[Federal Register Volume 74, Number 185 (Friday, September 25, 2009)]
[Notices]
[Pages 48936-48939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23174]



[[Page 48936]]

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DEPARTMENT OF DEFENSE

Department of the Army


Publication of Revision and Consolidation of Military Freight 
Traffic Rules Publications (MFTRP) 1C-R (Motor), 10 (Rail), 30 (Barge), 
6A (Pipeline), 4A (Tank Truck), Military Standard Tender Instruction 
Publication (MSTIP) 364D, SpotBid Business Rules, and SDDC Military 
Class Rate Publication No. 100A to a Consolidation of Procurement 
Requirements for the Purchase of Commercial Transportation Services 
into the Military Freight Traffic Unified Rules Publication (MFTURP) 
NO. 1

AGENCY: Department of the Army, DOD.

ACTION: Notice; correction.

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SUMMARY: In a notice published in the Federal Register on June 9, 2009, 
(74 FR 27294), comments received from various entities were erroneously 
omitted. To correct, the remaining comments will be listed below with 
responses from SDDC. Additionally, a notice published in the Federal 
Register on July 10, 2009, (74, FR 33219) indicated the effective date 
was no longer July 9, 2009 and that a new effective date would be 
announced at a later date. The new effective date is listed below.

DATES: This publication will be effective October 26, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Dora J. Elias, (757) 878-5379.

SUPPLEMENTARY INFORMATION: Corrections were made to the ``Table of 
Contents'' tables for each section to update page numbers and, when 
warranted, new item or paragraph numbers.
    Corrections were made to all SDDC email addresses referenced 
throughout the publication to acknowledge SDDC's compliance with the 
requirement that all agencies utilize a more uniform ``.mil'' address.
    A summary of the comments and SDDC's responses are as follows:
    Comment one (1): The ``Scope'' should read that not every 
transportation situation can be accounted for and a provision allowing 
for negotiation with SDDC for clarified requirements and rates.
    Response one (1): SDDC agrees with revised to read: This 
publication will not prevent different or additional requirements or 
terms or conditions to apply for a particular shipment if the TSP, 
SDDC, and the T.O. all agree to the specific change and the change is 
not prohibited by statute, regulation, executive order, case-law or 
other applicable legal authority. In those instances, SDDC shall 
negotiate with the TSP to clarify requirements, rates structure, answer 
questions and resolve discrepancies. The TSP will submit a negotiated 
500,000 series tender.
    Comment two (2): The language in ``Publication Update'' is very 
confusing on how a regulation becomes inapplicable, yet govern. Is 
there not only one applicable rule at any point in time? How can one 
retreat to a prior rule if a current rule is cancelled?
    Response two (2): SDDC understands the concern over how we are 
going to make a carrier comply with a regulatory requirement that is 
invalid. Added the following language for clarity to section A, page 6:

    ``Any change that results in a significant effect, significant 
cost or administrative impact will be published in the Federal 
Register in accordance with 41, U.S.C. Sec.  418. The effective date 
of the change will be published on the SDDC's Web site and if a 
significant change, it will be published in the Federal Register. On 
the effective date, all changes will become effective and bind the 
TSP. They are incorporated automatically into a carrier's tender(s) 
and bills of lading issued from that date forward. TSP not canceling 
a tender prior to the effective date of the change is considered as 
concurring and accepting of the change in their tender.''

    Comment three (3): The sentence in Section A, Part II, Paragraph 
A.1.a requires legal operating authority for both services ``as 
offered'' and ``as provided'' to DoD.
    Response three (3): SDDC concurs with commenter and has revised 
sentence to read:

    ``TSP must have current valid legal operating authority to 
provide commercial transportation services as offered and as 
provided to DoD.''

    Comment four (4): The sentence in Section A, Part II, Paragraph A.3 
should be supplemented to explain how removal from the ``program'' is 
accomplished.
    Response four (4): SDDC agrees and added the following verbiage for 
clarity to read:

    ``Terms of the [Freight Carrier Registration Program] will be in 
effect from the date of approval by SDDC and can only be terminated 
after removal from program. Removal from program can be accomplished 
by various means to include, but not limited to, DoD-wide 
disqualification, self-termination, suspension, and debarment.''

