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.