Discontinue Use of Form CD-492, Justification for Other Than Full and Open Competition, 59672-59673 [2024-16181]
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59672
Federal Register / Vol. 89, No. 141 / Tuesday, July 23, 2024 / Rules and Regulations
(4) Any other relevant factors or
conduct.
(e) Non-binding examples of
unreasonable conduct. The following
are examples of the kinds of conduct
that may be considered unreasonable
under 46 U.S.C. 41104(a)(3) when
linked to a refusal to provide cargo
space accommodations:
(1) Blank sailings or schedule changes
with no advance notice or with
insufficient advance notice;
(2) Vessel capacity limitations not
justified by legitimate transportation
factors;
(3) Failing to alert or notify shippers
with confirmed bookings of any other
changes to the sailing that will affect
when their cargo arrives at its
destination port;
(4) Scheduling insufficient time for
cargo tendering or vessel loading so that
cargo is constructively refused;
(5) Providing inaccurate or unreliable
vessel information; or
(6) The de facto, absolute, or
systematic exclusion of exports in
providing cargo space accommodations.
(f) Elements for claims. The following
elements are necessary to establish a
successful private party or enforcement
claim under 46 U.S.C. 41104(a)(10) with
respect to refusals of vessel space
accommodations provided by an ocean
common carrier:
(1) The respondent must be an ocean
common carrier as defined in 46 U.S.C.
40102;
(2) The respondent refuses or refused
to deal or negotiate with respect to
vessel space accommodations; and
(3) The ocean common carrier’s
conduct is unreasonable.
(g) Non-binding considerations when
evaluating unreasonable conduct. In
evaluating the reasonableness of an
ocean common carrier’s refusal to deal
or negotiate with respect to vessel space
accommodations, the Commission may
consider the following factors:
(1) Whether the ocean common carrier
followed a documented export policy
that enables the timely and efficient
movement of export cargo;
(2) Whether the ocean common carrier
engaged in good faith negotiations;
(3) Whether the refusal was based on
legitimate transportation factors; and
(4) Any other relevant factors or
conduct.
(h) Non-Binding examples of
unreasonable conduct. The following
are examples of the kinds of conduct
that may be considered unreasonable
under 46 U.S.C. 41104(a)(10) when
linked to a refusal to deal or negotiate:
(1) Quoting rates that are so far above
current market rates they cannot be
considered a good faith offer or an
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attempt at engaging in good faith
negotiations; or
(2) The de facto, absolute, or
systematic exclusion of exports in
providing vessel space
accommodations.
(i) Use of sweeper vessels. Ocean
common carriers are not precluded from
using sweeper vessels previously
designated for that purpose to reposition
empty containers; however, the
designation of a vessel as a sweeper
vessel is subject to Commission review
to determine whether the designation
results in an unreasonable refusal of
ocean carriage services.
(j) [Reserved]
(k) Shifting the burden of production.
In accordance with applicable laws, the
following standard applies:
(1) The initial burden of production to
establish a prima facie case of a
violation of this part is with the
complainant or the Commission’s
Bureau of Enforcement, Investigations,
and Compliance.
(2) Once a complainant sets forth a
prima facie case of a violation, the
burden shifts to the ocean common
carrier to justify that its actions were
reasonable.
(3) The ultimate burden of persuading
the Commission always remains with
the complainant or the Commission’s
Bureau of Enforcement, Investigations,
and Compliance.
§ 542.2–542.99
[Reserved]
2. Delayed indefinitely, add § 542.1(j)
to read as follows:
■
(ii) The ocean common carrier’s rules
and practices for the designation and
use of sweeper vessels; and
(iii) The alternative remedies or
assistance the ocean common carrier
would make available to a shipper to
whom it refused vessel space
accommodations.
(2) A documented export policy
required to be filed by this part must be
submitted to: Director, Bureau of Trade
Analysis, Federal Maritime
Commission, exportpolicy@fmc.gov.
