[Federal Register Volume 79, Number 179 (Tuesday, September 16, 2014)]
[Rules and Regulations]
[Pages 55363-55366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22093]


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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.

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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 
[email protected]. 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 http://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 http://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