Federal Management Regulation (FMR); Transportation Management, Transportation Officer Obligating Authority, 55363-55366 [2014-22093]
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Federal Register / Vol. 79, No. 179 / Tuesday, September 16, 2014 / Rules and Regulations
SUPPLEMENTARY INFORMATION:
Background
This document contains amendments
to 26 CFR part 31 under section 3402(p)
of the Code. On November 29, 2013,
Treasury and the IRS published in the
Federal Register temporary regulations
(TD 9646) at 78 FR 71476 and a notice
of proposed rulemaking by crossreference to temporary regulations
(REG–146620–13, 78 FR 71542) under
section 3402(p) of the Code relating to
voluntary withholding.
Two written comments responding to
the notice of proposed rulemaking were
received but neither comment addressed
issues relevant to the notice of proposed
rulemaking or the temporary
regulations. No public hearing was
requested or held. Accordingly, the
proposed regulations (which cross
referenced the temporary regulations)
are adopted without change as final
regulations.
Explanation of Provisions
These final regulations under section
31.3402(p)–1 adopt without change the
proposed regulations and the temporary
regulations that allow the Secretary to
describe other payments subject to
voluntary withholding agreements in
guidance published in the Internal
Revenue Bulletin (IRB). Similarly to the
proposed and the temporary regulations,
these final regulations also provide that
the IRB guidance will set forth
requirements regarding the form and
duration of the voluntary withholding
agreement specific to the type of
payment from which withholding is
authorized.
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Special Analyses
It has been determined that this
Treasury decision is not a significant
regulatory action as defined in
Executive Order 12866, as
supplemented by Executive Order
13563. Therefore, a regulatory
assessment is not required. It also has
been determined that section 553(b) of
the Administrative Procedure Act (5
U.S.C. chapter 5) does not apply to these
regulations, and because the regulations
do not impose a collection of
information on small entities, the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to
section 7805(f) of the Code, these
regulations have been submitted to the
Chief Counsel for Advocacy of the Small
Business Administration for comment
on their impact on small business, and
no comments were received.
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Drafting Information
The principal author of these
regulations is Linda L. ConwayHataloski, Office of Division Counsel/
Associate Chief Counsel (Tax Exempt
and Government Entities). However,
personnel from other offices of the IRS
and Treasury participated in their
development.
List of Subjects in 26 CFR Part 31
Employment taxes, Income taxes,
Penalties, Pensions, Railroad retirement,
Reporting and recordkeeping
requirements, Social security,
Unemployment compensation.
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 31 is
amended as follows:
PART 31—EMPLOYMENT TAXES AND
COLLECTION OF INCOME TAX AT
SOURCE
Paragraph 1. The authority citation
for part 31 continues to read in part as
follows:
■
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 31.3402(p)–1 is
amended by:
■ 1. Revising the headings of paragraphs
(a) and (b).
■ 2. Removing the language ‘‘3402(b)’’
in the first sentence and ‘‘3402(p)’’ in
the third sentence of paragraph (a) and
‘‘3402(p)’’ in the five places that it
appears in paragraph (b) and adding
‘‘3402(p)(3)(A)’’ in their place.
■ 3. Adding paragraphs (c) and (d).
The revisions and additions read as
follows:
■
§ 31.3402(p)–1
Agreements.
Voluntary Withholding
(a) Employer-employee agreement.
* * *
(b) Form and duration of employeremployee agreement. * * *
(c) Other payments. The Secretary
may issue guidance by publication in
the Internal Revenue Bulletin (IRB)
(which will be available at
www.IRS.gov) describing other
payments for which withholding under
a voluntary withholding agreement
would be appropriate and authorizing
payors to agree to withhold income tax
on such payments if requested by the
payee. Requirements regarding the form
and duration of voluntary withholding
agreements authorized by this paragraph
(c) will be provided in the IRB guidance
issued regarding specific types of
payments.
(d) Effective/applicability date. (1)
This section applies on and after
September 16, 2014.
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§ 31.3402(p)–1T
55363
[Removed]
Par. 3. Section 31.3402(p)–1T is
removed.
■
John Dalrymple,
Deputy Commissioner for Services and
Enforcement.
