[Federal Register Volume 78, Number 159 (Friday, August 16, 2013)]
[Proposed Rules]
[Pages 49994-49996]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19948]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-117

[FMR Case 2013-102-1; Docket 2013-0009, Sequence 1]
RIN 3090-AJ35


Federal Management Regulation (FMR); Obligating Authority

AGENCY: Office of Governmentwide Policy (OGP), General Services 
Administration (GSA).

ACTION: Proposed rule.

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SUMMARY: The U.S. General Services Administration (GSA) is proposing to 
amend the Federal Management Regulation (FMR) to recommend that 
agencies, as defined in Sec.  102-117.25, provide written authority to 
Transportation Officers who acquire transportation services utilizing a 
rate tender acquisition. This written authority would help agencies 
manage the billions of dollars that the Government spends annually on 
transportation. This proposed rule, if adopted, would describe 
procedures that agencies should follow to delegate authority to 
Transportation Officers and includes experience and training 
requirements that a Transportation Officer should meet before being 
authorized to acquire transportation services.

DATES: Interested parties should submit comments in writing on or 
before October 15, 2013 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit comments in response to FMR Case 2013-102-1 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FMR Case 
2013-102-1'' and selecting the link ``Submit a Comment'' that 
corresponds with ``FMR Case 2013-102-1''. Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``FMR Case 2013-102-1'' on your attached 
document.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), 1800 F Street NW., ATTN: Hada Flowers, Washington, 
DC 20405-0001.
    Instructions: Please submit comments only and cite FMR Case 2013-
102-1, in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT: Ms. Lee Gregory, Office of Asset and 
Transportation Management (MA), Office of Governmentwide Policy (OGP), 
at 202-501-1533 or by email at lee.gregory@gsa.gov. Please cite FMR 
Case 2013-102-1. For information pertaining to status or publication 
schedules contact the Regulatory Secretariat at 202-501-4755.

SUPPLEMENTARY INFORMATION: 

A. Background

    Agencies are authorized to procure transportation services either 
through the Federal Acquisition Regulation (FAR), by utilizing a 
contract, or via 49 U.S.C. 10721 (for rail transportation), 49 U.S.C. 
13712 (for surface transportation), or 49 U.S.C. 15504 (for pipeline 
transportation) utilizing rate tenders.
    Rate tenders are an alternative method of acquiring transportation 
services that is neither mandatory nor exclusive. In order to determine 
which method is better suited for the acquisition of transportation 
services, an evaluation of the transportation services to be acquired 
must be made. The FMR discusses the criteria for choosing between rate 
tender and FAR acquisitions in FMR sections 102-117.30 through 102-
117.55.
    The FAR requires that a Contracting Officer (CO) receive clear 
instructions in writing regarding the contracting officer's authority 
(48 CFR 1.603-3). Contracts may be entered into and signed on behalf of 
the Government only by a contracting officer. In contrast there is no 
analogous regulation for Federal Transportation Officers under which an 
appointing official authorizes them to acquire transportation services. 
However, some agencies have delegations of authority or other agency 
procedures in place for their workforce.
    A Transportation Officer that acquires transportation services 
through a rate tender acquisition should be qualified and trained in 
transportation management or have relevant transportation experience in 
order to manage a rate tender acquisition properly.
    GSA published a proposed rule in the Federal Register on May 4, 
2005 (70 FR 23078) to add the recommendation that transportation 
managers who obligate Government funds for rate tender procurements 
must be properly authorized in writing, which certifies that the 
transportation manager is competent and trained in transportation 
management and has the authority to commit Government funds for the 
procurement of transportation or transportation services. Comments were 
received from four agencies (U.S. Department of State, Internal Revenue 
Service, U.S. Department of Agriculture, and Federal Aviation 
Administration). Applicable comments were incorporated into this 
current proposed rule, such as expanding time to phase program 
implementation, identifying activities that would not require a 
warrant, and providing flexibility for the program and requirements to 
the agency. Due to the length of time since the publication of the 2005 
proposed rule, and because GSA's position on this issue has evolved, 
GSA is publishing this new proposed rule.
    Section 3(a)(1) of the Travel and Transportation Reform Act of 1998 
(the Act), Public Law 105-264, amended 31 U.S.C. 3322(c)(1), holding 
disbursing officials personally liable for overpayments other than an 
overpayment for the use of improper transportation rates or 
classifications if the Administrator of General Services has determined 
that verification by a prepayment audit will not adequately protect the 
interests of the Government. Similarly, section 3(a)(2) of the Act 
amended 31 U.S.C. 3528(a)(5), requiring certifying officials to verify 
transportation rates and classifications and holding such officials 
personally liable for overpayments unless the overpayment occurred 
solely because a prepayment audit did not verify the rate

[[Page 49995]]

or classification and the Administrator of General Services has 
determined that verification by a prepayment audit will not adequately 
protect the interests of the Government. These provisions were 
effective April 19, 2000. This proposed rule would add a reference to 
these statutory provisions in proposed FMR section 102-117.410.