(3) The documented export policies
filed in accordance with this section
shall not be circulated outside of the
Federal Maritime Commission. These
documents, and the information
contained therein, shall not be publicly
disclosable, in whole or in part,
including in response to requests under
the Freedom of Information Act. The
information may, however, be disclosed
to the extent that it is relevant to an
administrative or judicial action or
proceeding; or to either House of
Congress, or a duly authorized
committee or subcommittee of Congress.
■ 3. Delayed indefinitely, add § 542.99
to read as follows:
§ 542.99 OMB control number assigned
pursuant to the Paperwork Reduction Act.
The Commission has received Office
of Management and Budget approval for
the collection of information in
§ 542.1(k) pursuant to the Paperwork
Reduction Act of 1995, as amended. The
valid control number for this collection
is 3072–XXXX.
§ 542.1 Definition of unreasonable refusal
of cargo space accommodations when
available and unreasonable refusal to deal
or negotiate with respect to vessel space
provided by an ocean common carrier.
By the Commission.
David Eng,
Secretary.
*
BILLING CODE 6730–02–P
*
*
*
*
(j) Documented export policy. Ocean
common carriers must file with the
Federal Maritime Commission a
documented export policy that enables
the timely and efficient movement of
export cargo.
(l) Each ocean common carrier must
submit a documented export policy to
the Commission once per calendar year
and include, in a manner prescribed by
the Commission, pricing strategies,
services offered, strategies for
equipment provision, and descriptions
of markets served. Updates may be
submitted more than once per year if the
ocean common carrier chooses to do so.
Other topics a documented export
policy should also address, if
applicable, include:
(i) The effect of blank sailings or other
schedule disruptions on the ocean
common carrier’s ability to accept
shipments;
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[FR Doc. 2024–16148 Filed 7–22–24; 8:45 am]
DEPARTMENT OF COMMERCE
Office of the Secretary
48 CFR Parts 1306 and 1353
[DOCKET NO.: 240711–0188]
RIN 0605–AA68
Discontinue Use of Form CD–492,
Justification for Other Than Full and
Open Competition
Office of the Secretary,
Department of Commerce.
ACTION: Final rule.
AGENCY:
The Department of Commerce
(Commerce) is issuing this final rule to
discontinue use of Form CD–492,
Justification for Other Than Full and
Open Competition, and to make an
SUMMARY:
E:\FR\FM\23JYR1.SGM
23JYR1
Federal Register / Vol. 89, No. 141 / Tuesday, July 23, 2024 / Rules and Regulations
editorial change to the associated
regulations. The purpose of the
administrative rulemaking is to cease
the requirement for acquisition teams to
use a prescribed form to document
justifications for other than full and
open competition under the Federal
Acquisition Regulation (FAR) and to
make an editorial change to the
regulatory text to correct a reference to
Department legal review procedures by
replacing the word ‘‘concurrence’’ with
the word ‘‘review.’’ Contracting Officers
will be required to comply with the
content requirements set forth in the
FAR when documenting their
determinations.
DATES:
Effective: August 22, 2024.
For
clarification of content, contact Mr.
Todd Hill, Procurement Analyst, at 240–
490–1044, or by email at thill1@doc.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
ddrumheller on DSK120RN23PROD with RULES1
Background
Commerce is issuing this final rule to
discontinue use of Form CD–492,
Justification for Other Than Full and
Open Competition. The purpose of the
administrative rulemaking is to cease
the requirement for acquisition teams to
use a prescribed form to document
justifications for other than full and
open competition under the Federal
Acquisition Regulation (FAR) in 48 CFR
part 6. The CD–492 was originally
developed to provide consistency across
Commerce when documenting the
approval or disapproval of justifications
for other than full and open competition
within a hardcopy contract file.
Commerce has fully transitioned to
electronic contract files and the static
form is no longer considered the most
efficient method of documenting the
approval or disapproval of such a
justification. Contracting Officers will
be required to comply with the content
requirements set forth in FAR 6.303–2
when documenting their
determinations. Commerce has also
determined that an editorial change is
necessary to better align with internal
Commerce processes, therefore,
Commerce will also make an editorial
change to the last sentence of section
1306.303–70 to correct a reference to
Department legal review procedures by
replacing the word ‘‘concurrence’’ with
the word ‘‘review.’’