Approved: September 8, 2014.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. 2014–22036 Filed 9–15–14; 8:45 am]
BILLING CODE 4830–01–P
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–117
[FMR Change-2014–04; FMR Case 2013–
102–1; Docket 2013–0009, Sequence 1]
RIN 3090–AJ35
Federal Management Regulation
(FMR); Transportation Management,
Transportation Officer Obligating
Authority
Office of Government-Wide
Policy (OGP), General Services
Administration (GSA).
ACTION: Final rule.
AGENCY:
GSA is amending the Federal
Management Regulation (FMR) to
recommend that agencies provide
written authority to Transportation
Officers (TO) who acquire
transportation services utilizing a rate
tender acquisition for freight and cargo,
including household goods (HHGs).
Further, GSA recommends that those
who acquire transportation services
should be trained in transportation
management and/or have relevant
transportation experience in order to
properly manage the acquisition.
DATES: Effective September 16, 2014.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms. Lee
Gregory, Office of Asset and
Transportation Management (MA),
Office of Government-wide Policy
(OGP), at 202–507–0871 or by email at
lee.gregory@gsa.gov. For information
pertaining to status or publication
schedules, contact General Services
Administration, Regulatory Secretariat
(MVCB), 1800 F Street NW., ATTN:
Hada Flowers, Washington, DC 20405–
0001. Please cite FMR Case 2013–102–
1.
SUPPLEMENTARY INFORMATION:
SUMMARY:
A. Background
Agencies are authorized to procure
transportation services either through
the Federal Acquisition Regulation
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(FAR) by utilizing a contract or via 49
U.S.C. 10721 (for rail transportation), 49
U.S.C. 13712 (for surface
transportation), 49 U.S.C. 15504 (for
pipeline transportation) by 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 CO’s authority (48
CFR 1.603–3). Only a CO may enter into
contracts and sign on behalf of the
Government. In contrast, there is no
analogous regulation for Federal TOs
under which an appointing official
authorizes them to acquire
transportation services.
A TO who acquires transportation
services through a rate tender
acquisition should be qualified and
trained in transportation management
and/or have relevant transportation
experience in order to properly manage
and obligate funds for the acquisition.
GSA reviewed the transportation
management policy regarding TOs and
the acquisition of transportation
services, and published a proposed rule
in the Federal Register on August 16,
2013 (78 FR 49994). The proposed rule
recommended that TOs who obligate
Government funds for rate tender
acquisitions of transportation services
should be properly authorized in
writing by their agencies. The proposed
rule also recommended that TOs be
qualified and trained in transportation
management and/or have relevant
transportation experience in order to
properly manage a rate tender
acquisition.
B. Public Comments and Responses
In the proposed rule, GSA provided
the public a 60-day comment period
which ended on October 15, 2013. GSA
received comments from the
Department of Energy (DOE), the
National Archives and Records
Administration (NARA), and from a
commercial Transportation Service
Provider (TSP). The final rule reflects
the following changes made as a result
of some of these comments.
Comment: DOE suggested that the
duties associated with a Certifying
Officer releasing funds from a Third
Party Payment System (TPPS) to a TSP
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be added in the section identifying TO
responsibilities.
Response: The Department of
Treasury and an agency’s Chief
Financial Officer, or similar agency
official, is the source for providing
relevant and current information
regarding the duties and responsibilities
of Certifying Officers. An agency can
supplement this regulation in internal
policies to meet its missions and goals.
Therefore, no change was made as a
result of this comment.
Comment: DOE recommended
including two additional definitions to
FMR section 102–117.25, Electronic
Funds Transfer (EFT) and TPPS.
Response: As neither EFT nor TPPS
are used in the part, GSA declines to
define the terms in FMR section 102–
117.25.
Comment: DOE suggested that
training as a ‘‘Certifying Officer’’ should
be added to the recommendations
regarding what training and/or
experience is suggested for an agency to
warrant an individual to acquire
transportation services.
Response: After review, GSA included
language in section FMR 102–117.380(a)
addressing acquisition and certifying
officer training.
