, de- amount be changed? sign, or construction contract has been The GSA schedule of allowances for awarded by GSA. new assignments is adjusted annually for design and construction cost § 102–85.85 What if a customer agency changes. As the need arises, GSA may participates in a consolidation? adjust an agency or bureau’s TI allow- If an agency agrees to participate in ance. GSA may also adjust a TI allowance for a specific project, if conditions a consolidation upon expiration of an warrant. This decision is solely GSA’s. OA, the relocation expenses will be ad- In addition, the customer agency may dressed in the new OA negotiated by waive any part or all of its GSA and the customer agency. The customization allowance in the case of customer agency generally pays such a new space assignment. In the case of costs. backfill space (also known as relet

322

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00332 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–85.135

space), the customer agency can also § 102–85.125 What alternate methods waive any part or all of the tenant gen- may be used to establish Rent in eral allowance, if the customer agency Federally-owned space? will use the existing tenant improve- Alternate methods of establishing ments, with or without modifications. Rent are based on private sector models. They include, but are not limited Subpart D—Rent Charges to: (a) Return on investment (ROI) ap- § 102–85.115 How is the Rent deter- proach or a similar cost recovery meth- mined? od used when market comparables are Unless an exemption is granted under not available and/or GSA must ‘‘build the authority of the Administrator of to suit’’ to fulfill customer agency re- General Services, the Rent charged ap- quirements; e.g., border stations; and proximates commercial charges for (b) Rent schedules for the right to comparable space and space-related use rooftops and other floor areas not services as follows: suitable for workspace; e.g., antenna (a) Generally, Rent for Federally sites and signage. owned space provided by GSA is based on market appraisals of fully serviced § 102–85.130 How are exemptions from rental values for the predominant use Rent granted? to which space in a building is put; e.g., Exemptions from Rent are rare. How- general use, warehouse use, and park- ever, the Administrator of General ing use. In cases where market apprais- Services may exempt any GSA cus- als are not practical; e.g., in cases in- tomer from Rent after a determination volving unique space or when market that application of Rent would not be comparables are not available, GSA feasible or practical. Customer agency may establish Rent on the basis of al- requests for exemptions must be ad- ternate commercial practices. See the dressed to the Administrator of Gen- discussion of alternate valuation meth- eral Services and submitted in accord- ods in § 102–85.125. Amortization of tenance with GSA Order PBS 4210.1, ‘‘Rent ant improvements, parking fees, and Exemption Procedures,’’ dated Decem- security charges are calculated sepa- ber 20, 1991, or in accordance with any rately and added to the appraised shell superseding GSA order. A copy of the Rent to establish the Rent charge. Cus- order may be obtained from the Office tomer agencies also pay for a pro rata of Portfolio Management, General share of joint use space. Services Administration, 1800 F Street, (b) Generally, Rent for space leased NW., Washington, DC 20405. by GSA is based on the actual cost of the lease, including the costs (if any) of § 102–85.135 What if space and services services not provided by the lessor, are provided by other executive plus a GSA fee, and security charges agencies? and parking (if not in the lease). Any executive agency other than (1) The Rent is based on the terms GSA providing space and services is au- and conditions of the OA, starting with thorized to charge the occupant for the the shell Rent. space and services at rates approved by (2) In addition to the shell Rent, the the Administrator of General Services Rent includes amortization of TI allow- and the Director of the Office of Man- ances used, real estate taxes, operating agement and Budget. If space and serv- costs, extra services, parking, GSA fee ices are of the type provided by the Ad- for its services, and charges for secu- ministrator of General Services, the rity, joint-use, and other applicable executive agency providing the space rental charges (e.g., antenna site, land, and services must credit the monies de- wareyard). rived from any fees or charges to the appropriation or fund initially charged § 102–85.120 What is shell Rent? for providing the space or services, as Shell Rent is that portion of GSA prescribed by Subsection 210(k) of the Rent charged for the building envelope Federal Property and Administrative and land. (See § 102–85.35 for the defini- Services Act of 1949, as amended (40 tion of building shell.) U.S.C. 490(k)).

323

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00333 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–85.140 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–85.140 How are changes in Rent (3) The date space is actually va- reflected in OAs? cated, whenever occupancy extends be- (a) If Rent changes in ways that are yond the date agreed upon under either identified in the OA, then no change to paragraph (a)(1) or (2) of this section. the OA is required. Typically, OAs (b) When a customer agency releases state that certain components of Rent non-cancelable space, it is responsible are subject to annual escalation; e.g., for all attributable Rent and other operating expenses, real estate taxes, space charges until the OA expires. parking charges, the basic security This responsibility is mitigated to the charge, and building-specific security extent that GSA is able to assign the operating and amortized capital ex- space to another user or dispose of it. penses which do not entail a change in (See § 102–85.65 How does an OA obligate service level. Also, in Federally-owned the customer agency?) space, OAs state that the shell rent is (c) When a customer agency commits re-marked to market every five years. to occupy space in an OA or other bind- In leased space, the OA will identify ing document, but never occupies that any programmed changes in the lease space, that agency is responsible for: contract rent (such as pre-set increases (1) Non-cancelable space: Rent pay- or steps in the contract rent rate) that ments due for the space until the OA will translate into a change in the cus- expires, unless GSA can mitigate; or tomer agency’s Rent. Changes in Rent (2) All other space: Either GSA’s specified in OAs will serve as notice to space charges for 4 months plus the agencies of future Rent changes for cost of tenant improvements or GSA’s budgeting purposes. For a discussion of actual costs, whichever is less. budgeting for Rent, see § 102–85.160. (b) Changes to Rent other than those § 102–85.150 How will Rent charges be identified in paragraph (a) of this sec- reflected on the customer agency’s tion typically require an amended OA. Rent bill? There are many events that might oc- Rent charges are billed monthly, in casion a change in Rent, and an amend- arrears, based on an annual rate which ed OA, such as: is divided by 12. Billing commences the (1) An agency expands or contracts at first month in which the agency occu- an existing location; pies the space for more than half of the (2) PBS agrees to fund additional ten- month, and ends in the last month the ant improvements that are then amor- agency occupies the space. tized over the remaining OA term, or over an extended OA term; § 102–85.155 What does a customer (3) Upon physical re-measurement, agency do if it does not agree with the true square footage of the space as- a Rent bill? signment is found to be different from the square footage of record; (a) If a customer agency does not (4) The amount of joint use space in agree with the way GSA has deter- the building changes; mined its Rent obligation (e.g., the (5) The level of building-specific secu- agency does not agree with GSA’s rity services changes; or space classification, appraised Rent, or (6) PBS undertakes new capital ex- the allocation of space), the agency penditures for new or enhanced secu- may appeal its Rent bill to GSA. rity countermeasures. (b) GSA will not increase or otherwise change Rent for any assignment, § 102–85.145 When are customer agen- except as agreed in an OA, in the case cies responsible for Rent charges? of errors, or when the OA is amended. (a) When a customer agency occupies However, customer agencies may at cancelable space, it is responsible for any time request a regional review of Rent charges until: the measurement, classification, serv- (1) The date of release specified in ice levels provided, or charges assessed the OA, or until the date space is actu- that pertain to the space assignment ally vacated, whichever occurs later; or without resorting to formal proce- (2) Four months after having pro- dures. Such requests do not constitute vided GSA written notice of release; or appeals and should be directed to the

324

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00334 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–85.160

appropriate GSA Regional Adminis- (e) A further appeal may be filed by trator. the customer agency’s headquarters (c) If a customer agency still wants level officials with the Commissioner, to pursue a formal appeal of Rent Public Buildings Service, if equitable charges, they may do so, but with the resolution has not been obtained from following limitations: the initial appeal. A head of a customer (1) Terms, including rates, to which agency may further appeal to the Ad- the parties agree in an OA are not ap- ministrator of the General Services. pealable; Documentation of the procedures fol- (2) In leased space, the contract rent lowed for prior resolution must accom- passed through from the underlying pany an appeal to the Administrator. lease cannot be appealed; Decisions made by the Administrator (3) In GSA-owned space, when the are final. fully-serviced shell Rent is established (f) Adjustments of Rent resulting through appraisal, the appraised rate from reviews and appeals will be effec- must exceed comparable commercial tive in the month that the agency sub- square foot rates by 20 percent. When mitted a properly documented appeal. shell Rent in owned space is estab- Adjustments in Rent made under this lished on the basis of ROI at the incep- section remain in effect for the remain- tion of an OA, and the customer agency der of the 5-year period in which the executes the OA, then the ROI rate charges cited in the OA were applica- cannot later be appealed. Other compo- ble. nents of Rent that are established on the basis of actual cost—eg., amortiza- § 102–85.160 How does a customer tion of TIs and building specific secu- agency know how much to budget rity charges—also cannot be appealed. for Rent? (4) Additionally, the customer agency GSA normally provides customer is required to compare its assigned agencies an estimate of Rent increases space with other space in the sur- approximately 2 months prior to the rounding community that: agencies’ Office of Management and (i) Is available in similar size block Budget (OMB) submission for the fiscal of space in a comparable location; year in which GSA will charge Rent. (ii) Is comparable in quality to the This gives the affected customer agen- space provided by GSA; cies an opportunity to budget for an in- (iii) Provides similar service levels as crease or decrease. However, GSA must part of the charges; obtain the concurrence of OMB for (iv) Contains similar contractual such changes prior to notifying cus- terms, conditions, and escalations tomer agencies. In the event GSA is clauses; and unable to provide timely notice of a fu- (v) Represents a lease transaction ture Rent increase, customer agencies completed at a similar point in time. are nonetheless obligated to pay the increased Rent amount. For existing as- (5) Data from at least three com- signments in owned buildings, GSA parable locations will be necessary to charges for fully serviced shell Rent, in demonstrate a market trend sufficient aggregate, shall not exceed the bureau to warrant revising an appraised Rent level budget estimates provided to the charge. customer agencies annually. This pro- (d) A customer agency filing an ap- vision does not apply to: peal for a particular location or building must develop documentation sup- (a) New assignments; porting the appeal and file the appeal (b) Changes in current assignments; with the appropriate Regional Admin- (c) Leased space; istrator. The GSA regional office will (d) New tenant improvement amorti- verify all pertinent information and zation; documentation supporting the appeal. (e) Building specific security costs; The GSA Regional Administrator will and accept or deny the appeal and will no- (f) New amortization of capital ex- tify the appealing agency of his or her penditures under ROI pricing due to ruling. changes in scope of proposed projects

325

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00335 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–85.165 41 CFR Ch. 102 (7–1–11 Edition)

or repair and/or replacement of build- eral Services to be necessary for effi- ing components cient operations and proper servicing of space under the assignment respon- Subpart E—Standard Levels of sibility of GSA. Service § 102–85.185 Can space be exempted § 102–85.165 What are standard levels from the standard levels of service of service? Yes, customer agencies may be ex- (a) The standard levels of service cov- cused from paying for standard service ered by GSA Rent are comparable to levels for space assignments when: those furnished in commercial prac- (a) In GSA-delegated space, the cus- tice. They are based on the effort re- tomer agency provides for these serv- quired to service the customer agency’s ices itself and thus pays Rent minus space for a 5-day week (Monday to Fri- charges for these services; or day), one-shift regular work schedule. (b) In rare instances, standard service GSA will provide adequate building levels may be waived by the Adminis- startup services, before the beginning trator of General Services in instances of the customer’s regular one-shift where charging for such standard serv- work schedule, and shutdown services ices would not be feasible or practical, after the end of this schedule. e.g., in assignments of limited square (b) Without additional charge, GSA footage or functional use. customers may use their assigned § 102–85.190 Can GSA Rent be adjusted space and supporting automatic eleva- when standard levels of service are tor systems, lights and small office and performed by other customer agen- business machines including personal cies? computers on an incidental basis, un- Customer agencies that arrange and less specified otherwise in the OA. pay separately for the costs of standard § 102–85.170 Can flexitime and other level services normally covered by GSA alternative work schedules cost the Rent will receive a Rent credit or other customer agency more? type of reimbursement by GSA for the Yes, GSA customers who extend their amount GSA would have charged for regular work schedule by a system of such services. The type of reimburse- flexible hours shall reimburse GSA for ment is at GSA’s discretion. The reim- its approximate cost of the additional bursement is limited to the amount in- services required. cluded for the services in GSA Rent. Approval to perform or contract for § 102–85.175 Are the standard level such services must be obtained in ad- services for cleaning, mechanical vance by the customer agency from the operation, and maintenance identi- appropriate GSA regional office. fied in an OA? Unless specified otherwise in the OA, Subpart F—Special Services standard level services for cleaning, mechanical operation, and mainte- § 102–85.195 Does GSA provide special nance shall be provided in accordance services? with the GSA standard level of services Yes, GSA provides special services on as defined in § 102–85.165, and in the a cost-reimbursable basis: PBS Customer Guide to Real Property. (a) In GSA-controlled space, GSA A copy of the guide may be obtained may provide for special services that from the General Services Administra- cannot be separated from the building tion, Office of Business Performance or space costs (inseparable services, (PX), 1800 F Street, NW., Washington, such as utilities, which are not individ- DC 20405. ually metered). GSA’s estimate of the special service cost is the basis for the § 102–85.180 Can there be other stand- bill amount. The bill amount for sepa- ard services? rable special services is either based on GSA may provide additional services a previously agreed upon fixed price or to its customers at the levels and times the actual cost, including a fee for deemed by the Administrator of Gen- GSA’s services.

326

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00336 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–85.215

(b) GSA can also provide special serv- GSA and customer relationship if an ices to other Federal agencies in agen- OA expires prior to execution of a mu- cy-controlled and operated space on a tually desired succeeding agreement. cost-reimbursable basis. Because the risks, liabilities, and con- sequences of a customer’s continued Subpart G—Continued Occu- occupancy depend on whether the as- pancy, Relocation and signed space is leased or Federally Forced Moves owned, different provisions in the following table apply: § 102–85.200 Can customer agencies continue occupancy of space or HOLDOVER TENANCY—CUSTOMER AGENCY RE- must they relocate at the end of an SPONSIBILITIES IN THE EVENT OF TENANT OA? DELAY IN VACATING SPACE The answer is contingent upon whether the customer agency is in Fed- In leased space In federally owned space erally owned or leased space. To pay those costs associ- To pay Rent as determined (a) Unless stated otherwise in the ated with lease contract, by GSA’s pricing policy, as OA, a customer agency within a GSA GSA fee, and damages/ described in this part, and controlled, Federally owned building claims, arising from those added costs to GSA changes in GSA contract (claims, damages, has automatic occupancy rights at the costs which are caused by changes, etc.) resulting end of the OA term for occupied space. the tenant’s delay. from the tenant-caused However, a new OA must be negotiated. delay. (b) In leased space, the OA generally reflects the provisions of the under- § 102–85.210 What if a customer agency lying lease and will specify whether or has to relocate? not renewal options are available. If If the agency or GSA determines re- the OA does not include a renewal op- location is necessary at the expiration tion, customer agencies should assume of an OA for either Federally owned or relocation would be necessary upon OA expiration, and budget for it. Further, leased space, the customer agency is renewal options are not, in themselves, responsible for all costs associated a guarantee of continued occupancy at with relocation at that time. that location. In some cases, the renewal rate is substantially above mar- § 102–85.215 What if another customer agency forces a GSA customer to ket or the option was not part of the move? initial price evaluation for the occupancy. In such cases, GSA may be re- If a GSA customer agency, or GSA, quired to run a competition for the re- forces the relocation of another GSA placement lease, and a relocation may customer agency prior to the expira- ensue. Nonetheless, it is also possible tion of the customer’s OA, the ‘‘forc- that GSA may execute a succeeding ing’’ agency is responsible: lease with the incumbent lessor, in (a) For all reasonable costs associ- which case there is no move. ated with the relocation of the agency (c) GSA and customer agencies being ‘‘forced’’ to move, including ar- should initiate discussions at least 18– chitectural-engineering design, move 20 months in advance of OA expiration coordination and physical relocation, to address an action for the replace- telecommunications and ADP equipment or continued occupancy of the ex- ment relocation and installation; isting space assignment. This allows (b) To GSA for all of the relocated both agencies time to budget for the agency’s unpaid tenant improvements, work and the cost. if any; and § 102–85.205 What happens if a cus- (c) To the customer agency for the tomer agency continues occupancy undepreciated amount of any lump sum after the expiration of an OA? payment that was already made by the A mutual goal of GSA and its cus- agency for alterations. tomers is to have current OAs in place for all space assignments. However, provisions are necessary to cover the

327

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00337 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–85.220 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–85.220 Can a customer agency are required. The remedies may include forced to relocate waive the reim- requests for funding authorizations bursements? from OMB and Congress. GSA may Yes, a customer agency forced to reserve as the central coordinator of such locate can waive some or all of the re- remedies. imbursements from the forcing agency (b) Funding responsibility will vary that are prescribed in § 102–85.215. How- by situation. If a customer agency is ever, a relocated customer agency can- only temporarily displaced from its not waive the requirement for the forc- space, GSA typically covers the cost of ing customer agency to reimburse GSA temporary set-up in a provisional loca- for unpaid tenant improvements. If tion. If the agency is obliged to relo- GSA is the ‘‘forcing’’ agency, it is re- cate permanently, an OA will be pre- sponsible for the same costs as any pared which will address all terms of other forcing customer agency. the occupancy. In such cases, new ten- § 102–85.225 What are the funding re- ant improvements will be constructed sponsibilities for relocations result- which can be amortized over the life of ing from emergencies? a new occupancy term, and a new Rent (a) In emergencies, swift remedies, rate will be developed. including the possible relocation of a customer agency to alternate space, PARTS 102–86—102–92 [RESERVED]

328

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00338 Fmt 8010 Sfmt 8006 Q:\41\41V3.TXT ofr150 PsN: PC150 SUBCHAPTER D—TRANSPORTATION

PART 102–116—GENERAL goods or other related transportation [RESERVED] services? Subpart C—Business Rules To Consider Be- PART 102–117—TRANSPORTATION fore Shipping Freight or Household MANAGEMENT Goods 102–117.100 What business rules must I con- Subpart A—General sider before acquiring transportation or related services? Sec. 102–117.105 What does best value mean when 102–117.5 What is transportation manage- routing a shipment? ment? 102–117.110 What is satisfactory service? 102–117.10 What is the scope of this part? 102–117.115 How do I calculate total delivery 102–117.15 To whom does this part apply? costs? 102–117.20 Are any agencies exempt from 102–117.120 To what extent must I equally this part? distribute orders for transportation and 102–117.25 What definitions apply to this related services among TSPs? part? 102–117.125 How detailed must I describe property for shipment when communicating to a TSP? Subpart B—Acquiring Transportation or 102–117.130 Must I select TSPs who use al- Related Services ternative fuels?

102–117.30 What choices do I have when ac- Subpart D—Restrictions That Affect Inter- quiring transportation or related services? national Transportation of Freight and 102–117.35 What are the advantages and dis- Household Goods advantages to using GSA’s tender of 102–117.135 What are the international service? transportation restrictions? 102–117.40 When is it advantageous for me to 102–117.140 What is cargo preference? use another agency’s contract or rate 102–117.145 What are coastwise laws? tender for transportation services? 102–117.150 What do I need to know about 102–117.45 What other factors must I con- coastwise laws? sider when using another agency’s con- 102–117.155 Where do I go for further infor- tract or rate tender? mation about coastwise laws? 102–117.50 What are the advantages and disadvantages of contracting directly with a Subpart E—Shipping Freight TSP under FAR? 102–117.160 What is freight? 102–117.55 What are the advantages and dis- 102–117.165 What shipping process must I use advantages of using a rate tender? for freight? 102–117.60 What is the importance of the 102–117.170 What reference materials are terms and conditions in a rate tender or available to ship freight? other transportation document? 102–117.175 What factors do I consider to de- 102–117.65 What terms and conditions must termine the mode of transportation? all rate tenders or contracts include? 102–117.180 What transportation documents 102–117.70 Where do I find more information must I use to ship freight? on terms and conditions? 102–117.185 Where must I send a copy of the 102–117.75 How do I reference the rate tender transportation documents? 102–117.190 Where do I file a claim for loss or on transportation documents? damage to property? 102–117.80 How are rate tenders filed? 102–117.195 Are there time limits affecting 102–117.85 What is the difference between a filing of a claim? Government bill of lading (GBL) and a bill of lading? Subpart F—Shipping Hazardous Material 102–117.90 May I use a U.S. Government bill (HAZMAT) of lading (GBL) to acquire freight, household goods or other related transpor- 102–117.200 What is HAZMAT? tation services? 102–117.205 What are the restrictions for 102–117.95 What transportation documents transporting HAZMAT? must I use to acquire freight, household 102–117.210 Where can I get guidance on transporting HAZMAT?

329

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00339 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–117.5 41 CFR Ch. 102 (7–1–11 Edition)

Subpart G—Shipping Household Goods Subpart J—Representation Before Regulatory Body Proceedings 102–117.215 What are household goods (HHG)? 102–117.320 What is a transportation regu- 102–117.220 What choices do I have to ship latory body proceeding? HHG? 102–117.325 May my agency appear on its 102–117.225 What is the difference between a own behalf before a transportation regu- contract or rate tender and a commuted latory body proceeding? rate system? 102–117.330 When, or under what cir- 102–117.230 Must I compare costs between a cumstances, would GSA delegate author- contract or rate tender and the com- ity to an agency to appear on its own be- muted rate system before choosing which half before a transportation regulatory method to use? body proceeding? 102–117.235 How do I get a cost comparison? 102–117.335 How does my agency ask for a 102–117.240 What is my agency’s financial delegation to represent itself in a regu- responsibility to an employee who choos- latory body proceeding? es to move all or part of his/her HHG 102–117.340 What other types of assistance under the commuted rate system? may GSA provide agencies in dealing 102–117.245 What is my responsibility in pro- with regulatory bodies? viding guidance to an employee who wishes to use the commuted rate system? Subpart K—Reports 102–117.250 What are my responsibilities 102–117.345 Is there a requirement for me to after shipping the household goods? report to GSA on my transportation ac- 102–117.255 What actions may I take if the tivities? TSP’s performance is not satisfactory? 102–117.350 How will GSA use reports I sub- 102–117.260 What are my responsibilities to mit? employees regarding the TSP’s liability for loss or damage claims? Subpart L—Governmentwide 102–117.265 Are there time limits that affect Transportation Policy Council (GTPC) filing a claim with a TSP for loss or damage? 102–117.355 What is the Governmentwide Transportation Policy Council (GTPC)? Subpart H—Performance Measures 102–117.360 Where can I get more information about the GTPC? 102–117.270 What are agency performance measures for transportation? AUTHORITY: 31 U.S.C. 3726; 40 U.S.C. 481, et seq. Subpart I—Transportation Service Provider SOURCE: 65 FR 60061, Oct. 6, 2000, unless (TSP) Performance otherwise noted. 102–117.275 What performance must I expect from a TSP? Subpart A—General 102–117.280 What aspects of the TSP’s performance are important to measure? § 102–117.5 What is transportation 102–117.285 What are my choices if a TSP’s management? performance is not satisfactory? Transportation management is agen- 102–117.290 What is the difference between temporary nonuse, suspension and debar- cy oversight of the physical movement ment? of commodities, household goods (HHG) 102–117.295 Who makes the decisions on tem- and other freight from one location to porary nonuse, suspension and debar- another by a transportation service ment? provider (TSP). 102–117.300 Do the decisions on temporary nonuse, suspension and debarment go be- § 102–117.10 What is the scope of this yond the agency? part? 102–117.305 Where do I go for information on This part addresses shipping freight the process for suspending or debarring a TSP? and household goods worldwide. 102–117.310 What records must I keep on Freight is property or goods trans- temporary nonuse, suspension or debar- ported as cargo. Household goods are ment of a TSP? not Government property, but are em- 102–117.315 Who must I notify on suspension ployees’ personal property entrusted to or debarment of a TSP? the Government for shipment.