    Comment five (5): The information presented in Section A, Part II, 
Paragraph B.4 needs clarification in regards to issuance and acceptance 
of cargo.
    Response five (5): SDDC agrees and has added the following revised 
language:

    ``All TSP who receive shipment awards shall be required to move 
and accept cargo under a non-negotiable standardized DOD generated 
commercial BL that conforms to the Defense Transportation Regulation 
(DTR) 4500.9R Part II, Cargo Movement, Chapter 206 and the U.S. 
Federal Bill of Lading Act. A TSP will utilize their own commercial 
BLs as a substitute document only during times when transportation 
systems are inoperable, during holiday or weekends when there is no 
access to transportation offices, or upon approval of SDDC, G9. DOD 
personnel other than authorized SDDC personnel lack actual or 
apparent authority to execute or otherwise agree to any TSP 
commercial BL differing from the DOD standard BOL terms.''

    Comment six (6): The third sentence of Section A, Part II, 
Paragraph B.7 and Paragraph C.7 should be revised to ensure TSP are 
demonstrating how they are not liable for loss or damage to cargo.
    Response six (6): SDDC agrees with commenter and has revised the 
third sentence to read as follows:

    ``To avoid liability for loss and damage to cargo, a TSP must 
show that it is free from negligence and that the loss or damage was 
caused solely by an act of God, the public enemy, the shipper, a 
public authority, or that the damage resulted from the nature of the 
goods or an inherent vice in the goods.''

    Comment seven (7): In section A, Part II, Paragraph F, should 
remedies for non-compliance include any applicable remedies for breach 
of contract and who is responsible for imposing remedies for non-
compliance in each specific mode?
    Response seven (7): SDDC agrees this could be stated more clearly. 
Revised paragraph to read as follows:

    ``A TSP's, their agent's, subcontractor's or employee's failure 
to comply with any of the applicable terms and conditions could be a 
basis for taking administrative or judicial action against the TSP. 
The following is not an all inclusive list of possible actions:
    1. Cancellation of a TSP's approval to move DOD cargo;
    2. Placement in nonuse status;
    3. Placement disqualified status;
    4. Government-wide debarment or suspension from future 
procurements;
    5. Administrative claims or offsets;
    6. Criminal or civil proceedings Before courts of competent 
jurisdiction.

    Comment eight (8): In Section A, Part III, Paragraph A, there 
should be a subparagraph that provides that a TSP cannot certify 
delivery in PowerTrack until after they receive proof of actual 
delivery.
    Response eight (8): Agree a TSP should not invoice POWERTRACK until 
they receive proof of delivery. SDDC has provided the following 
language for clarification in Section A, Part III, Paragraph A.3:

    ``Prior to submitting an invoice (e-bill) the TSP must have 
proof of delivery such as a

[[Page 48937]]

copy of the bill of lading (a signed bill of lading by the 
destination government representative). If they only have a verbal 
confirmation from the driver, then the TSP can call the destination 
verify delivery occurred and the cargo was delivered in good or and 
condition as proof of delivery.''

    Comment nine (9): Language contained in the ``Alternation of 
Rates'' needs to clarify that Direct Procurement Method (DPM) shipments 
also do not alternate with Freight All Kinds (FAK) shipments.
    Response nine (9): SDDC Concurs with comment and added language in 
Section A, Part III, Paragraph D.2 that clarifies the intent of this 
alternation of rates rule.

    ``Rates that pertain to a specific commodity, to include DPM 
commodities 100250 and 100251, will not alternate with FAK rates.''

    Comment ten (10): Need to add commodity codes for Direct 
Procurement Method (DPM) shipments to the ``Commodity Code'' appendix.
    Response ten (10): SDDC concurs with this request and has added 
commodity codes 100250 and 100251 to Appendix B, Commodity Codes.
    Comment eleven (11): Paragraph D.3 of Section A, Part III needs to 
read the same as the MFTRP 1C-R page 3-2, Item 60. SDDC cannot force 
TSP to have rates same or cheaper than ``any'' contractor.
    Response eleven (11): SDDC agrees with comment and has reverted 
language for that particular subparagraph to that contained in the 
current Military Freight Traffic Rules Publication (MFTRP) 1C-R, 2nd 
Edition. New language reads:

    ``In no event shall charges submitted under any tender be in 
excess of charges based on the TSP's lowest rate available to the 
general public in either common or contract rates, except 500,000 
series tenders, or be in excess of charges based on rates otherwise 
tendered to the Government by the Contractor for the same type of 
service.''

