[Federal Register Volume 79, Number 44 (Thursday, March 6, 2014)]
[Proposed Rules]
[Pages 12681-12685]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04585]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-36

[FMR Case 2012-102-4; Docket No. 2012-0014; Sequence No. 1]
RIN 3090-AJ30


Federal Management Regulation; Disposal and Reporting of Federal 
Electronic Assets (FEA)

AGENCY: Office of Government-wide Policy, General Services 
Administration (GSA).

ACTION: Proposed rule with request for comments.

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SUMMARY: GSA is proposing to amend the Federal Management Regulation 
(FMR) by changing its personal property policy regarding the disposal 
and reporting of Federal Electronic Assets (FEA). The proposed changes 
are to provide policy for the safe handling and disposal of FEA, and 
make minor clarifying edits to existing policies.

DATES: Interested parties should submit comments in writing on or 
before May 5, 2014 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FMR Case 2012-102-4 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FMR Case 
2012-102-4'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds with 
``FMR Case 2012-102-4.'' Follow the instructions provided at the 
``Submit a Comment'' screen. Please include your name, company name (if 
any), and ``FMR Case 2012-102-4'' on your attached document.
     Fax: 202-501-4067
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street NW., Washington, 
DC 20405.

[[Page 12682]]

    Instructions: Please submit comments only and cite FMR Case 2012-
102-4 in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or confidential business information provided.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Robert Holcombe, Office of Governmentwide Policy, Office of Asset 
and Transportation Management (MA), at 202-501-3828 or by email at 
robert.holcombe@gsa.gov. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat at 202-501-
4755. Please cite FMR Case 2012-102-4.

SUPPLEMENTARY INFORMATION: 