330

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00340 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–117.25

§ 102–117.15 To whom does this part borne cargo to be transported on U.S. apply? flag vessels. This part applies to all agencies and Commuted rate system is the system wholly owned Government corpora- under which an agency may allow its tions as defined in 5 U.S.C. 101 et seq. employees to make their own house- and 31 U.S.C. 9101(3), except those indi- hold goods shipping arrangements, and cated in § 102–117.20. apply for reimbursement. Consignee is the person or agent to § 102–117.20 Are any agencies exempt whom freight or household goods are from this part? delivered. (a) The Department of Defense is ex- Consignor, also referred to as the empted from this part by an agreement shipper, is the person or firm that ships under the Federal Property and Admin- freight or household goods to a con- istrative Services Act of 1949, as signee. amended (40 U.S.C. 481 et seq.), except Contract of carriage is a contract be- for the rules to debar or suspend a TSP tween the TSP and the agency to under the Federal Acquisition Regula- transport freight or household goods. tion (48 CFR part 9, subpart 9.4). Debarment is an action to exclude a (b) Subpart D of this part, covering TSP, for a period of time, from pro- household goods, does not apply to the viding services under a rate tender or uniformed service members, under any contract under the Federal Acqui- Title 37 of the United States Code, sition Regulation (48 CFR part 9, sub- ‘‘Pay and Allowances of the Uniformed part 9.406). Services,’’ including the uniformed Demurrage is the penalty charge to an service members serving in civilian agency for delaying the agreed time to agencies such as the U.S. Coast Guard, load or unload shipments by rail or National Oceanic and Atmospheric Ad- ocean TSPs. ministration and the Public Health Detention is the penalty charge to an Service. agency for delaying the agreed time to load or unload shipments by truck § 102–117.25 What definitions apply to TSPs. It is also a penalty charge in this part? some ocean shipping contracts of car- The following definitions apply to riage that take effect after the demur- this part: rage time ends. Accessorial charges means charges Electronic commerce is an electronic that are applied to the base tariff rate technique for carrying out business or base contract of carriage rate. Ex- transactions (ordering and paying for amples of accessorial charges are: goods and services), including elec- (1) Bunkers, destination/delivery, tronic mail or messaging, Internet container surcharges, and currency ex- technology, electronic bulletin boards, change for international shipments. charge cards, electronic funds trans- (2) Inside delivery, redelivery, re-con- fers, and electronic data interchange. signment, and demurrage or detention Foreign flag vessel is any vessel of for- for freight. eign registry including vessels owned (3) Packing, unpacking, appliance by U.S. citizens but registered in a for- servicing, blocking and bracing, and eign country. special handling for household goods. Freight is property or goods trans- Agency means an executive depart- ported as cargo. ment or independent establishment in Government bill of lading (GBL) is the the executive branch of the Govern- transportation document used as a re- ment, and a wholly owned Government ceipt of goods, evidence of title, and a corporation. contract of carriage for Government Bill of lading, sometimes referred to international shipments. as a commercial bill of lading (but in- Governmentwide Transportation Policy cludes GBLs), is the document used as Council (GTPC) is an interagency forum a receipt of goods and documentary to help GSA formulate policy. It pro- evidence of title. vides agencies managing transpor- Cargo preference is the legal require- tation programs a forum to exchange ment for all, or a portion of all, ocean- information and ideas to solve common

331

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00341 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–117.30 41 CFR Ch. 102 (7–1–11 Edition)

problems. For further information on Suspension is an action taken by an this council, see web site: http:// agency to disqualify a TSP from re- www.policyworks.gov/transportation. ceiving orders for certain services Hazardous material (HAZMAT) is a under a contract or rate tender (48 CFR substance or material the Secretary of part 9, subpart 9.407). Transportation determines to be an un- Transportation document is any exe- reasonable risk to health, safety, and cuted agreement for transportation property when transported in com- service, such as bill of lading, Govern- merce, and labels as hazardous under ment bill of lading (GBL), Government section 5103 of the Federal Hazardous travel request (GTR) or transportation Materials Transportation Law (49 ticket. U.S.C. 5103 et seq.). When transported Transportation service provider (TSP) is internationally hazardous material any party, person, agent or carrier that may be classified as ‘‘Dangerous Goods.’’ All such freight must be provides freight or passenger transpor- marked in accordance with applicable tation and related services to an agen- regulations and the carrier must be no- cy. For a freight shipment this would tified in advance. include packers, truckers and storers. Household goods (HHG) are the per- For passenger transportation this sonal effects of Government employees would include airlines, travel agents and their dependents. and travel management centers. Line-Haul is the movement of freight U.S. flag air carrier is an air carrier between cities excluding pickup and holding a certificate issued by the delivery service. United States under 49 U.S.C. 41102 (49 Mode is a method of transportation, U.S.C. 40118, 48 CFR part 47, subpart such as rail, motor, air, water, or pipe- 47.4). line. U.S. flag vessel is a commercial vessel, Rate schedule is a list of freight rates, registered and operated under the laws taxes, and charges assessed against of the U.S., owned and operated by U.S. non-household goods cargo. citizens, and used in commercial trade Rate tender is an offer a TSP sends to of the United States. an agency, containing service rates and charges. [65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26, Receipt is a written or electronic ac- 2000, as amended at 75 FR 51393, Aug. 20, 2010] knowledgment by the consignee or TSP as to when and where a shipment was Subpart B—Acquiring received. Transportation or Related Services Release/declared value is stated in dollars and is considered the assigned § 102–117.30 What choices do I have value of the cargo for reimbursement when acquiring transportation or purposes, not necessarily the actual related services? value of the cargo. Released value may When you acquire transportation or be more or less than the actual value of related services you may: the cargo. The released value is the (a) Use the GSA tender of service; maximum amount that could be recov- (b) Use another agency’s contract or ered by the agency in the event of loss rate tender with a TSP only if allowed or damage for the shipments of freight by the terms of that agreement or if and household goods. The statement of released value must be shown on any the Administrator of General Services applicable tariff, tender, or other docu- delegates authority to another agency ment covering the shipment. to enter an agreement available to Reparation is a payment to or from other Executive agencies; an agency to correct an improper (c) Contract directly with a TSP transportation billing involving a TSP. using the acquisition procedures under Improper routing, overcharges or dupli- the Federal Acquisition Regulation cate payments may cause such im- (FAR) (48 CFR chapter 1); or proper billing. This is different from a (d) Negotiate a rate tender under a payment to settle a claim for loss and Federal transportation procurement damage. statute, 49 U.S.C. 10721 or 13712.

332

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00342 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–117.55

§ 102–117.35 What are the advantages (d) Ensure that the agency offering and disadvantages of using GSA’s this service has the authority or a dele- tender of service? gation of authority from GSA to offer (a) It is an advantage to use GSA’s such services to your agency. tender of service when you want to: [65 FR 60061, Oct. 6, 2000, as amended at 75 FR (1) Use GSA’s authority to negotiate 51393, Aug. 20, 2010] on behalf of the Federal Government and take advantage of the lower rates § 102–117.50 What are the advantages and optimum service that result from a and disadvantages of contracting larger volume of business; directly with a TSP under the FAR? (2) Use a uniform tender of service; (a) The FAR is an advantage to use (3) Obtain assistance with loss and when: damage claims; and (1) You ship consistent volumes in (4) Use GSA’s Transportation man- consistent traffic lanes; agement and operations expertise. (2) You have sufficient time to follow (b) It is a disadvantage to use GSA’s FAR contracting procedures; and tender of service when: (3) Your contract office is able to (1) You want an agreement that is binding for a longer term than the GSA handle the requirement. tender of service; (b) The FAR may be a disadvantage (2) You have sufficient time to follow when you: FAR contracting procedures and are in (1) Cannot prepare and execute a position to make volume or shipment FAR contract within your time frame; commitments under a FAR contract; (2) Have recurring shipments between (3) You do not want to pay for the designated places, but do not expect GSA administrative service charge as a sufficient volume to obtain favorable participant in the GSA rate tender pro- rates; or grams; and (3) Do not have the manpower to (4) Rates are not cost effective, as de- monitor quality control and administer termined by the agency. a contract. [65 FR 60061, Oct. 6, 2000, as amended at 75 FR [65 FR 60061, Oct. 6, 2000, as amended at 75 FR 51393, Aug. 20, 2010] 51393, Aug. 20, 2010]

§ 102–117.40 When is it advantageous § 102–117.55 What are the advantages for me to use another agency’s con- and disadvantages of using a rate tract or rate tender for transpor- tender? tation services? (a) Using a rate tender is an advan- It is advantageous to use another tage when you: agency’s contract or rate tender for (1) Have a shipment that must be transportation services when the con- made within too short a time frame to tract or rate tender offers better or identify or solicit for a suitable con- equal value than otherwise available to tract; you. (2) Have shipments recurring between § 102–117.45 What other factors must I designated places, but do not expect consider when using another agen- sufficient volume to obtain favorable cy’s contract or rate tender? rates; or When using another agency’s con- (3) Are not in a position to make a tract or rate tender, you must: definite volume and shipment commit- (a) Assure that the contract or rate ment under a FAR contract. tender meets any special requirements (b) Using a rate tender may be a dis- unique to your agency; advantage when: (b) Pay any other charges imposed by (1) You have sufficient time to use the other agency for external use of the FAR and this would achieve better their contract or rate tender; results; (c) Ensure the terms of the other (2) You require transportation serv- agency’s contract or rate tender allow ice for which no rate tender currently you to use it; and exists; or

333

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00343 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–117.60 41 CFR Ch. 102 (7–1–11 Edition)

(3) A TSP may revoke or terminate (e) When using a rate tender for the tender on short notice. transportation under a cost-reimbursable contract, include the following [65 FR 60061, Oct. 6, 2000, as amended at 75 FR statement in the rate tender: 51393, Aug. 20, 2010] Transportation is for the (agency name), § 102–117.60 What is the importance of and the actual total transportation charges terms and conditions in a rate ten- paid to the transportation service provider der or other transportation docu- by the consignor or consignee are to be reim- ment? bursed by the Government pursuant to cost Terms and conditions are important reimbursable contract (number). This may to protect the Government’s interest be confirmed by contacting the agency representative at (name, address and telephone and establish the performance and number). standards expected of the TSP. It is important to remember that terms and (f) Other terms and conditions that conditions are: may be specific to your agency or the (a) Negotiated between the agency TSP such as specialized packaging re- and the TSP before movement of any quirements or HAZMAT. For further item; and information see the ‘‘U.S. Government (b) Included in all contracts and rate Freight Transportation Handbook,’’ tenders listing the services the TSP is available by contacting: offering to perform at the cost pre- General Services Administration, Office of sented in the rate tender or other Travel and Transportation Services, Trans- transportation document. portation Audit Division (QMCA), 2200 Crystal Drive, Room 300, Arlington, VA NOTE TO § 102–117.60: You must reference 22202, http://www.gsa.gov/transaudits. the negotiated contract or rate tender on all transportation documents. For further infor- [65 FR 60061, Oct. 6, 2000, as amended at 75 FR mation see § 102–117.65. 51393, Aug. 20, 2010]

§ 102–117.65 What terms and condi- § 102–117.70 Where do I find more in- tions must all rate tenders or con- formation on terms and conditions? tracts include? You may find more information All rate tenders and contracts must about terms and conditions in part 102– include, at a minimum, the following 118 of this chapter, or the ‘‘U.S. Gov- terms and conditions: ernment Freight Transportation Hand- (a) Charges cannot be prepaid. book’’ (see § 102–117.65(f)). (b) Charges are not paid at time of delivery. § 102–117.75 How do I reference the (c) Interest shall accrue from the rate tender on transportation documents? voucher payment date on overcharges made and shall be paid at the same To ensure proper reference of a rate rate in effect on that date as published tender on all shipments, you must by the Secretary of the Treasury ac- show the applicable rate tender number cording to the Debt Collection Act of and carrier identification on all trans- 1982, 31 U.S.C. 3717. portation documents, such as, section (d) To qualify for the rates specified 13712 quotation, ‘‘ABC Transportation in a rate tender filed under the provi- Company, Tender Number * * *’’. sions of the Federal transportation procurement statutes (49 U.S.C. 10721 § 102–117.80 How are rate tenders or 13712), property must be shipped by filed? or for the Government and the rate (a) The TSP must file an electronic tender must indicate the Government rate tender with your agency. Details is either the consignor or the consignee of what must be included when submit- and include the following statement: ting electronic tenders is located in § 102–118.260(b) of this subchapter. Transportation is for the (agency name) and the total charges paid to the transpor- (b) You must send two copies of the tation service provider by the consignor or rate tender to—General Services Ad- consignee are for the benefit of the Govern- ministration, Federal Supply Service, ment. Audit Division (FBA), 1800 F Street,

334

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00344 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–117.105

NW., Washington, DC 20405, (b) Government bills of lading (GBLs) www.gsa.gov/transaudits. are optional transportation documents for international shipments (including [69 FR 57618, Sept. 24, 2004] domestic offshore shipments). § 102–117.85 What is the difference be- [75 FR 31394, Aug. 20, 2010] tween a Government bill of lading (GBL) and a bill of lading? Subpart C—Business Rules To Con- (a) A Government bill of lading sider Before Shipping Freight (GBL), Optional Forms 1103 or 1203, is a controlled document that conveys spe- or Household Goods cific terms and conditions to protect § 102–117.100 What business rules must the Government interest and serves as I consider before acquiring trans- the contract of carriage. portation or related services? (b) A GBL is used only for inter- When acquiring transportation or re- national shipments. lated services you must: (c) A bill of lading, sometimes re- (a) Use the mode or individual transferred to as a commercial bill of lading, portation service provider (TSP) that establishes the terms of contract be- provides the overall best value to the tween a shipper and TSP. It serves as a agency. For more information, see receipt of goods, a contract of carriage, §§ 102–117.105 through 102–117.130; and documentary evidence of title. (b) Demonstrate no preferential (d) Use a bill of lading for Govern- treatment to any TSP when arranging ment shipments if the specific terms for transportation services except on and conditions of a GBL are included in international shipments. Preference on any contract or rate tender (see § 102– international shipments must be given 117.65) and the bill of lading makes ref- to United States registered commercial erence to that contract or rate tender vessels and aircraft; (see § 102–117.75 and the ‘‘U.S. Govern- (c) Ensure that small businesses re- ment Freight Transportation Hand- ceive equal opportunity to compete for book’’). all business they can perform to the [65 FR 60061, Oct. 6, 2000, as amended at 75 FR maximum extent possible, consistent 51393, Aug. 20, 2010] with the agency’s interest (see 48 CFR part 19); § 102–117.90 May I use a U.S. Govern- (d) Encourage minority-owned busi- ment bill of lading (GBL) to acquire nesses and women-owned businesses, to freight, household goods or other compete for all business they can per- related transportation services? form to the maximum extent possible, You may use the Government bill of consistent with the agency’s interest lading (GBL) only for international (see 48 CFR part 19); shipments (including domestic offshore (e) Review the need for insurance. shipments). Generally, the Government is self-in- [75 FR 31393, Aug. 20, 2010] sured; however, there are instances when the Government will purchase in- § 102–117.95 What transportation docu- surance coverage for Government prop- ments must I use to acquire freight, erty. An example may be cargo insur- household goods or other related ance for international air cargo ship- transportation services? ments to cover losses over those al- (a) Bills of lading and purchase or- lowed under the International Air ders are the transportation documents Transport Association (IATA) or for you use to acquire freight, household ocean freight shipments; and goods shipments, and other transpor- (f) Consider the added requirements tation services. Terms and conditions on international transportation found in § 102–117.65 and the ‘‘U.S. Govern- in subpart D of this part. ment Freight Transportation Hand- book’’ are still required. For further in- § 102–117.105 What does best value formation on payment methods, see mean when routing a shipment? part 102–118 of this chapter (41 CFR Best value to your agency when rout- part 102–118). ing a shipment means using the mode

335

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00345 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–117.110 41 CFR Ch. 102 (7–1–11 Edition)

or individual TSP that provides satis- have equal opportunity to provide the factory service with the best combina- transportation or related services. tion of service factors and price that meets the agency’s requirements. A § 102–117.125 How detailed must I de- lower price may not be the best value scribe property for shipment when communicating to a TSP? if the service offered fails to meet the requirements of the shipment. You must describe property in enough detail for the TSP to determine [75 FR 51394, Aug. 20, 2010] the type of equipment or any special precautions necessary to move the § 102–117.110 What is satisfactory service? shipment. Details might include weight, volume, measurements, rout- You should consider the following ing, hazardous cargo, or special han- factors in assessing whether a TSP of- dling designations. fers satisfactory service: (a) Availability and suitability of the § 102–117.130 Must I select TSPs who TSP’s equipment; use alternative fuels? (b) Adequacy of shipping and receiv- No, but, whenever possible, you are ing facilities at origin and destination; encouraged to select TSPs that use al- (c) Adequacy of pickup and/or deliv- ternative fuel vehicles and equipment, ery service; under policy in the Clean Air Act (d) Availability of accessorial and Amendments of 1990 (42 U.S.C. 7612) or special services; the Energy Policy Act of 1992 (42 U.S.C. (e) Estimated time in transit; 13212). (f) Record of past performance of the TSP, including accuracy of billing and Subpart D—Restrictions That Affect past performance record with Govern- ment agencies; International Transportation of (g) Capability of warehouse equip- Freight and Household ment and storage space; Goods (h) Experience of company, management, and personnel to perform the re- § 102–117.135 What are the international transportation restric- quirements; tions? (i) The TSP’s safety record; and (j) The TSP’s loss and damage record, Several statutes mandate the use of including claims resolution. U.S. flag carriers for international shipments (see 48 CFR part 47, subparts [65 FR 60061, Oct. 6, 2000, as amended at 75 FR 47.4 and 47.5). For example: 51394, Aug. 20, 2010] (a) Arrangements for international air transportation services must follow § 102–117.115 How do I calculate total the Fly America Act (International Air delivery costs? Transportation Fair Competitive Prac- You calculate total delivery costs for tices Act of 1974) (49 U.S.C. 40118); and a shipment by considering all costs re- (b) International movement of prop- lated to the shipping or receiving proc- erty by water is subject to the cargo ess, such as packing, blocking, bracing, preference laws (see 46 CFR part 381 drayage, loading and unloading, and and 48 CFR part 47, subpart 47.5), which transporting. Surcharges such as fuel, require the use of a U.S. flag carrier currency exchange, war risk insurance, when service is available. The Mari- and other surcharges should also be time Administration (MARAD) mon- factored into the costs. itors agency compliance of these laws. [75 FR 51394, Aug. 20, 2010] All Government shippers must send a rated copy of the ocean carrier’s bill of § 102–117.120 To what extent must I lading to MARAD within 30 days of equally distribute orders for trans- loading aboard a vessel to: portation and related services among TSPs? Department of Transportation, Maritime Ad- ministration, Office of Cargo Preference, You must assure that small busi- 1200 New Jersey Ave. SE., Washington, DC nesses, socially or economically dis- 20590, http://marad.dot.gov/. Tel. 1–800–987– advantaged and women-owned TSPs 3524. E-mail: [email protected].

336

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00346 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–117.170

NOTE TO § 102–117.135(b): Non-vessel Oper- § 102–117.155 Where do I go for further ations Common Carrier (NVOCC) or freight information about coastwise laws? forwarder bills of lading are not acceptable (see 48 CFR part 47). They should be attached You may refer to 46 App. U.S.C. 883, to the underlying ocean carrier bill of lading. 19 CFR 4.80, DOT MARAD (800–987–3524 or [email protected]), the U.S. [65 FR 60061, Oct. 6, 2000, as amended at 75 FR Coast Guard or U.S. Customs Service 51394, Aug. 20, 2010] for further information on exceptions to the coastwise laws. § 102–117.140 What is cargo preference? [65 FR 60061, Oct. 6, 2000, as amended at 75 FR Cargo preference is the statutory re- 51394, Aug. 20, 2010] quirement that all, or a portion of all, ocean-borne cargo that moves inter- Subpart E—Shipping Freight nationally be transported on U.S. flag § 102–117.160 What is freight? vessels. Deviations or waivers from the cargo preference laws must be approved Freight is property or goods trans- by: ported as cargo. Department of Transportation, Maritime Ad- § 102–117.165 What shipping process ministration, Office of Cargo Preference, must I use for freight? 1200 New Jersey Ave., SE., Washington, DC Use the following shipping process 20590, http://marad.dot.gov/. Tel. 1–800–987– 3524. E-mail: [email protected]. for freight: (a) For domestic shipments you [65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26, must: 2000, as amended at 75 FR 51394, Aug. 20, 2010] (1) Identify what you are shipping; (2) Decide if the cargo is HAZMAT, § 102–117.145 What are coastwise laws? classified, or sensitive that may re- Coastwise laws refer to laws gov- quire special handling or placards; erning shipment of freight, household (3) Decide mode; goods and passengers by water between (4) Check for applicable contracts or points in the United States or its terri- rate tenders within your agency or tories. The purpose of these laws is to other agencies, including GSA; assure reliable shipping service and the (5) Select the most efficient and eco- existence of a maritime capability in nomical TSP that gives the best value; times of war or national emergency (6) Prepare shipping documents; and (see section 27 of the Merchant Marine (7) Schedule pickup, declare released Act of 1920, 46 App. U.S.C. 883, 19 CFR value and ensure prompt delivery with 4.80). a fully executed receipt, and oversee shipment. § 102–117.150 What do I need to know (b) For international shipments you about coastwise laws? must follow all the domestic proce- You need to know that: dures and, in addition, comply with the (a) Goods transported entirely or cargo preference laws. For specific in- partly by water between U.S. points, formation, see subpart D of this part. either directly or via a foreign port, § 102–117.170 What reference materials must travel in U.S. flag vessels that are available to ship freight? have a coastwise endorsement; (b) There are exceptions and limits (a) The following is a partial list of handbooks and guides available from for the U.S. Island territories and pos- GSA: sessions in the Atlantic and Pacific (1) U.S. Government Freight Trans- Oceans (see § 102–117.155); and portation Handbook; (c) The Secretary of the Treasury is (2) Limited Authority to Use Com- empowered to impose monetary pen- mercial Forms and Procedures; alties against agencies that violate the (3) Submission of Transportation coastwise laws. Documents; and [65 FR 60061, Oct. 6, 2000, as amended at 75 FR (4) Things to be Aware of When Rout- 51394, Aug. 20, 2010] ing or Receiving Freight Shipments.

337

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00347 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–117.175 41 CFR Ch. 102 (7–1–11 Edition)

(b) For the list in paragraph (a) of charges, must be sent to MARAD with- the section and other reference mate- in 30 days of vessel loading. rials, contact: (1) General Services Administration, § 102–117.190 Where do I file a claim Federal Supply Service, Audit Division for loss or damage to property? (FBA), 1800 F Street, NW. Washington, You must file a claim for loss or DC 20405, www.gsa.gov/transaudits; or damage to property with the TSP. (2) General Services Administration, Federal Supply Service, 1500 Bannister § 102–117.195 Are there time limits af- Road, Kansas City, MO 64131, http:// fecting filing of a claim? www.kc.gsa.gov/fsstt. Yes, several statutes limit the time [65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26, for administrative or judicial action 2000, as amended at 69 FR 57618, Sept. 24, against a TSP. Refer to part 102–118 of 2004] this chapter for more information and § 102–117.175 What factors do I con- the time limit tables. sider to determine the mode of transportation? Subpart F—Shipping Hazardous Your shipping urgency and any spe- Material (HAZMAT) cial handling requirements determine which mode of transportation you se- § 102–117.200 What is HAZMAT? lect. Each mode has unique requirements for documentation, liability, HAZMAT is a substance or material size, weight and delivery time. the Secretary of Transportation deter- HAZMAT, radioactive, and other spe- mines to be an unreasonable risk to cialized cargo may require special per- health, safety and property when mits and may limit your choices. transported in commerce. Therefore, there are restrictions on transporting § 102–117.180 What transportation doc- HAZMAT (49 U.S.C. 5103 et seq.). uments must I use to ship freight? To ship freight: § 102–117.205 What are the restrictions (a) By land (domestic shipments), use for transporting HAZMAT? a bill of lading; Agencies that ship HAZMAT are sub- (b) By land (international ship- ject to the Environmental Protection ments), you may, but are not required Agency and the Department of Trans- to, use the optional GBL; portation regulations, as well as appli- (c) By ocean, use an ocean bill of lad- cable State and local government rules ing, when suitable, along with the GBL. You only need an ocean bill of and regulations. lading for door-to-door movements; and § 102–117.210 Where can I get guidance (d) By air, use a bill of lading. on transporting HAZMAT? [65 FR 60061, Oct. 6, 2000, as amended at 75 FR The Secretary of Transportation pre- 51394, Aug. 20, 2010] scribes regulations for the safe trans- § 102–117.185 Where must I send a portation of HAZMAT in intrastate, copy of the transportation docu- interstate, and foreign commerce in 49 ments? CFR parts 171 through 180. The Envi- (a) You must forward an original ronmental Protection Agency also pre- copy of all transportation documents scribes regulations on transporting to: HAZMAT in 40 CFR parts 260 through General Services Administration 266. You may also call the HAZMAT in- Federal Supply Service formation hotline at 1–800–467–4922 Audit Division (FBA) (Washington, DC area, call 202–366– 1800 F Street, NW. 4488). Washington, DC 20405 (b) For all property shipments subject to the cargo preference laws (see § 102–117.140), a copy of the ocean carrier’s bill of lading, showing all freight

338

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00348 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–117.235

Subpart G—Shipping Household § 102–117.225 What is the difference Goods between a contract or a rate tender and a commuted rate system? § 102–117.215 What are household (a) Under a contract or a rate tender, goods (HHG)? the agency prepares the bill of lading Household goods (HHG) are the per- and books the shipment. The agency is sonal effects of Government employees the shipper and pays the TSP the applicable charges. If loss or damage occurs, and their dependents. the agency may either file a claim on § 102–117.220 What choices do I have behalf of the employee directly with to ship HHG? the TSP, or help the employee in filing a claim against the TSP. (a) You may choose to ship HHG by: (b) Under the commuted rate system (1) Using the commuted rate system; an employee arranges for shipping HHG (2) GSA’s Centralized Household and is reimbursed by the agency for the Goods Traffic Management Program resulting costs. Use this method only (CHAMP); within the continental United States (3) Contracting directly with a TSP, (not Hawaii or Alaska). The agency re- (including a relocation company that imburses the employee according to offers transportation services) using the Commuted Rate Schedule pub- the acquisition procedures under the lished by the GSA. The Commuted Federal Acquisition Regulation (FAR) Rate Schedule (without rate table) is (see § 102–117.35); available on the Internet at http:// (4) Using another agency’s contract www.policyworks.gov. with a TSP (see §§ 102–117.40 and 102– (c) For rate table information or a 117.45); subscription for the Commercial Relo- cation Tariff contact: (5) Using a rate tender under the Fed- eral transportation procurement stat- American Moving and Storage Association utes (49 U.S.C. 10721 or 13712) (see § 102– 1611 Duke Street 117.35). Alexandria, VA 22314–3482 Tel. 703–683–7410 (b) As an alternative to the choices in paragraph (a) of this section, you (d) For further information or assist- may request the Department of State ance, you may contact: to assist with shipments of HHG mov- General Services Administration ing to, from, and between foreign coun- National Customer Service Center tries or international shipments origi- 1500 Bannister Road nating in the continental United Kansas City, MO 64131 States. The nearest U.S. Embassy or http://www.kc.gsa.gov/fsstt Consulate may assist with arrange- § 102–117.230 Must I compare costs be- ments of movements originating tween a contract or a rate tender abroad. For further information con- and the commuted rate system be- tact: fore choosing which method to use? Department of State Yes, you must compare the cost be- Transportation Operations tween a contract or a rate tender, and 2201 C Street, NW. the commuted rate system before you Washington, DC 20520 make a decision. NOTE TO § 102–117–220: Agencies must use § 102–117.235 How do I get a cost com- the commuted rate system for civilian em- parison? ployees who transfer between points inside the continental United States unless it is (a) You may calculate a cost com- evident from the cost comparison that the parison internally according to 41 CFR Government will incur a savings ($100 or 302–8.3. more) using another choice listed. The use of (b) You may request GSA to perform household goods rate tenders is not author- the cost comparison if you participate ized when household goods are shipped under in the CHAMP program by sending the commuted rate system. GSA the following information as far [65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26, in advance as possible (preferably 30 2000] calendar days):

339

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00349 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–117.240 41 CFR Ch. 102 (7–1–11 Edition)

(1) Name of employee; § 102–117.250 What are my responsibil- (2) Origin city, county and State; ities after shipping the household (3) Destination city, county, and goods? State; (a) Each agency should develop an (4) Date of household goods pick up; evaluation survey for the employee to (5) Estimated weight of shipments; complete following the move. (6) Number of days storage-in-transit (b) Under the CHAMP program, you (if applicable); and must counsel employees to fill out (7) Other relevant data. their portion of the GSA Form 3080, (c) For more information on cost Household Goods Carrier Evaluation comparisons contact: Report. This form reports the quality of the TSP’s performance. After com- General Services Administration pleting the appropriate sections of this Federal Supply Service form, the employee must send it to the 1500 Bannister Road bill of lading issuing officer who in Kansas City, MO 64131 turn will complete the form and for- http://www.kc.gsa.gov/fsstt ward it to: NOTE TO § 102–117.235(c): GSA may charge General Services Administration an administrative fee for agencies not par- National Customer Service Center ticipating in the CHAMP program. 1500 Bannister Rd. Kansas City, MO 64131 § 102–117.240 What is my agency’s fi- http://www.kc.gsa.gov/fsstt nancial responsibility to an employee who chooses to move all or [65 FR 60060, Oct. 6, 2000; 65 FR 81405, Dec. 26, part of his/her HHG under the com- 2000] muted rate system? § 102–117.255 What actions may I take (a) Your agency is responsible for re- if the TSP’s performance is not sat- imbursing the employee what it would isfactory? cost the Government to ship the em- If the TSP’s performance is not satis- ployee’s HHG by the most cost-effec- factory, you may place a TSP in tem- tive means available or the employee’s porary nonuse, suspended status, or actual moving expenses, whichever is debarred status. For more information less. on doing this, see subpart I of this part (b) The employee is liable for the ad- and the FAR (48 CFR 9.406–3 and 9.407– ditional cost when the cost of transpor- 3). tation arranged by the employee is more than what it would cost the Gov- § 102–117.260 What are my responsibil- ernment. ities to employees regarding the TSP’s liability for loss or damage NOTE TO § 102–117.240: For information on claims? how to ship household goods, refer to the Regarding the TSP’s liability for loss Federal Travel Regulation, 41 CFR part 302– or damage claims, you must: 7, Transportation and Temporary Storage of (a) Advise employees on the limits of Household Goods and Professional Books, Papers, and Equipment (PBP&E). the TSP’s liability for loss of and damage to their HHG so the employee may [65 FR 60061, Oct. 6, 2000, as amended at 75 FR evaluate the need for added insurance; 51394, Aug. 20, 2010] (b) Inform the employee about the procedures to file claims for loss and § 102–117.245 What is my responsibility damage to HHG with the TSP; and in providing guidance to an employee who wishes to use the com- (c) Counsel employees, who have a muted rate system? loss or damage to their HHG that exceeds the amount recovered from a You must counsel employees that TSP, on procedures for filing a claim they may be liable for all costs above against the Government for the dif- the amount reimbursed by the agency ference. Agencies may compensate em- if they select a TSP that charges more ployees up to $40,000 on claims for loss than provided under the Commuted and damage under 31 U.S.C. 3721, 3723 Rate Schedule. (41 CFR 302–8.2(f)).