    Comment twelve (12): Under Section A, Part IV, Second Part I, Item 
1, there should be more than the ability to remove improper items in a 
tender. The publication should state that improper items in a tender is 
inapplicable and of no effect.
    Response twelve (12): SDDC has no issue with this comment and has 
revised sentence to read as follows:

    ``Any Tender that omits any required data containing special 
annotations or exceptions will be considered inapplicable and have 
no effect to any contract for carriage. Tenders inadvertently 
accepted and distributed by SDDC, which are subsequently determined 
to not meet or comply with the DOD tender filing instructions, or 
the applicable SDDC rules and/or rate publication, shall be subject 
to immediate removal. The issuing TSP will be advised when tenders 
are removed under these circumstances.''

    Comment thirteen (13): The proposed publication incorrectly 
indicates that TSP with questions about Air Mode K, L, and M shipments 
should contact United States Transportation Command (USTRANSCOM).
    Response thirteen (13): SDDC agrees and has removed references to 
submittals of air tenders to Headquarters, USTRANSCOM.
    Comment fourteen (14): Recommend referencing throughout the 
publication that brokers, freight-forwarders, shippers agents and 
associations are prohibited from participating in shipments requiring a 
Transportation Protective Service (TPS).
    Response fourteen (14): SDDC concurs and references, when 
applicable, that brokers, freight forwarders, and logistics companies 
are prohibited from having any dealings with shipments that require a 
TPS.
    Comment fifteen (15): Specifically mention that a separate Standard 
Carrier Alpha Code (SCAC) for the type of service offered must be used.
    Response fifteen (15): SDDC concurs with commenter and has added to 
Section A, Part IV, Specific Instructions for Completing Sections A, B, 
and C (of the 364 Tender), ``Modes'':

    ``Enter the single character code from the following list that 
describes the mode of service offered by the tender. For each type 
of service offered, the TSP must provide a unique SCAC applicable to 
their authority to operate and for the mode transportation offered. 
For example, if a TSP offers to provide indirect air carrier and 
indirect motor carrier service, then they will need at least two 
SCACs: one for the air and a different SCAC for the motor. If a TSB 
will only provide motor service under their carrier authority and 
property freight forwarder authority, then they will also need two 
SCACs: one for the direct carrier service offered and another SCAC 
for indirect carrier services offered''

    Comment sixteen (16): As it now reads, the TSP fills in the 
applicable rule or portion of the rule publication. This instruction is 
incomplete. There should be some explanation of how the TSP selects the 
applicable rule or portion of the rule publication.
    Response sixteen (16): SDDC agrees and revised wording contained in 
Section A, Part IV, Part B--General Terms and Conditions on Tender 
Instructions to read:

    ``TSP tenders list this publication as the only governing 
publication. If a TSP lists another governing publication, then any 
application of that publication if it conflicts with the tender or 
bill of lading is void. Additionally, the tender is subject to 
removal by SDDC as an improper tender.''

    Comment seventeen (17): In Section A, Part VI, Paragraph D.1, the 
Carmack defenses may require a TSP to show that it is free from 
negligence in addition to a specific situation.
    Response seventeen (17): SDDC agrees and has revised verbiage to 
read:

    ``The TSP shall not charge any detention, demurrage or storage 
charges against any DoD sponsored shipment when the delay is caused 
by acts or omissions beyond DoD's, its contractor's, or its agent's 
control.''

    Comment eighteen (18): In Section A, Part VI, Paragraph F, the 
proposed rule has coverage for ``multi-modal service'' defined as 
transportation by a mode other than the mode used to pick up the 
shipment. This is different than mode neutral as defined in Public Law 
110-417 [Oct 14 2008]. Section 355 (b) is titled ``MODE-NEUTRAL 
APPROACH DEFINED.'' For purposes of this Public Law, ``the term `mode-
neutral approach' means a method of shipment that allows a shipper to 
choose a carrier with a time-definite performance standard for delivery 
without specifying a particular mode of conveyance and carrier to 
select the mode of conveyance using best commercial practices as long 
as the mode of conveyance can reasonably be expected to ensure the 
time-definite delivery requested by the shipper.''
    Response eighteen (18): SDDC concurs that this is not mode neutral. 
Multimodal is when more than one mode is used to transport the freight. 
However, this is really mode substitution because of events beyond the 
TSP's and shipper's control that the original mode is not able to 
transport the cargo. SDDC will change title to ``Emergency Mode 
Substitution'' and insert ``with TO concurrence'' to ensure TSP will 
provide this service when required. The following language has been 
inserted for clarity:

    ``Multi-modal service is transportation of a shipment by a mode 
(motor, rail, air, water) other than that used to pick up the 
shipment. This service is to be provided at the option of the TSP, 
with TO concurrence, when multi-modal service is necessary due to 
circumstances set forth in paragraph 2 below.''