Classification
This final rule contains no
information collection requirements
under the Paperwork Reduction Act of
1995.
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17:25 Jul 22, 2024
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This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
Commerce determined that this rule
qualifies for exemption from the
Administrative Procedure Act’s (APA)
requirement for a public notice and
comment period, and that it may
therefore proceed directly to the final
rule stage. Under 5 U.S.C. 553(b)(A),
rulemakings that are rules of agency
organization, procedure, or practice are
exempt from providing the public with
a notice and comment period. This rule
only removes the requirement for
acquisition teams to use Form CD–492.
Therefore, this rule qualifies for the
exemption and no public notice and
comment period is required.
Additionally, Commerce finds good
cause to waive the notice and public
comment period for this rule because
the effect of the rule does not place any
burden on the public or require the
public to undertake or cease any
particular action. Oppositely, this
rulemaking only removes the
requirement for acquisition teams to use
Form CD–492. Therefore, a public
notice and comment period would be
unnecessary and qualifies for waiver
under the APA (see 5 U.S.C. 553(b)(B)).
List of Subjects
48 CFR Part 1306
Government procurement.
48 CFR Part 1353
Government procurement, Reporting
and recordkeeping requirements.
Therefore, in accordance with 41
U.S.C. 414 and 48 CFR 1.301 through
1.304, the Department of Commerce
amends 48 CFR parts 1306 and 1353 as
follows:
PART 1306—COMPETITION
REQUIREMENTS
1. The authority citation for part 1306
continues to read as follows:
■
Authority: 41 U.S.C. 414; 48 CFR 1.301–
1.304.
2. Revise section 1306.303–70 to read
as follows:
■
1306.303–70 Documentation and legal
review of justifications.
The justification for providing for
other than full and open competition in
accordance with FAR 6.303–2 shall
contain sufficient facts and rationale to
justify the use of the authority cited and
include all of the content set forth in
FAR 6.303–2 as appropriate for the cited
authority. If the estimated value of the
procurement is over legal review
thresholds, review by the Procurement
Counsel is required.
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59673
PART 1353—FORMS
3. The authority citation for part 1353
continues to read as follows:
■
Authority: 41 U.S.C. 414; 48 CFR 1.301–
1.304.
1353.206
■
[Removed]
4. Remove section 1353.206.
Olivia J. Bradley,
Senior Procurement Executive and Director
for Acquisition Management.
[FR Doc. 2024–16181 Filed 7–22–24; 8:45 am]
BILLING CODE P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 240327–0090; RTID 0648–
XE116]
Pacific Halibut Fisheries of the West
Coast; 2024 Catch Sharing Plan;
Inseason Action
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; inseason
adjustment; request for comments.
AGENCY:
NMFS announces inseason
action for the Washington and Oregon
subareas in the Pacific halibut
recreational fishery in the International
Pacific Halibut Commission’s (IPHC)
regulatory Area 2A. Specifically, this
action announces additional fishing
dates in August and September for the
Washington subareas and in August
through October for the Oregon Central
Coast subarea. This action is intended to
provide opportunity for anglers to
achieve the catch limit in the Pacific
Fishery Management Council’s
(Council) 2024 Pacific Halibut Catch
Sharing Plan.
DATES:
Effective date: August 1, 2024 through
September 30, 2024 for Washington and
through October 31, 2024 for Oregon.
Comment date: Comments due on or
before August 7, 2024.