340

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00350 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–117.290

§ 102–117.265 Are there time limits § 102–117.280 What aspects of the that affect filing a claim with a TSP TSP’s performance are important to for loss or damage? measure? Yes, several statutes limit the time Important TSP performance meas- for filing claims or taking other ad- ures may include, but are not limited ministrative or judicial action against to the: a TSP. Refer to part 102–118 of this (a) TSP’s percentage of on-time de- chapter for information on claims. liveries; (b) Percentage of shipments that include overcharges or undercharges; Subpart H—Performance (c) Percentage of claims received in a Measures given period; (d) Percentage of returns received on- § 102–117.270 What are agency per- time; formance measures for transpor- (e) Percentage of shipments rejected; tation? (f) Percentage of billing impropri- (a) Agency performance measures are eties; indicators of how you are supporting (g) Average response time on tracing your customers and doing your job. By shipments; tracking performance measures you (h) TSP’s safety record (accidents, can report specific accomplishments losses, damages or misdirected ship- and your success in supporting the ments) as a percentage of all ship- agency mission. The Government Per- ments; formance and Results Act (GPRA) of (i) TSP’s driving record (accidents, 1993 (31 U.S.C. 1115) requires agencies to traffic tickets and driving complaints) develop business plans and set up pro- as a percentage of shipments; and gram performance measures. (j) Percentage of customer satisfac- (b) Examples of performance meas- tion reports on carrier performance. urements in transportation would in- § 102–117.285 What are my choices if a clude how well you: TSP’s performance is not satisfac- (1) Increase the use of electronic tory? commerce; You may choose to place a TSP in (2) Adopt industry best practices and temporary nonuse, suspension, or de- services to meet your agency require- barment if performance is unsatisfac- ments; tory. (3) Use TSPs with a track record of successful past performance or proven § 102–117.290 What is the difference superior ability; between temporary nonuse, suspen- (4) Take advantage of competition in sion and debarment? moving agency freight and household (a) Temporary nonuse is limited to goods; your agency and initiated by the agen- (5) Assure that delivery of freight and cy transportation officers for a period household goods is on time against not to exceed 90 days for: measured criteria; and (1) Willful violations of the terms of (6) Create simplified procedures to be the rate tender; responsive and adaptive to the cus- (2) Persistent or willful failure to tomer needs and concerns. meet requested packing and pickup service; (3) Failure to meet required delivery Subpart I—Transportation Service dates; Provider (TSP) Performance (4) Violation of Department of Trans- portation (DOT) hazardous material § 102–117.275 What performance must I regulations; expect from a TSP? (5) Mishandling of freight, damaged You must expect the TSP to provide or missing transportation seals, im- consistent and satisfactory service to proper loading, blocking, packing or meet your agency transportation bracing of property; needs. (6) Improper routing of property;

341

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00351 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–117.295 41 CFR Ch. 102 (7–1–11 Edition)

(7) Subjecting your shipments to un- ment. Only the agency head or his/her lawful seizure or detention by failing designee may suspend or debar a TSP. to pay debts; (8) Operating without legal author- § 102–117.300 Do the decisions on tem- ity; porary nonuse, suspension and de- (9) Failure to settle claims according barment go beyond the agency? to Government regulations; or (a) Temporary nonuse does not go be- (10) Repeated failure to comply with yond the agency. regulations of DOT, Surface Transpor- (b) Decisions on suspended or tation Board, State or local govern- debarred TSPs do go beyond the agency ments or other Government agencies. and are available to the general public (b) Suspension is disqualifying a TSP on the Excluded Parties Lists System from receiving orders for certain serv- (EPLS) maintained by GSA at http:// ices under a contract or rate tender www.epls.gov. pending an investigation or legal pro- [65 FR 60061, Oct. 6, 2000, as amended at 75 FR ceeding. A TSP may be suspended on 51394, Aug. 20, 2010] adequate evidence of: (1) Fraud or a criminal offense in § 102–117.305 Where do I go for infor- connection with obtaining, attempting mation on the process for sus- to obtain, or performing a contract for pending or debarring a TSP? transportation; Refer to the Federal Acquisition Reg- (2) Violation of Federal or State anti- ulation (48 CFR part 9, subpart 9.4) for trust statutes; policies and procedures governing sus- (3) Embezzlement, theft, forgery, pension and debarment of a TSP. bribery, falsification or destruction of records, making false statements, or § 102–117.310 What records must I receiving stolen property; and keep on temporary nonuse, suspen- (4) Any other offense indicating a sion or debarment of a TSP? lack of business integrity or business (a) You must set up a program con- honesty that seriously and directly af- sistent with your agency’s internal fects the present responsibility of the record retention procedures to docu- TSP as a transporter of the Govern- ment the placement of TSPs in a non- ment’s property or the HHG of its em- use, suspended or debarred status. ployees relocated for the Government. (b) For temporary nonuse, your (c) Debarment means action taken to records must contain the following in- exclude a contractor from contracting formation: with all Federal agencies. The serious- (1) Name, address, and Standard Car- ness of the TSP’s acts or omissions and rier Alpha Code and Taxpayer Identi- the mitigating factors must be consid- fication Number of each TSP placed in ered in making any debarment deci- temporary nonuse status; sions. A TSP may be debarred for the (2) The duration of the temporary following reasons: nonuse status; (1) Failure of a TSP to take the nec- (3) The cause for imposing temporary essary corrective actions within the pe- nonuse, and the facts showing the ex- riod of temporary nonuse; or istence of such a cause; (2) Conviction of or civil judgment (4) Information and arguments in op- for any of the causes for suspension. position to the temporary nonuse period sent by the TSP or its representa- § 102–117.295 Who makes the decisions tive; and on temporary nonuse, suspension (5) The reviewing official’s deter- and debarment? mination about keeping or removing (a) The transportation officer may temporary nonuse status. place a TSP in temporary nonuse for a (c) For suspended or debarred TSPs, period not to exceed 90 days. your records must include the same in- (b) The serious nature of suspension formation as paragraph (b) of this sec- and debarment requires that these tion and you must: sanctions be imposed only in the public (1) Assure your agency does not interest for the Government’s protec- award contracts to a suspended or tion and not for purposes of punish- debarred TSP; and

342

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00352 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–117.345

(2) Notify GSA (see § 102–117.315). § 102–117.335 How does my agency ask for a delegation to represent itself § 102–117.315 Whom must I notify on in a regulatory body proceeding? suspension or debarment of a TSP? You must send your request for dele- Agencies must report electronically gation with enough detail to explain any suspension or debarment actions the circumstances surrounding the to the Excluded Parties List System: need for delegation of authority for http://www.epls.gov in accordance with representation to: the provisions of 48 CFR 9.404(c). General Services Administration Office of Travel, Transportation and Asset [75 FR 51394, Aug. 20, 2010] Management (MT) 1800 F Street, NW. Subpart J—Representation Before Washington, DC 20405 Regulatory Body Proceedings [65 FR 60061, Oct. 6, 2000, as amended at 75 FR 51394, Aug. 20, 2010] § 102–117.320 What is a transportation regulatory body proceeding? § 102–117.340 What other types of assistance may GSA provide agencies A transportation regulatory body in dealing with regulatory bodies? proceeding is a hearing before a trans- (a) GSA has oversight of all public portation governing entity, such as a utilities used by the Federal Govern- State public utility commission, the ment including transportation. There Surface Transportation Board, or the are specific regulatory requirements a Federal Maritime Commission. The TSP must meet at the State level, such proceeding may be at the Federal or as the requirement to obtain a certifi- State level depending on the activity cate of public convenience and neces- regulated. sity. (b) GSA has a list of TSPs, which § 102–117.325 May my agency appear meet certain criteria regarding insur- on its own behalf before a transpor- ance and safety, approved by DOT. You tation regulatory body proceeding? must furnish GSA with an affidavit to Generally, no executive agency may determine if the TSP meets the basic appear on its own behalf in any pro- qualification to protect the Govern- ceeding before a transportation regu- ment’s interest. As an oversight man- latory body, unless the Administrator date, GSA coordinates this function. For further information contact: of General Services delegates the authority to the agency. The statutory General Services Administration, Office of authority for the Administrator of Travel and Transportation Services, Cen- General Services to participate in reg- ter for Transportation Management (QMCC), 2200 Crystal Drive, Rm. #3042, Ar- ulatory proceedings on behalf of all lington, VA 20406. Federal agencies is in section 201(a)(4) [65 FR 60061, Oct. 6, 2000, as amended at 75 FR of the Federal Property and Adminis- 51394, Aug. 20, 2010] trative Services Act of 1949, as amended (40 U.S.C. 481(a)(4)). Subpart K—Reports § 102–117.330 When, or under what cir- § 102–117.345 Is there a requirement cumstances, would GSA delegate for me to report to GSA on my authority to an agency to appear on transportation activities? its own behalf before a transportation regulatory body proceeding? (a) There is no requirement for reporting to GSA on your transportation GSA will delegate authority when it activities. However, GSA will work does not have the expertise, or when it with your agency and other agencies to is outside of GSA’s purview, to make a develop reporting requirements and determination on an issue such as a procedures. protest of rates, routings or excessive (b) Preliminary reporting require- charges. ments may include an electronic for- matted report on the quantity shipped, locations (from and to) and cost of

343

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00353 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–117.350 41 CFR Ch. 102 (7–1–11 Edition)

transportation. The following cat- (b) Provides assistance to your agen- egories are examples: cy with the requirement to report your (1) Dollar amount spent for transpor- transportation activity to GSA (see tation; § 102–117.345). (2) Volume of weight shipped; [65 FR 60061, Oct. 6, 2000, as amended at 75 FR (3) Commodities shipped; 51395, Aug. 20, 2010] (4) HAZMAT shipped; (5) Mode used for shipment; § 102–117.360 Where can I get more in- (6) Location of items shipped (inter- formation about the GTPC? national or domestic); and For more information about the (7) Domestic subdivided by East and GTPC, contact: West (Interstate 85). General Services Administration [65 FR 60061, Oct. 6, 2000, as amended at 75 FR Office of Travel, Transportation and Asset 51394, Aug. 20, 2010] Management (MT) 1800 F Street, NW. § 102–117.350 How will GSA use re- Washington, DC 20405 ports I submit? http://www.policyworks.gov/transportation (a) Reporting on transportation and [65 FR 60061, Oct. 6, 2000, as amended at 75 FR transportation related services will 51395, Aug. 20, 2010] provide GSA with: (1) The ability to assess the mag- PART 102–118—TRANSPORTATION nitude and key characteristics of PAYMENT AND AUDIT transportation within the Government (e.g., how much agencies spend; what Subpart A—General type of commodity is shipped; etc.); (2) Data to analyze and recommend INTRODUCTION changes to policies, standards, prac- Sec. tices, and procedures to improve Gov- 102–118.5 What is the purpose of this part? ernment transportation; and 102–118.10 What is a transportation audit? (3) A better understanding of how 102–118.15 What is a transportation pay- your activity relates to other agencies ment? and your influence on the Government- 102–118.20 Who is subject to this part? wide picture of transportation services. 102–118.25 Does GSA still require my agency (b) In addition, this information will to submit its overall transportation policies for approval? assist you in showing your manage- 102–118.30 Are Government corporations ment the magnitude of your agency’s bound by this part? transportation program and the effectiveness of your efforts to control cost DEFINITIONS and improve service. 102–118.35 What definitions apply to this part? Subpart L—Governmentwide Subpart B—Ordering and Paying for Transportation Policy Council Transportation and Transportation Services (GTPC) 102–118.40 How does my agency order trans- § 102–117.355 What is the Government- portation and transportation services? wide Transportation Policy Council 102–118.45 How does a transportation service (GTPC)? provider (TSP) bill my agency for transportation and transportation services? The Office of Governmentwide Policy 102–118.50 How does my agency pay for sponsors a Governmentwide Transpor- transportation services? tation Policy Council (GTPC) to help 102–118.55 What administrative procedures agencies establish, improve, and main- must my agency establish for payment of tain effective transportation manage- freight, household goods, or other trans- ment policies, practices and proce- portation services? dures. The council: 102–118.60 To what extent must my agency (a) Collaborates with private and use electronic commerce? 102–118.65 Can my agency receive electronic public stakeholders to develop valid billing for payment of transportation performance measures and promote so- services? lutions that lead to effective results; 102–118.70 Must my agency make all pay- and ments via electronic funds transfer?

344

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00354 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–118

102–118.75 What if my agency or the TSP Subpart C—Use of Government Billing does not have an account with a finan- Documents cial institution or approved payment agent? TERMS AND CONDITIONS GOVERNING ACCEPT- 102–118.80 Who is responsible for keeping my ANCE AND USE OF A GOVERNMENT BILL OF agency’s electronic commerce transpor- LADING (GBL) OR GOVERNMENT TRANSPOR- tation billing records? TATION REQUEST (GTR) (UNTIL FORM RE- 102–118.85 Can my agency use a Government TIREMENT) contractor issued charge card to pay for 102–118.185 When buying freight transpor- transportation services? tation, must my agency reference the ap- 102–118.90 If my agency orders transpor- plicable contract or tender on the bill of tation and/or transportation services lading (including GBLs)? with a Government contractor issued 102–118.190 When buying passenger transpor- charge card or charge account citation, tation, must my agency reference the apis this subject to prepayment audit? plicable contract? 102–118.91 May my agency authorize the use 102–118.195 What documents must a trans- of cash? portation service provider (TSP) send to 102–118.92 How does my agency handle re- receive payment for a transportation ceipts, tickets or other records of cash billing? payments? 102–118.200 Can a TSP demand advance pay- 102–118.95 What forms can my agency use to ment for the transportation charges submitted on a bill of lading (including pay transportation bills? GBL)? 102–118.100 What must my agency ensure is 102–118.205 May my agency pay a subcon- on each SF 1113? tractor or agent functioning as a ware- 102–118.105 Where can I find the rules gov- houseman for the TSP providing service erning the use of a Government Bill of under the bill of lading? Lading? 102–118.210 May my agency use bills of lad- 102–118.110 Where can I find the rules gov- ing other than the GBL for a transpor- erning the use of a Government Trans- tation shipment? portation Request? 102–118.215 May my agency pay a TSP any 102–118.115 Must my agency use a GBL? extra fees to pay for the preparation and 102–118.120 Must my agency use a GTR? use of the GBL or GTR? 102–118.125 What if my agency uses a TD 102–118.220 If a transportation debt is owed other than a GBL? to my agency by a TSP because of loss or 102–118.130 Must my agency use a GBL for damage to property, does my agency re- express, courier, or small package ship- port it to GSA? ments? 102–118.225 What constitutes final receipt of 102–118.135 Where are the mandatory terms shipment? and conditions governing the use of bills 102–118.230 What if my agency creates or of lading? eliminates a field office approved to pre- 102–118.140 What are the major mandatory pare transportation documents? terms and conditions governing the use AGENCY RESPONSIBILITIES WHEN USING GOV- of GBLs and bills of lading? ERNMENT BILLS OF LADING (GBLS) OR GOV- 102–118.145 Where are the mandatory terms ERNMENT TRANSPORTATION REQUESTS and conditions governing the use of pas- (GTRS) senger transportation documents? 102–118.150 What are the major mandatory 102–118.235 Must my agency keep physical control and accountability of the GBL terms and conditions governing the use and GTR forms or GBL and GTR num- of passenger transportation documents? bers? 102–118.155 How does my agency handle sup- 102–118.240 How does my agency get GBL plemental billings from the TSP after and GTR forms? payment of the original bill? 102–118.245 How does my agency get an as- 102–118.160 Who is liable if my agency signed set of GBL or GTR numbers? makes an overpayment on a transpor- 102–118.250 Who is accountable for the tation bill? issuance and use of GBL and GTR forms? 102–118.165 What must my agency do if it 102–118.255 Are GBL and GTR forms num- finds an error on a TSP bill? bered and used sequentially? 102–118.170 Will GSA continue to maintain a centralized numbering system for Gov- QUOTATIONS, TENDERS OR CONTRACTS ernment transportation documents? 102–118.260 Must my agency send all quotations, tenders, or contracts with a TSP to GSA?

345

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00355 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–118 41 CFR Ch. 102 (7–1–11 Edition)

102–118.260 Must my agency send all 102–118.365 Do the requirements of a prepay- quotations, tenders, or contracts with a ment audit change the disbursing offi- TSP to GSA? cial’s liability for overpayment? 102–118.370 Where does relief from prepay- Subpart D—Prepayment Audits of ment audit liability for certifying, ac- Transportation Services countable, and disbursing officers reside in my agency? AGENCY REQUIREMENTS FOR PREPAYMENT AUDITS WAIVERS FROM MANDATORY PREPAYMENT AUDIT 102–118.265 What is a prepayment audit? 102–118.270 Must my agency establish a pre- 102–118.375 Who has the authority to grant a payment audit program? waiver of the prepayment audit require- 102–118.275 What must my agency consider ment? when designing and implementing a pre- 102–118.380 How does my agency apply for a payment audit program? waiver from the prepayment audit re- 102–118.280 What advantages does the pre- quirement? payment audit offer my agency? 102–118.385 What must a waiver request in- 102–118.285 What options for performing a clude? prepayment audit does my agency have? 102–118.390 On what basis does GSA grant a 102–118.290 Must every electronic and paper waiver to the prepayment audit require- transportation bill undergo a prepayment? ment audit? 102–118.395 How long will GSA take to re- 102–118.295 What are the limited exceptions spond to a waiver request? to every bill undergoing a prepayment 102–118.400 Must my agency renew a waiver audit? of the prepayment audit requirements? 102–118.300 How does my agency fund its 102–118.405 Are my agency’s prepayment au- prepayment audit program? dited transportation bills subject to peri- 102–118.305 Must my agency notify the TSP odic postpayment audit oversight from of any adjustment to the TSP’s bill? the GSA Audit Division? 102–118.310 Must my agency prepayment audit program establish appeal proce- SUSPENSION OF AGENCY PREPAYMENT AUDIT dures whereby a TSP may appeal any re- PROGRAMS duction in the amount billed? 102–118.410 Can GSA suspend my agency’s 102–118.315 What must my agency do if the prepayment audit program? TSP disputes the findings and my agency cannot resolve the dispute? Subpart E—Postpayment Transportation 102–118.320 What information must be on Audits transportation bills which have completed my agency’s prepayment audit? 102–118.415 Will the widespread mandatory use of prepayment audits eliminate MAINTAINING AN APPROVED PROGRAM postpayment audits? 102–118.325 Must I get approval for my agen- 102–118.420 Can the Administrator of Gen- cy’s prepayment audit program? eral Services waive the postpayment au- 102–118.330 What are the elements of an ac- diting provisions of this subpart? ceptable prepayment audit program? 102–118.425 Is my agency allowed to perform 102–118.335 What does the GSA Audit Divi- a postpayment audit on our transpor- sion consider when verifying an agency tation bills? prepayment audit program? 102–118.430 What information must be on my 102–118.340 How does my agency contact the agency’s transportation bills submitted GSA Audit Division? for a postpayment audit? 102–118.345 If my agency chooses to change 102–118.435 What procedures does GSA use to an approved prepayment audit program, perform a postpayment audit? does the program need to be re-approved? 102–118.440 What are the postpayment audit responsibilities and roles of the GSA LIABILITY FOR CERTIFYING AND DISBURSING Audit Division? OFFICERS 102–118.445 Must my agency pay for a 102–118.350 Does establishing a prepayment postpayment audit when using the GSA audit system or program change the re- Audit Division? sponsibilities of the certifying officers? 102–118.355 Does a prepayment audit waiver, Subpart F—Claims and Appeal Procedures change any liabilities of the certifying GENERAL AGENCY INFORMATION FOR ALL officer? CLAIMS 102–118.360 What relief from liability is available for the certifying official under 102–118.450 Can a TSP file a transportation a postpayment audit? claim against my agency?

346

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00356 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation Pt. 102–118

102–118.445 What is the time limit for a TSP 102–118.565 What documentation is required to file a transportation claim against my when filing an administrative claim? agency? 102–118.460 What is the time limit for my TRANSPORTATION SERVICE PROVIDER (TSP) agency to file a court claim with a TSP AND AGENCY APPEAL PROCEDURES FOR PRE- for freight charges, reparations, and loss PAYMENT AUDITS or damage to the property? 102–118.570 If my agency denies the TSP’s 102–118.465 Must my agency pay interest on challenge to the Statement of Difference, a disputed amount claimed by a TSP? may the TSP appeal? 102–118.470 Are there statutory time limits 102–118.575 If a TSP disagrees with the deci- for a TSP on filing an administrative sion of my agency, can the TSP appeal? claim with the GSA Audit Division? 102–118.580 May a TSP appeal a prepayment 102–118.475 Does interest apply after certifi- audit decision of the GSA Audit Divi- cation of payment of claims? sion? 102–118.480 How does my agency settle dis- 102–118.585 May a TSP appeal a prepayment putes with a TSP? audit decision of the CBCA? 102–118.485 Is there a time limit for my 102–118.590 May my agency appeal a prepay- agency to issue a decision on disputed ment audit decision of the GSA Audit Di- claims? vision? 102–118.490 What if my agency fails to settle 102–118.595 May my agency appeal a prepay- a dispute within 30 days? ment audit decision by the CBCA? 102–118.495 May my agency appeal a decision by the Civilian Board of Contract Ap- TRANSPORTATION SERVICE PROVIDER (TSP) peals (CBCA)? AND AGENCY APPEAL PROCEDURES FOR 102–118.500 How does my agency handle a POSTPAYMENT AUDITS voluntary refund submitted by a TSP? 102–118.600 When a TSP disagrees with a No- 102–118.505 Must my agency send a vol- tice of Overcharge resulting from a untary refund to the Treasurer of the postpayment audit, what are the appeal United States? procedures? 102–118.510 Can my agency revise or alter a 102–118.605 What if a TSP disagrees with the GSA Form 7931, Certificate of Settle- Notice of Indebtedness? ment? 102–118.610 Is a TSP notified when GSA al- 102–118.515 Does my agency have any re- lows a claim? course not to pay a Certificate of Settle- 102–118.615 Will GSA notify a TSP if they ment? internally offset a payment? 102–118.520 Who is responsible for deter- 102–118.620 How will a TSP know if the GSA mining the standards for collection, com- Audit Division disallows a claim? promise, termination, or suspension of 102–118.625 Can a TSP request a reconsider- collection action on any outstanding ation of a settlement action by the GSA debts to my agency? Audit Division? 102–118.525 What are my agency’s respon- 102–118.630 How must a TSP refund amounts sibilities for verifying the correct due to GSA? amount of transportation charges? 102–118.635 Can the Government charge in- 102–118.530 Will GSA instruct my agency’s terest on an amount due from a TSP? disbursing offices to offset unpaid TSP 102–118.640 If a TSP fails to pay or to appeal billings? an overcharge, what actions will GSA 102–118.535 Are there principles governing pursue to collect the debt? my agency’s TSP debt collection proce- 102–118.645 Can a TSP file an administrative dures? claim on collection actions? 102–118.540 Who has the authority to audit, 102–118.650 Can a TSP request a review of a settle accounts, and/or start collection settlement action by the Administrator action for all transportation services of General Services? provided for my agency? 102–118.655 Are there time limits on a TSP request for an administrative review by TRANSPORTATION SERVICE PROVIDER (TSP) the CBCA? FILING REQUIREMENTS 102–118.660 May a TSP appeal a 102–118.545 What information must a TSP postpayment audit decision of the CBCA? claim include? 102–118.665 May my agency appeal a 102–118.550 How does a TSP file an adminis- postpayment audit decision by the trative claim using EDI or other elec- CBCA? tronic means? TRANSPORTATION SERVICE PROVIDER (TSP) 102–118.555 Can a TSP file a supplemental NON-PAYMENT OF A CLAIM administrative claim? 102–118.560 What is the required format that 102–118.670 If a TSP cannot immediately pay a TSP must use to file an administrative a debt, can they make other arrange- claim? ments for payment?

