40 USC 549 - Sec. 549. Donation of personal property through state agencies
§549. Donation of personal property through state agencies(a) Definitions.—In this section, the following definitions apply: (1) Public agency.—The term “public agency” means— (A) a State; (B) a political subdivision of a State (including a unit of local government or economic development district); (C) a department, agency, or instrumentality of a State (including instrumentalities created by compact or other agreement between States or political subdivisions); or (D) an Indian tribe, band, group, pueblo, or community located on a state reservation. (2) State.—The term “State” means a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa. (3) State agency.—The term “state agency” means an agency designated under state law as the agency responsible for fair and equitable distribution, through donation, of property transferred under this section. (b) Authorization.— (1) In general.—The Administrator of General Services, in the Administrator's discretion and under regulations the Administrator may prescribe, may transfer property described in paragraph (2) to a state agency. (2) Property.— (A) In general.—Property referred to in paragraph (1) is any personal property that— (i) is under the control of an executive agency; and (ii) has been determined to be surplus property. (B) Special rule.—In determining whether the property is to be transferred for donation under this section, no distinction may be made between property capitalized in a working-capital fund established under section 2208 of title 10 (or similar fund) and any other property. (3) No cost.—Transfer of property under this section is without cost, except for any costs of care and handling. (c) Allocation and Transfer of Property.— (1) In general.—The Administrator shall allocate and transfer property under this section in accordance with criteria that are based on need and use and that are established after consultation with state agencies to the extent feasible. The Administrator shall give fair consideration, consistent with the established criteria, to an expression of need and interest from a public agency or other eligible institution within a State. The Administrator shall give special consideration to an eligible recipient's request, transmitted through the state agency, for a specific item of property. (2) Allocation among states.—The Administrator shall allocate property among the States on a fair and equitable basis, taking into account the condition of the property as well as the original acquisition cost of the property. (3) Recipients and purposes.—The Administrator shall transfer to a state agency property the state agency selects for distribution through donation within the State— (A) to a public agency for use in carrying out or promoting, for residents of a given political area, a public purpose, including conservation, economic development, education, parks and recreation, public health, and public safety; or (B) for purposes of education or public health (including research), to a nonprofit educational or public health institution or organization that is exempt from taxation under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. 501), including— (i) a medical institution, hospital, clinic, health center, or drug abuse treatment center; (ii) a provider of assistance to homeless individuals or to families or individuals whose annual incomes are below the poverty line (as that term is defined in section 673 of the Community Services Block Grant Act (42 U.S.C. 9902)); (iii) a school, college, or university; (iv) a school for the mentally retarded or physically handicapped; (v) a child care center; (vi) a radio or television station licensed by the Federal Communications Commission as an educational radio or educational television station; (vii) a museum attended by the public; (viii) a library serving free all residents of a community, district, State, or region; (ix) a historic light station as defined under section 308(e)(2) of the National Historic Preservation Act (16 U.S.C. 470w–7(e)(2)), including a historic light station conveyed under subsection (b) of that section, notwithstanding the number of hours that the historic light station is open to the public; or (x) an organization whose— (I) membership comprises substantially veterans (as defined under section 101 of title 38); and (II) representatives are recognized by the Secretary of Veterans Affairs under section 5902 of title 38. (4) Exception.—This subsection does not apply to property transferred under subsection (d). (d) Department of Defense Property.— (1) Determination.—The Secretary of Defense shall determine whether surplus personal property under the control of the Department of Defense is usable and necessary for educational activities which are of special interest to the armed services, including maritime academies, or military, naval, Air Force, or Coast Guard preparatory schools. (2) Property usable for special interest activities.—If the Secretary of Defense determines that the property is usable and necessary for educational activities which are of special interest to the armed services, the Secretary shall allocate the property for transfer by the Administrator to the appropriate state agency for distribution through donation to the educational activities. (3) Property not usable for special interest activities.