Defense Federal Acquisition Regulation Supplement; Defense Cargo Riding Gang Member (DFARS Case 2007-D002), 61279-61282 [2011-25233]
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Federal Register / Vol. 76, No. 192 / Tuesday, October 4, 2011 / Rules and Regulations
Division, Wireline Competition Bureau,
at lynne.engledow@fcc.gov.
DEPARTMENT OF HOMELAND
SECURITY
44 CFR Part 67
[Docket ID FEMA–2011–0002]
Final Flood Elevation Determinations
Correction
In rule document 2011–15507,
beginning on page 36373, in the issue of
Wednesday June 22, 2011, make the
following corrections:
§ 67.11
[Corrected]
1. On page 36379, in the first column
of the table for Clinton County, Iowa,
‘‘Unincorporated Areas of Clinton
County’’ should not have appeared.
2. On the same page, in the first
column of the table for Muscatine
County, Iowa, ‘‘Unincorporated Areas of
Muscatine County, Iowa’’ should not
have appeared.
[FR Doc. C1–2011–15507 Filed 10–3–11; 8:45 am]
BILLING CODE 1505–01–D
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 32, 52, 61, 64, and 69
Communications Common Carriers,
Reporting and Recordkeeping
Requirements, Telephone,
Telecommunications, Uniform System
of Accounts
Federal Communications
Commission.
ACTION: Final rule; announcement of
effective date.
AGENCY:
This document announces the
approval of the Office of Management
and Budget (OMB) for information
collection requirements in the sections
outlined in the DATES section.
DATES: Effective October 4, 2011, the
following regulations have been
approved by OMB:
32.2000—64 FR 50007, September 15,
1999.
52.33—63 FR 35161, June 29, 1998.
52.33(a)(3)—67 FR 40620, June 13,
2002.
61.38(b)(4)—69 FR 25336, May 6,
2004.
61.41(c), (d) and (e)—69 FR 25336,
May 6, 2004.
64.5001—71 FR 43673, August 2,
2006.
69.123—69 FR 25336, May 6, 2004.
FOR FURTHER INFORMATION CONTACT:
Lynne Hewitt Engledow, Pricing Policy
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SUMMARY:
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On June
23 2000, OMB approved the information
collection requirements contained in
§ 32.2000 of title 47 of the United States
Code as a revision to OMB Control
Number 3060–0370.
On September 12, 2000, OMB
approved the information collection
requirements contained in § 52.33 of
title 47 of the United States Code as a
revision to OMB Control Number 3060–
0370.
On October 22, 2002 OMB approved
the information collection requirements
contained in § 52.33(a)(3) of title 47 of
the United States Code as a revision to
OMB Control Number 3060–0742.
On May 25, 2005, OMB approved the
information collection requirements
contained in §§ 61.38(b)(4), 61.41(c), (d)
and (e) and 69.123 of title 47 of the
United States Code as a revision to OMB
Control Number 3060–0298.
On February 5, 2007, OMB approved
the information collection requirements
contained in § 64.5001 of title 47 of the
United States Code as a new collection,
OMB Control Number 3060–1096. These
information collection requirements
required OMB approval to become
effective. The Commission publishes
this document as an announcement of
those approvals. If you have any
comments on the burden estimates
listed below, or how the Commission
can improve the collections and reduce
any burdens caused thereby, please
contact Thomas Butler, Federal
Communications Commission, Room 5–
C458, 445 12th Street, SW., Washington,
DC 20554. Please include the OMB
Control Numbers, 3060–0370, 3060–
0742, 3060–0298, and 3060–1096 in
your correspondence. The Commission
will also accept your comments via the
Internet if you send them to
PRA@fcc.gov.
To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an e-mail to
fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau at (202)
418–0530 (voice, (202) 419–0432 (TTY).
Synopsis: As required by the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507), the FCC is notifying the
public that it received OMB approval for
the information collection requirements
described above. The OMB Control
Numbers are 3060–0370, 3060–0742,
3060–0298 and 3060–1096. The total
annual reporting burden for respondents
for these collections of information,
including the time for gathering and
maintaining the collection of
SUPPLEMENTARY INFORMATION:
Federal Emergency Management
Agency
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information, has been most recently
approved to be:
For 3060–0370: 859 responses, for a
total of 859 hours, and no annual costs.
For 3060–0742: 10,001,890 responses,
for a total of 672,516 hours and
$13,423,321 in annual costs.
For 3060–0298: 1,160 responses, for a
total annual burden of 58,000 hours,
and $945,400 in annual costs.
For 3060–1096: 1,896 responses, for a
total of 15,800 hours, and no annual
costs.
An agency may not conduct or
sponsor a collection of information
unless it displays a current valid OMB
Control Number. No person shall be
subject to any penalty for failing to
comply with a collection of information
subject to the Paperwork Reduction Act,
which does not display a current, valid
OMB Control Number. The foregoing
notice is required by the Paperwork
Reduction Act of 1995, Public Law 104–
13, October 1, 1995, and 44 U.S.C. 3507.