ADDRESSES: Submit your comments,
identified by NOAA–NMFS–2024–0014,
by either of the following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov and enter
NOAA–NMFS–2024–0014 in the Search
box. Click on the ‘‘Comment’’ icon,
SUMMARY:
E:\FR\FM\23JYR1.SGM
23JYR1
]]>Agencies
[Federal Register Volume 89, Number 141 (Tuesday, July 23, 2024)]
[Rules and Regulations]
[Pages 59672-59673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16181]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Office of the Secretary
48 CFR Parts 1306 and 1353
[DOCKET NO.: 240711-0188]
RIN 0605-AA68
Discontinue Use of Form CD-492, Justification for Other Than Full
and Open Competition
AGENCY: Office of the Secretary, Department of Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Commerce (Commerce) is issuing this final
rule to discontinue use of Form CD-492, Justification for Other Than
Full and Open Competition, and to make an
[[Page 59673]]
editorial change to the associated regulations. The purpose of the
administrative rulemaking is to cease the requirement for acquisition
teams to use a prescribed form to document justifications for other
than full and open competition under the Federal Acquisition Regulation
(FAR) and to make an editorial change to the regulatory text to correct
a reference to Department legal review procedures by replacing the word
``concurrence'' with the word ``review.'' Contracting Officers will be
required to comply with the content requirements set forth in the FAR
when documenting their determinations.
DATES: Effective: August 22, 2024.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Todd Hill, Procurement Analyst, at 240-490-1044, or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Commerce is issuing this final rule to discontinue use of Form CD-
492, Justification for Other Than Full and Open Competition. The
purpose of the administrative rulemaking is to cease the requirement
for acquisition teams to use a prescribed form to document
justifications for other than full and open competition under the
Federal Acquisition Regulation (FAR) in 48 CFR part 6. The CD-492 was
originally developed to provide consistency across Commerce when
documenting the approval or disapproval of justifications for other
than full and open competition within a hardcopy contract file.
Commerce has fully transitioned to electronic contract files and the
static form is no longer considered the most efficient method of
documenting the approval or disapproval of such a justification.
Contracting Officers will be required to comply with the content
requirements set forth in FAR 6.303-2 when documenting their
determinations. Commerce has also determined that an editorial change
is necessary to better align with internal Commerce processes,
therefore, Commerce will also make an editorial change to the last
sentence of section 1306.303-70 to correct a reference to Department
legal review procedures by replacing the word ``concurrence'' with the
word ``review.''
Classification
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Commerce determined that this rule qualifies for exemption from the
Administrative Procedure Act's (APA) requirement for a public notice
and comment period, and that it may therefore proceed directly to the
final rule stage. Under 5 U.S.C. 553(b)(A), rulemakings that are rules
of agency organization, procedure, or practice are exempt from
providing the public with a notice and comment period. This rule only
removes the requirement for acquisition teams to use Form CD-492.
Therefore, this rule qualifies for the exemption and no public notice
and comment period is required.
Additionally, Commerce finds good cause to waive the notice and
public comment period for this rule because the effect of the rule does
not place any burden on the public or require the public to undertake
or cease any particular action. Oppositely, this rulemaking only
removes the requirement for acquisition teams to use Form CD-492.
Therefore, a public notice and comment period would be unnecessary and
qualifies for waiver under the APA (see 5 U.S.C. 553(b)(B)).
List of Subjects
48 CFR Part 1306
Government procurement.
48 CFR Part 1353
Government procurement, Reporting and recordkeeping requirements.
Therefore, in accordance with 41 U.S.C. 414 and 48 CFR 1.301
through 1.304, the Department of Commerce amends 48 CFR parts 1306 and
1353 as follows:
PART 1306--COMPETITION REQUIREMENTS
0
1. The authority citation for part 1306 continues to read as follows:
Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.
0
2. Revise section 1306.303-70 to read as follows:
1306.303-70 Documentation and legal review of justifications.
The justification for providing for other than full and open
competition in accordance with FAR 6.303-2 shall contain sufficient
facts and rationale to justify the use of the authority cited and
include all of the content set forth in FAR 6.303-2 as appropriate for
the cited authority. If the estimated value of the procurement is over
legal review thresholds, review by the Procurement Counsel is required.
PART 1353--FORMS
0
3. The authority citation for part 1353 continues to read as follows:
Authority: 41 U.S.C. 414; 48 CFR 1.301-1.304.
1353.206 [Removed]
0
4. Remove section 1353.206.
Olivia J. Bradley,
Senior Procurement Executive and Director for Acquisition Management.
[FR Doc. 2024-16181 Filed 7-22-24; 8:45 am]
BILLING CODE P