A. Background

    This proposed amendment to FMR part 102-36 (41 CFR part 102-36) 
would update policy pertaining to the disposal and reporting of FEA. On 
October 5, 2009, President Obama signed Executive Order (E.O.) 13514, 
Federal Leadership in Environmental, Energy, and Economic Performance, 
to create a clean energy economy that will increase the nation's 
prosperity, promote energy security, protect the interests of 
taxpayers, and safeguard the health of our environment. The E.O. 
mandated Federal agencies to lead the national effort by example.
    To address the goals of the E.O., an Interagency Task Force on 
Electronics Stewardship (the Task Force) was formed, and was co-chaired 
by the White House Council on Environmental Quality, the Environmental 
Protection Agency, and GSA. On July 20, 2011, the Task Force issued its 
report, the ``National Strategy for Electronic Stewardship,'' which 
provided recommendations to Executive agencies in regards to meeting 
the objectives of E.O. 13514 for the reuse, disposal, and handling of 
FEA. The Task Force recommended that certain sections of FMR part 102-
36 be amended to provide policy to Executive agencies on the disposal 
and reporting of FEA.
    In order to develop those amendments, GSA requests comments 
regarding (1) the suitability and feasibility of bulk sale of 
functional Federal Electronic Assets (FEA) to certified recyclers only 
through public auction programs (not the general public as drafted in 
this proposed rule); (2) restricting disposal of FEA in landfills or 
through incineration; (3) what electronics recycling standards are in 
use or being developed; and, (4) criteria regarding the technical 
content and other aspects of the electronics recycling standards that 
recyclers conform to in order to be considered ``certified recyclers '' 
under this proposed rule.
    At this time, GSA has identified two electronics recycling 
standards to which recyclers may conform to in order to be considered a 
``certified recycler'' under this proposed rule--the Responsible 
Recycling (R2) Standard (http://www.r2solutions.org/r2practices/r2-standard/) and the e-Stewards Standard (http://e-stewards.org/certification-overview/e-stewards-standard/). Recyclers that conform to 
either of these two standards would be considered a ``certified 
recycler'' under the proposed rule.
    GSA recognizes that recyclers may use other existing standards or 
that other standards may be developed in the future. In order to ensure 
that recyclers conforming to such other standards are not excluded from 
procurements as the recycling industry grows domestically and 
internationally, GSA, in consultation with relevant agencies, will 
develop criteria to be used to evaluate and determine which standards 
recyclers may conform to in order to be considered ``certified 
recyclers'' under this proposed rule. Once completed, GSA will make 
these criteria publicly available.
    Comments regarding certification criteria should address the 
following:
    (1) The technical content of the standard, such as environmental, 
workplace and safety practices, data sanitization and security 
standards, environmental, health and safety management systems, and how 
to promote reuse and recycling over disposal;
    (2) The standard-setting process--i.e., the procedures used to 
develop and maintain the standard, such as the transparency and 
objectiveness of the processes; and
    (3) The conformity assessment procedures used to determine whether 
a recycler conforms to a standard. An example would be the independence 
of assessors evaluating a recycler.
    Additional information regarding reuse, recycling, and 
refurbishment is available at http://www.epa.gov/fec/publications.html#eol.
    In addition, the proposed amendment would make minor edits, update 
organizational designations, and make non-substantive changes to 
improve the readability and ease of use of this part.
    This proposed amendment would specifically:
    1. Replace the definition ``Cooperative'' to ``Cooperator'' in 
section 102-36.40 and change applicable terminology throughout this 
part;
    2. Define Certified Recycler, Federal Electronic Asset (FEA), 
Functional FEA, Non-Functional FEA, and Take Back Programs.
    3. Change the Defense Reutilization and Marketing Office (DRMO) to 
Defense Logistics Agency Disposition Services (DLADS) (section 102-
36.105);
    4. Amend regulations regarding reporting and providing personal 
property to non-Federal recipients;
    5. Modify restrictions for non-functional FEA when using the 
abandonment/destruction authority;
    6. Add new requirements regarding public notice when abandoning/
destroying excess personal property;
    7. Add the new undesignated section heading ``Federal Electronic 
Assets (FEA)'' and ten new sections thereunder that would address which 
assets are considered FEA; disposal of functional FEA; disposal of non-
functional FEA; sanitizing of FEA; disposing of FEA in landfills or 
through incineration; guiding recipients of FEA to environmentally-
preferable disposal; disposal of overseas excess FEA; reporting 
requirements for FEA; submitting annual report information; and 
dissemination of information after it is reported.
    8. Revise the Disposal Condition Codes from the numeric 1, 4 and 7 
to alpha codes N, U, and R respectively.
    9. Redesignate sections 102-36.375 through 102-36.475 as sections 
102-36.425 through 102-36.525.
    10. Make minor edits and clarifications to existing policies.

B. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This proposed rule is not subject to review under Section 6(b) of E.O. 
12866, Regulatory Planning and Review, dated September 30, 1993. This 
rule is not a major rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

    This proposed rule will not have a significant economic impact on a 
substantial number of small entities within the meaning of the 
Regulatory

[[Page 12683]]

Flexibility Act, 5 U.S.C. 601, et seq. This proposed rule is also 
exempt from the Administrative Procedure Act per 5 U.S.C. 553(a)(2) 
because it applies to agency management, personnel, and public 
property. However, this proposed rule is being published to provide 
transparency in the promulgation of Federal policies.

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FMR do not impose information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

E. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is exempt from Congressional review under 5 
U.S.C. 801 since it does not substantially affect the rights or 
obligations of non-agency parties.

List of Subjects in 41 CFR Part 102-36

    Government property management, Surplus Government property.

    Dated: February 21, 2014.
Anne E. Rung,
Associate Administrator, Office of Government-wide Policy.

    For the reasons set forth in the preamble, GSA proposes to amend 41 
CFR part 102-36 as set forth below:

PART 102-36--DISPOSITION OF EXCESS PERSONAL PROPERTY

0
1. The authority for part 102-36 continues to read as follows:

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

0
2. Amend Sec.  102-36.40 by--
0
a. Removing the definition ``Cooperative'';
0
b. Removing from the definition ``Cooperative agreement'', in 
paragraphs (2) and (3), the word ``cooperative'' and adding 
``cooperator'' in its place; and
0
c. Adding, in alphabetical order, the definitions ``Certified 
Recycler'', ``Cooperator'', ``Federal Electronic Asset (FEA)'', 
``Functional FEA'', ``Non-Functional FEA'', and ``Take-Back Programs'' 
to read as follows:


Sec.  102-36.40  What definitions apply to this part?

