Implementation of Wildfire Suppression Aircraft Transfer Act of 1996

DEPARTMENT OF DEFENSE

Defense Logistics Agency

32 CFR Part 171

RIN 0790-AG68

Implementation of Wildfire Suppression Aircraft Transfer Act of

1996

AGENCY: Defense Logistics Agency (DLA), DoD.

ACTION: Interim final rule.

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SUMMARY: The Wildfire Suppression Aircraft Transfer Act of 1996 states

that, notwithstanding section 202 of the Federal Property and

Administrative Services Act of 1949 (40 U.S.C. 483) and subject to

subsections (b) and (c), the Secretary of Defense may, during the

period beginning on October 1, 1996, and ending on September 30, 2000,

sell certain aircraft and aircraft parts to persons or entities that

contact with the Federal Government for the delivery of fire retardant

by air in order to suppress wildfire. The Act states that, as soon as

practicable after the date of the enactment of the Act, the Secretary

of Defense shall, in consultation with the Secretary of Agriculture and

the Administrator of General Services, prescribe regulations relating

to the sale of aircraft and aircraft parts under this section. This

interim final rule prescribes regulations to implement the Wildfire

Suppression Aircraft Transfer Act of 1996.

DATES: Effective June 1, 1999 through September 30, 2000. Comments are

requested by August 2, 1999.

ADDRESSES: Forward comments to: Defense Logistics Agency, Defense

Logistics Support Command, ATTN: DLSC-LC, Suite 4222, 8725 John J.

Kingman Road, Ft. Belvoir, VA 22060-6221.

FOR FURTHER INFORMATION CONTACT: Michael Stubblebine, (703) 767-1537.

SUPPLEMENTARY INFORMATION:

I. Background

The Wildfire Suppression Aircraft Transfer Act of 1996 states that,

notwithstanding section 202 of the Federal Property and Administration

Services Act of 1949 (40 U.S.C. 483) and subject to subsections (b) and

(c), the Secretary of Defense may, during the period beginning on

October 1, 1996, and ending on September 30, 2000, sell certain

aircraft and aircraft parts to persons or entities that contract with

the Federal Government for the delivery of fire retardant by air in

order to suppress wildfire. The Act states that, as soon as practicable

after the date of the enactment of the Act, the Secretary of Defense

shall, in consultation with the Secretary of Agriculture and the

Administrator of General Services, prescribe regulations relating to

the sale of aircraft and aircraft parts under this section. This

interim rule prescribes such regulations.

II. Administrative Requirements

A. Executive Order 12866

It has been determined that 32 CFR part 171 is not a significant

regulatory action. The rule does not (1) have an annual effect on the

economy of $100 million or more or adversely affect in a material way

the economy, a sector of the economy, productivity, competition, jobs,

the environment, public health or safety, or state, local, or tribal

governments or communities; (2) create a serious inconsistency or

otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs, or the rights and obligations of the recipients

thereof; or (4) raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

this Executive Order.

B. Regulatory Flexibility Act

It has been determined that this rule is not subject to the

Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if

promulgated, have a significant economic impact on a substantial number

of small entities. This rule applies only to the sale of certain

aircraft and aircraft parts to those entities that contract for the

delivery of fire retardant by air in order to suppress wildfire. The

U.S. Department of Agriculture provides the list of eligible entities

that may bid on aircraft and aircraft parts.

C. Paperwork Reduction Act

It has been certified that 32 CFR part 171 does not impose any

reporting or recordkeeping requirements under the Paperwork Reduction

Act of 1995 (44 U.S.C. Chapter 44).

List of Subjects in 32 CFR Part 171

Aircraft, Fire prevention.

Accordingly, 32 CFR Part 171 is added to read as follows:

[[Page 29228]]

PART 171--IMPLEMENTATION OF WILDFIRE SUPPRESSION AIRCRAFT TRANSFER

ACT OF 1996

Sec. 171.1 Background and purpose.

Sec. 171.2 Applicability.

