[Federal Register: February 26, 2003 (Volume 68, Number 38)]
[Rules and Regulations]
[Page 8822-8824]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe03-3]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 171
RIN 0790-AG95
Implementation of Wildfire Suppression Aircraft Transfer Act of
1996
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This final rule adds regulations on the Implementation of
Wildfire Suppression Aircraft Transfer Act of 1996 back into the Code
of Federal Regulations. This rule was published as an Interim Final
Rule on June 1, 1999 (64 FR 29227) and was inadvertently removed on
October 25, 2001 (66 FR 53957). The Wildfire Suppression Aircraft
Transfer Act of 1996 authorized 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. Public Law 106-398 (114 STAT. 1654A-89) extended the
expiration date from 30 September 2000 to 30 September 2005.
EFFECTIVE DATE: This rule is effective August 1, 2002.
FOR FURTHER INFORMATION CONTACT: Debra Bennett, 703-604-0098.
SUPPLEMENTARY INFORMATION: Public comment was taken on the Interim
Final Rule. No comments were received.
I. Background
Subsection 2(a) of the Wildfire Suppression Aircraft Transfer Act
of 1996, as amended, states that, notwithstanding subchapter II of
chapter 5 of title 40, United States Code 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, 2005, 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 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. Unfunded Mandates Reform Act
It has been certified that 32 CFR part 171 does not contain a
Federal Mandate that may result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
C. Regulatory Flexibility Act
It has been determined that this rule is not subject to the
Regulatory
[[Page 8823]]
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.
D. 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).
E. Executive Order 13132
It has been certified that 32 CFR part 171 does not have federalism
implications, as set forth in Executive Order 13132.
List of Subjects in 32 CFR Part 171
Aircraft, Fire prevention.
According, 32 CFR Part 171 is added to read as follows:
PART 171--IMPLEMENTATION OF WILDFIRE SUPPRESSION AIRCRAFT TRANSFER
ACT OF 1996
Sec.
171.1 Background and purpose.
171.2 Applicability.
171.3 Restrictions.
171.4 Qualifications.
171.5 Sale procedures.
171.6 Reutilization and transfer procedures.
171.7 Reporting requirements.
171.8 Expiration.
Authority: 10 U.S.C. 2576 note.
Sec. 171.1 Background and purpose.
The Wildfire Suppression Aircraft Transfer Act of 1996 (the
``Act''), as amended, allows the Department of Defense (DOD), during
the period 1 October 1996 through 30 September 2005, 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 B2, 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 sale 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 (40)(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
[[Page 8824]]
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 no limited to, exchange and barters).
(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 U.S.C. 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&MR/SCI) within
thirty (30) days of its notice from the Military Service. ADUSD(L&MR/
SCI) shall then resolve the dispute, in writing. The aircraft may not
be issued until the dispute has been resolved.
(f) 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&MR/SCI) within thirty (30) days of its
notice from the Military Service. ADUSD(L&MR/SCI) 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 2005.
Dated: February 6, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-4443 Filed 2-25-03; 8:45 am]
BILLING CODE 5001-08-M