—If the Secretary of Defense determines that the property is not usable and necessary for educational activities which are of special interest to the armed services, the property may be disposed of in accordance with subsection (c). (e) State Plan of Operation.— (1) In general.—Before property may be transferred to a state agency, the State shall develop a detailed state plan of operation, in accordance with this subsection and with state law. (2) Procedure.— (A) Consideration of needs and resources.—In developing and implementing the state plan of operation, the relative needs and resources of all public agencies and other eligible institutions in the State shall be taken into consideration. The Administrator may consult with interested federal agencies to obtain their views concerning the administration and operation of this section. (B) Publication and period for comment.—The state plan of operation, and any major amendment to the plan, may not be filed with the Administrator until 60 days after general notice of the proposed plan or amendment has been published and interested persons have been given at least 30 days to submit comments. (C) Certification.—The chief executive officer of the State shall certify and submit the state plan of operation to the Administrator. (3) Requirements.— (A) State agency.—The state plan of operation shall include adequate assurance that the state agency has— (i) the necessary organizational and operational authority and capability including staff, facilities, and means and methods of financing; and (ii) established procedures for accountability, internal and external audits, cooperative agreements, compliance and use reviews, equitable distribution and property disposal, determination of eligibility, and assistance through consultation with advisory bodies and public and private groups. (B) Equitable distribution.—The state plan of operation shall provide for fair and equitable distribution of property in the State based on the relative needs and resources of interested public agencies and other eligible institutions in the State and their abilities to use the property. (C) Management control and accounting systems.—The state plan of operation shall require, for donable property transferred under this section, that the state agency use management control and accounting systems of the same type as systems required by state law for state-owned property. However, with approval from the chief executive officer of the State, the state agency may elect to use other management control and accounting systems that are effective to govern the use, inventory control, accountability, and disposal of property under this section. (D) Return and redistribution for non-use.—The state plan of operation shall require the state agency to provide for the return and redistribution of donable property if the property, while still usable, has not been placed in use for the purpose for which it was donated within one year of donation or ceases to be used by the donee for that purpose within one year of being placed in use. (E) Request by recipient.—The state plan of operation shall require the state agency, to the extent practicable, to select property requested by a public agency or other eligible institution in the State and, if requested by the recipient, to arrange shipment of the property directly to the recipient. (F) Service charges.—If the state agency is authorized to assess and collect service charges from participating recipients to cover direct and reasonable indirect costs of its activities, the method of establishing the charges shall be set out in the state plan of operation. The charges shall be fair and equitable and shall be based on services the state agency performs, including screening, packing, crating, removal, and transportation. (G) Terms, conditions, reservations, and restrictions.— (i) In general.—The state plan of operation shall provide that the state agency— (I) may impose reasonable terms, conditions, reservations, and restrictions on the use of property to be donated under subsection (c); and (II) shall impose reasonable terms, conditions, reservations, and restrictions on the use of a passenger motor vehicle and any item of property having a unit acquisition cost of $5,000 or more. (ii) Special limitations.—If the Administrator finds that an item has characteristics that require special handling or use limitations, the Administrator may impose appropriate conditions on the donation of the property. (H) Unusable property.— (i) Disposal.—The state plan of operation shall provide that surplus personal property which the state agency determines cannot be used by eligible recipients shall be disposed of— (I) subject to the disapproval of the Administrator within 30 days after notice to the Administrator, through transfer by the state agency to another state agency or through abandonment or destruction if the property has no commercial value or if the estimated cost of continued care and handling exceeds estimated proceeds from sale; or (II) under this subtitle, on terms and conditions and in a manner the Administrator prescribes. (ii) Proceeds from sale.—Notwithstanding subchapter IV of this chapter and section 702 of this title, the Administrator, from the proceeds of sale of property described in subsection (b), may reimburse the state agency for expenses that the Administrator considers appropriate for care and handling of the property. (f) Cooperative Agreements With State Agencies.— (1) Parties to the agreement.