Comment: DOE stated that the duties
of a Contracting Officer’s Representative
(COR) and of a Certifying Official are
integral to acquiring transportation
services and closing out a Bill of Lading
(BOL). Therefore, DOE suggested that
the responsibilities of acting as a COR
and/or Certifying Official should be
included in FMR sections 102–117.25,
102–117.365, and 102–117.390.
Response: GSA defers to agencies to
determine whether or not the TO is also
a COR and/or Certifying Official. Using
the phrases ‘‘include, but are not limited
to,’’ ‘‘may include,’’ and ‘‘baseline’’
provide flexibility to your agency to
include other responsibilities such as
serving as a COR and/or Certifying
Official. Therefore, no change was made
to FMR sections 102–117.25 and 102–
117.390 as suggested by DOE.
GSA also notes that this final rule
does not contain the proposed FMR
section 102–117.410, Is a
Transportation Officer liable for his/her
actions? GSA determined that this topic
is outside the intended scope of this
rule.
Comment: NARA inquired as to the
training source(s) for the twelve (12)
hours of continuing education training
for TOs that is recommended in FMR
section 102–117.395.
Response: GSA defers to agencies to
determine the type(s), source(s), and
subject(s) of the training. For example,
your agency may identify the GSA
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Federal Transportation and Logistics
Management eLearning site as an
acceptable training source for TOs. This
eLearning site is available at https://
transportationofficer.golearnportal.org/.
Similarly, another program may be
deemed acceptable. As such, no change
was made as a result of this comment.
Comment: NARA questioned whether
in FMR section 102–117.365, the
reference to TO duties including
‘‘signing a BOL’’ constitutes stating that
the shipment was received intact and
whether it should be the responsibility
of the TO to sign BOLs. NARA stated
that its agency BOLs are created and
forwarded to appropriate offices. The
shipments are received and signed for
by the agency representatives in the
field, who are not considered TOs, but
rather receivers of the services. TSPs
require the signed BOLs for invoicing.
Further, NARA stated that it does not
have dedicated personnel at its
facilities’ loading docks. Based upon the
proposed language, NARA believes that
all individuals receiving at the loading
dock would need to be warranted.
Response: In response to NARA’s
question of whether signing BOLs
confirms that the shipment was received
intact and whether it should be the TO’s
responsibility to sign every BOL, this
would be determined by the internal
policies of each agency. After review of
NARA’s comments, the word ‘‘may’’
was added to FMR section 102–117.365
to read as follows, ‘‘A Transportation
Officer’s (TO) responsibilities may
include:’’ to provide flexibility to
agencies.
Comment: A commercial TSP stated
that the proposed regulation was written
with the terms ‘‘should’’ and ‘‘we
recommend,’’ and that it appeared that
there is no enforcement authority to
make this mandatory. The commercial
TSP wanted to know if this was correct.
Response: GSA does not have the
authority to make this a required
program, and therefore, instead strongly
recommends it. Agencies have the
authority to mandate this
recommendation through internal
policies and procedures.
Comment: A commercial TSP stated
that the proposed rule appeared to
change the FMR for transportation
services that utilize a rate tender
acquisition. The commenting party
asked if the intent was to change the
Federal Travel Regulation (FTR), and if
so, how this would affect GSA’s
Centralized Household Goods Traffic
Management Program (CHAMP), which
is run predominately under tenders.
Response: This rule does not change
the FTR. This rule increases assurance
that agency TOs, including those
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utilizing a rate tender acquisition for
HHGs, have the appropriate background
to perform their duties.
Comment: A commercial TSP asked if
the Office of Government-wide Policy
(OGP) is aware that if any tariff is used
to establish transportation pricing for a
movement of HHGs, a rate is being
tendered off of that tariff, regardless of
whether the shipment is booked via
CHAMP, via the schedule, or via an
independent contract. If OGP disagreed,
the commercial TSP asked for an
explanation.
Response: This comment is outside
the scope of this rule.
Comment: A commercial TSP asked if
OGP is aware that ‘‘GSA Post Audits’’
requires all TSPs handling any HHGs off
of the schedule or independent
contracts to submit copies of their tariff
so that they can properly audit all
shipments tendered off of that tariff.
Response: This comment is outside
the scope of this rule.