347

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00357 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.5 41 CFR Ch. 102 (7–1–11 Edition)

102–118.675 What recourse does my agency noted in § 102–118.325, agencies must have if a TSP does not pay a transpor- submit their prepayment audit plans tation debt? for approval. In addition, GSA may AUTHORITY: 31 U.S.C. 3726; and 40 U.S.C. 481, from time to time request to examine et seq. your agency’s transportation policies SOURCE: 65 FR 24569, Apr. 26, 2000, unless to verify the correct performance of otherwise noted. the prepayment audit of your agency’s transportation bills. Subpart A—General § 102–118.30 Are Government corpora- INTRODUCTION tions bound by this part? No, Government corporations are not § 102–118.5 What is the purpose of this bound by this part. However, they may part? choose to use it if they wish. The purpose of this part is to interpret statutes and other policies that DEFINITIONS assure that payment and payment mechanisms for agency transportation § 102–118.35 What definitions apply to services are uniform and appropriate. this part? This part communicates the policies The following definitions apply to clearly to agencies and transportation this part: service providers (TSPs). (See § 102– Agency, as used in this part, means a 118.35 for the definition of TSP.) department, agency, or instrumentality of the United States Govern- § 102–118.10 What is a transportation audit? ment. Agency claim means any demand by A transportation audit is a thorough an agency upon a TSP for the payment review and validation of transportation of overcharges, ordinary debts, fines, related bills. The audit must examine penalties, administrative fees, special the validity, propriety, and conformity charges, and interest. of the charges with tariffs, quotations, Bill of lading, sometimes referred to agreements, or tenders, as appropriate. as a commercial bill of lading (but in- Each agency must ensure that its includes GBLs), is the document used as ternal transportation audit procedures a receipt of goods, and documentary prevent duplicate payments and only evidence of title. It is also a contract of allow payment for authorized services, carriage when movement is under 49 and that the TSP’s bill is complete U.S.C. 10721 and 49 U.S.C. 13712. with required documentation. Cash means cash, personal checks, § 102–118.15 What is a transportation personal charge cards, and travelers payment? checks. Cash may only be used to pay A transportation payment is a pay- for transportation expenses in ex- ment made by an agency to a TSP for tremely limited cases where govern- the movement of goods or people and/or ment payment mechanisms are not transportation related services. available or acceptable. Document reference number means the § 102–118.20 Who is subject to this unique number on a bill of lading, Gov- part? ernment Bill of Lading, Government All agencies and TSPs defined in Transportation Request, or transpor- § 102–118.35 are subject to this part. tation ticket, used to track the move- Your agency is required to incorporate ment of shipments and individuals. this part into its internal regulations. EDI signature means a discrete au- thentication code which serves in place § 102–118.25 Does GSA still require my of a paper signature and binds parties agency to submit its overall trans- to the terms and conditions of a con- portation policies for approval? tract in electronic communication. GSA no longer requires your agency Electronic commerce means electronic to submit its overall transportation techniques for performing business policies for approval. However, as transactions (ordering, billing, and

348

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00358 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.35

paying for goods and services), includ- plicate payments, and amounts for ing electronic mail or messaging, which a TSP is liable because of loss Internet technology, electronic bul- and/or damage to property it trans- letin boards, charge cards, electronic ported. funds transfers, and electronic data Overcharge means those charges for interchange. transportation and travel services that Electronic data interchange means exceed those applicable under the con- electronic techniques for carrying out tract for carriage. This also includes transportation transactions using elec- charges more than those applicable tronic transmissions of the informa- under rates, fares and charges estab- tion between computers instead of lished pursuant to section 13712 and paper documents. These electronic 10721 of the Revised Interstate Com- transmissions must use established and merce Act, as amended (49 U.S.C. 13712 published formats and codes as author- and 10721), or other equivalent con- ized by the applicable Federal Informa- tract, arrangement or exemption from tion Processing Standards. regulation. Electronic funds transfer means any Postpayment audit means an audit of transfer of funds, other than trans- transportation billing documents after actions initiated by cash, check, or payment to decide their validity, pro- similar paper instrument, that is initi- priety, and conformity with tariffs, ated through an electronic terminal, quotations, agreements, or tenders. telephone, computer, or magnetic tape, This process may also include subse- for the purpose of ordering, instruct- quent adjustments and collections ac- ing, or authorizing a financial institutions taken against a TSP by the Gov- tion to debit or credit an account. The ernment. term includes Automated Clearing- Prepayment audit means an audit of house transfers, Fed Wire transfers, transportation billing documents be- and transfers made at automatic teller fore payment to determine their valid- machines and point of sale terminals. ity, propriety, and conformity with Government bill of lading (GBL) is the transportation document used as a re- tariffs, quotations, agreements, or ceipt of goods, evidence of title, and a tenders. contract of carriage for Government Privately Owned Personal Property international shipments. Government Bill of Lading, Optional Government contractor-issued charge Form 1203, means the agency transpor- card means both an individually billed tation document used as a receipt of travel card, which the individual is re- goods, evidence of title, and generally quired to pay, and a centrally billed ac- a contract of carriage. It is only avail- count for paying travel expenses, which able for the transportation of house- the agency is required to pay. hold goods. Use of this form is manda- Government Transportation Request tory for Department of Defense, but op- (GTR) means Optional Form 1169, the tional for other agencies. Government document used to buy Rate authority means the document transportation services. The document that establishes the legal charges for a normally obligates the Government to transportation shipment. Charges in- pay for the transportation services pro- cluded in a rate authority are those vided. rates, fares, and charges for transpor- Offset means agency use of money tation and related services contained owed by the agency to a transportation in tariffs, tenders, and other equivalent service provider (TSP) to cover a pre- documents. vious debt incurred to the agency by Released value is stated in dollars and the TSP. is considered the assigned value of the Ordinary debt means an amount that cargo for reimbursement purposes, not a TSP owes an agency other than for necessarily the actual value of the the repayment of an overcharge. Ordi- cargo. Released value may be more or nary debts include, but are not limited less than the actual value of the cargo. to, payments for transportation serv- The released value is the maximum ices ordered and not provided (includ- amount that could be recovered by the ing unused transportation tickets), du- agency in the event of loss or damage

349

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00359 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.40 41 CFR Ch. 102 (7–1–11 Edition)

for the shipments of freight and house- Transportation document (TD) means hold goods. In return, when negotiating any executed agreement for transpor- for rates and the released value is pro- tation service, such as a bill of lading posed to be less than the actual value (including a Government Bill of Lad- of the cargo, the TSP should offer a ing), a Government Transportation Re- rate lower than other rates for ship- quest, or transportation ticket. ping cargo at full value. The statement Transportation service means service of released value may be shown on any involved in the physical movement applicable tariff, tender, contract, (from one location to another) of prod- transportation document or other doc- ucts, people, household goods, and any uments covering the shipment. other objects by a TSP for an agency Reparation means the payment in- as well as activities directly relating volving a TSP to or from an agency of to or supporting that movement. Ex- an improper transportation billing as amples of this are storage, crating, or determined by a postpayment audit. connecting appliances. Improper routing, overcharges, or du- Transportation service provider (TSP) plicate payments may cause such im- means any party, person, agent, or car- proper billing. This is different from rier that provides freight or passenger payments to settle a claim for loss and transportation and related services to damage to items shipped under those an agency. For a freight shipment this rates. would include packers, truckers, and Standard carrier alpha code (SCAC) storers. For passenger transportation means an unique four-letter code as- this would include airlines, travel signed to each TSP by the National agents and travel management centers. Motor Freight Traffic Association, Inc. Transportation service provider claim Statement of difference means a state- means any demand by the TSP for ment issued by an agency or its des- amounts not included in the original ignated audit contractor during a pre- bill that the TSP believes an agency payment audit when they determine owes them. This includes amounts de- that a TSP has billed the agency for ducted or offset by an agency; amounts more than the proper amount for the previously refunded by the TSP, which services. This statement tells the TSP they now believe they are owed; and on the invoice, the amount allowed and any subsequent bills from the TSP re- the basis for the proper charges. The sulting from a transaction that was statement also cites the applicable pre- or postpayment audited by the rate references and other data relied on GSA Audit Division. means the use of for support. The agency issues a sepa- Virtual GBL (VGBL) a unique GBL number on a commercial rate statement of difference for each document, which binds the TSP to the transportation transaction. terms and conditions of a GBL. Statement of difference rebuttal means a document used by the agency to re- NOTE TO § 102–118.35: 49 U.S.C. 13102, et seq., spond to a TSP’s claim about an im- defines additional transportation terms not proper reduction made against the listed in this section. TSP’s original bill by the paying agen- [65 FR 24569, Apr. 26, 2000, as amended at 69 cy. FR 57618, Sept. 24, 2004; 74 FR 30475, June 26, Supplemental bill means a bill for 2009] services that the TSP submits to the agency for additional payment after re- Subpart B—Ordering and Paying imbursement for the original bill. The for Transportation and Trans- need to submit a supplemental bill portation Services may occur due to an incorrect first bill or due to charges which were not in- § 102–118.40 How does my agency cluded on the original bill. order transportation and transpor- Taxpayer identification number (TIN) tation services? means the number required by the In- Your agency orders: ternal Revenue Service to be used by (a) Transportation of freight and the TSP in reporting income tax or household goods and related transpor- other returns. For a TSP, the TIN is an tation services (e.g., packaging, stor- employer identification number. age) with a Government contractor-

350

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00360 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.55

issued charge card, purchase order (or ment of the Treasury regulations), or electronic equivalent), or a Govern- in limited prescribed situations, a Gov- ment bill of lading for international ernment Transportation Request shipments (including domestic over- (GTR). See the ‘‘U.S. Government Pas- seas shipments). In extremely limited senger Transportation—Handbook,’’ cases, cash can be used where govern- obtainable from: ment payment mechanisms are not General Services Administration available or acceptable. Transportation Audit Division (QMCA) (b) Transportation of people through Crystal Plaza 4, Room 300 the purchase of transportation tickets 2200 Crystal Drive with a Government issued charge card Arlington, VA 22202 (or centrally billed travel account cita- www.gsa.gov/transaudits tion), Government issued individual [65 FR 24569, Apr. 26, 2000, as amended at 66 travel charge card, personal charge FR 48812, Sept. 24, 2001; 69 FR 57618, Sept. 24, card, cash (in accordance with Depart- 2004; 74 FR 30475, June 26, 2009]

§ 102–118.45 How does a transportation service provider (TSP) bill my agency for transportation and transportation services? The manner in which your agency orders transportation and transportation services determines the manner in which a TSP bills for service. This is shown in the following table:

TRANSPORTATION SERVICE PROVIDER BILLING

(a) Ordering method (b) Billing method

(1)(i) Government issued agency charge card, ...... (1) Bill from charge card company (may be electronic). (ii) Centrally billed travel account citation.

(2)(i) Purchase order, ...... (2) Bill from TSP (may be electronic). (ii) Bill of lading, (iii) Government Bill of Lading, (iv) Government Transportation Request.

(3)(i) Contractor issued individual travel charge card (3) Voucher from employee (may be electronic). (ii) Personal charge card, (iii) Personal cash.

§ 102–118.50 How does my agency pay in accordance with Department of the for transportation services? Treasury regulations (31 CFR part 208). Your agency may pay for transpor- § 102–118.55 What administrative pro- tation services in three ways: cedures must my agency establish (a) Electronic funds transfer (EFT) (31 for payment of freight, household U.S.C. 3332, et seq.). Your agency is re- goods, or other transportation serv- quired by statute to make all pay- ices? ments by EFT unless your agency re- Your agency must establish adminis- ceives a waiver from the Department of trative procedures which assure that the Treasury. the following conditions are met: (b) Check. For those situations where (a) The negotiated price is fair and EFT is not possible and the Depart- reasonable; ment of the Treasury has issued a (b) A document of agreement signi- waiver, your agency may make pay- fying acceptance of the arrangements ments by check. with terms and conditions is filed with (c) Cash. In very unusual cir- the participating agency by the TSP; cumstances and as a last option, your agency payments may be made in cash

351

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00361 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.60 41 CFR Ch. 102 (7–1–11 Edition)

(c) The terms and conditions are in- § 102–118.75 What if my agency or the cluded in all transportation agree- TSP does not have an account with ments and referenced on all transpor- a financial institution or approved tation documents (TDs); payment agent? (d) Bills are only paid to the TSP Under 31 U.S.C. 3332, et seq., your providing service under the bill of lad- agency must obtain an account with a ing to your agency and may not be financial institution or approved pay- waived; ment agent in order to meet the statu- (e) All fees paid are accounted for in tory requirements to make all Federal the aggregate delivery costs; payments via EFT unless your agency (f) All payments are subject to appli- receives a waiver from the Department cable statutory limitations; of the Treasury. To obtain a waiver, (g) Procedures (such as an unique your agency must contact: numbering system) are established to The Commissioner prevent and detect duplicate payments, Financial Management Service properly account for expenditures and Department of the Treasury discrepancy notices; 401 Fourteenth Street, SW. (h) All transactions are verified with Washington, DC 20227 any indebtedness list. On charge card http://www.fms.treas.gov/ transactions, your agency must consult any indebtedness list if the charge § 102–118.80 Who is responsible for card contract provisions allow for it; keeping my agency’s electronic and commerce transportation billing records? (i) Procedures are established to process any unused tickets. Your agency’s internal financial regulations will identify responsibility for § 102–118.60 To what extent must my recordkeeping. In addition, the GSA agency use electronic commerce? Audit Division keeps a central reposi- Your agency must use electronic tory of electronic transportation bill- commerce in all areas of your transpor- ing records for legal and auditing pur- tation program. This includes the use poses. Therefore, your agency must for- of electronic systems and forms for or- ward all relevant electronic transpor- dering, receiving bills and paying for tation billing documents to: transportation and transportation General Services Administration services. Transportation Audit Division (QMCA) [69 FR 57618, Sept. 24, 2004] Crystal Plaza 4, Room 300 2200 Crystal Drive § 102–118.65 Can my agency receive Arlington, VA 22202 electronic billing for payment of www.gsa.gov/transaudits transportation services? [65 FR 24569, Apr. 26, 2000, as amended at 69 Yes, when mutually agreeable to the FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, agency and the GSA Audit Division, 2009] your agency is encouraged to use elec- § 102–118.85 Can my agency use a Gov- tronic billing for the procurement and ernment contractor issued charge billing of transportation services. card to pay for transportation services? § 102–118.70 Must my agency make all payments via electronic funds Yes, your agency may use a Govern- transfer? ment contractor issued charge card to Yes, under 31 U.S.C. 3332, et seq., purchase transportation services if per- your agency must make all payments mitted under the charge card contract for goods and services via EFT (this in- or task order. In these circumstances cludes goods and services ordered using your agency will receive a bill for these charge cards). services from the charge card company.

352

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00362 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.100

§ 102–118.90 If my agency orders trans- agency must ensure that copies of all portation and/or transportation original papers are retained at your services with a Government con- agency. Copies of tickets from a TSP tractor issued charge card or must be sent to—General Services Ad- charge account citation, is this subject to prepayment audit? ministration, Transportation Audit Di- vision (QMCA), Crystal Plaza 4, Room Generally, no transportation or 300, 2200 Crystal Drive, Arlington, VA transportation services ordered with a 22202, www.gsa.gov/transaudits. Government contractor issued charge card or charge account citation can be [69 FR 57618, Sept. 24, 2004, as amended at 74 prepayment audited because the bank FR 30475, June 26, 2009] or charge card contractor pays the TSP directly, before your agency receives a § 102–118.95 What forms can my agen- bill that can be audited from the cy use to pay transportation bills? charge card company. However, if your Your agency must use commercial agency contracts with the charge card payment practices and forms to the or charge account provider to provide maximum extent possible; however, for a prepayment audit, then, as long when viewed necessary by your agency, as your agency is not liable for paying your agency may use the following the bank for improper charges (as de- Government forms to pay transpor- termined by the prepayment audit tation bills: verification process), a prepayment audit can be used. As with all prepay- (a) Standard Form (SF) 1113, Public ment audit programs, the charge card Voucher for Transportation Charges, prepayment audit must be approved by and SF 1113–A, Memorandum Copy; the GSA Audit Division prior to imple- (b) Optional Form (OF) 1103, Govern- mentation. If the charge card contract ment Bill of Lading and OF 1103A does not provide for a prepayment Memorandum Copy (used for move- audit, your agency must submit the ment of things, both privately owned transportation line items on the charge and Government property for official card to the GSA Audit Division for a uses); postpayment audit. (c) OF 1169, Government Transpor- tation Request (used to pay for tickets § 102–118.91 May my agency authorize to move people); and the use of cash? (d) OF 1203, Privately Owned Per- Yes, in limited circumstances, a Gov- sonal Property Government Bill of ernment employee can use cash where Lading, and OF 1203A, Memorandum government payment mechanisms are Copy (used by the Department of De- not available or acceptable. fense to move private property for offi- [69 FR 57618, Sept. 24, 2004] cial transfers).

§ 102–118.92 How does my agency han- NOTE TO § 102–118.95: By March 31, 2002, your dle receipts, tickets or other agency may no longer use the GBLs (OF 1103 records of cash payments? and OF 1203) for domestic shipments. After Your agency must ensure that its September 30, 2000, your agency should minimize the use of GTRs (OF 1169). employees keep the original receipts for transportation purchases over $75.00 [65 FR 24569, Apr. 26, 2000, as amended at 66 made with cash. If it is impractical to FR 48812, Sept. 24, 2001] furnish receipts in any instance as required by this subtitle, the failure to § 102–118.100 What must my agency do so must be fully explained on the ensure is on each SF 1113? travel voucher. Mere inconvenience in Your agency must ensure during its the matter of taking receipts will not prepayment audit of a TSP bill that be considered. These receipts must be the TSP filled out the Public Vouchers, saved for a possible postpayment audit SF 1113, completely including the tax- by the GSA Audit Division. If your payer identification number (TIN), and agency requires the filing of paper re- standard carrier alpha code (SCAC). An ceipts, then you must do so. For trans- SF 1113 must accompany all billings. portation purchases over $75.00, your

353

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00363 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.105 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–118.105 Where can I find the § 102–118.125 What if my agency uses a rules governing the use of a Gov- TD other than a GBL? ernment Bill of Lading? If your agency uses any other TD for The ‘‘U.S. Government Freight shipping under its account, the req- Transportation—Handbook’’ contains uisite and the named safeguards must information on how to prepare this be in place (i.e., terms and conditions GBL form. To get a copy of this hand- found herein and in the ‘‘U.S. Govern- book, you may write to: General Serv- ment Freight Transportation—Hand- ices Administration, Transportation book,’’ appropriate numbering, etc.). Audit Division (QMCA), Crystal Plaza 4, Room 300, 2200 Crystal Drive, Arling- § 102–118.130 Must my agency use a ton, VA 22202, www.gsa.gov/transaudits. GBL for express, courier, or small package shipments? [65 FR 24569, Apr. 26, 2000, as amended at 69 No, however, in using commercial FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, forms all shipments must be subject to 2009] the terms and conditions set forth for use of a bill of lading for the Govern- § 102–118.110 Where can I find the rules governing the use of a Gov- ment. Any other non-conflicting appli- ernment Transportation Request? cable contracts or agreements between the TSP and an agency involving buy- The ‘‘U.S. Government Passenger ing transportation services for Govern- Transportation—Handbook’’ contains ment traffic remain binding. This pur- information on how to prepare this chase does not require a SF 1113. When GTR form. To get a copy of this hand- you are using GSA’s schedule for small book, you may write to: package express delivery, the terms General Services Administration and conditions of that contract are Transportation Audit Division (QMCA) binding. Crystal Plaza 4, Room 300 2200 Crystal Drive § 102–118.135 Where are the manda- Arlington, VA 22202 tory terms and conditions governing the use of bills of lading? www.gsa.gov/transaudits The mandatory terms and conditions [65 FR 24569, Apr. 26, 2000, as amended at 69 governing the use of bills of lading are FR 57620, Sept. 24, 2004: 74 FR 30475, June 26, 2009] contained in this part and the ‘‘U.S. Government Freight Transportation § 102–118.115 Must my agency use a Handbook.’’ GBL? § 102–118.140 What are the major man- No, your agency is not required to datory terms and conditions gov- use a GBL and must use commercial erning the use of GBLs and bills of payment practices to the maximum ex- lading? tent possible. Effective March 31, 2002, The mandatory terms and conditions your agency must phase out the use of governing the use of GBLs and bills of the Optional Forms 1103 and 1203 for lading are: domestic shipments. After this date, (a) Unless otherwise permitted by your agency may use the GBL solely statute and approved by the agency, for international shipments. the TSP may not demand prepayment [65 FR 24569, Apr. 26, 2000, as amended at 66 or collect charges from the consignee. FR 48812, Sept. 24, 2001] The TSP, providing service under the bill of lading, must present a legible § 102–118.120 Must my agency use a copy of the bill of lading or an original, GTR? properly certified GBL attached to Standard Form (SF) 1113, Public No, your agency is not required to Voucher for Transportation Charges, to use a GTR. Your agency must adopt the paying office for payment; commercial practices and eliminate (b) The shipment must be made at GTR use to the maximum extent pos- the restricted or limited valuation sible. specified in the tariff or classification

354

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00364 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.150

or limited contract, arrangement or ex- § 102–118.150 What are the major man- emption at or under which the lowest datory terms and conditions gov- rate is available, unless indicated on erning the use of passenger trans- the GBL or bill of lading. (This is com- portation documents? monly referred to as an alternation of The mandatory terms and conditions rates); governing the use of passenger trans- (c) Receipt for the shipment is sub- portation documents are: ject to the consignee’s annotation of (a) Government travel must be via loss, damage, or shrinkage on the de- the lowest cost available, that meets livering TSP’s documents and the con- travel requirements; e.g., Government signee’s copy of the same documents. If contract, fare, through, excursion, or loss or damage is discovered after de- reduced one way or round trip fare. livery or receipt of the shipment, the This should be done by entering the consignee must promptly notify the term ‘‘lowest coach’’ on the Govern- nearest office of the last delivering ment travel document if the specific TSP and extend to the TSP the privi- fare basis is not known; lege of examining the shipment; (b) The U.S. Government is not re- (d) The rules and conditions gov- sponsible for charges exceeding those erning commercial shipments for the applicable to the type, class, or char- time period within which notice must acter authorized in transportation doc- be given to the TSP, or a claim must uments; be filed, or suit must be instituted, (c) The U.S. Government contractor- shall not apply if the shipment is lost, issued charge card must be used to the damaged or undergoes shrinkage in maximum extent possible to procure transit. Only with the written concur- passenger transportation tickets. GTRs rence of the Government official re- must be used minimally; sponsible for making the shipment is (d) Government passenger transpor- the deletion of this item considered to tation documents must be in accord- valid; ance with Federal Travel Regulation (e) Interest shall accrue from the Chapters 300 and 301 (41 CFR chapters voucher payment date on the over- 300 and 301), and the ‘‘U.S. Government charges made and shall be paid at the Passenger Transportation—Hand- same rate in effect on that date as pub- book’’; lished by the Secretary of the Treasury (e) Interest shall accrue from the pursuant to the Debt Collection Act of voucher payment date on overcharges 1982 31 U.S.C. 3717); and made hereunder and shall be paid at (f) Additional mandatory terms and the same rate in effect on that date as conditions are in this part and the published by the Secretary of the ‘‘U.S. Government Freight Transpor- Treasury pursuant to the Debt Collec- tation—Handbook.’’ tion Act of 1982; [65 FR 24569, Apr. 26, 2000, as amended at 69 (f) The TSP must insert on the TD FR 57619, Sept. 24, 2004] any known dates on which travel commenced; § 102–118.145 Where are the manda- (g) The issuing official or traveler, by tory terms and conditions gov- signature, certifies that the requested erning the use of passenger trans- transportation is for official business; portation documents? (h) The TSP must not honor any re- The mandatory terms and conditions quest containing erasures or alter- governing the use of passenger trans- ations unless the TD contains the au- portation documents are contained in thentic, valid initials of the issuing of- this part and the ‘‘U.S. Government ficial; and Passenger Transportation—Hand- (i) Additional mandatory terms and book.’’ conditions are in this part and the ‘‘U. S. Government Passenger Transpor- tation—Handbook.’’