—For purposes of carrying out this section, a cooperative agreement may be made between a state surplus property distribution agency designated under this section and— (A) the Administrator; (B) the Secretary of Education, for property transferred under section 550(c) of this title; (C) the Secretary of Health and Human Services, for property transferred under section 550(d) of this title; or (D) the head of a federal agency designated by the Administrator, the Secretary of Education, or the Secretary of Health and Human Services. (2) Shared resources.—The cooperative agreement may provide that the property, facilities, personnel, or services of— (A) a state agency may be used by a federal agency; and (B) a federal agency may be made available to a state agency. (3) Reimbursement.—The cooperative agreement may require payment or reimbursement for the use or provision of property, facilities, personnel, or services. Payment or reimbursement received from a state agency shall be credited to the fund or appropriation against which charges would otherwise be made. (4) Surplus property transferred to state agency.— (A) In general.—Under the cooperative agreement, surplus property transferred to a state agency for distribution pursuant to subsection (c) may be retained by the state agency for use in performing its functions. Unless otherwise directed by the Administrator, title to the retained property vests in the state agency. (B) Conditions.—Retention of surplus property under this paragraph is subject to conditions that may be imposed by— (i) the Administrator; (ii) the Secretary of Education, for property transferred under section 550(c) of this title; or (iii) the Secretary of Health and Human Services, for property transferred under section 550(d) of this title. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1090; Pub. L. 109–313, §5, Oct. 6, 2006, 120 Stat. 1737; Pub. L. 111–338, §2, Dec. 22, 2010, 124 Stat. 3590.) Section In subsection (a)(2), the words “the Northern Mariana Islands” are added because of section 502(a)(2) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union With the United States of America (48:1801 note). In subsection (d), the words “Secretary of Defense” are substituted for “National Military Establishment” [subsequently changed to “Department of Defense” because of section 12(a) of the National Security Act Amendments of 1949 (ch. 412, 63 Stat. 591)] because of 10:113(a). In subsection (e)(2)(B), the words “In the event that a State legislature has not developed, according to State law, a State plan within two hundred and seventy calendar days after October 17, 1976, the chief executive officer of the State shall approve, and submit to the Administrator, a temporary State plan” are omitted as obsolete. In subsection (f)(1)(B)–(D) and (4)(B), the words “Secretary of Education” and “Secretary of Health and Human Services” are substituted for “Secretary of Health, Education, and Welfare” because of sections 301(a)(2)(P) and (b), 507, and 509(b) of the Department of Education Organization Act (20:3441(a)(2)(P) and (b), 3507, and 3508(b)). Amendments 2010—Subsec. (c)(3)(B)(x). Pub. L. 111–338 added cl. (x). 2006—Subsec. (c)(3)(B)(ix). Pub. L. 109–313 added cl. (ix). Effective Date of 2006 AmendmentAmendment by Pub. L. 109–313 effective 60 days after Oct. 6, 2006, see section 6 of Pub. L. 109–313, set out as a note under section 5316 of Title 5, Government Organization and Employees. Transfer of FunctionsFor transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. Ex. Ord. No. 12999. Educational Technology: Ensuring Opportunity for All Children in the Next CenturyEx. Ord. No. 12999, Apr. 17, 1996, 61 F.R. 17227, provided: In order to ensure that American children have the skills they need to succeed in the information-intensive 21st century, the Federal Government is committed to working with the private sector to promote four major developments in American education: making modern computer technology an integral part of every classroom; providing teachers with the professional development they need to use new technologies effectively; connecting classrooms to the National Information Infrastructure; and encouraging the creation of excellent educational software. This Executive order streamlines the transfer of excess and surplus Federal computer equipment to our Nation's classrooms and encourages Federal employees to volunteer their time and expertise to assist teachers and to connect classrooms. Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States of America, including the provisions of the Stevenson-Wydler Technology Innovation Act of 1980, as amended (15 U.S.C. 3701 et seq.), the Federal Property and Administrative Services Act of 1949, ch. 288, 63 Stat. 377 [now chapters 1 to 11 of this title and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of Title 41, Public Contracts], and the National Defense Authorization Act for Fiscal Year 1996, Public Law 104–106 [see Tables for classification], it is hereby ordered as follows: Section 1. Protection of Educationally Useful Federal Equipment. (a) Educationally useful Federal equipment is a vital national resource. To the extent such equipment can be used as is, separated into parts for other computers, or upgraded—either by professional technicians, students, or other recycling efforts—educationally useful Federal equipment is a valuable tool for computer education. Therefore, to the extent possible, all executive departments and agencies (hereinafter referred to as “agencies”) shall protect