[Federal Register Volume 68, Number 38 (Wednesday, February 26, 2003)]
[Rules and Regulations]
[Pages 8822-8824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4443]


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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