    Comment nineteen (19): Returned/Refused/Rejected Shipment changes 
the formula Transportation Service Providers (TSP) are compensated. 
Respectfully request that this subparagraph be stricken.
    Response nineteen (19): SDDC understands the confusion with this 
new verbiage. In agreement with requestor, SDDC incorporated it under 
``Reconsignment/Diversion'' paragraph.

[[Page 48938]]

    Comment twenty (20): Clarification is needed regarding the phrase 
``security clearance equal to the commodity being handled.'' Is a 
clearance other than ``Secret'' needed? May non-driver employees (or 
contractors/subcontractors) be in process (submitted E-QIP) and have 
access to information regarding SECRET, PSS or AA&E shipments or not?
    Response twenty (20): SDDC clarified language so intent of security 
requirements to remove any confusion. Verbiage now mirrors Defense 
Transportation Regulation (DTR), Part II, Chapter 205. Removed 
``security clearance equal to the commodity being handled'' and 
replaced with ``SECRET (interim or final).''
    Comment twenty-one (21): The language for trailer security is 
missing from the MFTURP.
    Response twenty-one (21): SDDC agrees and added language currently 
residing in the MFTRP 1C-R, 2nd edition, Item 329, Hinge and Hasp on 
Trailers or Containers, which can be found at: http://www.sddc.army.mil/sddc/Content/Pub/45526/MFTRP1C-R%202nd%20ed%201%20March%2009.pdf.
    Comment twenty-two (22): Item 21, Detention: Vehicles with Power 
Units (DEP) and Item 23 Detention: Vehicles without Power Units (DET) 
is confusing because it could be interpreted to mean a TSP gets the 
same charge for an hour of detention as they would receive for a minute 
of detention. However, it seems the charge should be prorated.
    Response twenty-two (22): The intent of these Items is for 
detention time should be based on actual time equipment is detained and 
charges should be prorated to reflect the actual time of detention. The 
following revisions were made to these items

Item 21, subparagraph 5, 6, and 7 is changed to the following:

    5. If loading or unloading extends beyond the allowable free 
time, then the carrier can assess a detention charge based on a 
charge of DEP(1)$---------- for each sixty minutes of delay that 
occurs during normal shipping and receiving hours, which is known as 
detention time. If the delay is less than sixty minutes or exceeds 
sixty minutes, then the charge is prorated based on the actual 
minutes of detention time incurred.
    6. Detention time starts when a vehicle is delayed by the 
shipper, consignor, destination or consignee beyond the allowable 
free time and ends when the vehicle is released by the shipper, 
consignor or consignee to either by notifying the driver or the TSP 
representative that the vehicle is ready for pickup.
    7. Detention time only includes the time the vehicle is delayed 
during normal shipping and receiving hours. If the vehicle is 
delayed beyond the shipper's, consignee's or consignor's normal 
shipping or receiving hours, then the only delay time included in 
the detention time is the time occurring during normal shipping and 
receiving hours.

Item 23, Detention: Without Power Unit, Paragraph 6:

    a. For each of the first and second 24-hour period when the 
vehicle is detained beyond the free time the detention charge will 
be DET(1)$------------------. If the period is less than an hour but 
longer than 14 minutes, then that would equate to a fraction of an 
hour and the charge will be prorated at one fourth of the charge for 
each 15 minutes of detention incurred. There is no charge for time 
less than 15 minutes.
    b. For each of the third and fourth 24-hour period when the 
vehicle is detained beyond the free time the detention charge will 
be DET(1)$------------------. If the period is less than an hour but 
longer than 14 minutes, then that would equate to a fraction of an 
hour and the charge will be prorated at one fourth of the charge for 
each 15 minutes of detention incurred. There is no charge for time 
less than 15 minutes.
    c. For each of the fifth and succeeding 24-hour period when the 
vehicle is detained beyond the free time the detention charge will 
be DET(1)$------------------. If the period is less than an hour but 
longer than 14 minutes, then that would equate to a fraction of an 
hour and the charge will be prorated at one fourth of the charge for 
each 15 minutes of detention incurred. There is no charge for time 
less than 15 minutes.