Sec. 171.3 Restrictions.

Sec. 171.4 Qualifications.

Sec. 171.5 Sale procedures.

Sec. 171.6 Reutilization and transfer procedures.

Sec. 171.7 Reporting requirements.

Sec. 171.8 Expiration.

Authority: 10 U.S.C. 2516 note.

Sec. 171.1 Background and purpose.

The Wildfire Suppression Aircraft Transfer Act of 1996 (the

``Act'') allows the Department of Defense (DoD), during the period 1

October 1996 through 30 September 2000, to sell aircraft and aircraft

parts to entities that contract with the Federal government for the

delivery of fire retardant by air in order to suppress wildfire. This

part implements the Act.

Sec. 171.2 Applicability.

The regulations in this part apply to aircraft and aircraft parts

determined to be DoD excess under the definition of the Federal

Property Management Regulations (FPMR) and listed in Attachment 1 of

Chapter 4 of DoD 4160.21-M as Category A aircraft authorized for

commercial use.

Sec. 171.3 Restrictions.

Aircraft and aircraft parts sold under the Act shall be used only

for wildfire suppression purposes and shall not be flown or removed

from the U.S. unless dispatched by the National Interagency Fire Center

in support of an international agreement to assist in wildfire

suppression, or for other purposes jointly approved in advance, in

writing, by the Secretary of Defense and the Secretary of Agriculture.

Sec. 171.4 Qualifications.

The Secretary of Agriculture must certify in writing to the

Secretary of Defense prior to sale that the person or entity is capable

of meeting the terms and conditions of a contract to deliver fire

retardant by air.

(a) Prior to sales offerings of aircraft or aircraft parts, the

U.S. Department of Agriculture (USDA) must provide to the Defense

Reutilization and Marketing Service (DRMS), in writing, a list of

persons or entities eligible to bid under this Act, including

expiration date of each USDA contract, and locations covered by the

USDA contract.

(b) This requirement may not be delegated to the U.S. Forest

Service (USFS).

Sec. 171.5 Sale procedures.

Disposal of aircraft and aircraft parts must be in accordance with

the provisions of Chapter 4 of DoD 4160.21-M, paragraph B 2, and with

other pertinent parts of this manual, with the following changes and

additions:

(a) Sales shall be limited to the aircraft types listed in

Attachment 1 of Chapter 4 of DoD 4160.21-M, and parts thereto (i.e., no

aircraft or aircraft parts listed as Munitions List Items on the State

Department's U.S. Munitions List).

(b) Sales shall be made at fair market value (FMV), as determined

by the Secretary of Defense and, to the extent practicable, on a

competitive basis.

(1) DRMS must conduct sales utilizing FMVs that are either provided

by the Military Services on the Disposal Turn-In Documents (DTIDs) or

based on DRMS' professional expertise and knowledge of the market.

Advice regarding FMV shall be provided to DRMS by USDA, as appropriate.

(2) If the high bid for a salea item does not equal or exceed the

FMV, DRMS is vested with the discretion to reject all bids and reoffer

the item:

(i) On another wildfire suppression sale if there is indication

that reoffer may be successful, or,

(ii) With DLA concurrence, as normal surplus under the FPMR if

there is no such indication.

(3) Disposition of proceeds from sale of aircraft under the Act

will be as prescribed in guidance from the Under Secretary of Defense

(Comptroller).

(c) Purchases shall certify that aircraft and aircraft parts will

be used only in accordance with conditions stated in Sec. 171.3.

(1) Sales solicitations will require bidders to submit end-use

certificates with their bids, stating the intended use and proposed

areas of operations.

(2) The completed end-use certificates shall be used in the bid

evaluation process.

(d) Sales contracts shall include terms and conditions for

verifying and enforcing the use of the aircraft and aircraft parts in

accordance with provisions of this guidance.

(1) The DRMS Sales Contracting Officer (SCO) is responsible for

verifying and enforcing the use of aircraft and aircraft parts in

accordance with the terms and conditions of the sales contract.