B. Major Revisions

    This proposed rule will:
     Define ``Third Party Logistics'', ``Transportation 
Officer'' and ``Transportation Officer Warrant'';
     Recommend that rate tender acquisitions of transportation 
services for an agency be performed only by a warranted Transportation 
Officer;
     List the suggested minimum elements of a Transportation 
Officer warrant;
     Outline the suggested minimum requirements for training 
and/or experience to be a warranted Transportation Officer;
     Recommend agency procedures for creating a warranted 
Transportation Officer program; and
     Refer to the liability created by Public Law 105-264, and 
refer the reader to FMR sections 102-118.350 through 102-118.370 for 
further information.
    In accordance with Executive Order (EO) 13563, this proposed 
regulation is included in GSA's retrospective review of existing 
regulations at www.gsa.gov/improvingregulations.

C. Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. This is 
not a significant regulatory action, and therefore, will not be subject 
to review under Section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

D. Regulatory Flexibility Act

    While these revisions are substantive, this proposed rule will not 
have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 
601, et seq. The proposed rule is also exempt from the Administrative 
Procedures Act per 5 U.S.C. 553 (a)(2) because it applies to agency 
management or personnel policies related to Transportation management.

E. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FMR do not impose recordkeeping or information 
collection requirements, or the collection of information from offeror, 
contractors, or members of the public that require the approval of the 
Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

F. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is also exempt from Congressional review 
prescribed under 5 U.S.C. 801 since it relates solely to agency 
management or personnel.

List of Subjects in 41 CFR Part 102-117

    Transportation Management.

    Dated: July 23, 2013.
Anne E. Rung,
Acting Associate Administrator, Office of Governmentwide Policy.
    For the reasons set forth in the preamble, GSA proposes to amend 41 
CFR part 102-117 as follows:

PART 102-117--TRANSPORTATION MANAGEMENT

0
1. The authority citation for 41 CFR part 102-117 is revised to read as 
follows:

    Authority: 31 U.S.C. 3726; 40 U.S.C. 121(c); and 40 U.S.C. 501, 
et seq.

0
2. Amend Sec.  102-117.25 by alphabetically adding the definitions 
``Third Party Logistics (3PL)'', ``Transportation Officer (TO)'' and 
``Transportation Officer Warrant'' to read as follows:


Sec.  102-117.25  What definitions apply to this part?

* * * * *
    Third Party Logistics (3PL) is an entity that provides multiple 
logistics services for use by customers. Among the transportation 
services 3PLs generally provide are integration transportation, 
warehousing, cross-docking, inventory management, packaging, and 
freight forwarding.
* * * * *
    Transportation Officer (TO) is a person authorized, in accordance 
with this part, to select transportation service providers using rate 
tenders, including but not limited to selecting Third Party Logistics 
(3PL) or Transportation Service Provider (TSP) and issuing a bill of 
lading. The TO may also serve as the subject matter expert for a 
Contracting Officer.
    Transportation Officer Warrant is an agency-issued document that 
authorizes a Transportation Officer to procure transportation services 
using rate tenders, select Third Party Logistics (3PL) or 
Transportation Service Provider (TSP), issue bills of lading, and 
otherwise perform the duties of a Transportation Officer.
* * * * *
0
3. Add Subpart M, consisting of Sec. Sec.  102-117.365 through 
Sec. Sec.  102-117.410 to read as follows:
Subpart M--Recommendations for Authorization and Qualifications to 
Acquire Transportation Using a Rate Tender
Sec.
102-117.365 What are the responsibilities of a Transportation 
Officer?
102-117.370 Should I have a Transportation Officer warrant to 
acquire transportation services using a rate tender?
102-117.375 Are there instances where a Transportation Officer 
warrant is not necessary to acquire transportation services?
102-117.380 What should be contained in a Transportation Officer 
warrant to acquire transportation services?
102-117.385 Is there a standard format for a Transportation Officer 
warrant?
102-117.390 What training and/or experience is recommended for my 
agency to warrant me to acquire transportation services?
102-117.395 Should I continue my training to maintain my warrant?
102-117.400 How should my warrant be documented and maintained?
102-117.405 Are there dollar limits on transportation service 
acquisitions?
102-117.410 Is a Transportation Officer liable for his/her actions?