Comment: A commercial TSP
suggested additional language to FMR
section 102–117.390, to specify that
anyone who acquires transportation
services should be trained in
transportation management or have
relevant transportation experience in
order to properly manage the
acquisition.
Response: GSA added the suggested
language to the summary section of the
final rule and notes that FMR section
102–117.380, in effect, includes
equivalent language.
Finally, GSA also notes that this final
rule does not contain the proposed
section 102–117.405, Are there dollar
limits on transportation service
acquisitions? GSA determined that this
topic is addressed in FMR section
117.380(b).
C. Substantive Changes
This final rule:
• Defines the terms ‘‘Third Party
Logistics,’’ ‘‘Transportation Officer,’’
and ‘‘Transportation Officer Warrant’’;
• Recommends that rate tender
acquisitions of transportation services
for an agency be performed only by a
warranted Transportation Officer;
• Lists the suggested minimum
elements of a Transportation Officer
warrant;
• Outlines the suggested minimum
recommendations for training and/or
experience to be a warranted
Transportation Officer; and
• Recommends agency procedures for
creating a warranted Transportation
Officer program.
D. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
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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, is not
subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
final rule is not a major rule under 5
U.S.C. 804.
E. Regulatory Flexibility Act
While these revisions are substantive,
this final 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 final 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.
F. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the 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.
G. Small Business Regulatory
Enforcement Fairness Act
This final 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: August 5, 2014.
Dan Tangherlini,
Administrator of General Services.
For the reasons set forth in the
preamble, GSA amends 41 CFR part
102–117 as follows:
PART 102–117—TRANSPORTATION
MANAGEMENT
1. The authority citation for 41 CFR
part 102–117 continues to read as
follows:
■
Authority: 31 U.S.C. 3726; 40 U.S.C.
121(c); 40 U.S.C. 501, et seq.; 46 U.S.C.
55305; 49 U.S.C. 40118.
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55365
2. Amend § 102–117.25 by
alphabetically adding the definitions
‘‘Third Party Logistics (3PL)’’,
‘‘Transportation Officer (TO)’’, and
‘‘Transportation Officer Warrant’’ to
read as follows:
■
§ 102–117.25
part?
What definitions apply to this
*
*
*
*
*
Third Party Logistics (3PL) is an entity
that provides multiple logistics services
for use by customers. Among the
transportation services that 3PLs
generally provide are integration
transportation, warehousing, crossdocking, 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. Duties may
include, but are not limited to, selecting
Third Party Logistics (3PL) or
Transportation Service Providers (TSP),
and issuing bills of lading.
Transportation Officer Warrant is an
agency-issued document that authorizes
a Transportation Officer (TO) to procure
transportation services using rate
tenders, which may include, but are not
limited to, selecting Third Party
Logistics (3PL) or Transportation
Service Providers (TSP), issuing bills of
lading, and otherwise performing the
duties of a TO.
*
*
*
*
*
3. Add Subpart M, consisting of
§§ 102–117.365 through §§ 102–117.400
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 are the recommended
Transportation Officer training and/or
experience levels?
102–117.395 Should I continue my training
to maintain my warrant?
102–117.400 How should my warrant be
documented?
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Subpart M—Recommendations for
Authorization and Qualifications to
Acquire Transportation Using a Rate
Tender
§ 102–117.365 What are the
responsibilities of a Transportation Officer?
A Transportation Officer’s (TO)
responsibilities may include:
(a) Negotiating rates;
(b) Signing bills of lading (BOL);
(c) Approving additional accessorial
charges;
(d) Selecting and procuring services of
a TSP;
(e) Selecting and procuring services of
a 3PL;
(f) Serving as a transportation subject
matter expert to a Contracting Officer
(CO); and/or
(g) Other roles/responsibilities, such
as serving as a certifying official for BOL
or as a disbursement official.
§ 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
their designee, which expressly allows
you to acquire transportation services
for using approved non-Federal
Acquisition Regulation (FAR)
acquisition methods for specified
transportation services, and states a
dollar limit or range for the warrant
authority.
§ 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 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.
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§ 102–117.380 What should be contained
in a Transportation Officer warrant to
acquire transportation services?
