[Federal Register Volume 78, Number 159 (Friday, August 16, 2013)]
[Proposed Rules]
[Pages 49994-49996]
From the Federal Register Online via the Government Publishing 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 [email protected]. 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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