List of Subjects in 47 CFR Parts 32, 52,
61, 64, and 69
Communications common carriers,
reporting and Recordkeeping
requirements, Telephone,
Telecommunications, Uniform system
of accounts.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2011–25586 Filed 10–3–11; 8:45 am]
BILLING CODE 6712–01–P
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)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
AGENCY:
ACTION:
Final rule.
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
SUMMARY:
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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 crossreference.
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
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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
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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
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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.
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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
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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
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.
Frm 00033
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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.
*
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).
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*
*
*
*
(b) * * *
(30) ll 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
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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
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 252
RIN 0750–AH21
Defense Federal Acquisition
Regulation Supplement; Definition of
‘‘Qualifying Country End Product’’
(DFARS Case 2011–D028)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to revise the definition of
‘‘qualifying country end product.’’ This
final rule eliminates the component test
for qualifying country end products that
are commercially available off-the-shelf
items.
DATES: Effective date: October 4, 2011.
FOR FURTHER INFORMATION CONTACT:
Amy G. Williams, telephone 703–602–
0328.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Background
DoD published a proposed rule in the
Federal Register at 76 FR 32845 on June
6, 2011, to amend the definition of
qualifying country end product. One
comment was received in response to
the proposed rule.
II. Discussion and Analysis of Public
Comment
Comment: The respondent stated that
we need to define ‘‘commercially
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available off-the-shelf item’’ or reference
the definition in the FAR, because there
is nothing that says that the definitions
in the FAR necessarily apply to the
DFARS.
Response: The DFARS implements
and supplements the FAR (see FAR
subpart 1.3). Unless the DFARS
specifically makes a statement to the
contrary, everything in the FAR is the
basis upon which the DFARS is built.
No change to the rule is necessary on
the basis of this comment.
III. Other Changes
As a technical update, the more recent
definition of ‘‘qualifying country’’ in
225.003 is incorporated in two of the
clauses changed by the final rule, rather
than citing to the list of qualifying
countries at 225.872–1. This has no
practical impact, because the two lists
contain the same countries. The
definition was added to DFARS 225.003
to reduce confusion, because the list at
DFARS 225.872–1 is split into two
paragraphs, (a) and (b), which
sometimes leads to misinterpretation of
the status of countries that are listed in
paragraph (b).
IV. 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 not a significant
regulatory action and, therefore, was not
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.
V. Regulatory Flexibility Act
DoD certifies that this rule will not
have a significant impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule only affects
manufacturers of COTS items in
qualifying countries, removing an
administrative burden for the qualifying
country manufacturer and the
Government personnel acquiring the
items. No domestic entities will be
impacted by this rule. For the definition
of ‘‘small business,’’ the Regulatory
Flexibility Act refers to the Small
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Business Act, which in turn allows the
U.S. Small Business Administration
(SBA) Administrator to specify detailed
definitions or standards (5 U..S.C 601(3)
and 15 U.S.C. 632(a)). The SBA
regulations at 13 CFR 121.105 discuss
who is a small business: ‘‘(a)(1) Except
for small agricultural cooperatives, a
business concern eligible for assistance
from SBA as a small business is a
business entity organized for profit,
with a place of business located in the
United States, and which operates
primarily within the United States or
which makes a significant contribution
to the U.S. economy through payment of
taxes or use of American products,
materials or labor.’’
The comparable change has already
been enacted for the benefit of U.S.
manufacturers of COTS items.
VI. Paperwork Reduction Act
The rule does not impose any
information collection requirements that
require the approval of the Office of
Management and Budget under 44
U.S.C. (chapter 35).
List of Subjects in 48 CFR Part 252
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations
System.
Therefore, 48 CFR part 252 is
amended as follows:
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
1. The authority citation for 48 CFR
part 252 continues to read as follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
252.212–7001
[Amended]
2. Amend section 252.212–7001 as
follows:
■ a. Remove the clause date ‘‘(SEP
2011)’’ and add in its place ‘‘(OCT
2011)’’;
■ b. In paragraph (b)(6)(i), remove the
clause date ‘‘(JAN 2009)’’ and add in its
place ‘‘(OCT 2011)’’ and in paragraph
(b)(6)(ii), remove the clause date ‘‘(DEC
2010)’’ and add in its place ‘‘(OCT
2011)’’;
■ c. In paragraph (b)(12)(i), remove the
clause date ‘‘(JUN 2011)’’ and add in its
place ‘‘(OCT 2011)’’, in paragraph
(b)(12)(ii), remove the clause date ‘‘(SEP
2008)’’ and add in its place ‘‘(OCT
2011)’’, and in paragraph (b)(12)(iii),
remove the clause date ‘‘(DEC 2010)’’
and add in its place ‘‘(OCT 2011)’’; and
■ d. In paragraph (b)(15)(i), remove the
clause date ‘‘(DEC 2010)’’ and add in its
■
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]]>Agencies
[Federal Register Volume 76, Number 192 (Tuesday, October 4, 2011)]
[Rules and Regulations]
[Pages 61279-61282]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25233]
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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.
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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