355

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00365 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.155 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–118.155 How does my agency Crystal Plaza 4, Room 300 handle supplemental billings from 2200 Crystal Drive the TSP after payment of the origi- Arlington, VA 22202 nal bill? www.gsa.gov/transaudits Your agency must process, review, [65 FR 24569, Apr. 26, 2000, as amended at 69 and verify supplemental billings using FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, the same procedures as on an original 2009] billing. If the TSP disputes the findings, your agency must attempt to re- Subpart C—Use of Government solve the disputed amount. Billing Documents

§ 102–118.160 Who is liable if my agen- TERMS AND CONDITIONS GOVERNING AC- cy makes an overpayment on a CEPTANCE AND USE OF A GOVERNMENT transportation bill? BILL OF LADING (GBL) OR GOVERN- If the agency conducts prepayment MENT TRANSPORTATION REQUEST audits of its transportation bills, agen- (GTR) (UNTIL FORM RETIREMENT) cy transportation certifying and disbursing officers are liable for any over- § 102–118.185 When buying freight payments made. If GSA has granted a transportation, must my agency reference the applicable contract or waiver to the prepayment audit re- tender on the bill of lading (includ- quirement and the agency performs a ing a GBL)? postpayment audit (31 U.S.C. 3528 and 31 U.S.C. 3322) neither the certifying Yes, your agency must reference the nor disbursing officers are liable for applicable contract or tender when the reasons listed in these two cited buying transportation on a bill of lad- statutes. ing (including GBLs). However, the referenced information on a GBL or bill of § 102–118.165 What must my agency do lading does not limit an audit of if it finds an error on a TSP bill? charges. Your agency must advise the TSP via § 102–118.190 When buying passenger statement of difference of any adjust- transportation must my agency ref- ment that you make either electroni- erence the applicable contract? cally or in writing within 7 days of re- Yes, when buying passenger transpor- ceipt of the bill, as required by the tation, your agency must reference the Prompt Payment Act (31 U.S.C. 3901, et applicable contract on a GTR or pas- seq.). This notice must include the senger transportation document (e.g., TSP’s taxpayer identification number, ticket). standard carrier alpha code, bill number and document reference number, § 102–118.195 What documents must a agency name, amount requested by the transportation service provider TSP, amount paid, payment voucher (TSP) send to receive payment for a number, complete tender or tariff au- transportation billing? thority, the applicable rate authority For shipments bought on a TD, the and the complete fiscal authority in- TSP must submit an original properly cluding the appropriation. certified GBL, PPGBL, or bill of lading attached to an SF 1113, Public Voucher § 102–118.170 Will GSA continue to maintain a centralized numbering for Transportation Charges. The TSP system for Government transpor- must submit this package and all sup- tation documents? porting documents to the agency paying office. Yes, GSA will maintain a numbering system for GBLs and GTRs. For com- § 102–118.200 Can a TSP demand ad- mercial TDs, each agency must create vance payment for the transpor- a unique numbering system to account tation charges submitted on a bill for and prevent duplicate numbers. The of lading (including GBL)? GSA Audit Division must approve this No, a TSP cannot demand advance system. Write to: payment for transportation charges General Services Administration submitted on a bill of lading (including Transportation Audit Division (QMCA) GBL), unless authorized by law.

356

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00366 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.245

§ 102–118.205 May my agency pay a § 102–118.230 What if my agency cre- subcontractor or agent functioning ates or eliminates a field office ap- as a warehouseman for the TSP proved to prepare transportation providing service under the bill of documents? lading? Your agency must tell the GSA Audit No, your agency may only pay the Division whenever it approves a new or TSP with whom it has a contract. The existing agency field office to prepare bill of lading will list the TSP with transportation documents or when an whom the Government has a contract. agency field office is no longer authorized to do so. This notice must show § 102–118.210 May my agency use bills the name, field office location of the of lading other than the GBL for a bureau or office, and the date on which transportation shipment? your agency granted or canceled its authority to schedule payments for trans- Yes, as long as the mandatory terms portation service. and conditions contained in this part (as also stated on a GBL) apply. The AGENCY RESPONSIBILITIES WHEN USING TSP must agree in writing to the man- GOVERNMENT BILLS OF LADING (GBLS) datory terms and conditions (also OR GOVERNMENT TRANSPORTATION RE- found in the ‘‘U.S. Government Freight QUESTS (GTRS) Transportation Handbook’’) contained in this part. § 102–118.235 Must my agency keep physical control and accountability of the GBL and GTR forms or GBL § 102–118.215 May my agency pay a and GTR numbers? TSP any extra fees to pay for the preparation and use of the GBL or Yes, your agency is responsible for GTR? the physical control and accountability of the GBL and GTR stock and must No, your agency must not pay any have procedures in place and available additional charges for the preparation for inspection by GSA. Your agency and use of the GBL or GTR. Your agen- must consider these Government trans- cy may not pay a TSP a higher rate portation documents to be the same as than comparable under commercial money. procedures for transportation bought on a GBL or GTR. § 102–118.240 How does my agency get GBL and GTR forms? § 102–118.220 If a transportation debt Your agency can get GBL and GTR is owed to my agency by a TSP be- forms, in either blank or prenumbered cause of loss or damage to property, formats, from: does my agency report it to GSA? General Services Administration No, if your agency has administra- Federal Acquisition Service tively determined that a TSP owes a Inventory Management Branch (QSDACDB– debt resulting from loss or damage, fol- WS) low your agency regulations. 819 Taylor Street, Room 6A00 Fort Worth, TX 76102 § 102–118.225 What constitutes final re- [65 FR 24569, Apr. 26, 2000, as amended at 74 ceipt of shipment? FR 30476, June 26, 2009] Final receipt of the shipment occurs § 102–118.245 How does my agency get when the consignee or a TSP acting on an assigned set of GBL or GTR behalf of the consignee with the agen- numbers? cy’s permission, fully signs and dates If your agency does not use both the delivering TSP’s documents prenumbered GBL and GTR forms, you and the consignee’s copy of the same may get an assigned set of numbers documents indicating delivery and/or from: explaining any delay, loss, damage, or General Services Administration shrinkage of shipment. Federal Acquisition Service Inventory Management Branch (QSDACDB– WS) 819 Taylor Street, Room 6A00

357

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00367 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.250 41 CFR Ch. 102 (7–1–11 Edition)

Fort Worth, TX 76102 (13) Accessorial services descrip- [65 FR 24569, Apr. 26, 2000, as amended at 74 tion(s) with rate or charge and gov- FR 30476, June 26, 2009] erning publication. (14) TSP operating authority. § 102–118.250 Who is accountable for (c) The TSP must include a state- the issuance and use of GBL and ment that the TSP will adhere and GTR forms? agree to the following general terms Agencies and employees are respon- and conditions. The services provided sible for the issuance and use of GBL in this tender will be performed in ac- and GTR forms and are accountable for cordance with applicable Federal, their disposition. State and municipal laws and regula- § 102–118.255 Are GBL and GTR forms tions, including Federal Management numbered and used sequentially? Regulation parts 102–117 and 102–118 (41 Yes, GBL and GTR forms are always CFR parts 102–117 and 102–118), and the sequentially numbered when printed TSP(s) hold(s) the required operating and/or used. No other numbering of the authority to transport the commodity forms, including additions or changes from, to, or between the places speci- to the prefixes or additions of suffixes, fied in the authorized certificates, per- is permitted. mits or temporary operating authorities. QUOTATIONS, TENDERS OR CONTRACTS (d) The TSP shall bill the United States Government on Standard Form § 102–118.260 Must my agency send all (SF) 1113, Public Voucher for Transpor- quotations, tenders, or contracts with a TSP to GSA? tation Charges, appropriately completed and supported. The TSP(s) will (a) Yes, your agency must send cop- send bills to the ‘‘Bill Charges To’’ ad- ies of each quotation, tender, or con- dress on the face of the bill of lading or tract of special rates, fares, charges, or agency-ordering document. concessions with TSPs including those authorized by 49 U.S.C. 10721 and 13712, (e) The Optional Form (OF) 280, Uni- upon execution to—General Services form Tender of Rates and/or Charges Administration, Transportation Audit for Transportation Services, includes Division (QMCA), Crystal Plaza 4, all the provisions of paragraph (c) of Room 300, 2200 Crystal Drive, Arling- this section and is another option to ton, VA 22202, www.gsa.gov/transaudits. file a tender with the Government. (b) Tenders must be submitted elec- [69 FR 57619, Sept. 24, 2004, as amended at 74 tronically, following the instructions FR 30475, June 26, 2009] provided by the requesting agency. The following information must be submitted with the tender: Subpart D—Prepayment Audits of (1) Issuing TSP, Bureau, Agency or Transportation Services Conference. AGENCY REQUIREMENTS FOR (2) Tender number. (3) Standard Carrier Alpha Code PREPAYMENT AUDITS (SCAC). § 102–118.265 What is a prepayment (4) TSP Tax Identification Number audit? (TIN). (5) Issue date. A prepayment audit is a review of a (6) Effective date. transportation service provider (TSP) (7) Expiration date. bill that occurs prior to your agency (8) Origin and destination. making payment to a TSP. This review (9) Freight Classification and/or com- compares the charges on the bill modity description (including origin against the charge permitted under the and destination). contract, rate tender, or other agree- (10) Rate or charge for line haul ment under which the TSP provided rates. the transportation and/or transpor- (11) Minimum weights. tation related services. (12) Route(s).

358

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00368 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.295

§ 102–118.270 Must my agency estab- § 102–118.280 What advantages does lish a prepayment audit program? the prepayment audit offer my agency? Yes, under 31 U.S.C. 3726, your agency is required to establish a prepayment Prepayment auditing will allow your audit program. Your agency must send agency to detect and eliminate billing a preliminary copy of your prepayment errors before payment and will elimi- audit program to: General Services Ad- nate the time and cost of recovering agency overpayments. ministration, Office of Travel, Trans- portation and Asset Management (MT), § 102–118.285 What options for per- 1800 F Street, NW., Washington, DC forming a prepayment audit does 20405. my agency have? [74 FR 30476, June 26, 2009] Your agency may perform a prepayment audit by: § 102–118.275 What must my agency (a) Creating an internal prepayment consider when designing and imple- audit program; menting a prepayment audit pro- (b) Contracting directly with a pre- gram? payment audit service provider; or (a) As shown in § 102–118.45, the man- (c) Using the services of a prepayment audit contractor under GSA’s ner in which your agency orders trans- multiple award schedule covering audit portation services determines how and and financial management services. by whom the bill for those services will be presented. Each method of ordering NOTE TO § 102–118.285: Either of the choices transportation and transportation in paragraph (a), (b) or (c) of this section might include contracts with charge card services may require a different kind of companies that provide prepayment audit prepayment audit. services. Your agency’s prepayment audit program must consider all of the methods § 102–118.290 Must every electronic that you use to order and pay for trans- and paper transportation bill un- portation services. With each method dergo a prepayment audit? of ordering transportation services, Yes, all transportation bills and pay- your agency should ensure that each ments must undergo a prepayment TSP bill or employee travel voucher audit unless your agency’s prepayment contains enough information for the audit program uses a statistical sam- prepayment audit to determine which pling technique of the bills or the Ad- contract or rate tender is used and that ministrator of General Services grants the type and quantity of any additional a specific waiver from the prepayment audit requirement. If your agency services are clearly delineated. chooses to use statistical sampling, all (b) For transportation payments bills must be at or below the Comp- made through cost reimbursable con- troller General specified limit of tracts, the agency must include a $2,500.00 (31 U.S.C. 3521(b) and U.S. Gov- statement in the contract that the con- ernment Accountability Office Policy tractor shall submit to the address and Procedures Manual Chapter 7, ob- identified for prepayment audit, trans- tainable from: portation documents which show that the United States will assume freight U.S. Government Accountability Office P.O. Box 6015 charges that were paid by the con- Gaithersburg, MD 20884–6015 tractor. http://www.gao.gov (c) Cost reimbursable contractors [65 FR 24569, Apr. 26, 2000, as amended at 74 shall only submit for audit bills of lad- FR 30476, June 26, 2009] ing with freight shipment charges exceeding $100.00. Bills under $100.00 shall § 102–118.295 What are the limited ex- be retained on-site by the contractor ceptions to every bill undergoing a and made available for on-site audits. prepayment audit? The limited exceptions to bills under- [69 FR 57619, Sept. 24, 2004] going a prepayment audit are those bills subject to a waiver from GSA

359

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00369 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.300 41 CFR Ch. 102 (7–1–11 Edition)

(which may include bills determined to issue a decision. A TSP must submit be below your agency’s threshold). The claims within 3 years under the guide- waiver to prepayment audit require- lines established in § 102–118.460. ments may be for bills, mode or modes [65 FR 24569, Apr. 26, 2000, as amended at 69 of transportation or for an agency or FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, subagency. 2009]

§ 102–118.300 How does my agency § 102–118.320 What information must fund its prepayment audit pro- be on transportation bills that have gram? completed my agency’s prepayment Your agency must pay for the pre- audit? payment audit from those funds appro- (a) The following information must priated for transportation services. be annotated on all transportation bills that have completed a prepayment § 102–118.305 Must my agency notify audit: the TSP of any adjustment to the (1) The date received from a TSP; TSP’s bill? (2) A TSP’s bill number; Yes, your agency must notify the (3) Your agency name; TSP of any adjustment to the TSP’s (4) A Document Reference Number bill either electronically or in writing (DRN); within 7 days of receipt of the bill. This (5) The amount billed; notice must refer to the TSP’s bill (6) The amount paid; number, agency name, taxpayer identi- (7) The payment voucher number; fication number, standard carrier alpha (8) Complete tender or tariff author- code, document reference number, ity, including item or section number; amount billed, amount paid, payment (9) The TSP’s taxpayer identification voucher number, complete tender or number (TIN); tariff authority, including item or sec- (10) The TSP’s standard carrier alpha tion number. code (SCAC); (11) The auditor’s authorization code § 102–118.310 Must my agency prepay- or initials; and ment audit program establish ap- (12) A copy of any statement of dif- peal procedures whereby a TSP ference sent to the TSP. may appeal any reduction in the (b) Your agency can find added guid- amount billed? ance in the ‘‘U.S. Government Freight Yes, your agency must establish an Transportation—Handbook,’’ obtain- appeal process that directs TSP ap- able from: peals to an agency official who is able to provide adequate consideration and General Services Administration review of the circumstances of the Transportation Audit Division (QMCA) Crystal Plaza 4, Room 300 claim. Your agency must complete the 2200 Crystal Drive review of the appeal within 30 days. Arlington, VA 22202 www.gsa.gov/transaudits § 102–118.315 What must my agency do if the TSP disputes the findings and [65 FR 24569, Apr. 26, 2000, as amended at 69 my agency cannot resolve the dis- FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, pute? 2009] (a) If your agency is unable to resolve MAINTAINING AN APPROVED PROGRAM the disputed amount with the TSP, your agency should forward all rel- § 102–118.325 Must I get approval for evant documents including a complete my agency’s prepayment audit pro- billing history, and the appropriation gram? or fund charged, to: General Services Yes, your agency must get approval Administration, Transportation Audit for your prepayment audit program. Division (QMCA), Crystal Plaza 4, The highest level budget or financial Room 300, 2200 Crystal Drive, Arling- official of each agency, such as the ton, VA 22202, www.gsa.gov/transaudits. Chief Financial Officer, initially ap- (b) The GSA Audit Division will re- proves your agency’s prepayment audit view the appeal of an agency’s final, program. After internal agency ap- full or partial denial of a claim and proval, your agency submits the plan

360

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00370 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.350

in writing to the GSA Audit Division (j) Implement a unique agency num- for final approval. bering system to handle commercial paper and practices (see § 102–118.55). § 102–118.330 What are the elements of an acceptable prepayment audit [65 FR 24569, Apr. 26, 2000, as amended at 69 program? FR 57619, Sept. 24, 2004] An acceptable prepayment audit pro- § 102–118.335 What does the GSA Audit gram must: Division consider when verifying (a) Verify all transportation bills an agency prepayment audit pro- against filed rates and charges before gram? payment; The GSA Audit Division bases (b) Comply with the Prompt Pay- verification of agency prepayment ment Act (31 U.S.C. 3901, et seq.); audit programs on objective cost-sav- (c) Allow for your agency to establish ings, paperwork reductions, current minimum dollar thresholds for trans- audit standards and other positive im- portation bills subject to audit; provements, as well as adherence to (d) Require your agency’s paying of- the guidelines listed in this part. fice to offset, if directed by GSA’s Audit Division, debts from amounts § 102–118.340 How does my agency owed to the TSP within the 3 years as contact the GSA Audit Division? per 31 U.S.C. 3726(b); Your agency may contact the GSA (e) Be approved by the GSA Audit Di- Audit Division by writing to: General vision. After the initial approval, the Services Administration, Transpor- agency may be subject to periodic pro- tation Audit Division (QMCA), Crystal gram review and reapproval; Plaza 4, Room 300, 2200 Crystal Drive, (f) Complete accurate audits of trans- Arlington, VA 22202, www.gsa.gov/ portation bills and notify the TSP of transaudits. any adjustment within 7 calendar days of receipt; [65 FR 24569, Apr. 26, 2000, as amended at 69 (g) Create accurate notices to the FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, 2009] TSPs that describe in detail the reasons for any full or partial rejection of § 102–118.345 If my agency chooses to the stated charges on the invoice. An change an approved prepayment accurate notice must include the TSP’s audit program, does the program invoice number, the billed amount, need to be reapproved? TIN, standard carrier alpha code, the Yes, you must receive approval of charges calculated by the agency, and any changes in your agency’s prepay- the specific reasons including applica- ment audit program from the GSA ble rate authority for the rejection; Audit Division. (h) Forward documentation monthly to the GSA Audit Division, which will LIABILITY FOR CERTIFYING AND store paid transportation bills under DISBURSING OFFICERS the General Records Schedule 9, Travel and Transportation (36 CFR Chapter § 102–118.350 Does establishing a pre- XII, 1228.22) which requires keeping payment audit system or program records for 3 years. GSA will arrange change the responsibilities of the for storage of any document requiring certifying officers? special handling (e.g., bankruptcy, Yes, in a prepayment audit environ- court case, etc.). These bills will be re- ment, an official certifying a transpor- tained pursuant to 44 U.S.C. 3309 until tation voucher is held liable for claims have been settled; verifying transportation rates, freight (i) Establish procedures in which classifications, and other information transportation bills not subject to pre- provided on a transportation billing in- payment audit (i.e., bills for unused strument or transportation request un- tickets and charge card billings) are dergoing a prepayment audit (31 U.S.C. handled separately and forwarded to 3528). the GSA Audit Division; and

361

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00371 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.355 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–118.355 Does a prepayment audit § 102–118.380 How does my agency waiver change any liabilities of the apply for a waiver from a prepay- certifying officer? ment audit of requirement? Yes, a certifying official is not per- Your agency must submit a request sonally liable for verifying transpor- for a waiver from the requirement to tation rates, freight classifications, or perform a prepayment in writing to: other information provided on a GBL or passenger transportation request General Services Administration when the Administrator of General Office of Travel, Transportation and Asset Services or designee waives the prepay- Management (MT) ment audit requirement and your agen- 1800 F Street, NW. cy uses postpayment audits. Washington, DC 20405 [65 FR 24569, Apr. 26, 2000, as amended at 74 § 102–118.360 What relief from liability FR 30476, June 26, 2009] is available for the certifying official under a postpayment audit? § 102–118.385 What must a waiver re- The agency counsel relieves a certi- quest include? fying official from liability for over- A waiver request must explain in de- payments in cases where postpayment tail how the use of a prepayment audit is the approved method of auditing and: increases costs over a postpayment (a) The overpayment occurred solely audit, decreases efficiency, involves a because the administrative review be- relevant public interest, adversely af- fore payment did not verify transpor- fects the agency’s mission, or is not tation rates; and feasible for the agency. A waiver re- (b) The overpayment was the result quest must identify the mode or modes of using improper transportation rates of transportation, agency or subagency or freight classifications or the failure to which the waiver would apply. to deduct the correct amount under a land grant law or agreement. § 102–118.390 On what basis does GSA grant a waiver to the prepayment § 102–118.365 Do the requirements of a audit requirement? prepayment audit change the dis- GSA issues waivers to the prepay- bursing official’s liability for overpayment? ment audit requirement based on: (a) Cost-effectiveness; Yes, the disbursing official has a liability for overpayments on all trans- (b) Government efficiency; portation bills subject to prepayment (c) Public interest; or audit (31 U.S.C. 3322). (d) Other factors the Administrator of General Services considers appro- § 102–118.370 Where does relief from priate. prepayment audit liability for certifying, accountable, and disbursing § 102–118.395 How long will GSA take officers reside in my agency? to respond to a waiver request? Your agency’s counsel has the au- GSA will respond to a written waiver thority to relieve liability and give ad- request within 30 days from the receipt vance opinions on liability issues to of the request. certifying, accountable, and disbursing officers (31 U.S.C. 3527). § 102–118.400 Must my agency renew a waiver of the prepayment audit re- WAIVERS FROM MANDATORY quirements? PREPAYMENT AUDIT Yes, your agency waiver to the pre- § 102–118.375 Who has the authority to payment audit requirement will not ex- grant a waiver of the prepayment ceed 2 years. Your agency must reapply audit requirement? to ensure the circumstances at the Only the Administrator of General time of approval still apply. Services or designee has the authority to grant waivers from the prepayment audit requirement.

362

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00372 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.430

§ 102–118.405 Are my agency’s prepay- Subpart E—Postpayment ment audited transportation bills Transportation Audits subject to periodic postpayment audit oversight from the GSA Audit § 102–118.415 Will the widespread man- Division? datory use of prepayment audits Yes, two years or more after starting eliminate postpayment audits? prepayment audits, the GSA Audit Di- No, the mandatory use of prepay- vision (depending on its evaluation of ment audits will not eliminate the results) may subject your agency’s postpayment audits because: prepayment audited transportation (a) Postpayment audits will continue bills to periodic postpayment audit for those areas which do not lend them- oversight rather than blanket selves to the prepayment audit; and postpayment audits. The GSA Audit (b) The GSA Audit Division will con- Division will then prepare a report ana- tinue to review and survey the progress lyzing the success of your agency’s pre- of the prepayment audit by performing payment audit program. This report a postpayment audit on the bills. The will be on file at GSA and available for GSA Audit Division has a Congression- your review. ally mandated responsibility under 31 U.S.C. 3726 to perform oversight on SUSPENSION OF AGENCY PREPAYMENT transportation bill payments. During AUDIT PROGRAMS the early startup period for prepayment audits, transportation bills are § 102–118.410 Can GSA suspend my subject to a possible postpayment agency’s prepayment audit pro- audit to discover the effectiveness of gram? the prepayment audit process. (a) Yes, the Director of the GSA § 102–118.420 Can the Administrator of Audit Division may suspend your agen- General Services waive the cy’s prepayment audit program based postpayment auditing provisions of on his or her determination of a sys- this subpart? tematic or frequent failure of the pro- Yes, in certain circumstances, the gram to: Administrator of General Services or (1) Conduct an accurate prepayment designee may waive the postpayment audit of your agency’s transportation audit oversight requirements of this bills; subpart on a case by case basis. (2) Abide by the terms of the Prompt Payment Act; § 102–118.425 Is my agency allowed to (3) Adjudicate TSP claims disputing perform a postpayment audit on prepayment audit positions of the our transportation bills? agency regularly within 30 days of re- No, your agency must forward all ceipt; transportation bills to GSA for a (4) Follow Comptroller General deci- postpayment audit regardless of any sions, GSA Board of Contract Appeals waiver allowing for postpayment audit. decisions, the Federal Management Regulation and GSA instructions or § 102–118.430 What information must be on my agency’s transportation precedents about substantive and pro- bills submitted for a postpayment cedure matters; and/or audit? (5) Provide information and data or Your agency must annotate all of its to cooperate with on-site inspections transportation bills submitted for necessary to conduct a quality assur- postpayment audit with: ance review. (a) The date received from a TSP; (b) A systematic or a multitude of in- (b) A TSP’s bill number; dividual failures will result in suspen- (c) Your agency name; sion. A suspension of an agency’s pre- (d) A Document Reference Number; payment audit program may be in (e) The amount requested; whole or in part for failure to conduct (f) The amount paid; proper prepayment audits. (g) The payment voucher number;

363

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00373 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.435 41 CFR Ch. 102 (7–1–11 Edition)

(h) Complete tender or tariff author- conformity with tariffs, quotations, ity, including contract price (if pur- contracts, agreements or tenders and chased under the Federal Acquisition make adjustments to protect the inter- Regulation), item or section number; est of an agency; (i) The TSP’s taxpayer identification (b) Examine, adjudicate, and settle number; and transportation claims by and against (j) The TSP’s standard carrier alpha the agency; code (SCAC). (c) Collect from TSPs by refund, setoff, offset or other means, the § 102–118.435 What procedures does GSA use to perform a postpayment amounts determined to be due the audit? agency; When GSA performs a postpayment (d) Adjust, terminate or suspend audit, the GSA Audit Division has the debts due on TSP overcharges; delegated authority to implement the (e) Prepare reports to the Attorney following procedures: General of the United States with rec- (a) Audit selected TSP bills after ommendations about the legal and payment; technical bases available for use in (b) Audit selected TSP bills before prosecuting or defending suits by or payment as needed to protect the Gov- against an agency and provide tech- ernment’s interest (i.e., bankruptcy, nical, fiscal, and factual data from rel- fraud); evant records; (c) Examine, settle, and adjust ac- (f) Provide transportation specialists counts involving payment for transpor- and lawyers to serve as expert wit- tation and related services for the ac- nesses, assist in pretrial conferences, count of agencies; draft pleadings, orders, and briefs, and (d) Adjudicate and settle transpor- participate as requested in connection tation claims by and against agencies; with transportation suits by or against (e) Offset an overcharge by any TSP an agency; from an amount subsequently found to (g) Review agency policies, programs, be due that TSP; and procedures to determine their ade- (f) Issue a Notice of Overcharge stat- quacy and effectiveness in the audit of ing that a TSP owes a debt to the agen- freight or passenger transportation cy. This notice states the amount paid, payments, and review related fiscal and the basis for the proper charge for the transportation practices; document reference number, and cites (h) Furnish information on rates, applicable tariff or tender along with fares, routes, and related technical other data relied on to support the data upon request; overcharge. A separate Notice of Over- (i) Tell an agency of irregular ship- charge is prepared and mailed for each ping routing practices, inadequate bill; and commodity descriptions, excessive (g) Issue a GSA Notice of Indebted- transportation cost authorizations, and ness when a TSP owes an ordinary debt unsound principles employed in traffic to an agency. This notice states the basis for the debt, the TSP’s rights, in- and transportation management; and terest, penalty, and other results of (j) Confer with individual TSPs or re- nonpayment. The debt is due imme- lated groups and associations pre- diately and subject to interest charges, senting specific modes of transpor- penalties, and administrative cost tation to resolve mutual problems con- under 31 U.S.C. 3717. cerning technical and accounting matters and acquainting them with agency § 102–118.440 What are the requirements. postpayment audit responsibilities and roles of the GSA Audit Divi- § 102–118.445 Must my agency pay for sion? a postpayment audit when using When the GSA Audit Division per- the GSA Audit Division? forms a postpayment audit for your No, the expenses of postpayment agency, GSA will: audit contract administration and (a) Examine and analyze payments to audit-related functions are financed discover their validity, relevance and from overpayments collected from the

364

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00374 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.460

TSP’s bills previously paid by the ability of payment (mainly bankruptcy agency and similar type of refunds. or fraud).