The warrant for authority to acquire
transportation services for freight and
cargo, including HHGs, issued by the
agency head or their designee should:
(a) State that you have sufficient
experience (any combination of Federal,
public, and/or commercial) and/or
training in transportation services,
including any relevant acquisition or
certifying officer training, that qualifies
you to acquire the transportation
services needed by your agency;
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(b) List the maximum dollar limit, if
any, and any other limits, such as the
types of services that you may acquire;
(c) State your agency’s necessary
conditions to maintain the warrant; and
(d) Include an expiration date for the
warrant, recommended not to exceed
three years from the date of issuance.
§ 102–117.385 Is there a standard format
for a Transportation Officer warrant?
No. GSA can provide your agency
with a suggested format. Agencies could
also model the Transportation Officer
warrant after the Contracting Officer
warrant, or they may establish their own
format.
§ 102–117.390 What are the recommended
Transportation Officer training and/or
experience levels?
(a) The following are suggested
agency transportation officer training
and/or experience baselines:
(1) For a Basic (Level 1)
Transportation Officer Warrant:
(i) Twenty-four (24) hours of training
in Federal transportation; or
(ii) Two (2) years of Federal, public,
and/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 twenty (20)
hours of training in Federal
transportation; or
(ii) Three (3) years of Federal, public,
and/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 forty (40)
hours of training in Federal
transportation; or
(ii) Five (5) years of Federal, public,
and/or commercial experience in
acquiring transportation through rate
tenders.
(b) GSA created an online eLearning
Transportation Officer training site to
provide a standard Governmentwide
body of transportation knowledge
available to all agencies. This Webbased eLearning site is available at
https://
transportationofficer.golearnportal.org/.
§ 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 that applies
specifically to your warrant. It is
recommended that at least twelve (12)
hours of transportation training per year
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be completed in order to maintain a
Transportation Officer warrant.
§ 102–117.400
documented?
How should my warrant be
The head of your agency or their
designee should state, in writing, that
you have the recommended training
and/or experience suggested by § 102–
117.390. You should retain a copy of
this Transportation Officer warrant.
Agency heads or their designee(s) may
amend, suspend, or terminate warrants
in accordance with agency policies and/
or procedures.
[FR Doc. 2014–22093 Filed 9–15–14; 8:45 am]
BILLING CODE 6820–14–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
42 CFR Part 37
[Docket No. CDC–2014–0011; NIOSH–276]
RIN 0920–AA57
Specifications for Medical
Examinations of Coal Miners
Centers for Disease Control and
Prevention, HHS.
ACTION: Interim final rule; correction.
AGENCY:
On August 4, 2014, the
Department of Health and Human
Services (HHS) published an interim
final rule to amend its regulations to
establish standards for the approval of
facilities that conduct spirometry
examinations and to require that all coal
mine operators submit a plan for the
provision of spirometry and X-ray
examinations to all surface and
underground coal miners. The title of
Part 37 was not properly amended to
reflect the application of these
provisions to all coal miners, including
miners who work in or at surface coal
mines, and not only underground coal
miners.
DATES: Effective September 16, 2014,
and applicable beginning August 4,
2014.
SUMMARY:
A.
Scott Laney, Research Epidemiologist,
Division of Respiratory Disease Studies,
NIOSH, Centers for Disease Control and
Prevention, 1095 Willowdale Road, MS
HG900.2, Morgantown, WV 26505–
2888; (304) 285–5754 (this is not a tollfree number); alaney@cdc.gov.
SUPPLEMENTARY INFORMATION: On August
4, 2014, HHS published an interim final
rule in the Federal Register to amend its
regulations in 42 CFR Part 37 to
establish standards for the approval of
facilities that conduct spirometry
FOR FURTHER INFORMATION CONTACT:
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]]>Agencies
[Federal Register Volume 79, Number 179 (Tuesday, September 16, 2014)]
[Rules and Regulations]
[Pages 55363-55366]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22093]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
41 CFR Part 102-117
[FMR Change-2014-04; FMR Case 2013-102-1; Docket 2013-0009, Sequence 1]
RIN 3090-AJ35
Federal Management Regulation (FMR); Transportation Management,
Transportation Officer Obligating Authority
AGENCY: Office of Government-Wide Policy (OGP), General Services
Administration (GSA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: GSA is amending the Federal Management Regulation (FMR) to
recommend that agencies provide written authority to Transportation
Officers (TO) who acquire transportation services utilizing a rate
tender acquisition for freight and cargo, including household goods
(HHGs). Further, GSA recommends that those who acquire transportation
services should be trained in transportation management and/or have
relevant transportation experience in order to properly manage the
acquisition.