(i) Sales contracts include provisions for on-site visits to the

purchaser's place(s) of business and/or worksite(s).

(ii) Sales contracts require the purchaser to make available to the

SCO, upon his or her request, all records concerning the use of

aircraft and aircraft parts.

(2) USDA shall nominate in writing, and the SCO shall appoint,

qualified Government employees (not contract employees) to serve as

Contracting Officer's Representatives (CORs) for the purpose of

conducting on-site verification and enforcement of the use of aircraft

and aircraft parts for those purposes permitted by the sales contract.

(i) COR appointments must be in writing and must state the COR's

duties, the limitations of the appointment, and the reporting

requirements.

(ii) USDA bears all COR costs.

(iii) The SCO may reject any COR nominee for cause, or terminate

any COR appointment for cause.

(3) Sales contracts require purchasers to comply with the Federal

Aviation Agency (FAA) requirements in Chapter 4 of DoD 4160.21-M,

paragraphs B 2 b (4)(d)2 through B 2 b (4)(d)5.

(4) Sales contracts require purchasers to comply with the Flight

Safety Critical Aircraft Parts regime in Chapter 4 of DoD 4160.21-M,

paragraph B 26 c and d, and in Attachment 3 of Chapter 4 of DoD

4160.21-M.

(5) Sales contracts require purchasers to obtain the prior written

consent of the SCO for resale of aircraft or aircraft parts purchased

from DRMS under this Act. Resales are only permitted to other entities

which, at time of resale, meet the qualifications required of initial

purchasers. The SCO must seek, and USDA must provide, written assurance

as to the acceptability of a prospective repurchaser before approving

resale. Resales will normally be approved for airtanker contracts which

have completed their contracts, or which have had their contracts

terminated, or which can provide other valid reasons for seeking resale

which are acceptable to the SCO.

(i) If it is determined by the SCO that there is no interest in the

aircraft or aircraft parts being offered for resale among entities

deemed qualified repurchasers by USDA, the SCO may permit resale to

entities outside the airtanker industry.

(ii) When an aircraft or aircraft parts are determined to be

uneconomically repairable and suitable only for cannibalization and/or

scrapping, the purchaser shall advise the SCO in writing and provide

evidence in the form of a technical inspection document from a

qualified FAA airframe and powerplant mechanic, or equivalent.

(iii) The policy outlined in paragraph (d)(5) of this section also

applies to resales by repurchasers, and to all other manner of proposed

title transfer (including, but not limited to, exchanges and barters).

[[Page 29229]]

(iv) Sales of aircraft and aircraft parts under the Act are

intended for principals only. Sales offerings will caution prospective

purchasers not to buy with the expectation of acting as brokers,

dealers, agents, or middlemen for other interested parties.

(6) The failure of a purchaser to comply with the sales contract

terms and conditions may be cause for suspension and/or debarment, in

addition to other administrative, contractual, civil, and criminal

(including, but not limited to, 18 USC 1001) remedies which may be

available to DoD.

(7) Aircraft parts will be made available in two ways:

(i) DRMS may, based on availability and demand, offer for sale

under the Act whole unflyable aircraft, aircraft carcasses for

cannibalization, or aircraft parts, utilizing substantially the same

provisions outlined in paragraphs (a) through (d)(6) of this section

for flyable aircraft.

(A) If USDA directs that DRMS set aside parts for sale under the

Act, USDA must provide listings of parts required, by National Stock

Number and Condition Code.

(B) Only qualified airtanker operators which fly the end-term

aircraft will be allowed to purchase unflyable aircraft, aircraft

carcasses, or aircraft parts applicable to that end-item.

(C) FMVs are not required for aircraft parts. DRMS must utilize

historic prices received for similar parts in making sale

determinations.

(ii) As an agency of the Federal government, USDA remains eligible

to receive no-cost transfers of excess DoD aircraft parts under the

FPMR.

Sec. 171.6 Reutilization and transfer procedures.

