2011-25233. 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 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 [phone].

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 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:

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]

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

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

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).

* * * * *

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 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.

* * * * *