Subpart M--Recommendations for Authorization and Qualifications to 
Acquire Transportation Using a Rate Tender


Sec.  102-117.365  What are the responsibilities of a Transportation 
Officer?

    Transportation Officer's duties include:
    (a) Negotiating rates;
    (b) Signing bills of lading;
    (c) Certifying bills of lading;
    (d) Approving additional accessorial charges;
    (e) Selecting and procuring services of a TSP; and/or
    (f) Selecting and procuring services of a 3PL.

[[Page 49996]]

Sec.  102-117.370  Should I have a Transportation Officer warrant to 
acquire transportation services using a rate tender?

    Yes, it is recommended that you have a written document, such as a 
warrant, issued by the head of your agency or his/her designee, which 
expressly allows you to acquire transportation services using approved 
non-FAR acquisition methods for specified transportation services and 
states dollar limit or range for the warrant authority.


Sec.  102-117.375  Are there instances where a Transportation Officer 
warrant is not necessary to acquire transportation services?

    Yes, a Transportation Officer warrant is not necessary to:
    (a) Ship packages through a contract under the GSA Schedules 
program, including any Blanket Purchase Agreement, as these are Federal 
Acquisition Regulation (FAR) based contracts;
    (b) Ship packages or other materials through any other FAR-based 
contract; or
    (c) Send items through the United States Postal Service.


Sec.  102-117.380  What should be contained in a Transportation Officer 
warrant to acquire transportation services?

    The warrant issued by the agency head or his/her designee should:
    (a) State that you have sufficient experience (any combination of 
Federal, public, or commercial) and/or training in transportation 
services that qualify you to acquire transportation;
    (b) List the limitations on the scope of your authority, including 
the maximum dollar limit and any other limits such as the types of 
services that you may acquire;
    (c) State the minimum requirements necessary to maintain the 
warrant; and
    (d) Include an expiration date for the warrant, recommended not to 
exceed three years from the date of issuance.


Sec.  102-117.385  Is there a standard format for a Transportation 
Officer warrant?

    No. GSA can provide your agency with a suggested format; agencies 
can model the transportation officer warrant after the contracting 
officer warrant; or agencies may establish their own format.


Sec.  102-117.390  What training and/or experience is recommended for 
my agency to warrant me to acquire transportation services?

    (a) Your agency should establish training and/or experience 
requirements to qualify you for a Transportation Officer warrant. The 
following are suggested baseline training and/or experience 
requirements:
    (1) For a Basic (Level 1) Transportation Officer Warrant:
    (i) Twenty-four (24) hours of training in Federal civilian 
transportation; or
    (ii) Two years of Federal, public, or commercial experience in 
acquiring transportation through rate tenders.
    (2) For an Experienced (Level 2) Transportation Officer Warrant:
    (i) Thirty-two (32) hours of training in transportation, including 
20 hours of training in Federal civilian transportation; or
    (ii) Three years of Federal, public, or commercial experience in 
acquiring transportation through rate tenders.
    (3) For a Senior (Level 3) Transportation Officer Warrant:
    (i) Sixty (60) hours of training in transportation, including 40 
hours of training in Federal civilian transportation; or
    (ii) Five years of Federal, public, or commercial experience in 
acquiring transportation through rate tenders.
    (b) GSA created an online eLearning Transportation Officer training 
site hosted by the U.S. Office of Personnel Management. The training 
courses provide a standard Governmentwide body of transportation 
knowledge. This web-based eLearning site is available at http://transportationofficer.golearnportal.org/ and is available to all 
Federal agencies.


Sec.  102-117.395  Should I continue my training to maintain my 
warrant?

    Yes, you should continue your training. Your agency will determine 
the continuing education requirements that apply specifically to your 
warrant. It is recommended that at least 12 hours of transportation 
training per year be completed in order to maintain a Transportation 
Officer warrant.


Sec.  102-117.400  How should my warrant be documented and maintained?

    The head of your agency or his/her designee should state, in 
writing, that you have the recommended training or experience suggested 
by Sec.  102-117.390. You should retain a copy of this Transportation 
Officer warrant. Agency heads or their designees may amend, suspend, or 
terminate warrants in accordance with agency policies and/or 
procedures.


Sec.  102-117.405  Are there dollar limits on transportation service 
acquisitions?

    Yes, a limitation on the dollar amount you may acquire using your 
transportation officer warrant should be established by your agency and 
should be stated in your warrant.


Sec.  102-117.410  Is a Transportation Officer liable for his/her 
actions?

    For information regarding liabilities, see 41 CFR 102-118.350 
through 102-118.370, as applicable, if the Transportation Officer is 
also the certifying official and/or the disbursing official.
[FR Doc. 2013-19948 Filed 8-15-13; 8:45 am]
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