[Federal Register Volume 76, Number 192 (Tuesday, October 4, 2011)]
[Rules and Regulations]
[Pages 61279-61282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25233]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 247, and 252

RIN 0750-AG25


Defense Federal Acquisition Regulation Supplement; Defense Cargo 
Riding Gang Member (DFARS Case 2007-D002)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD is adopting as final, with changes, an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement section 3504 of the National Defense

[[Page 61280]]

Authorization Act for Fiscal Year 2009. Section 3504 addresses 
requirements that apply to riding gang members and DoD-exempted 
individuals who perform work on U.S.-flag vessels under DoD contracts 
for transportation services. The final rule also makes an 
administrative change to a cross-reference.

DATES: Effective Date: October 4, 2011.

FOR FURTHER INFORMATION CONTACT: Meredith Murphy, telephone 703-602-
1302.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published an interim rule at 75 FR 65437 on October 25, 2010, 
to implement section 3504 of the National Defense Authorization Act 
(NDAA) for Fiscal Year (FY) 2009 (Pub. L. 110-417). Section 3504 
amended section 1018 of the NDAA for FY 2007 (Pub. L. 109-364).
    Section 3504 addresses requirements that apply to riding gang 
members and DoD-exempted individuals who perform work on U.S.-flag 
vessels under DoD contracts for transportation services documented 
under chapter 121, title 46 U.S.C. Section 3504 also applies to 
commercial contracts for carriage of cargo by a U.S.-flag vessel 
documented under chapter 121 of title 46 U.S.C. Such riding gang 
members must hold a U.S. Merchant Mariner's Document issued under 46 
U.S.C., chapter 73, or a transportation security card issued under 
section 70105 of such title. Section 3504 also permits exemptions for 
certain individuals, provided a background check of the individual is 
conducted.
    U.S. law requires crews of predominantly U.S. citizens aboard U.S.-
flag vessels. For many years, foreign nationals have been utilized on 
U.S.-flag vessels as members of ``riding gangs'' who perform work 
beyond standard vessel maintenance and repair while ships are underway. 
In 2006, Congress prohibited the use of such foreign riding personnel 
on board vessels that are under contract with DoD unless DoD complied 
with certain limitations (The Coast Guard and Maritime Transportation 
Act of 2006, Pub. L. 109-241). The exceptions provided to DoD in 2006 
did not match those applicable to other U.S.-flag vessels. The NDAA for 
FY 2009 made it clear that the exceptions available to DoD are complete 
exemptions both from the DoD-specific riding gang limitations and those 
generally applicable to U.S.-flag vessels.
    Contracting officers are encouraged to apply this rule to the 
maximum extent practicable to existing contracts, consistent with FAR 
1.108(d).

II. Discussion and Analysis

    Two respondents submitted a total of three comments on the interim 
rule. A discussion of the comments received and the resulting changes 
made to the rule follows.