DATES: Effective September 16, 2014.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Lee Gregory, Office of Asset and Transportation Management (MA),
Office of Government-wide Policy (OGP), at 202-507-0871 or by email at
lee.gregory@gsa.gov. For information pertaining to status or
publication schedules, contact General Services Administration,
Regulatory Secretariat (MVCB), 1800 F Street NW., ATTN: Hada Flowers,
Washington, DC 20405-0001. Please cite FMR Case 2013-102-1.
SUPPLEMENTARY INFORMATION:
A. Background
Agencies are authorized to procure transportation services either
through the Federal Acquisition Regulation
[[Page 55364]]
(FAR) by utilizing a contract or via 49 U.S.C. 10721 (for rail
transportation), 49 U.S.C. 13712 (for surface transportation), 49
U.S.C. 15504 (for pipeline transportation) by 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 CO's authority (48 CFR 1.603-3).
Only a CO may enter into contracts and sign on behalf of the
Government. In contrast, there is no analogous regulation for Federal
TOs under which an appointing official authorizes them to acquire
transportation services.
A TO who acquires transportation services through a rate tender
acquisition should be qualified and trained in transportation
management and/or have relevant transportation experience in order to
properly manage and obligate funds for the acquisition.
GSA reviewed the transportation management policy regarding TOs and
the acquisition of transportation services, and published a proposed
rule in the Federal Register on August 16, 2013 (78 FR 49994). The
proposed rule recommended that TOs who obligate Government funds for
rate tender acquisitions of transportation services should be properly
authorized in writing by their agencies. The proposed rule also
recommended that TOs be qualified and trained in transportation
management and/or have relevant transportation experience in order to
properly manage a rate tender acquisition.
B. Public Comments and Responses
In the proposed rule, GSA provided the public a 60-day comment
period which ended on October 15, 2013. GSA received comments from the
Department of Energy (DOE), the National Archives and Records
Administration (NARA), and from a commercial Transportation Service
Provider (TSP). The final rule reflects the following changes made as a
result of some of these comments.
Comment: DOE suggested that the duties associated with a Certifying
Officer releasing funds from a Third Party Payment System (TPPS) to a
TSP be added in the section identifying TO responsibilities.
Response: The Department of Treasury and an agency's Chief
Financial Officer, or similar agency official, is the source for
providing relevant and current information regarding the duties and
responsibilities of Certifying Officers. An agency can supplement this
regulation in internal policies to meet its missions and goals.
Therefore, no change was made as a result of this comment.
Comment: DOE recommended including two additional definitions to
FMR section 102-117.25, Electronic Funds Transfer (EFT) and TPPS.
Response: As neither EFT nor TPPS are used in the part, GSA
declines to define the terms in FMR section 102-117.25.
Comment: DOE suggested that training as a ``Certifying Officer''
should be added to the recommendations regarding what training and/or
experience is suggested for an agency to warrant an individual to
acquire transportation services.
Response: After review, GSA included language in section FMR 102-
117.380(a) addressing acquisition and certifying officer training.
Comment: DOE stated that the duties of a Contracting Officer's
Representative (COR) and of a Certifying Official are integral to
acquiring transportation services and closing out a Bill of Lading
(BOL). Therefore, DOE suggested that the responsibilities of acting as
a COR and/or Certifying Official should be included in FMR sections
102-117.25, 102-117.365, and 102-117.390.
Response: GSA defers to agencies to determine whether or not the TO
is also a COR and/or Certifying Official. Using the phrases ``include,
but are not limited to,'' ``may include,'' and ``baseline'' provide
flexibility to your agency to include other responsibilities such as
serving as a COR and/or Certifying Official. Therefore, no change was
made to FMR sections 102-117.25 and 102-117.390 as suggested by DOE.