§ 102–118.455 What is the time limit for Subpart F—Claims and Appeal a TSP to file a transportation claim Procedures against my agency? The time limits on a TSP transpor- GENERAL AGENCY INFORMATION FOR ALL tation claim against the Government CLAIMS differ by mode as shown in the fol- § 102–118.450 Can a TSP file a trans- lowing table: portation claim against my agency? TIME LIMITS ON ACTIONS TAKEN BY TSP Yes, a TSP may file a transportation Freight claim against your agency under 31 Mode charges Statute U.S.C. 3726 for: (a) Amounts owed but not included in (a) Air Domestic ...... 6 years ..... 28 U.S.C. 2401, 2501. (b) Air International ..... 6 years ..... 28 U.S.C. 2401, 2501. the original billing; (c) Freight Forwarders 3 years ..... 49 U.S.C. 14705(f). (b) Amounts deducted or set off by an (subject to the IC agency that are disputed by the TSP; Act). (d) Motor ...... 3 years ..... 49 U.S.C. 14705(f). (c) Requests by a TSP for amounts (e) Rail ...... 3 years ..... 49 U.S.C. 14705(f). previously refunded in error by that (f) Water (subject to 3 years ..... 49 U.S.C. 14705(f). the IC Act). TSP; and/or (g) Water (not subject 2 years ..... 46 U.S.C. 745. (d) Unpaid original bills requiring di- to the IC Act). rect settlement by GSA, including (h) TSPs exempt from 6 years ..... 28 U.S.C. 2401, 2501. those subject to doubt about the suit- regulation.

§ 102–118.460 What is the time limit for my agency to file a court claim with a TSP for freight charges, reparations, and loss or damage to the property? Statutory time limits vary depending on the mode and the service involved and may involve freight charges. The following tables list the time limits:

(A) TIME LIMITS ON ACTIONS TAKEN BY THE FEDERAL GOVERNMENT AGAINST TSPS

Mode Freight charges Reparations Loss and damage

(1) Rail ...... 3 years ...... 3 years ...... 6 years. 49 U.S.C. 11705 ...... 49 U.S.C. 11705 ...... 28 U.S.C. 2415.

(2) Motor ...... 3 years ...... 3 years ...... 6 years. 49 U.S.C...... 49 U.S.C...... 28 U.S.C. 2415. 14705(f) ...... 14705(f) ......

(3) Freight Forwarders 3 years ...... 3 years ...... 6 years. subject to the IC Act. 49 U.S.C...... 49 U.S.C...... 28 U.S.C. 2415. 14705(f) ...... 14705(f) ......

(4) Water (subject to the 3 years ...... 3 years ...... 6 years. IC Act). 49 U.S.C...... 49 U.S.C...... 28 U.S.C. 2415. 14705(f) ...... 14705(f) ......

(5) Water (not subject to 6 years 28 U.S.C. 2415 2 years 46 U.S.C. 821 .. 1 year. the IC Act). 46 U.S.C. 1303(6) (if subject to Carriage of Goods by Sear Act, 46 U.S.C. 1300–1315).

(6) Domestic Air ...... 6 years ...... 6 years. 28 U.S.C. 2415 ...... 28 U.S.C. 2415.

365

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00375 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.465 41 CFR Ch. 102 (7–1–11 Edition)

(A) TIME LIMITS ON ACTIONS TAKEN BY THE FEDERAL GOVERNMENT AGAINST TSPS—Continued

Mode Freight charges Reparations Loss and damage

(7) International Air ...... 6 years ...... 2 years. 28 U.S.C. 2415 ...... 49 U.S.C. 40105.

(B) TIME LIMITS ON ACTIONS TAKEN BY THE FEDERAL GOVERNMENT AGAINST TSPS EXEMPT FROM REGULATION

Mode Freight Reparations Loss and damage

(1) All ...... 6 years ...... 6 years. 28 U.S.C. 2415 ...... 28 U.S.C. 2415.

§ 102–118.465 Must my agency pay in- § 102–118.485 Is there a time limit for terest on a disputed amount my agency to issue a decision on claimed by a TSP? disputed claims? No, interest penalties under the Yes, your agency must issue a ruling Prompt Payment Act, (31 U.S.C. 3901, et on a disputed claim within 30 days of seq.), are not required when payment is receipt of the claim. delayed because of a dispute between an agency and a TSP. § 102–118.490 What if my agency fails to settle a dispute within 30 days? § 102–118.470 Are there statutory time (a) If your agency fails to settle a dis- limits for a TSP on filing an admin- pute within 30 days, the TSP may ap- istrative claim with the GSA Audit peal to: Division? Yes, an administrative claim must be General Services Administration received by the GSA Audit Division or Federal Supply Service Audit Division (FBA) its designee (the agency where the Code: CC 1800 F Street, NW. claim arose) within 3 years beginning Washington, DC 20405 the day after the latest of the following www.gsa.gov/transaudits dates (except in time of war): (a) Accrual of the cause of action; (b) If the TSP disagrees with the ad- (b) Payment of charges for the trans- ministrative settlement by the Audit portation involved; Division, the TSP may appeal to the (c) Subsequent refund for overpay- General Services Board of Contract Ap- ment of those charges; or peals. (d) Deductions made to a TSP claim [65 FR 24569, Apr. 26, 2000, as amended at 69 by the Government under 31 U.S.C. FR 57620, Sept. 24, 2004] 3726. § 102–118.495 May my agency appeal a § 102–118.475 Does interest apply after decision by the Civilian Board of certification of payment of claims? Contract Appeals (CBCA)? Yes, interest under the Prompt Pay- No, your agency may not appeal a de- ment Act (31 U.S.C. 3901, et seq.) begins cision made by the CBCA. 30 days after certification for payment [65 FR 24569, Apr. 26, 2000, as amended at 74 by GSA. FR 30476, June 26, 2009]

§ 102–118.480 How does my agency set- § 102–118.500 How does my agency tle disputes with a TSP? handle a volunary refund submitted As a part of the prepayment audit by a TSP? program, your agency must have a plan (a) An agency must report all vol- to resolve disputes with a TSP. This untary refunds to the GSA Audit Divi- program must allow a TSP to appeal sion (so that no Notice of Overcharge payment decisions made by your agen- or financial offset occurs), unless other cy. arrangements are made (e.g., charge

366

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00376 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.540

card refunds, etc.). These reports must § 102–118.525 What are my agency’s re- be addressed to: sponsibilities for verifying the correct amount of transportation General Services Administration charges? Federal Supply Service Audit Division (FBA) Your agency’s employees are respon- Code: CC sible for diligently verifying the cor- 1800 F Street, NW. rect amount of transportation charges Washington, DC 20405 prior to payment (31 U.S.C. 3527). www.gsa.gov/transaudits § 102–118.530 Will GSA instruct my (b) Once a Notice of Overcharge is agency’s disbursing offices to offset issued by the GSA Audit Division, then unpaid TSP billings? any refund is no longer considered voluntary and the agency must forward Yes, GSA will instruct one or more of the refund to the GSA Audit Division. your agency’s disbursing offices to deduct the amount due from an unpaid [65 FR 24569, Apr. 26, 2000, as amended at 69 TSP’s bill. A 3-year limitation applies FR 57620, Sept. 24, 2004] on the deduction of overcharges from § 102–118.505 Must my agency send a amounts due a TSP (31 U.S.C. 3726) and voluntary refund to the Treasurer a 10-year limitation applies on the de- of the United States? duction of ordinary debts (31 U.S.C. No, your agency may keep and use 3716). voluntary refunds submitted by a TSP, if the refund was made prior to a No- § 102–118.535 Are there principles gov- tice of Overcharge issued by the GSA erning my agency’s TSP debt collection procedures? Audit Division. Yes, the principles governing your § 102–118.510 Can my agency revise or agency collection procedures for re- alter a GSA Form 7931, Certificate porting debts to the General Account- of Settlement? ing Office (GAO) or the Department of Generally, no, an agency must not Justice are found in 4 CFR parts 101 revise or alter amounts on a GSA Form through 105 and in the GAO Policy and 7931. The only change an agency can Procedures Manual for Guidance of make to a GSA Form 7931 is to change Federal Agencies. The manual may be the agency financial data to a correct obtained by writing: cite. Any GSA Form 7931 that cannot be paid (e.g., an amount previously Superintendent of Documents paid), must be immediately returned to Government Printing Office the GSA Audit Division with an expla- Washington, DC 20402 nation. http://www.access.gpo.gov/

§ 102–118.515 Does my agency have § 102–118.540 Who has the authority to any recourse not to pay a Certifi- audit, settle accounts, and/or start cate of Settlement? collection action for all transportation services provided for my No, a Certificate of Settlement is the agency? final administrative action. The Director of the GSA Audit Divi- § 102–118.520 Who is responsible for sion has the authority and responsi- determining the standards for col- bility to audit and settle all transpor- lection, compromise, termination, tation related accounts (31 U.S.C. 3726). or suspension of collection action The reason for this is that he or she on any outstanding debts to my has access to Governmentwide data on agency? a TSP’s payments and billings with the Under the Federal Claims Collection Government. Your agency has the re- Act of 1966, as amended (31 U.S.C. 3711, sponsibility to correctly pay individual et seq.), the Comptroller General and transportation claims. the Attorney General have joint responsibility for issuing standards for your agency.

367

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00377 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.545 41 CFR Ch. 102 (7–1–11 Edition)

TRANSPORTATION SERVICE PROVIDER Transportation Audit Division (QMCA) (TSP) FILING REQUIREMENTS Crystal Plaza 4, Room 300 2200 Crystal Drive § 102–118.545 What information must a Arlington, VA 22202 TSP claim include? www.gsa.gov/transaudits Transportation service provider [65 FR 24569, Apr. 26, 2000, as amended at 69 (TSP) claims received by GSA or its FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, designee must include one of the fol- 2009] lowing: (a) The signature of an individual or § 102–118.565 What documentation is party legally entitled to receive pay- required when filing an administra- ment for services on behalf of the TSP; tive claim? (b) The signature of the TSP’s agent An administrative claim must be ac- or attorney accompanied by a duly exe- companied by the transportation docu- cuted power of attorney or other document, payment record, reports and in- mentary evidence of the agent’s or at- formation available to GSA and/or to torney’s right to act for the TSP; or the agency involved and the written (c) An electronic signature, when mu- and documentary records submitted by tually agreed upon. the TSP. Oral presentations supplementing the written record are § 102–118.550 How does a TSP file an not acceptable. administrative claim using EDI or other electronic means? TRANSPORTATION SERVICE PROVIDER The medium and precise format of (TSP) AND AGENCY APPEAL PROCE- data for an administrative claim filed DURES FOR PREPAYMENT AUDITS electronically must be approved in advance by the GSA Audit Division. GSA § 102–118.570 If my agency denies the will use an authenticating EDI signa- TSP’s challenge to the statement of ture to certify receipt of the claim. difference, may the TSP appeal? The data on the claim must contain Yes, the TSP may appeal if your proof of the delivery of goods, and an agency denies its challenge to the itemized bill reflecting the services statement of difference. However, the provided, with the lowest charges appeal must be handled at a higher available for service. The TSP must be level in your agency. able to locate, identify, and reproduce the records in readable form without § 102–118.575 If a TSP disagrees with loss of clarity. the decision of my agency, can the TSP appeal? § 102–118.555 Can a TSP file a supple- Yes, the TSP may file a claim with mental administrative claim? the GSA Audit Division, which will re- Yes, a TSP may file a supplemental view the TSP’s appeal of your agency’s administrative claim. Each supple- final full or partial denial of a claim. mental claim must cover charges relat- The TSP may also appeal to the GSA ing to one paid transportation docu- Audit Division if your agency has not ment. responded to a challenge within 30 days. § 102–118.560 What is the required format that a TSP must use to file an administrative claim? § 102–118.580 May a TSP appeal a prepayment audit decision of the GSA A TSP must bill for charges claimed Audit Division? on a SF 1113, Public Voucher for Trans- (a) Yes, the TSP may appeal to the portation Charges, in the manner pre- Civilian Board of Contract Appeals scribed in the ‘‘U.S. Government (CBCA) under guidelines established in Freight Transportation—Handbook’’ or this subpart F, or file a claim with the the ‘‘U.S. Government Passenger United States Court of Federal Claims. Transportation—Handbook.’’ To get a The TSP’s request for review must be copy of these handbooks, you may received by the CBCA in writing within write to: 6 months (not including time of war) General Services Administration from the date the settlement action

368

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00378 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.625

was taken or within the periods of lim- General Services Administration itation specified in 31 U.S.C. 3726, as Transportation Audit Division (QMCA) amended, whichever is later. The TSP Crystal Plaza 4, Room 300 must address requests: 2200 Crystal Drive (1) By United States Postal Service Arlington, VA 22202 to: Civilian Board of Contract Appeals www.gsa.gov/transaudits (CBCA), 1800 F Street, NW., Wash- [65 FR 24569, Apr. 26, 2000, as amended at 69 ington, DC 20405. FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, (2) In person or by courier to: Civil- 2009] ian Board of Contract Appeals, 6th floor, 1800 M Street, NW., Washington, § 102–118.605 What if a TSP disagrees DC 20036. with the Notice of Indebtedness? (b) The CBCA will accept legible sub- If a TSP disagrees with an ordinary missions via facsimile (FAX) on (202) debt, as shown on a Notice of Indebted- 606–0019. ness, it may: [74 FR 30476, June 26, 2009] (a) Inspect and copy the agency’s records related to the claim; § 102–118.585 May a TSP appeal a pre- (b) Seek administrative review by payment audit decision of the CBCA? the GSA Audit Division of the claim decision; and/or No, a ruling by the CBCA is the final administrative remedy available and (c) Enter a written agreement for the the TSP has no statutory right of ap- payment of the claims. peal. This subpart governs administra- § 102–118.610 Is a TSP notified when tive actions only and does not affect GSA allows a claim? any of the TSP’s rights. A TSP may still pursue a legal remedy through the Yes, the GSA Audit Division will ac- courts. knowledge each payable claim using GSA Form 7931, Certificate of Settle- [65 FR 24569, Apr. 26, 2000, as amended at 74 FR 30476, June 26, 2009] ment. The certificate will give a complete explanation of any amount that § 102–118.590 May my agency appeal a is disallowed. GSA will forward the cer- prepayment audit decision of the tificate to the agency whose funds are GSA Audit Division? to be charged for processing and pay- No, your agency may not appeal. A ment. GSA Audit Division decision is administratively final for your agency. § 102–118.615 Will GSA notify a TSP if they internally offset a payment? § 102–118.595 May my agency appeal a prepayment audit decision by the Yes, the GSA Audit Division will in- CBCA? form the TSP if they internally offset a payment. No, your agency may not appeal a prepayment audit decision. Your agen- § 102–118.620 How will a TSP know if cy must follow the ruling of the CBCA. the GSA Audit Division disallows a [65 FR 24569, Apr. 26, 2000, as amended at 74 claim? FR 30476, June 26, 2009] The GSA Audit Division will furnish TRANSPORTATION SERVICE PROVIDER a GSA Form 7932, Settlement Certifi- (TSP) AND AGENCY APPEAL PROCE- cate, to the TSP explaining the dis- DURES FOR POSTPAYMENT AUDITS allowance.

§ 102–118.600 When a TSP disagrees § 102–118.625 Can a TSP request a re- with a Notice of Overcharge result- consideration of a settlement action ing from a postpayment audit, what by the GSA Audit Division? are the appeal procedures? Yes, a TSP desiring a reconsideration A TSP who disagrees with the Notice of a settlement action may request a of Overcharge may submit a written re- review by the Administrator of General quest for reconsideration to the GSA Services. Audit Division at:

369

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00379 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–118.630 41 CFR Ch. 102 (7–1–11 Edition)

§ 102–118.630 How must a TSP refund to deduct the amount due to the agen- amounts due to GSA? cy from an unpaid TSP’s bill. A 3-year (a) TSPs must promptly refund limitation applies on the deduction of amounts due to GSA, preferably by overcharges from amounts due a TSP EFT. If an EFT is not used, checks (31 U.S.C. 3726) and a 10-year limitation must be made payable to ‘‘General applies on the deduction of ordinary Services Administration’’, including debt (31 U.S.C. 3716); the document reference number, TSP (c) When collection cannot be accom- name, bill number(s), taxpayer identi- plished through either of the proce- fication number and standard carrier dures in paragraph (a) or (b) of this sec- alpha code, then mailed to: tion, GSA normally sends two addi- General Services Administration tional demand letters to the indebted P.O. Box 93746 TSP requesting payment of the amount Chicago, IL 60673 due within a specified time. Lacking a (b) If an EFT address is needed, satisfactory response, GSA may place a please contact the GSA Audit Division complete stop order against amounts at: otherwise payable to the indebted TSP by adding the name of that TSP to the General Services Administration Department of the Army ‘‘List of Con- Transportation Audit Division (QMCA) tractors Indebted to the United Crystal Plaza 4, Room 300 2200 Crystal Drive States’’; and/or Arlington, VA 22202 (d) When collection actions, as stated www.gsa.gov/transaudits in paragraphs (a) through (c) of this NOTE TO § 102–118.630: Amounts collected by section are unsuccessful, GSA may re- GSA are returned to the Treasurer of the port the debt to the Department of United States (31 U.S.C. 3726). Justice for collection, litigation, and [65 FR 24569, Apr. 26, 2000, as amended at 69 related proceedings, as prescribed in 4 FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, CFR parts 101 through 105. 2009] § 102–118.645 Can a TSP file an admin- § 102–118.635 Can the Government istrative claim on collection ac- charge interest on an amount due tions? from a TSP? Yes, a TSP may file an administra- Yes, the Government can charge in- tive claim involving collection actions terest on an amount due from a TSP. resulting from the transportation audit This procedure is provided for under performed by the GSA directly with the Debt Collection Act (31 U.S.C. 3717), the GSA Audit Division. Any claims the Federal Claims Collection Stand- submitted to GSA will be considered ards (4 CFR parts 101 through 105), and 41 CFR part 105–55. ‘‘disputed claims’’ under section 4(b) of the Prompt Payment Act (31 U.S.C. § 102–118.640 If a TSP fails to pay or to 3901, et seq.). The TSP must file all appeal an overcharge, what actions other transportation claims with the will GSA pursue to collect the debt? agency out of whose activities they GSA will pursue debt collection arose. If this is not feasible (e.g., where through one of the following methods: the responsible agency cannot be deter- (a) When an indebted TSP files a mined or is no longer in existence) claim, GSA will apply all or any por- claims may be sent to the GSA Audit tion of the amount it determines to be Division for forwarding to the respon- due the TSP, to the outstanding bal- sible agency or for direct settlement by ance owed by the TSP, under the Fed- the GSA Audit Division. Claims for eral Claims Collection Standards (4 GSA processing must be addressed to: CFR parts 101 through 105) and 41 CFR part 105–55; General Services Administration (b) When the action outlined in para- Transportation Audit Division (QMCA) graph (a) of this section cannot be Crystal Plaza 4, Room 300 taken by GSA, GSA will instruct one 2200 Crystal Drive or more Government disbursing offices Arlington, VA 22202

370

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00380 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–118.675

www.gsa.gov/transaudits § 102–118.660 May a TSP appeal a [65 FR 24569, Apr. 26, 2000, as amended at 69 postpayment audit decision of the FR 57620, Sept. 24, 2004; 74 FR 30475, June 26, CBCA? 2009] No, a ruling by the CBCA is the final administrative remedy and the TSP § 102–118.650 Can a TSP request a re- has no statutory right of appeal. This view of a settlement action by the subpart governs administrative actions Administrator of General Services? only and does not affect any rights of Yes, a TSP desiring a review of a set- the TSPs. A TSP may still pursue a tlement action taken by the Adminis- legal remedy through the courts. trator of General Services may request [65 FR 24569, Apr. 26, 2000, as amended at 74 a review by the Civilian Board of Con- FR 30476, June 26, 2009] tract Appeals (CBCA) or file a claim with the United States Court of Fed- § 102–118.665 May my agency appeal a eral Claims (28 U.S.C. 1491). postpayment audit decision by the CBCA? [65 FR 24569, Apr. 26, 2000, as amended at 74 No, your agency may not appeal a FR 30476, June 26, 2009] postpayment audit decision and must follow the ruling of the CBCA. § 102–118.655 Are there time limits on a TSP request for an administrative [65 FR 24569, Apr. 26, 2000, as amended at 74 review by the CBCA? FR 30476, June 26, 2009]

(a) Yes, the CBCA must receive a re- TRANSPORTATION SERVICE PROVIDER quest for review from the TSP within (TSP) NON-PAYMENT OF A CLAIM six months (not including time of war) from the date the settlement action § 102–118.670 If a TSP cannot imme- was taken or within the periods of lim- diately pay a debt, can they make itation specified in 31 U.S.C. 3726, as other arrangements for payment? amended, whichever is later. Address Yes, if a TSP is unable to pay the requests: debt promptly, the Director of the GSA (1) By United States Postal Service Audit Division has the discretion to to: Civilian Board of Contract Appeals enter into alternative arrangements (CBCA), 1800 F Street, NW., Wash- for payment. ington, DC 20405. § 102–118.675 What recourse does my (2) In person or by courier to: GSA agency have if a TSP does not pay a Civilian Board of Contract Appeals, 6th transportation debt? floor, 1800 M Street, NW., Washington, If a TSP does not pay a transpor- DC 20036. tation debt, GSA may refer delinquent (b) The CBCA will accept legible sub- debts to consumer reporting agencies missions via facsimile (FAX) on (202) and Federal agencies including the De- 606–0019. partment of the Treasury and Depart- [74 FR 30746, June 26, 2009] ment of Justice. PARTS 102–119—102–140 [RESERVED]

SUBCHAPTER E—TRAVEL MANAGEMENT [RESERVED]

PART 102–141—GENERAL [RESERVED] PARTS 102–142—102–170 [RESERVED]

371

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00381 Fmt 8010 Sfmt 8006 Q:\41\41V3.TXT ofr150 PsN: PC150 SUBCHAPTER F—TELECOMMUNICATIONS

PART 102–171—GENERAL Subpart A—General [RESERVED] § 102–173.5 What is Internet GOV Do- main? PART 102–172—TELECOMMUNI- Internet GOV Domain refers to the CATIONS MANAGEMENT POLICY Internet top-level domain ‘‘dot-gov’’ [RESERVED] operated by the General Services Ad- ministration for the registration of PART 102–173—INTERNET GOV U.S. government-related domain DOMAIN names. In general, these names reflect the organization names in the Federal Government and non-Federal govern- Subpart A—General ment entities in the United States. Sec. These names are now being used to pro- 102–173.5 What is Internet GOV Domain? mote government services and increase 102–173.10 What is the authority or jurisdic- the ease of finding these services. tion of the Internet GOV Domain? 102–173.15 What is the scope of this part? § 102–173.10 What is the authority or 102–173.20 To whom does this part apply? jurisdiction of the Internet GOV Do- main? 102–173.25 What definitions apply to this part? Jurisdiction of the Internet GOV (dot-gov) domain was delegated to the Subpart B—Registration General Services Administration in 1997 by the Federal Networking Council 102–173.30 Who may register in the dot-gov with guidance in the form of Internet domain? Engineering Task Force (IETF) Infor- 102–173.35 Who authorizes domain names? mational RFC 2146, which can be ob- 102–173.40 Who is my Chief Information Offi- tained on the Internet at: http:// cer (CIO)? www.ietf.org/rfc/rfc2146.txt?number=2146. 102–173.45 Is there a registration charge for domain names? § 102–173.15 What is the scope of this 102–173.50 What is the naming convention part? for States? 102–173.55 What is the naming convention This part addresses the registration for Cities and Townships? of second-level domain names used in 102–173.60 What is the naming convention the Internet GOV Domain. This reg- for Counties or Parishes? istration process assures that the as- 102–173.65 What is the naming convention signed domain names are unique world- for Native Sovereign Nations? wide. 102–173.70 Where do I register my dot-gov domain name? § 102–173.20 To whom does this part 102–173.75 How long does the process take? apply? 102–173.80 How will I know if my request is This part applies to Federal, State, approved? and local governments, and Native 102–173.85 How long will my application be Sovereign Nations. You do not need to held, pending approval by the Chief In- register domain names with the Gen- formation Officer (CIO)? eral Services Administration if you 102–173.90 Are there any special restrictions will be using some other top-level do- on the use and registration canonical, or main registration, such as dot-us, dot- category names like recreation.gov? org, or dot-net. 102–173.95 Are there any restrictions on the use of the dot-gov domain name? § 102–173.25 What definitions apply to AUTHORITY: 40 U.S.C. 486(c). this part? The following definitions apply to SOURCE: 68 FR 15090, Mar. 28, 2003, unless otherwise noted. this part: Domain is a region of jurisdiction on the Internet for naming assignment.