* * * * *
    Certified Recycler means an entity that recycles, refurbishes, or 
both recycles and refurbishes used electronics and who has demonstrated 
to an accredited, independent third-party certification entity that 
they meet specific standards to safely recycle and manage electronics. 
These standards must also meet the criteria published by GSA. Once 
certified, the recycler is held to the particular standard by oversight 
by the certifying entity.
* * * * *
    Cooperator means the organization or entity that has a cooperative 
agreement with a Federal agency.
* * * * *
    Federal Electronic Asset (FEA) means equipment that is classified 
within certain designated classes or categories of electronic personal 
property which is powered by electricity and has logic circuitry 
enabling the item to perform its intended function. The classifications 
of assets defined as FEA under this part are listed in FMR Bulletin B-
34 or succeeding Bulletins. (FMR Bulletins are located at gsa.gov/fmrbulletins).
* * * * *
    Functional FEA means FEA with Disposal Condition Code N or U (see 
Sec.  102-36.240).
* * * * *
    Non-Functional FEA means FEA with Disposal Condition Code R, X or S 
(see Sec.  102-36.240).
* * * * *
    Take-Back Programs means a method of disposal where the asset is 
returned to a vendor or manufacturer and where no funds or other form 
of consideration are returned to the Government for use under the 
exchange/sale authority.
* * * * *


Sec.  102-36.60  [Amended]

0
3. Amend Sec.  102-36.60, paragraph (a) by removing the word 
``cooperatives'' and adding the word ``cooperators'' in its place.


Sec.  102-36.105  [Amended]

0
4. Amend Sec.  102-36.105, in the second sentence by removing ``Defense 
Reutilization and Marketing Offices (DRMOs)'' and adding ``Defense 
Logistics Agency Disposition Services (DLADS)'' in its place.


Sec.  102-36.150  [Amended]

0
5. Amend Sec.  102-36.150, in the first sentence by removing the word 
``cooperatives'' and adding the word ``cooperators'' in its place.
0
6a. Remove the undesignated center heading ``Cooperatives'' which 
appears before Sec.  102-36.180 and add the undesignated center heading 
``Cooperators'' in its place.
0
6b. Amend Sec.  102-36.180 by revising the section heading to read as 
follows:


Sec.  102-36.180  Is there any limitation/condition to acquiring excess 
personal property for use by cooperators?


Sec.  102-36.190  [Amended]

0
7. Amend Sec.  102-36.190, paragraph (c), by removing ``40 U.S.C. 
483(d)(2)(E)'' and adding ``40 U.S.C. 525(c)(2)(A)'' in its place.


Sec.  102-36.220  [Amended]

0
8. Amend Sec.  102-36.220 by--
0
a. Removing from the second sentence of paragraph (a) the word 
``cooperatives'' and adding the word ``cooperators'' in its place; and
0
b. Removing from paragraph (b)(3) ``102-36.380'' and adding ``102-
36.430'' in its place.


Sec.  102-36.230  [Amended]

0
9. Amend Sec.  102-36.230, by removing from paragraph (a), ``Property 
Management Division (FBP)'' and adding ``Office of Personal Property 
Management (QSC)'' in its place.


Sec.  102-36.240  [Amended]

0
10. Amend Sec.  102-36.240 in the first column of the table by revising 
the numeric Disposal Condition Codes as follows:
0
a. Remove the number ``1'' and add the letter ``N'' in its place;
0
b. Remove the number ``4'' and add the letter ``U'' in its place; and
0
c. Remove the number ``7'' and add the letter ``R'' in its place.
0
11. Revise Sec.  102-36.300 to read as follows:


Sec.  102-36.300  How do we report personal property given to non-
Federal recipients?