GSA also notes that this final rule does not contain the proposed
FMR section 102-117.410, Is a Transportation Officer liable for his/her
actions? GSA determined that this topic is outside the intended scope
of this rule.
Comment: NARA inquired as to the training source(s) for the twelve
(12) hours of continuing education training for TOs that is recommended
in FMR section 102-117.395.
Response: GSA defers to agencies to determine the type(s),
source(s), and subject(s) of the training. For example, your agency may
identify the GSA Federal Transportation and Logistics Management
eLearning site as an acceptable training source for TOs. This eLearning
site is available at https://transportationofficer.golearnportal.org/.
Similarly, another program may be deemed acceptable. As such, no change
was made as a result of this comment.
Comment: NARA questioned whether in FMR section 102-117.365, the
reference to TO duties including ``signing a BOL'' constitutes stating
that the shipment was received intact and whether it should be the
responsibility of the TO to sign BOLs. NARA stated that its agency BOLs
are created and forwarded to appropriate offices. The shipments are
received and signed for by the agency representatives in the field, who
are not considered TOs, but rather receivers of the services. TSPs
require the signed BOLs for invoicing.
Further, NARA stated that it does not have dedicated personnel at
its facilities' loading docks. Based upon the proposed language, NARA
believes that all individuals receiving at the loading dock would need
to be warranted.
Response: In response to NARA's question of whether signing BOLs
confirms that the shipment was received intact and whether it should be
the TO's responsibility to sign every BOL, this would be determined by
the internal policies of each agency. After review of NARA's comments,
the word ``may'' was added to FMR section 102-117.365 to read as
follows, ``A Transportation Officer's (TO) responsibilities may
include:'' to provide flexibility to agencies.
Comment: A commercial TSP stated that the proposed regulation was
written with the terms ``should'' and ``we recommend,'' and that it
appeared that there is no enforcement authority to make this mandatory.
The commercial TSP wanted to know if this was correct.
Response: GSA does not have the authority to make this a required
program, and therefore, instead strongly recommends it. Agencies have
the authority to mandate this recommendation through internal policies
and procedures.
Comment: A commercial TSP stated that the proposed rule appeared to
change the FMR for transportation services that utilize a rate tender
acquisition. The commenting party asked if the intent was to change the
Federal Travel Regulation (FTR), and if so, how this would affect GSA's
Centralized Household Goods Traffic Management Program (CHAMP), which
is run predominately under tenders.
Response: This rule does not change the FTR. This rule increases
assurance that agency TOs, including those
[[Page 55365]]
utilizing a rate tender acquisition for HHGs, have the appropriate
background to perform their duties.
Comment: A commercial TSP asked if the Office of Government-wide
Policy (OGP) is aware that if any tariff is used to establish
transportation pricing for a movement of HHGs, a rate is being tendered
off of that tariff, regardless of whether the shipment is booked via
CHAMP, via the schedule, or via an independent contract. If OGP
disagreed, the commercial TSP asked for an explanation.
Response: This comment is outside the scope of this rule.
Comment: A commercial TSP asked if OGP is aware that ``GSA Post
Audits'' requires all TSPs handling any HHGs off of the schedule or
independent contracts to submit copies of their tariff so that they can
properly audit all shipments tendered off of that tariff.
Response: This comment is outside the scope of this rule.
Comment: A commercial TSP suggested additional language to FMR
section 102-117.390, to specify that anyone who acquires transportation
services should be trained in transportation management or have
relevant transportation experience in order to properly manage the
acquisition.
Response: GSA added the suggested language to the summary section
of the final rule and notes that FMR section 102-117.380, in effect,
includes equivalent language.
Finally, GSA also notes that this final rule does not contain the
proposed section 102-117.405, Are there dollar limits on transportation
service acquisitions? GSA determined that this topic is addressed in
FMR section 117.380(b).
C. Substantive Changes
This final rule:
Defines the terms ``Third Party Logistics,''
``Transportation Officer,'' and ``Transportation Officer Warrant'';
Recommends that rate tender acquisitions of transportation
services for an agency be performed only by a warranted Transportation
Officer;
Lists the suggested minimum elements of a Transportation
Officer warrant;
Outlines the suggested minimum recommendations for
training and/or experience to be a warranted Transportation Officer;
and
Recommends agency procedures for creating a warranted
Transportation Officer program.
D. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 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, is not subject to
review under Section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This final rule is not a major rule
under 5 U.S.C. 804.
E. Regulatory Flexibility Act
While these revisions are substantive, this final 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 final 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.
F. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the 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.
G. Small Business Regulatory Enforcement Fairness Act
This final 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: August 5, 2014.
Dan Tangherlini,
Administrator of General Services.
For the reasons set forth in the preamble, GSA amends 41 CFR part
102-117 as follows:
PART 102-117--TRANSPORTATION MANAGEMENT
0
1. The authority citation for 41 CFR part 102-117 continues to read as
follows:
Authority: 31 U.S.C. 3726; 40 U.S.C. 121(c); 40 U.S.C. 501, et
seq.; 46 U.S.C. 55305; 49 U.S.C. 40118.
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 that 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. Duties may include, but are not limited to, selecting Third
Party Logistics (3PL) or Transportation Service Providers (TSP), and
issuing bills of lading.
Transportation Officer Warrant is an agency-issued document that
authorizes a Transportation Officer (TO) to procure transportation
services using rate tenders, which may include, but are not limited to,
selecting Third Party Logistics (3PL) or Transportation Service
Providers (TSP), issuing bills of lading, and otherwise performing the
duties of a TO.
* * * * *
0
3. Add Subpart M, consisting of Sec. Sec. 102-117.365 through
Sec. Sec. 102-117.400 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 are the recommended Transportation Officer training
and/or experience levels?
102-117.395 Should I continue my training to maintain my warrant?
102-117.400 How should my warrant be documented?
[[Page 55366]]
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?
A Transportation Officer's (TO) responsibilities may include:
(a) Negotiating rates;
(b) Signing bills of lading (BOL);
(c) Approving additional accessorial charges;
(d) Selecting and procuring services of a TSP;
(e) Selecting and procuring services of a 3PL;
(f) Serving as a transportation subject matter expert to a
Contracting Officer (CO); and/or
(g) Other roles/responsibilities, such as serving as a certifying
official for BOL or as a disbursement official.
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 their designee, which
expressly allows you to acquire transportation services for using
approved non-Federal Acquisition Regulation (FAR) acquisition methods
for specified transportation services, and states a 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 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 for authority to acquire transportation services for
freight and cargo, including HHGs, issued by the agency head or their
designee should:
(a) State that you have sufficient experience (any combination of
Federal, public, and/or commercial) and/or training in transportation
services, including any relevant acquisition or certifying officer
training, that qualifies you to acquire the transportation services
needed by your agency;
(b) List the maximum dollar limit, if any, and any other limits,
such as the types of services that you may acquire;
(c) State your agency's necessary conditions 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
could also model the Transportation Officer warrant after the
Contracting Officer warrant, or they may establish their own format.
Sec. 102-117.390 What are the recommended Transportation Officer
training and/or experience levels?
(a) The following are suggested agency transportation officer
training and/or experience baselines:
(1) For a Basic (Level 1) Transportation Officer Warrant:
(i) Twenty-four (24) hours of training in Federal transportation;
or
(ii) Two (2) years of Federal, public, and/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
twenty (20) hours of training in Federal transportation; or
(ii) Three (3) years of Federal, public, and/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 forty
(40) hours of training in Federal transportation; or
(ii) Five (5) years of Federal, public, and/or commercial
experience in acquiring transportation through rate tenders.
(b) GSA created an online eLearning Transportation Officer training
site to provide a standard Governmentwide body of transportation
knowledge available to all agencies. This Web-based eLearning site is
available at https://transportationofficer.golearnportal.org/.
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 that applies specifically to your warrant. It
is recommended that at least twelve (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?
The head of your agency or their designee should state, in writing,
that you have the recommended training and/or experience suggested by
Sec. 102-117.390. You should retain a copy of this Transportation
Officer warrant. Agency heads or their designee(s) may amend, suspend,
or terminate warrants in accordance with agency policies and/or
procedures.
[FR Doc. 2014-22093 Filed 9-15-14; 8:45 am]
BILLING CODE 6820-14-P