372

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00382 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–173.50

The General Services Administration For Native Sovereign Nations, GSA (GSA) is responsible for registrations will only accept authorization from the in the dot-gov domain. Bureau of Indian Affairs, Department Domain name is a name assigned to an of the Interior. In most cases, GSA will Internet server. This is the name that not make determinations on the appro- you request from GSA. Typically, you priateness of the selected domain would apply this name to a domain names, but reserves the right to not as- name server. A domain name locates sign domain names on a case-by-case the organization or other entity on the basis. Non-Federal government domain Internet. The dot gov part of the do- names must follow the naming conven- main name reflects the purpose of the tions described in §§ 102–173.50 through organization or entity. This part is 102–173.65. For other government enti- called the Top-Level Domain name. ties, CIO’s may delegate this authority The Second-Level Domain name to the by notification to GSA. left of the dot gov maps to a readable version of the Internet address. The § 102–173.40 Who is my Chief Informa- Domain Name server has a registry of tion Officer (CIO)? Internet Protocol (IP) address numbers Your Chief Information Officer (CIO) that relate to the readable text name. may vary according to the branch of Domain name server is the computer government. For the Federal Govern- that provides pointers from the domain ment, the General Services Adminis- name to the actual computers. tration (GSA) recognizes the cabinet Dot-gov refers to domain names end- level CIOs listed at http://www.cio.gov. ing with a ‘‘.gov’’ suffix. The Internet For States, GSA will accept authoriza- GOV domain is another way of express- tion from the Office of the Governor or ing the collection of dot-gov domain highest-ranking Information Tech- names. nology (IT) official. Other officials in- Native Sovereign Nations (NSN) are clude the Mayor (for city or town), federally recognized tribes. County Commissioner (for counties) or highest ranking IT official. Native Sov- ereign Nations (NSN) must receive au- Subpart B—Registration thorization from the Bureau of Indian Affairs. CIOs may delegate this author- § 102–173.30 Who may register in the ity by notification to GSA. dot-gov domain? Registration in the dot-gov domain is § 102–173.45 Is there a registration available to official governmental or- charge for domain names? ganizations in the United States in- The General Services Administration cluding Federal, State, and local gov- (GSA) reserves the right to charge for ernments, and Native Sovereign Na- domain names in order to recover cost tions. of operations. For current registration charges, please visit the GSA Web site § 102–173.35 Who authorizes domain at http://www.nic.gov. GSA does not names? currently charge a fee. GSA has the au- Domain names must be authorized by thority to employ a system of collec- the Chief Information Officer (CIO) of tion that includes a one-time setup fee the requesting or sponsoring govern- for new registrations, which will not mental organization. For Federal de- exceed $1000, depending on the level of partments and agencies, the General assistance that may be provided by Services Administration (GSA) will ac- GSA, and a recurring annual charge cept authorization from the CIO of the that will not exceed $500 for all dot-gov department or agency. For independent domains. The fees are based on antici- Federal government agencies, boards, pated costs for operating the registra- and commissions, GSA will accept au- tion service. thorization from the highest-ranking Information Technology Official. For § 102–173.50 What is the naming con- State and local governments, GSA will vention for States? accept authorization from appropriate (a) To register any second-level do- State or local officials, see § 102–173.40. main within dot-gov, State government

373

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00383 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–173.55 41 CFR Ch. 102 (7–1–11 Edition)

entities must register the full State ally separated by a dash. Examples of name or clearly indicate the State preferred domain names include— postal code within the name. Examples (i) Chicago-il.gov; of acceptable names include vir- (ii) Cityofcharleston-sc.gov; ginia.gov, tennesseeanytime.gov, (iii) Charleston-wv.gov; wa.gov, nmparks.gov, mysc.gov, (iv) Townofdumfries-va.gov; and emaryland.gov, and ne-taxes.gov. How- (v) Detroitmi.gov. ever— (2) GSA reserves the right to make (1) Use of the State postal code exceptions to the naming conventions should not be embedded within a single described in this subpart on a case-by- word in a way that obscures the postal case basis in unique and compelling code. For example, Indiana (IN) should cases. not register for win.gov, or independ- (c) If third-level domain naming is ence.gov; and used, GSA reserves the right to offer (2) Where potential conflicts arise be- exceptions to the third-level domain tween postal codes and existing domain naming conventions described in this names, States are encouraged to reg- section on a case-by-case basis in ister URL’s that contain the full State unique and compelling cases. name. (b) There is no limit to the number of § 102–173.60 What is the naming con- domain names for which a State may vention for Counties or Parishes? register. (a) To register any second-level do- (c) States are encouraged to make main within dot-gov, County or Parish second-level domains available for governments must register the Coun- third-level registration by local gov- ty’s or Parish’s name or abbreviation, ernments and State Government de- the word ‘‘county’’ or ‘‘parish’’ (be- partments and programs. For example, cause many counties have the same the State of North Carolina could reg- name as cities within the same State), ister NC.GOV as a second-level domain and a reference to the State in which and develop a system of registration the county or parish is located. How- for their local governments. The State ever, the use of the State postal code would be free to develop policy on how should not be embedded within a single the local government should be reg- word in a way that obscures the postal istered under NC.GOV. One possibility code. might be to spell out the city, thus Ra- (b) The preferred format for county leigh.NC.gov could be a resulting do- or parish governments is to denote the main name. State postal code after the county or parish, optionally separated by a dash. § 102–173.55 What is the naming con- Examples of preferred domain names vention for Cities and Townships? include— (a) To register any second-level do- (1) Richmondcounty-ga.gov; main within dot-gov, City (town) gov- (2) Pwc-county-va.gov; and ernments must register the domain (3) Countyofdorchestor-sc.gov. name with the city (town) name or ab- (c) If third-level domain naming is breviation, and clear reference to the available from the State government, State in which the city (town) is lo- counties or parishes are encouraged to cated. However— register for a domain name under a (1) Use of the State postal code State’s registered second-level (e.g., should not be embedded within a single richmondcounty.ga.gov). word in a way that obscures the postal code; and § 102–173.65 What is the naming con- (2) Inclusion of the word city or town vention for Native Sovereign Na- within the domain name is optional tions? and may be used at the discretion of To register any second-level domain the local government. in dot-gov, Native Sovereign Nations (b)(1) The preferred format for city (NSN) may register any second-level governments is to denote the State domain name provided that it contains postal code after the city name, option- the registering NSN name followed by

374

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00384 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–173.95

a suffix of ‘‘-NSN.gov’’ (case insensi- main name has been activated, a notice tive). will be sent to you.

§ 102–173.70 Where do I register my § 102–173.85 How long will my applica- dot-gov domain name? tion be held, pending approval by the Chief Information Officer Registration is an online process at (CIO)? the General Services Administration’s Web site at http://www.nic.gov. At the Registrations will be held in reserve Network Information Site, you will status for sixty (60) days pending Chief find the instructions and online reg- Information Officer (CIO) authorization from your sponsoring organiza- istration forms for registering your do- tion. main name. To register your domain name you will need to provide informa- § 102–173.90 Are there any special re- tion such as your desired domain name, strictions on the use and registra- sponsoring organization, points of con- tion of canonical, or category tact, and at least two name server ad- names like recreation.gov? dresses. Yes, canonical names registration request must provide access coverage for § 102–173.75 How long does the process the areas conveyed by the name. So the take? URL recreation.gov would not be ap- The process can be completed within proved for the state of Maryland, but 48 hours if all information received is the URL recreationMD.gov would be complete and accurate. Most requests approved if it provides statewide cov- take up to thirty (30) days because the erage. The logic of the names adds registrar is waiting for Chief Informa- value to the dot gov domain. GSA re- tion Officer (CIO) approval. serves the right deny use of canonical names that do not provide appropriate § 102–173.80 How will I know if my re- coverage and to arbitrate these issues. quest is approved? A registration confirmation notice is § 102–173.95 Are there any restrictions sent within one business day after you on the use of the dot-gov domain name? register your domain name, informing you that your registration information The General Services Administration was received. If all of your information approves domain names for a specific is accurate and complete, a second no- term of time, generally two years un- tice will be sent to you within one less otherwise stated, and under condi- business day, informing you that all of tions of use. General conditions of reg- your information is in order. If you are istration and are posted at the reg- ineligible, or if the information pro- istration Web site at http://www.nic.gov vided is incorrect or incomplete, your and may be modified over time. Orga- registration will be rejected and a no- nizations that operate web sites that tice will be sent to you stating the rea- are not in compliance with the condi- son for rejection. Registration requests tions of use may have their domain will be activated within two business name terminated. days after receiving valid authorization from the appropriate Chief Infor- PARTS 102–174—102–190 mation Officer (CIO). Once your do- [RESERVED]

375

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00385 Fmt 8010 Sfmt 8006 Q:\41\41V3.TXT ofr150 PsN: PC150 SUBCHAPTER G—ADMINISTRATIVE PROGRAMS

PART 102–191—GENERAL Subpart E—Performance Measurement [RESERVED] Requirements 102–192.110 At what level(s) in our agency PART 102–192—MAIL must we have performance measures? MANAGEMENT 102–192.115 Why must we use performance measures? Subpart A—Introduction to this Part Subpart F—Agency Mail Manager Sec. Requirements 102–192.5 What does this part cover? 102–192.120 Must we have an agency mail 102–192.10 What authority governs this part? manager? 102–192.15 How are ‘‘I’’, ‘‘you’’, ‘‘me’’, ‘‘we’’, and ‘‘us’’ used in this part? 102.192.125 What is the appropriate managerial level for an agency mail manager? 102–192.20 How are ‘‘must’’ and ‘‘should’’ used in this part? 102–192.130 What are your general respon- 102–192.25 Does this part apply to me? sibilities as an agency mail manager? 102–192.30 What types of mail does this part apply to? Subpart G—Mail Center Manager 102–192.35 What definitions apply to this Requirements part? 102–192.135 Must we have a mail center man- 102–192.40 Where can we obtain more infor- ager at our facility? mation about the classes of mail? 102.192.140 What are your general respon- 102–192.45 How can we request a deviation sibilities as a Federal mail center man- from these requirements, and who can ager? approve it?

Subpart B—Financial Requirements for All Subpart H—Program Level Mail Agencies Responsibilities

102.192.50 What payment processes are we 102–192.145 Which program levels should required to use? have a mail manager? 102–192.55 Why must we use these commer- 102–192.150 What are your general respon- cial payment processes? sibilities as a program level mail man- 102–192.60 How do we implement these com- ager? mercial payment processes? 102–192.65 What features must our finance Subpart I—Other Agency Responsibilities systems have to track mail costs? 102–192.155 What should our agency-wide mail management policy statement Subpart C—Security Requirements for All cover? Agencies 102–192.160 What less costly alternatives to 102–192.70 What security policies and plans expedited mail and couriers should your must we have? agency-wide mail management policy ad- 102–192.75 Why must we have written secu- dress? rity policies and plans? 102–192.165 What authorities must I follow 102–192.80 How do we develop written secu- when contracting out all or part of the rity policies and plans? mail function?

Subpart D—Reporting Requirements Subpart J—GSA’s Responsibilities and Services 102.192.85 Who must report to GSA annually? 102–192.170 What are GSA’s responsibilities 102.192.90 What must we include in our an- in mail management? nual mail management report to GSA? 102–192.175 What types of support does GSA 102–192.95 Why does GSA require annual offer to Federal agency mail manage- mail management reports? ment programs? 102–192.100 How do we submit our annual AUTHORITY: 44 U.S.C. 2904; 40 U.S.C. 121(c). mail management report to GSA? 102–192.105 When must we submit our an- SOURCE: 73 FR 49956, Aug. 25, 2008, unless nual mail management report to GSA? otherwise noted.

376

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00386 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–192.35

Subpart A—Introduction to this (1) All internal, incoming, and out- Part going materials, regardless of whether or not they currently pass through a § 102–192.5 What does this part cover? mail center; this includes envelopes, publications, postal cards, bulk mail, This part prescribes policy and re- expedited mail, and individual pack- quirements for the effective, economi- ages up to 70 pounds that contain paper cal, and secure management of incom- or publications; and ing, internal, and outgoing mail in (2) Materials carried by agency per- Federal agencies. sonnel, contractors, the United States § 102–192.10 What authority governs Postal Service (USPS), and all other this part? carriers of such items. (b) This part does not apply to ship- This part is governed by Section 2 of ments of parts or supplies from a mate- Public Law 94–575, the Federal Records riel distribution center (a material dis- Management Amendments of 1976 (44 tribution center is a warehouse that U.S.C. 2901–2904), as amended, that re- maintains and distributes an inventory quires the Administrator of General of parts and supplies). Services to provide guidance and assistance to Federal agencies on records § 102–192.35 What definitions apply to management and defines the proc- this part? essing of mail by Federal agencies as a records management activity. The following definitions apply to this part: § 102–192.15 How are ‘‘I’’, ‘‘you’’, ‘‘me’’, Accountable mail means any mail for ‘‘we’’, and ‘‘us’’ used in this part? which the service provider and the mail center must maintain a record that In this part, ‘‘I’’, ‘‘me’’, and ‘‘you’’ shows where the mail piece is at any (in its singular sense) refer to agency given time and when and where it was mail managers and/or facility mail delivered; examples include USPS reg- managers. The context makes it clear istered mail and all expedited mail (see which usage is intended in each case. definition below). ‘‘We’’, ‘‘us’’, and ‘‘you’’ (in its plural sense) refer to your Federal agency. Agency mail manager means the person who manages the overall mail com- § 102–192.20 How are ‘‘must’’ and munications program of a Federal ‘‘should’’ used in this part? agency. means one of the five In this part— Class of mail categories of domestic mail as defined (a) ‘‘Must’’ identifies steps that Fed- by the United States Postal Service eral agencies are required to take; and (USPS) in the Domestic Mail Manual, (b) ‘‘Should’’ identifies steps that the (C100 through C600.1.z). These are: General Services Administration (GSA) (1) Express mail. recommends. (2) First class (includes priority NOTE TO § 102–192.20: In their internal policy statements, agencies may require steps that mail). GSA recommends. However, agencies may (3) Periodicals. not change required steps into non-manda- (4) Standard mail (e.g., bulk mar- tory recommendations. keting mail). (5) Package services. § 102–192.25 Does this part apply to Commingling means combining out- me? going mail from one facility or agency Yes, this part applies to you if you with outgoing mail from at least one work in mail management in a Federal other source. agency, as defined in § 102–192.35. Commercial payment processes means mechanisms for paying for USPS post- § 102–192.30 What types of mail does age that are essentially the same as this part apply to? those used by private sector mailers. (a) This part applies to all materials This means paying for postage before that might pass through a Federal mail the postage is used (which the U.S. center, including— Treasury has determined is appropriate

377

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00387 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–192.35 41 CFR Ch. 102 (7–1–11 Edition)

for USPS postage). For meter or per- ice providers exceed $1 million per fis- mit mail, this also means sending cal year. money to the USPS via Electronic Mail means the types of mail de- Funds Transfer (EFT) transactions to scribed in § 102–192.30. commercial banks designated by the Mail center means an organization USPS as their financial agents. For and/or place, within or associated with stamps and other USPS services, this a Federal facility, where incoming and/ means paying the USPS directly via or outgoing Federal mail is processed. cash, charge card, debit card, and Mail costs means direct or allocated money order, depending on the specific expenses for postage and all other mail service being purchased. costs (e.g., payments to service pro- Expedited mail means mail designated viders, mail center personnel costs, for delivery more quickly than the mail center overhead, etc.). USPS’s normal delivery times (which Mail piece design means laying out vary by class of mail). Examples of ex- and printing items to be mailed so that pedited mail include USPS Express they can be processed efficiently and Mail and overnight and two-day deliv- effectively by automated mail-proc- ery by other service providers. essing equipment. Facility mail manager means the per- Official Mail Accounting System son responsible for mail in a specific (OMAS) means the U.S. Postal Serv- Federal facility. There may be many ice’s government-specific system used facility mail managers within a Fed- to track postage used by many Federal eral agency. agencies. Federal agency (or agency), as defined Outgoing mail means mail generated in 44 U.S.C. 2901(14), means— within a Federal facility that is going (1) Any executive department as de- outside that facility and is delivered by fined in 5 U.S.C. 101; a service provider. (2) Any wholly owned Government Personal mail means incoming or out- corporation as defined in 31 U.S.C. 9101; going mail that is not related to offi- (3) Any independent establishment in cial business of the Federal govern- the executive branch as defined in 5 ment. U.S.C. 104; and Postage means money due or paid to (4) Any establishment in the legisla- any service provider for the delivery of tive branch, except the Senate, the mail. House of Representatives, the Archi- Presort means a mail preparation tect of the Capitol, and all activities process used to receive a discounted under the direction of the Architect of mailing rate by sorting mail according the Capitol. to USPS standards. Federal facility (or facility) means any Program level means a subsidiary part office building, installation, base, etc., of a Federal agency that generates a where Federal agency employees work; significant quantity of outgoing mail this includes any facility where the (‘‘significant’’ in this context is rel- Federal government pays postage ex- ative to the overall size of the agency’s penses even though few or no Federal mail budget; half of a small annual employees are involved in processing mail budget may not be significant in a the mail. small agency, whereas one-tenth or Incoming mail means any mail that less might be significant in a large comes into a facility delivered by any agency). The term program level may service provider, such as the USPS, apply to an agency organizational enti- United Parcel Service (UPS), FedEx, or ty, program, or project. DHL. Program level mail manager is the per- Internal mail means mail generated son at the program level responsible within a Federal facility that is deliv- for mail policy implementation, oper- ered within that facility or to a nearby ations, and financial management; the facility of the same agency, so long as program level counterpart of the agen- it is delivered by agency personnel or a cy mail manager. dedicated agency contractor. Service provider means any agency or Large agency means a Federal agency company that delivers mail. Some ex- whose total payments to all mail serv- amples of service providers are USPS,

378

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00388 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–192.65

UPS, FedEx, DHL, courier services, the ated with the Official Mail Accounting Military Postal Service Agency, the System (OMAS), except where GSA has Department of State’s Diplomatic approved a temporary deviation for a Pouch and Mail Division, and other specific agency, office, or component. Federal agencies providing mail serv- (b) Any deviation related to the re- ices. quirements of this section that has not Special services means those mail reached its expiration date on the ef- services that require extra payment fective date of this rule will continue over basic postage; e.g., certified mail, in effect until it expires. business reply mail, registered mail, (c) Any new deviation request, or any merchandise return service, certifi- request to extend an existing devi- cates of mailing, return receipts, and ation, must include a plan for the agen- delivery confirmation. cy to implement an accountable sys- Unauthorized use of agency postage tem for postage, as discussed in § 102– means the use of penalty or commer- 192.65. cial mail stamps, meter impressions, or (d) GSA provides detailed guidance other postage indicia for personal or on commercial payment processes and unofficial use. accountability on its web site, Worksharing means ways of proc- www.gsa.gov/mailpolicy. essing outgoing mail that qualify for reduced postage rates; examples in- § 102–192.55 Why must we use these clude presorting, bar coding, consoli- commercial payment processes? dating, and commingling. Federal agencies are required to use commercial payment processes because § 102–192.40 Where can we obtain commercial payment requires obliga- more information about the classes of mail? tion of the money before the postage is used (by contrast, use of the OMAS You can learn more about mail class- system allows the postage use and the es in the Domestic Mail Manual obligation of funds to occur almost en- (DMM). The DMM is available online at tirely independently of each other). Re- http://pe.usps.gov/default.asp or you can quiring the program level manager who order a copy from the Superintendent generates the mail to obligate the of Documents, U.S. Government Print- money before the postage is used ing Office, P.O. Box 371954, Pittsburgh, makes it much more likely that the PA 15250–7954. same program level manager will be accountable for the money, thereby en- § 102–192.45 How can we request a deviation from these requirements, couraging good judgment in using post- and who can approve it? age. See §§ 102–2.60 through 102–2.110 of § 102–192.60 How do we implement this chapter to request a deviation these commercial payment proc- from the requirements of this part. The esses? authority rests with the Administrator Guidance on implementing a compli- of General Services and those to whom ant payment process is in the GSA Pol- the Administrator has delegated such icy Advisory, Guidelines for Federal authority. Agencies On Converting to Commercial Payment Systems for Postage, which Subpart B—Financial can be found at www.gsa.gov/mailpolicy. Requirements for All Agencies § 102–192.65 What features must our fi- § 102–192.50 What payment processes nance systems have to keep track of are we required to use? mail costs? All payments to the United States All agencies must have an account- Postal Service or authorized service able system for making postage pay- providers must be made using commer- ments; that is, a system that allocates cial payment processes. postage expenses at the program level (a) Agencies may no longer use the within the agency and then makes pro- Intergovernmental Payment and Col- gram level managers accountable for lection Payment (IPAC) process associ- obligating and tracking those expenses.

379

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00389 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–192.70 41 CFR Ch. 102 (7–1–11 Edition)

The agency will have to determine the are free to determine for themselves appropriate program level for this re- which facilities are ‘‘smaller’’ and quirement, because the level at which which are ‘‘larger’’ for the purposes of it is cost-beneficial differs widely. The this section, so long as the basic re- agency’s finance system(s) should quirement for a security plan is met at track all mail costs separately to the every facility. program level or below, and should— (e) All mail facility managers should (a) Show allocations and expenses for report annually the status of their fa- postage and all other mail costs (e.g., cility mail security plans to agency payments to service providers, mail headquarters. At a minimum, this re- center personnel costs, mail center port should assure that the facility overhead, etc.) separate from all other mail security plan complies with the administrative expenses; requirements of this part, including an- (b) Allow mail centers to establish nual review by a subject matter expert systems to charge their customers for and regular rehearsal of responses to mail costs; and various emergency situations by facil- (c) Identify and charge mail costs ity personnel. that are part of printing contracts to (f) An outside security professional the program level. who has expertise in mail center security should review the agency’s mail NOTE TO § 102–192.65: To better accomplish security plan annually. Review of facil- these goals listed in this section, you should maintain separate accounts with the USPS ity mail security plans can be accom- and all other service providers for mail, as plished by outside subject matter ex- defined by this part. Shipment of non-mail perts such as agency security per- items should be arranged and paid for sonnel. If these experts are not avail- through other accounts. This will make it able within your agency, seek assist- possible for your annual mail management ance from the Postal Inspection Serv- report to reflect only amounts paid for mail, ice or other Federal authorities. as defined in § 102–192.35. § 102–192.75 Why must we have writ- Subpart C—Security Requirements ten security policies and plans? for All Agencies All Federal mail programs must identify, prioritize, and coordinate the § 102–192.70 What security policies and protection of all mail processing facili- plans must we have? ties in order to prevent, deter, and (a) You must have a written mail se- mitigate the effects of deliberate ef- curity policy that applies throughout forts to destroy, incapacitate, or ex- the agency. ploit the mail center or the national (b) You also must have a written mail infrastructure. Homeland Secu- mail security plan for each facility rity Presidential Directive HSPD–7 re- that processes mail, regardless of the quires all agencies to protect key re- facility’s mail volume. sources from terrorist attacks, and this (c) If a contract that is in place on is spelled out in the Postal and Ship- August 25, 2008 does not fully meet the ping Sector Plan, which is part of the requirements of this section, the con- National Infrastructure Protection tract must be modified to meet the re- Plan (NIPP) prescribed by HSPD–7. All quirement for a security plan within Federal mail centers are key resources one year of August 25, 2008, unless the under that plan. Details on the Postal contract will expire prior to that date. and Shipping Sector Plan are not pub- (d) The scope and level of detail of licly available. Federal employees each facility mail security plan should needing access to the plan should con- be commensurate with the size and re- tact the Department of Homeland Se- sponsibilities of each facility. For curity (DHS) at [email protected]. small facilities, you may provide a general, standardized plan that is used in § 102–192.80 How do we develop writ- many similar locations. For larger lo- ten security policies and plans? cations, you must develop a plan that Agency mail managers must coordi- is specifically tailored to the threats nate with their agency security service and risks at your location. Agencies and/or the Federal Protective Service

380

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00390 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–192.90

to develop agency mail security poli- § 102–192.90 What must we include in cies and plans. The Federal Protective our annual mail management re- Service has, working with the Inter- port to GSA? agency Security Committee which it Your annual report must— chairs, developed standards for build- (a) Identify your agency mail man- ing construction and management, in- ager; in addition you must promptly cluding standards for mail centers. At report the name of the agency mail a minimum, the agency mail security manager whenever there is a change of plan must address the following top- the person serving in this role. ics— (b) State the total amounts paid to (a) Risk assessment; each service provider during the pre- (b) Plan to protect staff and all other vious fiscal year: (1) These amounts should include occupants of agency facilities from only amounts paid for mail; not hazards that might be delivered in the amounts paid to any service provider mail; to ship parts and supplies from a mate- (c) Operating procedures; riel distribution center (see the defini- (d) Plan to provide a visible mail tion of mail in § 102–192.30). screening operation; (2) These amounts should include all (e) Training mail center personnel; postage costs associated with mailing (f) Testing and rehearsing responses printed materials, regardless of wheth- to various emergency situations by er the printing is accomplished by the agency personnel; agency or a contractor, and regardless (g) Managing threats; of how the postage expense is paid (e.g., (h) Communications plan; GSA’s Federal Acquisition Service (i) Occupant Emergency Plan (OEP); (FAS) produces a publication called ‘‘Marketips,’’ which provides informa- (j) Continuity of Operations Plan tion about supplies and services avail- (COOP); and able through GSA sources. GSA should (k) Annual reviews. include the postage that it uses to mail NOTE TO § 102–192.80: The agency mail man- Marketips in the amounts that it re- ager and facility manager(s) need not pre- ports, even though a printing company pare all of these plans themselves. They actually prints and mails the publica- should participate actively in the develop- tion); ment and implementation of each of these (c) Report actual results for the per- elements, but other parts of the agency or formance measures in use at the agen- outside security professionals should take cy and facility levels; the lead in their respective areas of exper- (d) Describe your agency’s accom- tise. plishments and plans to improve the economy and efficiency of mail oper- Subpart D—Reporting ations in the current and future years; Requirements (e) Identify how many Federal employees and contractors work in your § 102–192.85 Who must report to GSA agency’s mail operations nationwide, annually? and the number that have achieved in- Large agencies (all agencies that dustry certifications (e.g. Certified spend in excess of $1 million each fiscal Mail and Distributions Systems Man- year in total payments to mail service ager, Executive Mail Center Manager, Mailpiece Quality Control Specialist, providers) must provide a Mail Man- Certified Mail Manager); agement Report to GSA by January (f) Describe your agency’s approach 15th of each year. If your agency is a to ensuring that program level officials cabinet-level or independent agency, are accountable for postage; and the agency mail manager must compile (g) Verify that a competent expert all offices (or components) and submit has reviewed your agency security poli- one report for the department or agencies and the mail security plan for each cy as a whole (e.g., the Department of facility within the past year, or explain Defense or the Department of Health what steps your agency has taken in and Human Services). this regard.