    Submit your annual report of personal property given to non-Federal 
recipients by using the report template located at https://gsa.inl.gov/property within 45 calendar days after the close of each fiscal year.


Sec.  102-36.305  [Amended]

0
12. Amend Sec.  102-36.305 by removing the word ``written''.


Sec.  102-36.310  [Amended]

0
13. Amend Sec.  102-36.310 by removing the words ``written finding'' 
and adding the word ``determination'' in its place.
0
14. Amend Sec.  102-36.315 by adding paragraph (c) to read as follows:


Sec.  102-36.315  Are there any restrictions to the use of the 
abandonment/destruction authority?

* * * * *
    (c) Any asset identified as non-functional FEA may only be 
transferred or sold to a certified recycler in accordance with Sec.  
102-36.385.
0
15. Amend Sec.  102-36.330 by--
0
a. Removing the word ``or'' at the end of paragraph (b);

[[Page 12684]]

0
b. Removing from paragraph (c) ``$500'' and adding ``$1000; or'' in its 
place; and
0
c. Adding paragraph (d) to read as follows:


Sec.  102-36.330  Are there occasions when public notice is not needed 
regarding abandonment/destruction of excess personal property?

* * * * *
    (d) When abandonment or destruction of FEA or other electronics are 
directed to a certified recycler under provisions of this part.


Sec. Sec.  102-36.375 through 102-36.475  [Redesignated as Sec. Sec.  
102-36.425 through 102.36-525]

0
16. Redesignate Sec. Sec.  102-36.375 through 102-36.475 as Sec. Sec.  
102-36.425 through 102-36.525 respectively. A table is provided below.

------------------------------------------------------------------------
            Old section                          New section
------------------------------------------------------------------------
              102-36.375                           102-36.425
              102-36.380                           102-36.430
              102-36.385                           102-36.435
              102-36.390                           102-36.440
              102-36.395                           102-36.445
              102-36.400                           102-36.450
              102-36.405                           102-36.455
              102-36.410                           102-36.460
              102-36.415                           102-36.465
              102-36.420                           102-36.470
              102-36.425                           102-36.475
              102-36.430                           102-36.480
              102-36.435                           102-36.485
              102-36.440                           102-36.490
              102-36.445                           102-36.495
              102-36.450                           102-36.500
              102-36.455                           102-36.505
              102-36.460                           102-36.510
              102-36.465                           102-36.515
              102-36.470                           102-36.520
              102-36.475                           102-36.525
------------------------------------------------------------------------

0
17. Add the undesignated center heading ``Federal Electronic Assets 
(FEA)'' and Sec. Sec.  102-36.375 through 102-36.420 to read as 
follows:

Federal Electronic Assets (FEA)


Sec.  102-36.375  What assets are considered Federal Electronic Assets 
(FEA)?

    Refer to the definition in Sec.  102-36.40. The list of assets 
classified as FEA will be updated as appropriate through revisions to 
FMR Bulletin B-34.


Sec.  102-36.380  How do I dispose of my functional FEA?

    When disposing of functional FEA, use every opportunity to re-use 
these assets to the fullest extent possible using the disposal codes in 
this part (Sec.  102-36.240) and following the sequence of the Federal 
disposal program listed below:
    (a) Re-use within the agency, including exchange or sale under the 
Exchange Sale authority (see 41 CFR part 102-39);
    (b) Transfer to other Federal agencies (see subpart D of this part) 
or transfer to schools and educational organizations such personal 
property as eligible under E.O. 12999 and the Stevenson-Wydler 
Technology Innovation Act (see subpart F of this part);
    (c) Donation through GSA to states and eligible nonprofit 
organizations (see 41 CFR part 102-37); or
    (d) Sale to the public (see 41 CFR part 102-38).


Sec.  102-36.385  How do I dispose of my non-functional FEA or other 
electronic assets eligible for disposal under the abandonment/
destruction authority?

