DoD Finalizes Cargo Riding Gang Member Requirements

The Department of Defense has finalized, with changes, the DFARS Case 2007-D002 interim rule ( 70,016.599) that amended the Defense Federal Acquisition Regulation Supplement to implement Section 3504 of the National Defense Authorization Act for Fiscal Year 2009 (PL 110-417). Section 3504 addresses requirements that apply to riding gang members and DoD-exempted individuals who perform work on United States-flag vessels under DoD contracts for transportation services. These individuals must hold a U.S. Merchant Mariner's Document issued under 46 USC, Chapter 73, or a transportation security card issued under 46 USC 70105. U.S. law requires crews of predominantly U.S. citizens aboard U.S.-flag vessels. In the past, U.S.-flag vessels used foreign nationals as members of "riding gangs" who perform work beyond standard vessel maintenance and repair while ships are underway. In the Coast Guard and Maritime Transportation Act of 2006 (PL 109-241), Congress prohibited the use of foreign riding personnel on board vessels that are under contract with the DoD unless DoD complied with certain limitations. The exceptions provided to DoD in 2006 did not match those that apply to other U.S.-flag vessels. The Defense Authorization Act of FY 2009 made it clear 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. Accordingly, the interim rule added a new contract clause at DFARS 252.247-7027, as prescribed at DFARS 247.574 (f), and made conforming amendments at DFARS 212.301, DFARS 247.570, and DFARS 247.572.

Final Changes

In response to comments received on the interim rule, the final rule revises the clause at DFARS 252.247-7027 to require the contractor to submit the name and other necessary "biographical" information to the government official specified in the contract for the purposes of conducting a background check. The contracting officer or designee is not the approving official for the background check. The term "biographical" encompasses information, such as last, first, and middle name; date of birth; social security account number; passport number; and nationality listed on the passport, as applicable. 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, at PGI 247.574. 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 USC, the final rule removes DFARS 252.247-7027 from the list of clauses at DFARS 212.301 (f) and adds it to the list at DFARS 252.212-7001 that are required to implement statutes or executive orders applicable to defense acquisitions of commercial items. Additionally, the final rule revises the cross-reference to DFARS 252.211-7006 at DFARS 212.301 (f)(iv)(D) to reflect the correct title of the clause. The final rule is effective October 4, 2011. For the text of the rule, see 70,016.678.




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