381

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00391 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–192.95 41 CFR Ch. 102 (7–1–11 Edition)

NOTE TO § 102–192.90: GSA is launching a measures, as part of the format for the long-term initiative to improve the useful- annual report. You may also find these ness of data collected through the annual measures on GSA’s web site, at mail management reports. The reports for each succeeding fiscal year will require an www.gsa.gov/mailpolicy. incrementally broader set of data, working towards measures that will give agency man- § 102–192.115 Why must we use per- agement a much clearer picture of the effi- formance measures? ciency and effectiveness of their mail pro- Performance measures gauge the suc- grams. The additional data will eventually cess of your mail management plans require agencies to track cost per piece for and processes by comparing perform- all outgoing Federal mail. ance over time and among organiza- § 102–192.95 Why does GSA require an- tions. Performance measures— nual mail management reports? (a) Help define goals and objectives; GSA requires annual agency mail (b) Enhance resource allocation; and management reports to— (c) Provide accountability. (a) Ensure that Federal agencies have the policies, procedures, and data to Subpart F—Agency Mail Manager manage their mail operations effi- Requirements ciently and effectively; (b) Ensure that appropriate security § 102–192.120 Must we have an agency measures are in place; and mail manager? (c) Allow GSA to fulfill its respon- Yes, every Federal agency as defined sibilities under the Federal Records in § 102–192.35 must have an agency Act, especially with regards to sharing mail manager. Agencies that are not best practices, training, standards, and ‘‘large agencies’’ as defined in § 102– guidelines. 192.35 may not need a full-time person § 102–192.100 How do we submit our in this position. annual mail management report to NOTE TO § 102–192.120: GSA will post the GSA? names and official contact information for If your agency is a large agency, as all large agency mail managers on its web defined in § 102–192.35, you must submit site located at www.gsa.gov/mailpolicy. annual reports using the GSA web- based Electronic Performance Support § 102–192.125 What is the appropriate Tool (EPST). Agency mail managers managerial level for an agency mail manager? and other authorized users will receive training from GSA on how to use the The agency mail manager should be EPST. at a managerial level that enables him or her to speak for the agency and ful- § 102–192.105 When must we submit fill the requirements of Subparts B, C, our annual mail management re- D, E, and F of this part. GSA rec- port to GSA? ommends professional mail certifi- Beginning with the report covering cation for agency mail managers. Fiscal Year 2009, your annual report will be due on January 15th of each § 102–192.130 What are your general year for the previous fiscal year. responsibilities as an agency mail manager? Subpart E—Performance In addition to carrying out the re- Measurement Requirements sponsibilities in Subparts B, C, D, and E of this part, an agency mail manager § 102–192.110 At what level(s) in our should— agency must we have performance (a) Establish written policies and measures? procedures to provide timely and cost You must have performance meas- effective dispatch and delivery of mail; ures for mail operations at the agency (b) Ensure agency-wide awareness level and in all facilities and for all and compliance with standards and program levels that spend more than $1 operational procedures established by million per year on postage. GSA pro- all service providers used by the agen- vides a list of suggested performance cy;

382

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00392 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–192.140

(c) Set policies for expedited mail, (b) Improve, streamline, and reduce mass mailings, mailing lists, and couri- the cost of mail practices and proce- ers; dures by continually reviewing work (d) Seek opportunities to implement processes throughout the facility and cost-effective improvements and to en- seeking opportunities for cost-effective hance performance of the agency’s mis- change; sion; (c) Work closely with all facility per- (e) Develop and direct agency pro- sonnel, especially printing specialists grams and plans for proper and cost-ef- and the program level users who de- fective use of transportation, equip- velop large mailings, to minimize post- ment, and supplies used for mail; age and associated printing expenses (f) Ensure that facility and program through improved mail piece design, level mail personnel receive appro- electronic transmission of data in lieu priate certifications and training in order to successfully perform their as- of mail, reducing the number of hand- signed duties; written addresses on outgoing mail, (g) Promote professional certifi- and other appropriate measures; cation for mail managers and mail cen- (d) Ensure that all addresses on mail- ter employees; ing lists have been validated using (h) Ensure that expedited mail and USPS-approved tools such as ancillary couriers are used only when authorized endorsements, CASS-certified soft- by the Private Express Statutes (39 ware, Move Update, and NCOAlink® U.S.C. 601–606) and when necessary and (more information can be found on the cost-effective; United States Postal Service website (i) Establish written policies and pro- at www.usps.com); cedures to minimize incoming and out- (e) Keep current on new technologies going personal mail; that could be applied to reduce agency (j) Provide guidance to agency cor- mailing costs; respondence managers on correspond- (f) Collaborate and maintain profes- ence management decisions such as de- sional relationships with the USPS and velopment and design of mailing mate- all other service providers; rials including Business Reply Mail, (g) Establish performance measures letterhead, and mail piece design; and and goals for mail center operations, (k) Represent the agency in its rela- such as a maximum time for processing tions with mail service providers (usu- and delivery of incoming mail; ally as a Contracting Officer’s Tech- (h) Ensure that expedited mail and nical Representative), other agency couriers are used only when authorized mail managers, and the GSA Office of by the Private Express Statutes (39 Governmentwide Policy. U.S.C. 601–606) and when necessary and cost-effective; Subpart G—Mail Center Manager (i) Manage all incoming and outgoing Requirements mail processing activities at the facility, including all regularly scheduled, § 102–192.135 Must we have a mail center manager at our facility? small package, and expedited service providers, couriers, equipment and per- Yes, every facility that has more sonnel; than two full time people dedicated to (j) Be attentive to unauthorized use, processing mail must have a mail center manager. loss, or theft of postage, including any unauthorized use of penalty or com- § 102–192.140 What are your general mercial mail stamps, meter impres- responsibilities as a Federal mail sions or other postage indicia, and im- center manager? mediately report such incidents to the A Federal mail center manager agency Inspector General, internal se- should— curity office, the Postal Inspection (a) Implement policies and proce- Service, or other appropriate author- dures developed by the agency mail ity; manager, including cost control proce- (k) Track incoming packages and ac- dures; countable mail;

383

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00393 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–192.145 41 CFR Ch. 102 (7–1–11 Edition)

(l) Provide training to mail center (b) Ensuring that your program com- employees at all levels on cost-effec- plies with all applicable mail policies tive mailing practices for incoming, and procedures, including this part; outgoing, and internal mail, as well as (c) Coordinating with your program mail security; personnel to minimize postage and as- (m) Provide opportunities for train- sociated printing expenses through im- ing leading to professional certifi- proved mail piece design, electronic cation for mail center personnel; transmission of data in lieu of mail, (n) Ensure that outgoing mail meets and other appropriate measures; all the standards established by your (d) Ensuring that all addresses on service provider(s) for weight, size, haz- mailing lists have been validated using ardous materials content, etc.; USPS-approved tools such as ancillary (o) Ensure that your facility has a endorsements, CASS-certified soft- written security plan, and implement ware, Move Update, and NCOAlink® that plan; (more information can be found on the (p) Establish, publish, and maintain United States Postal Service website consistency in the facility’s mail deliv- at www.usps.com); ery and pickup times, based on need for (e) Keeping current on new tech- service as established through study of nologies and practices that could re- mail volumes and service require- duce your mailing costs or make your ments; use of mail more effective; (q) Collaborate with agency finance (f) Coordinating all of your program’s officials to establish procedures for large mailings and associated print timely processing of funds owed to jobs to ensure that the most efficient service providers; and and effective procedures are used; (r) Report all information necessary (g) Providing mail training opportu- for your agency’s annual mail manage- nities to your program level personnel; ment report. (h) Collaborating with agency finance officials to establish procedures for Subpart H—Program Level Mail timely processing of funds owed to Responsibilities service providers; and (i) Reporting total amounts paid to § 102–192.145 Which program levels each service provider during the pre- should have a mail manager? vious fiscal year to the agency mail manager (See § 102–192.90(b)(1) for more Every program level within a Federal information). agency that generates a significant quantity of outgoing mail should have its own mail manager. Each agency Subpart I—Other Agency must decide which programs will have Responsibilities a full-time or part-time mail manager. In making this determination, the § 102–192.155 What should our agency- agency should consider the total vol- wide mail management policy statement cover? ume of outgoing mail that is put into the mail stream by the program itself You should have a written, agency- or by printers, presort contractors, or wide mail management policy state- others on the program’s behalf. ment that, at a minimum, addresses— (a) Mail center security, as discussed § 102–192.150 What are your general in §§ 102–192.70, 102–192.75 and 102–192.80; responsibilities as a program level (b) Your expectations regarding pro- mail manager? gram level accountability, postage ex- Your responsibilities at the program penditure data, and commercial pay- level include— ment processes; (a) Working closely with the agency (c) Your approach to performance mail manager and mail center man- measurement and performance managers who handle significant quantities agement for mail; of mail or print functions for your pro- (d) Centralized mail processing, gram, as well as mail technical ex- worksharing, consolidation, and com- perts; mingling to obtain postage savings;

384

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00394 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–192.170

(e) Tracking incoming packages and § 102–192.160 What less costly alter- accountable mail; natives to expedited mail and couri- (f) Maintaining centralized control of ers should your agency-wide mail outgoing mail, especially outgoing ex- management policy address? press packages and letters; Your policy statement should address (g) Tracking and managing mail the following alternatives to expedited costs within printing contracts; mail and couriers: (h) Training and professional certifi- (a) Electronic transmission via e- cation for mail center managers and mail. (b) Facsimile transmission. employees; (c) Internet. (i) Addressing, including machine readability, formatting, use of correct § 102–192.165 What authorities must I street addresses, and minimizing use of follow when contracting out all or hand-written addresses; part of the mail function? (j) Ensuring that a USPS mail piece Any contract for a mail function design analyst is consulted when cre- must require compliance with— ating a new mail piece; (a) This part (41 CFR part 102–192); (k) Reviewing large mailings by mail (b) The Private Express Statutes (39 managers before they are sent to print- U.S.C. 601–606); ing or a print contractor; (c) All agency policies, procedures, (l) Acceptance and processing of in- and plans, including the agency-wide coming and outgoing personal mail; mail security plan and, if applicable, facility mail security plans; and (m) Limiting unsolicited mail and (d) All applicable acquisition stat- mail addressed to unknown persons and utes and regulations. former employees; and (n) Reporting all activities to include Subpart J—GSA’s Responsibilities all postage costs associated with mailing, printing, and materials, to the and Services agency mail manager. § 102–192.170 What are GSA’s responsibilities in mail management? NOTE (1) TO § 102–92.155(l) AND (m): Every agency should establish specific policies for 44 U.S.C § 2904(b) directs the Adminis- incoming and outgoing personal mail. In trator of General Services to provide general, personal mail should be discouraged guidance and assistance to Federal or prohibited. However, an agency may es- agencies to ensure economical and effi- tablish a policy to accept and process per- cient records management. 44 U.S.C. sonal mail for personnel living on a Federal § 2901(2) and (4) (C) define the proc- facility, personnel stationed outside the essing of mail by Federal agencies as United States, or personnel in other situations who would otherwise suffer hardship. part of records management. In carrying out its responsibilities under the NOTE (2) TO § 102–92.155(l) AND (m): Mailing costs associated with filing travel vouchers, Act, GSA is required to— and the payment of Government sponsored (a) Promulgate standards, proce- travel card billings, are considered to be dures, and guidelines; ‘‘incidental expenses’’ covered by the trav- (b) Conduct research to improve prac- eler’s ‘‘per diem allowance,’’ as provided for tices and programs; in the Federal Travel Regulation (41 CFR (c) Collect and disseminate informa- 300–3.1). Such mailing costs must, therefore, tion on training programs, techno- be paid out of the employee’s per diem allow- logical developments, etc.; ance. (d) Establish an interagency com- NOTE (3) TO § 102–92.155 (l) AND (m): Every mittee (i.e., the Interagency Mail Pol- reasonable attempt must be made to deliver icy Council) to provide an exchange of first class mail, priority mail, and express information among Federal agencies; mail (regardless of carrier), or to return it to the sender if the addressee cannot be identi- (e) Conduct studies, inspections, or fied. On the other hand, agencies may estab- surveys; lish written policies that permit discarding (f) Promote economy and efficiency of unwanted periodicals, bulk mail, and in the selection and utilization of bound printed matter under specified cir- space, staff, equipment, and supplies; cumstances. and

385

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00395 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–192.175 41 CFR Ch. 102 (7–1–11 Edition)

(g) In the event of an emergency, SOURCE: 66 FR 48358, Sept. 20, 2001, unless communicate with agencies. otherwise noted.

§ 102–192.175 What types of support § 102–193.5 What does this part cover? does GSA offer to Federal agency This part prescribes policies and pro- mail management programs? cedures related to the General Service GSA supports Federal agency mail Administration’s (GSA) role to provide management programs by— guidance on economic and effective (a) Assisting in the development of records management for the creation, agency policy and guidance in mail maintenance and use of Federal agen- management and mail operations; cies’ records. The National Archives (b) Identifying better business prac- and Records Administration Act of 1984 tices and sharing them with Federal (the Act) (44 U.S.C. chapter 29) amend- agencies; ed the records management statutes to (c) Developing and providing access divide records management respon- to a Governmentwide management in- sibilities between GSA and the Na- formation system for mail; tional Archives and Records Adminis- (d) Helping agencies develop perform- tration (NARA). Under the Act, GSA is ance measures and management infor- responsible for economy and efficiency mation systems for mail; in records management and NARA is (e) Maintaining a current list of responsible for adequate documenta- agency mail managers; tion and records disposition. GSA regu- (f) Establishing, developing and maintaining interagency mail commit- lations are codified in this part and tees; NARA regulations are codified in 36 (g) Maintaining liaison with the CFR chapter XII. The policies and pro- USPS and other service providers at cedures of this part apply to all the national level; records, regardless of medium (e.g., (h) Maintaining a web site for mail paper or electronic), unless otherwise communications policy; and noted. (i) Serving as a point of contact for mail issues. § 102–193.10 What are the goals of the Federal Records Management Pro- NOTE TO § 102–192.180: You may contact gram? GSA at: General Services Administration, The statutory goals of the Federal Office of Governmentwide Policy, Mail Man- agement Policy Division (MTT), 1800 F Records Management Program are: Street, NW., STE 1221, Washington, DC 20405; (a) Accurate and complete docu- or e-mail: [email protected]. mentation of the policies and transactions of the Federal Government. PART 102–193—CREATION, MAIN- (b) Control of the quantity and qual- TENANCE, AND USE OF ity of records produced by the Federal RECORDS Government. (c) Establishment and maintenance Sec. of management controls that prevent 102–193.5 What does this part cover? the creation of unnecessary records 102–193.10 What are the goals of the Federal and promote effective and economical Records Management Program? agency operations. 102–193.15 What are the records manage- (d) Simplification of the activities, ment responsibilities of the Adminis- trator of General Services (the Adminis- systems, and processes of records cre- trator), the Archivist of the United ation, maintenance, and use. States (the Archivist), and the heads of (e) Judicious preservation and dis- Federal agencies? posal of records. 102–193.20 What are the specific agency re- (f) Direction of continuing attention sponsibilities for records management? 102–193.25 What type of records management on records from initial creation to business process improvements should final disposition, with particular em- my agency strive to achieve? phasis on the prevention of unnecessary Federal paperwork. AUTHORITY: 40 U.S.C. 486(c).

386

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00396 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–193.25

§ 102–193.15 What are the records man- thorities, standards, guidelines, and in- agement responsibilities of the Ad- structions for a records management ministrator of General Services (the program. Administrator), the Archivist of the (d) Apply appropriate records man- United States (the Archivist), and agement practices to all records, irre- the Heads of Federal agencies? spective of the medium (e.g., paper, (a) The Administrator of General electronic, or other). Services (the Administrator) provides (e) Control the creation, mainte- guidance and assistance to Federal nance, and use of agency records and agencies to ensure economical and ef- the collection and dissemination of in- fective records management. Records formation to ensure that the agency: management policies and guidance es- (1) Does not accumulate unnecessary tablished by GSA are contained in this records while ensuring compliance part and in parts 102–194 and 102–195 of with NARA regulations for adequate this chapter, records management and proper documentation and records handbooks, and other publications disposition in 36 CFR parts 1220 and issued by GSA. 1228. (b) The Archivist of the United (2) Does not create forms and reports States (the Archivist) provides guid- that collect information inefficiently ance and assistance to Federal agencies or unnecessarily. to ensure adequate and proper docu- (3) Reviews all existing forms and re- mentation of the policies and trans- ports (both those originated by the actions of the Federal Government and agency and those responded to by the to ensure proper records disposition. agency but originated by another agen- Records management policies and guid- cy or branch of Government) periodi- ance established by the Archivist are cally to determine if they can be im- contained in 36 CFR chapter XII and in proved or canceled. bulletins and handbooks issued by the (4) Maintains records economically National Archives and Records Admin- and in a way that allows them to be re- istration (NARA). trieved quickly and reliably. (c) The Heads of Federal agencies (5) Keeps mailing and copying costs must comply with the policies and to a minimum. guidance provided by the Adminis- (f) Establish standard stationery formats and styles. trator and the Archivist. (g) Establish standards for cor- § 102–193.20 What are the specific respondence to use in official agency agency responsibilities for records communications, and necessary copies management? required, and their distribution and purpose. You must follow both GSA regulations in this part and NARA regula- § 102–193.25 What type of records man- tions in 36 CFR chapter XII to carry agement business process improve- out your records management respon- ments should my agency strive to sibilities. To meet the requirements of achieve? this part, you must take the following Your agency should strive to: actions to establish and maintain the (a) Improve the quality, tone, clarity, agency’s records management program: and responsiveness of correspondence; (a) Assign specific responsibility to (b) Design forms that are easy to fill- develop and implement agencywide in, read, transmit, process, and re- records management programs to an trieve, and reduce forms reproduction office of the agency and to a qualified costs; records manager. (c) Provide agency managers with the (b) Follow the guidance contained in means to convey written instructions GSA handbooks and bulletins and com- to users and document agency policies ply with NARA regulations in 36 CFR and procedures through effective direc- chapter XII when establishing and im- tives management; plementing agency records manage- (d) Provide agency personnel with ment programs. the information needed in the right (c) Issue a directive establishing pro- place, at the right time, and in a useful gram objectives, responsibilities, au- format;

387

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00397 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Pt. 102–194 41 CFR Ch. 102 (7–1–11 Edition)

(e) Eliminate unnecessary reports Standard and Optional Forms Management and design necessary reports for ease of Office General Services Administration use; (Forms-XR) (f) Provide rapid handling and accu- 1800 F Street, NW.; Room 7126 rate delivery of mail at minimum cost; Washington, DC 20405–0002 (202) 501–0581 and http://www.gsa.gov/forms (g) Organize agency files in a logical order so that needed records can be § 102–194.10 What is a Standard form? found rapidly to conduct agency business, to ensure that records are com- A Standard form is a fixed or sequen- plete, and to facilitate the identifica- tial order of data elements, prescribed tion and retention of permanent by a Federal agency through regula- records and the prompt disposal of tion, approved by GSA for mandatory temporary records. Retention and dis- use, and assigned a Standard form posal of records is governed by NARA number. This criterion is the same regulations in 36 CFR chapter XII. whether the form resides on paper or purely electronic.

PART 102–194—STANDARD AND § 102–194.15 What is an Optional form? OPTIONAL FORMS MANAGE- An Optional form is approved by GSA MENT PROGRAM for nonmandatory Governmentwide use and is used by two or more agencies. Sec. This criteria is the same whether the 102–194.5 What is the Standard and Optional form resides on paper or purely elec- Forms Management Program? 102–194.10 What is a Standard form? tronic. 102–194.15 What is an Optional form? 102–194.20 What is an electronic Standard or § 102–194.20 What is an electronic Optional form? Standard or Optional form? 102–194.25 What is an automated Standard An electronic Standard or Optional or Optional format? form is an officially prescribed set of 102–194.30 What role does my agency play in data residing in an electronic medium the Standard and Optional Forms Man- that is used to produce a mirror-like agement Program? 102–194.35 Should I create electronic Stand- image or as near to a mirror-like ard or Optional forms? image as the creation software will 102–194.40 For what Standard or Optional allow of the officially prescribed form. forms should an electronic version not be made available? § 102–194.25 What is an automated 102–194.45 Who should I contact about Standard or Optional format? Standard and Optional forms? An automated Standard or Optional AUTHORITY: 40 U.S.C. 486(c). format is an electronic version of the SOURCE: 66 FR 48358, Sept. 20, 2001, unless officially prescribed form containing otherwise noted. the same data elements and used for the electronic transaction of informa- § 102–194.5 What is the Standard and tion in lieu of using a Standard or Op- Optional Forms Management Pro- tional form. gram? The Standard and Optional Forms § 102–194.30 What role does my agency Management Program is a Govern- play in the Standard and Optional mentwide program that promotes Forms Management Program? economies and efficiencies through the Your agency head or designee’s role development, maintenance and use of is to: common forms. The General Services (a) Designate an agency-level Stand- Administration (GSA) provides addi- ard and Optional Forms Liaison rep- tional guidance on the Standard and resentative and alternate, and notify Optional Forms Management Program GSA, in writing, of their names, titles, through an external handbook called mailing addresses, telephone numbers, Standard and Optional Forms Proce- fax numbers, and e-mail addresses dural Handbook. You may obtain a within 30 days of the designation or re- copy of the handbook from: designation.

388

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00398 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 Federal Management Regulation § 102–194.40

(b) Promulgate Governmentwide agency Committee on Medical Records Standard forms under the agency’s (ICMR). statutory or regulatory authority in (j) Promote the use of electronic the FEDERAL REGISTER, and issue pro- forms within the agency by following cedures on the mandatory use, revi- what the Government Paperwork sion, or cancellation of these forms. Elimination Act (GPEA) prescribes and (c) Ensure that the agency complies all guidance issued by the Office of with the provisions of the Government Management and Budget and other re- Paperwork Elimination Act (GPEA) sponsible agencies. This guidance will (Public Law 105–277, 112 Stat 2681), Sec- promote the use of electronic trans- tion 508 of the Rehabilitation Act of actions and electronic signatures. 1973 (29 U.S.C. 74d), as amended, the Ar- (k) Notify GSA of the replacement of chitectural and Transportation Bar- any Standard or Optional form by an riers Compliance Board (Access Board) automated format or electronic form, Standards (36 CFR part 1194), and OMB and its impact on the need to stock the implementing guidance. In particular, paper form. GSA’s approval is not nec- agencies should allow the submission essary for this change, but a one-time of Standard and Optional forms in an notification should be made. electronic/automated version unless (l) Follow the specific instructions in the form is specifically exempted by the Standard and Optional Forms Pro- § 102–194.40. cedural Handbook. (d) Issue Governmentwide Optional § 102–194.35 Should I create electronic forms when needed by two or more Standard or Optional forms? agencies and announce the availability, revision, or cancellation of Yes, you should create electronic these forms. Forms prescribed through Standard or Optional forms, especially a regulation for use by the Federal when forms are used to collect infor- Government must be issued as a Stand- mation from the public. GSA will not ard form. approve a new or revision to a Stand- ard or Optional form unless an elec- (e) Obtain GSA approval for each tronic form is being made available. new, revised or canceled Standard and Only forms covered by § 102–194.40 are Optional form, 60 days prior to planned exempt from this requirement. Fur- implementation. Certify that the forms thermore, you should to the extent comply with all applicable laws and possible, use electronic form products regulations. Provide an electronic form and services that are based on open unless exempted by § 102–194.40. Revised standards. However, the use of propri- forms not approved by GSA will result etary products is permitted, provided in cancellation of the form. that the end user is not required to (f) Provide GSA with both an elec- purchase a specific product or subscrip- tronic (unless exempted by § 102–194.40) tion to use the electronic Standard or and paper version of the official image Optional form. of the Standard or Optional form prior to implementation. § 102–194.40 For what Standard or Op- (g) Obtain the prescribing agency’s tional forms should an electronic approval for exceptions to Standard version not be made available? and Optional forms, including elec- All forms should include an electronic forms or automated formats tronic version unless it is not prac- prior to implementation. ticable to do so. Areas where it may (h) Review annually agency pre- not be practicable include where the scribed Standard and Optional forms, form has construction features for spe- including exceptions, for improvement, cialized use (e.g., labels), to prevent consolidation, cancellation, or possible unauthorized use or could otherwise automation. The review must include risk a security violation, (e.g., classi- approved electronic versions of the fication cover sheets), or require un- forms. usual production costs (e.g., specialized (i) Coordinate all health-care related paper or envelopes). Such forms can be Standard and Optional forms through made available as an electronic form GSA for the approval of the Inter- only if the originating agency approves

389

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00399 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150 § 102–194.45 41 CFR Ch. 102 (7–1–11 Edition)

an exception to do so. (See the Stand- Standard and Optional Forms Management ard and Optional Forms Procedural Office General Services Administration Handbook for procedures and a list of (Forms-XR) 1800 F Street, NW.; Room 7126 these forms). Washington, DC 20405–0002 (202) 501–0581 § 102–194.45 Who should I contact about Standard and Optional forms? PART 102–196—FEDERAL FACILITY RIDESHARING [RESERVED] For Standard and Optional forms, you should contact the: PARTS 102–197—102–220 [RESERVED]

SUBCHAPTERS H–Z [RESERVED] CHAPTERS 103–104 [RESERVED]

390

VerDate Mar<15>2010 10:44 Sep 23, 2011 Jkt 223179 PO 00000 Frm 00400 Fmt 8010 Sfmt 8010 Q:\41\41V3.TXT ofr150 PsN: PC150