    (a) If you determine that your FEA is non-functional, you must, 
except as otherwise authorized by law, dispose of these assets through:
    (1) Use of the Exchange Sale Authority where the sale is made only 
to certified recyclers, or where the exchange is made to vendors or 
manufacturers that solely use such certified recyclers when the asset 
is not returned to use as designed;
    (2) Contracts or agreements with certified recyclers;
    (3) Sales in which only certified recyclers can participate as 
buyers; or
    (4) Manufacturer take-back programs that solely use certified 
recyclers when the asset is not returned to use as designed.
    (b) Other electronic assets (non-FEA) disposed of under the 
abandonment/destruction authority (see Sec. Sec.  102-36.305 thorough 
102-36.330), should also be disposed of through a certified recycler 
using the methods in paragraph (a) of this section.
    (c) You must perform due diligence in ensuring certified recyclers 
are meeting regulatory and legal requirements, consistent with the 
quantity and value of the property being disposed of.
    (d) In circumstances where you are disposing of your FEA to a 
certified recycler via an intermediary transportation entity, you must 
perform due diligence, consistent with the quantity and value of the 
property being disposed of, to ensure that all the FEA is being 
delivered to the intended certified recipients.


Sec.  102-36.390  If I use a certified recycler, am I still responsible 
for sanitizing my electronic assets?

    Yes, you must develop consistent practices, using the National 
Institute of Standards (NIST) 800-8, ``Guidelines for Media 
Sanitization,'' to clean hard drives and other storage devices in order 
to protect sensitive data and maximize reuse potential. This 
sanitization must be performed by your agency or by an entity acting as 
your agent. You may enter into an agreement with a certified recycler 
to perform these functions.


Sec.  102-36.395  Is disposing of FEA in a landfill or through 
incineration acceptable?

    No. The Federal Government encourages reuse and recycling over 
disposal in landfills or by incineration because electronics are made 
of valuable resources and highly engineered materials such as metals 
(gold, silver, copper), plastics, and glass. Recycling these materials 
conserves our nation's resources and avoids air and water pollution, as 
well as greenhouse gas emissions that are caused during extraction and 
manufacturing of virgin materials.


Sec.  102-36.400  What steps must I take to guide recipients of 
functional FEA to environmentally-preferable disposal?

    Each recipient of usable FEA should be guided towards ultimate 
disposal through a certified recycler. Agencies must use the following 
statement in documentation transferring ownership or custody of 
functional FEA, and the statement must also be apparent in any listing 
or advertisement of the FEA planned for disposal under any disposal 
option:

    This/these electronic product(s) must be disposed of at [its/
]their end of useful life in accordance with all Federal, state, and 
local laws.
    The Federal Government strongly encourages recycling these 
products through certified recyclers, even when such recycling is 
not required by Federal, state or local laws.


Sec.  102-36.405  How do I dispose of overseas excess FEA?

    FEA located overseas and designated as foreign excess must follow 
Sec.  102-36.440. However, any abandonment and destruction action 
should give preference to disposition through a certified recycler, 
when permissible under relevant foreign laws and regulations. All 
disposal actions for foreign excess must comply with the laws and 
environmental regulations of the host country.


Sec.  102-36.410  Are there reporting requirements for FEA?

    Yes, you must submit an annual report on electronic assets given to 
non-Federal recipients, the Non-Federal Recipients Report, in 
accordance with Sec.  102-36.300. This report captures disposal 
information regarding personal property provided or conveyed to non-
Federal entities.

[[Page 12685]]

Sec.  102-36.415  How and when do I submit the report?

    You must submit your annual report using the online reporting tool 
at https://gsa.inl.gov/property. The report should be submitted 45 days 
after the fiscal year for the fiscal year just concluded.


Sec.  102-36.420  What happens to this information after it is 
reported?

    The information provided will be published on www.data.gov for 
transparency and public information.

[FR Doc. 2014-04585 Filed 3-5-14; 8:45 am]
BILLING CODE 6820-14-P