Comment on FR Doc # E9-15157

The National Association of State Agencies (NASASP) would like to offer the following commentary on FMR Case 2009-102-3: "Congress has faithfully exercised its responsibility under the United States Constitution to “make all needful rules and regulations respecting the territory or other property of the United States” from the late 1700’s to the present day. In the exercise of this authority, Congress has passed laws establishing policies designed to serve the best interests of the taxpayers. These laws are based on the premise that the public is the actual owner of Government real and personal property and those Federal agencies that hold and utilize such property are merely acting as public custodians. Consequently, personal property management laws require Federal agencies to transfer excess personal property to other Federal agencies as the highest utilization of such property. When no Federal need is expressed, the next highest priority is to transfer such property into public use through the State Agencies for Surplus Property. This system has served the public well for many years. Unfortunately, Federal holding agencies have often confused such stewardship with ownership, resulting in the application of various ways of converting unneeded personal property into cash for purposes not specifically authorized by statute. New laws and regulations have granted exceptions to the established disposition processes, and have permitted the transfer of excess personal property to special categories of recipients outside of the Federal Government. Other regulations have enabled Federal agencies to dispose of excess personal property through exchanges and sales that transfer the property to the private sector before it can be donated to the State Agencies for public use. Consequently, many State Agencies find that the volume of personal property available to them is insufficient to enable them to maintain their service to the public. If this trend continues, the donation system that the Congress enacted many years ago could disappear altogether. No longer would public personal property remain in public use throughout its useful life, but it would be disposed of with no measurable benefit to the public. The most recent assault on the donation systems includes possible changes to the Federal Management Regulations, 41 CFR, part 102-39, Replacement of Personal Property Pursuant to the Exchange Sale Authority. The proposed changes are unnecessary, unwise, and would constitute an evasion of Congressional appropriation authority. Furthermore, if enacted, this proposed change would further diminish the amount of personal property available to the State Agencies to place in public use. In summary, GSA proposes to lift restrictions and permit aircraft and airframe commodities and components previously deemed ineligible for Exchange/Sale to be traded or sold. This seemingly innocuous rule change will in fact hurt thousands of donee organizations across the country that have come to rely on the excess/donation of many aircraft components and commodities needed to supplement the aircraft maintenance programs of public safety agencies across the country. Aside from our “donation” needs insofar as the Federal Surplus Program (law enforcement, schools/universities, and museums) it’s possible that the Federal agencies do not even realize they’re cutting their own throats should this Rule go unnoticed. It will limit federal civilian agency access to reutilized aircraft components because we have witnessed first-hand how Federal agencies will quickly “adapt” and attempt to “trade and sell” every personal property item they have sitting around. We saw an example of this two years ago when GSA further encouraged Federal agencies to sell vehicles, computers, and electronics. This means one agency will sell aircraft parts for pennies and another agency using the exact same aircraft needing parts will be forced to submit a requisition to purchase new parts. Plus, GSA’s assumption on this issue “not having a detrimental impact on the donation of such property” is plain wrong—this does hurt the Federal Surplus Program and the 69,000 (police, fire, flight training programs, etc.) organizations NASASP represents. At the Federal level it means trading or selling aircraft components and commodities (new/unused)… perhaps back to any one of the hundreds of manufacturers (Boeing, McDonnell, etc.) for a few bucks only to realize later how reutilization of aircraft components actually saved the federal government replacement property costs to their own aircraft fleet (federal agencies) and thus saved taxpayers’ cost of new replacement aircraft parts. This has occurred in the recent past and Federal agencies and the military services had to go to private surplus dealers and pay many times more for the needed items that were just sold by the Federal government to these private dealers! So if you cut off the supply (Excess & Donation) and disrupt the “reutilization” process that has worked so well for decades, those same federal agencies will be turning back to Congress for new commodity replacement dollars and our public safety agencies across the nation will be turning to the taxpayers for replacement property—or worse— abandoning the very public safety flight and training operations now teetering during this economic downturn. In fairness, it’s possible for certain aircraft that Exchange/Sale might be a good idea; however, since Exchange/Sale already has “no regulation” on the taxpayers’ return-on-investment when property such as vehicles, computers, etc., are sold or traded for pennies on the dollar; we could all lose in the end by paying more. This is just another example of the abuse and expansion of the Exchange/Sale Authority. Federal agencies continue to find ways to circumvent the appropriation process while hurting the very communities and taxpayers that funded the equipment and commodities. NASASP believes that the only way to fully realize 100% of the taxpayer's return on investment is to utilize the system as we know it now and allow the property to flow through the excess and surplus system. When an item is sold through Exchange Sale to a private concern then public use is immediately discontinued, only thro ugh donation to a public entity does the taxpayer see the 100% of use until the item is no longer usable to anyone. NASASP and its members also take full accountability for aircraft and aircraft components donated through the Federal Surplus Program. In the case of aircraft there is a full five-year compliance requirement as is the case in some aircraft components. For lower cost items or parts there is still a 12 month requirement for proper use and this use is kept on record at the State agency level and in some cases through a longer restriction period at the Federal level as well. Finally, NASASP is curious as to why no previous comments or dialogue was held prior to the notice in the Federal Register (6/26/09). In many instances in the past this has been how GSA's Office of Governmentwide Policy operated; but in this case, it appears that this Rule Change hit the system with no notice--not only to NASASP, but none either to other Federal agencies--including GSA/FAS staff who are asking:"why"? It was indeed a surprise to many within GSA's own federal agency, as reported to NASASP Officers. NASASP respectfully requests that we be consulted concerning any contemplated changes to the exchange sale authority in law or regulation, and that we be invited to testify at any and all hearings on this matter, as well as on any matter affecting the personal property disposal process. As the sole conduit for placing federal personal property back into the hands of the American taxpayers for over 63 years, we are singularly well qualified to offer testimony on this subject." Curtis A. Howard President, NASASP Inc.