Prior to any sales effort, the Secretary of Defense shall, to the

maximum extent practicable, consult with the Administrator of GSA, and

with the heads of other Federal departments and agencies as

appropriate, regarding reutilization and transfer requirements for

aircraft and aircraft parts under this Act (see Chapter 4 of DoD

4160.21-M, paragraphs B 2 b (1) through B 2 b (3)).

(a) DoD reutilization:

(1) USDA shall notify Army, Navy, and/or Air Force, in writing, of

their aircraft requirements as they arise, by aircraft type listed in

Attachment 1 of Chapter 4 of DoD 4160.21-M.

(2) If a DoD requirement exists, the owning Military Service shall

advise USDA, in writing, that it will be issuing the aircraft to

satisfy the DoD reutilization requirement. If USDA disputes the

validity of the DoD requirement, it shall send a written notice of

dispute to the owning Military Service and ADUSD(L/MDM) within thirty

(30) days of its notice from the Military Service. ADUSD(L/MDM) shall

then resolve the dispute, in writing. The aircraft may not be issued

until the dispute has been resolved.

(b) Federal agency transfer:

(1) The Military Service must report aircraft which survive

reutilization screening to GSA Region 9 on a Standard Form 120. GSA

shall screen for Federal agency transfer requirements in accordance

with the FPMR.

(2) If a Federal agency requirement exists, GSA shall advise USDA,

in writing, that it will be issuing the aircraft to satisfy the Federal

agency requirement. If USDA disputes the validity of the Federal

requirement, it shall send a written notice of dispute to the owning

Military Service and ADUSD(L/MDM) within thirty (30) days of its notice

from the Military Service. ADUSD(L/MDM) shall then resolve the dispute,

in writing. The aircraft cannot be issued until the dispute has been

resolved.

(c) The Military Services shall:

(1) Report aircraft which survive transfer screening and are ready

for sale to Headquarters, Defense Reutilization and Marketing Service,

ATTN: DRMS-LMI, Federal Center, 74 Washington Avenue North, Battle

Creek, Michigan 49017-3092. The Military Services must use a DD Form

1348-1A, DTID, for this purpose.

(2) Transfer excess DoD aircraft to the Aerospace Maintenance and

Regeneration Center (AMARC), Davis-Monthan AFB, AZ, and place the

aircraft in an ``excess'' storage category while aircraft are

undergoing screening and/or wildfire suppression aircraft sale.

Aircraft shall not be available nor offered to airtanker operators from

the Military Service's airfield. The Military Service shall be

responsible for the AMARC aircraft induction charges. The gaining

customer will be liable for all AMARC withdrawal charges, to include

any aircraft preparation required from AMARC. Sale of parts required

for aircraft preparation is limited to those not required for the

operational mission forces, and only if authorized by specific

authority of the respective Military Service's weapon system program

manager.

Sec. 171.7 Reporting requirements.

Not later than 31 March 2000, the Secretary of Defense must submit

to the Committee on Armed Services of the Senate and the Committee on

National Security of the House of Representatives a report setting

forth the following:

(a) The number and type of aircraft sold under this authority, and

the terms and conditions under which the aircraft were sold.

(b) The persons or entities to which the aircraft were sold.

(c) An accounting of the current use of the aircraft sold.

(d) USDA must submit to Headquarters, Defense Reutilization and

Marketing Service, ATTN: DRMS-LMI, Federal Center, 74 Washington Avenue

North, Battle Creek, Michigan, 49017-3092, not later than 1 February

2000, a report setting forth an accounting of the current disposition

of all aircraft sold under the authority of the Act.

(e) DRMS must compile the report, based on sales contract files and

(for the third report element) input from the USDA. The report must be

provided to HQ DLA not later than 1 March 2000. HQ DLA shall forward

the report to DoD not later than 15 March 2000.

Sec. 171.8 Expiration.

This part expires on 30 September 2000.

Dated: May 25, 1999.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 99-13703 Filed 5-28-99; 8:45 am]

BILLING CODE 5000-01-M