A. Background Checks

    These comments relate to the clause at 252.247-7027(c)(2) as 
promulgated, which requires that any individual who is exempted by 
paragraph (c)(1) of the clause from the requirements imposed on riding 
gang members by 46 U.S.C. 8106 must pass a DoD background check before 
going aboard a vessel. With regard to these exempt individuals, the 
contractor shall submit the name and ``other necessary information'' 
for a background check to the Government official specified in the 
contract.
    Comment: One respondent recommended that, in order to ensure 
consistency of information required across DoD contracting agencies, 
the final rule include guidelines as to what is considered ``additional 
necessary information'' in the case of an alien to be employed on a 
vessel under subparagraphs (i)-(iv) of paragraph (c)(1). Such 
guidelines could, for example, be constructed to be limited/consistent 
with the types of personal identifying and employment-related 
information required to obtain a U.S. nonimmigrant visa for an 
individual to enter the U.S. temporarily for business as required for 
an alien to be eligible for issuance of a transportation security card 
under 46 U.S.C. 70105, including inter alia, a C-1/D Crewman Visa.
    DoD Response: The clause at 252.247-7027 has been revised to state 
that the contractor will submit the name and other ``biographical'' 
information necessary to the Government official specified in the 
contract for the purposes of conducting a background check. The term 
biographical encompasses the following examples of information 
required, such as last (previous and current), first, and middle name, 
date of birth, social security account number, passport number, and 
nationality listed on the passport, as applicable.
    Comment: A respondent commented on the ``approving official 
specified in the contract.'' The underlying rationale for the 
exemptions provided by section 3504 of the FY 2009 NDAA, was to grant 
DoD greater flexibility to allow individuals to perform functions 
unrelated to the operation or maintenance of the vessel transporting 
DoD cargoes, outside the parameters applied to riding gang members on 
U.S.-flag freight vessels generally under 46 U.S.C. 8106. It is, 
therefore, recommended that the language of the proposed clause be 
amended to read as follows to reinforce DoD's role in the approval 
process:
    ``The Contractor shall submit the name and other necessary 
information for a background check to the DoD Contracting Officer or 
his designee for approval.''
    DoD response: The contracting officer or designee is not the 
approving official for the background check. The clause has been 
revised to state that ``the Contractor is required to submit the name 
and other biographical information necessary to the Government official 
specified in the contract for the purposes of conducting a background 
check.'' The Government official specified in the contract could be the 
program manager, contracting officer, or other designee depending upon 
the contract and agency. Contact information for the specific DoD law 
enforcement agency approving the background check, COMSC N34 (Director 
of Force Protection for Military Sealift Command), and specific 
procedural guidance for DoD personnel obtaining the background check is 
contained in the DFARS companion resource, Procedures, Guidance, and 
Information (PGI), at PGI 247.5.

B. Language Inconsistency

    Comment: DFARS 252.247-7027(a) defines ``riding gang member'' as it 
is defined at 46 U.S.C. 8106. That statutory definition of ``riding 
gang member'' describes an individual who does not perform certain 
duties and ``has not been issued a Merchant Mariner's Document * * *.'' 
One respondent noted that DFARS 252.247-7027(b) states 
``Notwithstanding 46 U.S.C. 8106, the Contractor shall ensure each 
riding gang member holds a valid U.S. Merchant Mariner's Document 
issued under 46 U.S.C. chapter 73, or a transportation security card * 
* *.''
    DoD response: The implementing language of the interim rule is 
consistent with the statutory language. Section 3504 of the NDAA for FY 
2009, Public Law 110-417, required the Secretary of Defense to include 
clauses in certain contracts implementing the riding gang member 
provisions of 46 U.S.C. 8106 and requiring that riding gang members be 
issued a Merchant Mariner's Document or a transportation security card. 
As such, the interim rule merely implements the requirement of the 
statute.
    The initial legislative proposal that resulted in section 3504 
contained a

[[Page 61281]]

section-by-section analysis that specifically identified the apparent 
inconsistency noted by the respondent. DoD determined that Congress 
intended for the language in 46 U.S.C. 8106 in the definition of 
``riding gang member'' pertaining to the Merchant Mariner's Document to 
be modified, as applicable, to DoD in 10 U.S.C. 1018 by requiring that 
each riding gang member have either a Merchant Mariner's Document or a 
transportation security card. Accordingly, the ``Notwithstanding 46 
U.S.C. 8106'' language of DFARS 252.247-7027 accurately implements 
section 3504 and is consistent with Congressional intent.

C. Other Changes

    The final rule adds clause 252.247-7027, Riding Gang Member 
Requirements, to the list of clauses at 252.212-7001 that are required 
to implement statutes or executive orders applicable to defense 
acquisitions of commercial items because section 3504 also applies to 
commercial contracts for carriage of cargo by a U.S.-flag vessel 
documented under chapter 121 of title 46 U.S.C. and, in a related 
change, removes it from the list at 212.301(f).
    Additionally, the final rule revises the cross-reference to 
252.211-7006 at 212.301(f)(iv)(D) to reflect the correct title of the 
clause.