and safeguard such equipment, particularly when declared excess or surplus, so that it may be recycled and transferred, if appropriate, pursuant to this order. Sec. 2. Efficient Transfer of Educationally Useful Federal Equipment to Schools and Nonprofit Organizations. (a) To the extent permitted by law, all agencies shall give highest preference to schools and nonprofit organizations, including community-based educational organizations, (“schools and nonprofit organizations”) in the transfer, through gift or donation, of educationally useful Federal equipment. (b) Agencies shall attempt to give particular preference to schools and nonprofit organizations located in the Federal enterprise communities and empowerment zones established in the Omnibus Reconciliation Act of 1993, Public Law 103–66 [see 26 U.S.C. 1391 et seq.]. (c) Each agency shall, to the extent permitted by law and where appropriate, identify educationally useful Federal equipment that it no longer needs and transfer it to a school or nonprofit organization by: (1) conveying research equipment directly to the school or organization pursuant to 15 U.S.C. 3710(i); or (2) reporting excess equipment to the General Services Administration (GSA) for donation when declared surplus in accordance with section 203(j) of the Federal Property and Administrative Services Act of 1949, as amended, 40 U.S.C. 484(j) [now 40 U.S.C. 549]. Agencies shall report such equipment as far as possible in advance of the date the equipment becomes excess, so that GSA may attempt to arrange direct transfers from the donating agency to recipients eligible under this order. (d) In transfers made pursuant to paragraph (c)(1) of this section, title shall transfer directly from the agency to the schools or nonprofit organizations as required by 15 U.S.C. 3710(i). All such transfers shall be reported to the GSA. At the direction of the recipient institution or organization, and if appropriate, transferred equipment may be conveyed initially to a nonprofit reuse or recycling program that will upgrade it before transfer to the school or nonprofit organization holding title. (e) All transfers to schools or nonprofit organizations, whether made directly or through GSA, shall be made at the lowest cost to the school or nonprofit organization permitted by law. (f) The availability of educationally useful Federal equipment shall be made known to eligible recipients under this order by all practicable means, including newspaper, community announcements, and the Internet. (g) The regional Federal Executive Boards shall help facilitate the transfer of educationally useful Federal equipment from the agencies they represent to recipients eligible under this order. Sec. 3. Assisting Teachers’ Professional Development: Connecting Classrooms. (a) Each agency that has employees who have computer expertise shall, to the extent permitted by law and in accordance with the guidelines of the Office of Personnel Management, encourage those employees to: (1) help connect America's classrooms to the National Information Infrastructure; (2) assist teachers in learning to use computers to teach; and (3) provide ongoing maintenance of and technical support for the educationally useful Federal equipment transferred pursuant to this order. (b) Each agency described in subsection (a) shall submit to the Office of Science and Technology Policy, within 6 months of the date of this order, an implementation plan to advance the developments described in this order, particularly those required in this section. The plan shall be consistent with approved agency budget totals and shall be coordinated through the Office of Science and Technology Policy. (c) Nothing in this order shall be interpreted to bar a recipient of educationally useful Federal equipment from lending that equipment, whether on a permanent or temporary basis, to a teacher, administrator, student, employee, or other designated person in furtherance of educational goals. Sec. 4. Definitions. For the purposes of this order: (a) “Schools” means individual public or private education institutions encompassing prekindergarten through twelfth grade, as well as public school districts. (b) “Community-based educational organizations” means nonprofit entities that are engaged in collaborative projects with schools or that have education as their primary focus. Such organizations shall qualify as nonprofit educational institutions or organizations for purposes of section 203(j) of the Federal Property and Administrative Services Act of 1949, as amended [now 40 U.S.C. 549]. (c) “Educationally useful Federal equipment” means computers and related peripheral tools (e.g., printers, modems, routers, and servers), including telecommunications and research equipment, that are appropriate for use in prekindergarten, elementary, middle, or secondary school education. It shall also include computer software, where the transfer of licenses is permitted. (d) “Nonprofit reuse or recycling program” means a 501(c) organization able to upgrade computer equipment at no or low cost to the school or nonprofit organization taking title to it. (e) “Federal Executive Boards,” as defined in 5 C.F.R. Part 960, are regional organizations of each Federal agency's highest local officials. Sec. 5. This order shall supersede Executive Order No. 12821 of November 16, 1992. Sec. 6. Judicial Review. This order is not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or its employees. William J. Clinton.