    Comment twenty-three (23): Expedited Service (EXP) does not match 
current, agreed upon verbiage as listed in the Military Freight Traffic 
Rules Publication (MFTRP) 1C-R, 2nd Edition.
    Response twenty-three (23): SDDC agrees and added language 
currently residing in the MFTRP 1C-R, 2nd edition, Item 110, Expedited 
Service (EXP), which can be found at: http://www.sddc.army.mil/sddc/Content/Pub/45526/MFTRP1C-R%202nd%20ed%201%20March%2009.pdf
    Comment twenty-four (24): The verbiage in Section B, Item 55, 
paragraph 2 is confusing.
    Response twenty-four (24): SDDC agrees and has revised to read:

    ``Hourly charges shall commence when the TSP's driver reports to 
shipper/consignee/destination and consignee representative with the 
proper equipment ordered for loading or unloading, and terminates 
when driver(s) is/are released by the representative. The pickup 
and/or delivery time shall be annotated on BL by the representative, 
the consignor or consignee.''

    Comment twenty-five (25): Request that clarification of Item 75, 
Towaway Service, Mode ``T'' does not alternate with any other carrier 
tender or rate.
    Response twenty-five (25): SDDC concurs and makes reference to 
portion of publication that indicates Mode ``T'' for Towaway does not 
alternate with any other carrier tender or rate.
    Comment twenty-six (26): There should be an allowance to break 
seals on dromedaries during emergencies in Section B, Item 97.
    Response twenty-six (26): SDDC agrees and added language so TSP can 
break seals during emergencies.
    Comment twenty-seven (27): It should be clarified what constitutes 
a ``situation'' and whether drivers moving shipment with Satellite 
Monitoring should be required to make emergency contact with SDDC for 
every ``situation.'' It is requested that the first sentence in the 
definition of ``EMERGENCY'' be stricken.
    Response twenty-seven (27): SDDC concurs and removed verbiage.
    Comment twenty-eight (28): Request that the Extra Driver (EXD) 
accessorial be added to Appendix C, Accessorial Codes.
    Response twenty-eight (28): SDDC concurs and has added the EXD 
accessorial to Appendix C.
    Comment twenty-nine (29): Request that verbiage be added to 
Appendix D, Definitions, ``Transloading'' that indicates movements of 
dromedary equipment.
    Response twenty-nine (29): SDDC concurs, yet merely refers readers 
to Item 97, Transloading, for more information.
    Comment thirty (30): Request that definitions be added for air 
carrier/air TSP; air freight forwarder; direct air carrier/direct air 
TSP; Late; Normal Business Hours/Normal Business Day; and Required 
Delivery Date.
    Response thirty (30): SDDC non-concurs with adding definitions for 
air carrier/TSP, air freight forwarder, direct air carrier/TSP because 
currently, the MFTURP does not govern air transport so there is no need 
for these definitions at this time.
    SDDC did add definitions for Late and Long-Term Lease. The MFTURP 
already contained definitions for Required Delivery Date and Normal 
Business Hours so it did not see a reason to add the same verbiage. New 
definitions are provided below:
    ``LATE--Unexcused failure to deliver the shipment by the Required 
Delivery Date (RDD).''
    ``LONG TERM LEASE--Leasing a company's vehicle to another 
transportation service provider for a duration of more than 30 days. 
TSP must abide by lease provisions of 49 CFR, Part 376.''
    Comment thirty-one (31): Need CIS, DDP, PSS, and TFG listed in 
Appendix E, Explanation of Abbreviations.

[[Page 48939]]

    Response thirty-one (31): SDDC agrees and has added Constant 
Surveillance and Custody Service (CIS), Dual Driver Protective Service 
(DDP), Protective Security Service (PSS), and Transportation Facilities 
Guide (TFG) in Appendix E.
    Miscellaneous:
    <bullet> This publication, as well as the other SDDC publications, 
can be accessed via the SDDC Web site at: http://www.sddc.army.mil/Public/Global%20Cargo%20Distribution/Domestic/Publications/.

C.E. Radford, III,
Division Chief, G9, Strategic Business Directorate.
[FR Doc. E9-23174 Filed 9-24-09; 8:45 am]
BILLING CODE 3710-08-P