III. 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, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD does not expect this final rule to 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. DoD has prepared 
a final regulatory flexibility analysis (FRFA), which is summarized as 
follows:
    The objective of the rule is to provide authorization, 
restrictions, and exemptions for the use of riding gang members on 
U.S.-flag vessels under charter or contract to DoD for the carriage of 
DoD cargo. The requirements of the rule will apply to entities 
interested in receiving DoD contracts for carriage of DoD cargo.
    The rule requires the contractor to ensure that each riding gang 
member holds a valid U.S. Merchant Mariner's Document issued under 46 
U.S.C. chapter 73, or a transportation security card issued under 
section 70105 of such title. Any individual who is exempt from these 
requirements must pass a DoD background check before going aboard the 
vessel. With regard to these exempt individuals, the contractor shall 
submit the name and other necessary identifying information for a 
background check to the approving official specified in the contract.
    There is no reporting or recordkeeping requirement established by 
this rule. This rule does not duplicate, overlap, or conflict with any 
other Federal rules. DoD anticipates that there will be limited, if 
any, additional costs imposed on small businesses. No comments were 
received in response to the initial regulatory flexibility analysis as 
published in the interim rule.
    Interested parties may obtain a copy of the FRFA from the point of 
contact named herein. A copy of the FRFA has been submitted to the 
Chief Counsel for Advocacy of the Small Business Administration.

V. Paperwork Reduction Act

    The rule does not impose any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 212, 247, and 252

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

    Accordingly, the interim rule amending 48 CFR parts 212, 247, and 
252, which was published at 75 FR 65437 on October 25, 2010, is adopted 
as a final rule with the following changes:

0
1. The authority citation for 48 CFR parts 212, 247, and 252 continues 
to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS


212.301  [Amended]

0
2. Amend section 212.301 in paragraph (f)(iv)(D) by removing the title 
of the clause ``Radio Frequency Identification'' and adding in its 
place ``Passive Radio Frequency Identification'' and by removing 
paragraph (f)(iv)(M).

PART 247--TRANSPORTATION

0
3. Amend section 247.574 by revising paragraph (f) to read as follows:


247.574  Solicitation provisions and contract clauses.

* * * * *
    (f) Use the clause at 252.247-7027, Riding Gang Member 
Requirements, in solicitations and contracts for the charter of, or 
contract for carriage of cargo by, a U.S.-flag vessel documented under 
chapter 121 of title 46 U.S.C. Follow the procedures at PGI 247.574.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 252.212-7001 by removing the clause date ``(SEP 
2011)'' and adding in its place ``(OCT 2011)'' and adding paragraph 
(b)(30) to read as follows:


252.212-7001  Contract Terms and Conditions Required to Implement 
Statutes or Executive Orders Applicable to Defense Acquisitions of 
Commercial Items.

* * * * *
    (b) * * *
    (30) ---- 252.247-7027, Riding Gang Member Requirements (OCT 2011) 
(Section 3504 of Pub. L. 110-417).
* * * * *

0
5. Amend section 252.247-7027 by removing the clause date ``(OCT 
2010)'' and adding in its place ``(OCT 2011)'' and revising paragraph 
(c)(2) to read as follows:


252.247-7027  Riding Gang Member Requirements.

* * * * *
    (c) * * *
    (2) Any individual who is exempt under paragraph (c)(1) of this 
clause must pass a DoD background check before going aboard the vessel.
    (i) The Contractor shall--
    (A) Render all necessary assistance to U.S. Armed Forces personnel 
with respect to the identification and screening of exempted 
individuals. This will require, at a minimum, the Contractor to submit 
the name and other biographical information necessary to

[[Page 61282]]

the Government official specified in the contract for the purposes of 
conducting a background check; and
    (B) Deny access or immediately remove any individual(s) from the 
vessel deemed unsuitable for any reason by Military Sealift Command 
Force Protection personnel. The Contractor agrees to replace any such 
individual promptly and require such replacements to fully comply with 
all screening requirements.
    (ii) The head of the contracting activity may waive this 
requirement if the individual possesses a valid U.S. Merchant Mariner's 
Document issued under 46 U.S.C. chapter 73, or a transportation 
security card issued under section 70105 of such title.
* * * * *

[FR Doc. 2011-25233 Filed 10-3-11; 8:45 am]
BILLING CODE 5001-06-P