Voluntary Intermodal Sealift Agreement, 12938-12948 [05-5186]
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Federal Register / Vol. 70, No. 50 / Wednesday, March 16, 2005 / Notices
limit orders to sell, would be placed on
the limit order book in price-time
priority. The purpose of this provision
is to establish the time priority of
market orders to sell when the bid price
in the particular series is zero (and thus
no execution could occur). In the event
that the bid price in the particular series
becomes $.05 or greater, thus
establishing a bid price that makes the
booked limit orders to sell marketable,
such orders to sell at the $.05 limit price
or better would be executed in the order
in which they were received (i.e., pricetime priority). The Exchange believes
that this proposed rule should reduce
the manual handling of such orders and
automate the processing of market
orders to sell when the Exchange’s bid
price is zero.
Market Orders Received That Are Not
Eligible for Automatic Execution
Proposed Exchange Rule 1080(c)(v)
would address the situation in which
the Exchange receives a market order
that is not eligible for automatic
execution because of any of the
conditions described in Exchange Rule
1080(c)(iv). The proposed rule would
provide that such market order, if not
already executed manually by the
specialist, would nonetheless be
executed automatically in two
situations.
In one situation, such a market order,
if not already executed manually by the
specialist, would be automatically
executed against a limit order resting on
the limit order book or a quotation that
was not priced at the NBBO at the time
such market order was received, if the
resting limit order or quotation becomes
priced at the NBBO. Alternatively, the
AUTOM System would automatically
execute a market order that is being
handled manually by the specialist
when an inbound limit order or
quotation priced at or better than the
NBBO is received before the specialist
has manually executed such market
order.
The Exchange believes that this
proposed change to the AUTOM System
would eliminate the need for the
specialist to match the market order
manually against quotes or limit orders
if an execution is possible at the NBBO
while the specialist is handling the
market order. The Exchange believes
that proposed Exchange Rule 1080(c)(v)
should result in more timely executions,
and enhance the specialist’s ability to
provide the best execution on behalf of
market orders entrusted to him/her, by
automating the process currently carried
out by the specialist.
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Rule Change To Reflect Decimalization
As a housekeeping matter, the
Exchange proposes to amend Exchange
Rule 1080(c)(iv)(A) to reflect decimal
pricing in the parenthetical example of
a crossed market.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) of the Act 11 in general, and
furthers the objectives of Section 6(b)(5)
of the Act 12 in particular, in that it is
designed to promote just and equitable
principles of trade, to prevent
fraudulent and manipulative acts, and,
in general, to protect investors and the
public interest, by implementing
changes to the AUTOM System that
result in a greater number of orders that
are handled and executed automatically.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any inappropriate burden on
competition.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants or Others
The Exchange has neither solicited
nor received written comments on the
proposed rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of
publication of this notice in the Federal
Register or within such longer period (i)
as the Commission may designate up to
90 days of such date if it finds such
longer period to be appropriate and
publishes its reasons for so finding or
(ii) as to which the Exchange consents,
the Commission will:
(A) By order approve the proposed
rule change, or
(B) Institute proceedings to determine
whether the proposed rule change
should be disapproved.
Paper Comments
• Send paper comments in triplicate
to Jonathan G. Katz, Secretary,
Securities and Exchange Commission,
450 Fifth Street, NW., Washington, DC
20549–0609.
All submissions should refer to File
Number SR-Phlx-2005–03. This file
number should be included on the
subject line if e-mail is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for inspection and copying in
the Commission’s Public Reference
Room. Copies of the filing also will be
available for inspection and copying at
the principal office of the Exchange. All
comments received will be posted
without change; the Commission does
not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly. All
submissions should refer to File
Number SR–Phlx–2005–03 and should
be submitted on or before April 6, 2005.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.13
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E5–1131 Filed 3–15–05; 8:45 am]
BILLING CODE 8010–01–P
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
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Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–Phlx–2005–03 on the
subject line.
DEPARTMENT OF TRANSPORTATION
Maritime Administration
Voluntary Intermodal Sealift
Agreement
AGENCY:
U.S.C. 78f(b).
12 15 U.S.C. 78f(b)(5).
Maritime Administration, DOT.
11 15
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Federal Register / Vol. 70, No. 50 / Wednesday, March 16, 2005 / Notices
Notice of Voluntary Intermodal
Sealift Agreement (VISA).
ACTION:
SUMMARY: The Maritime Administration
(MARAD) announces the extension of
the Voluntary Intermodal Sealift
Agreement (VISA) until September 30,
2005, pursuant to provision of the
Defense Production Act of 1950, as
amended. The purpose of the VISA is to
make intermodal shipping services/
systems, including ships, ships’ space,
intermodal equipment and related
management services, available to the
Department of Defense as required to
support the emergency deployment and
sustainment of U.S. military forces. This
is to be accomplished through
cooperation among the maritime
industry, the Department of
Transportation and the Department of
Defense.
FOR FURTHER INFORMATION CONTACT:
Taylor E. Jones II, Director, Office of
Sealift Support, Room 7304, Maritime
Administration, 400 Seventh Street SW.,
Washington, DC 20590, (202) 366–3423,
Fax (202) 366–3128.
Section
708 of the Defense Production Act of
1950, as amended, (50 U.S.C. App.
2158), as implemented by regulations of
the Federal Emergency Management
Agency (44 CFR Part 332), ‘‘Voluntary
agreements for preparedness programs
and expansion of production capacity
and supply’’, authorizes the President,
upon a finding that conditions exist
which may pose a direct threat to the
national defense or its preparedness
programs, ‘‘* * * to consult with
representatives of industry, business,
financing, agriculture, labor and other
interests * * *’’ in order to provide the
making of such voluntary agreements. It
further authorizes the President to
delegate that authority to individuals
who are appointed by and with the
advice and consent of the Senate, upon
the condition that such individuals
obtain the prior approval of the
Attorney General after the Attorney
General’s consultation with the Federal
Trade Commission. Section 501 of
Executive Order 12919, as amended,
delegated this authority of the President
to the Secretary of Transportation
(Secretary), among others. By DOT
Order 1900.9, the Secretary delegated to
the Maritime Administrator the
authority under which the VISA is
sponsored. Through advance
arrangements in joint planning, it is
intended that participants in VISA will
provide capacity to support a significant
portion of surge and sustainment
requirements in the deployment of U.S.
SUPPLEMENTARY INFORMATION:
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military forces during war or other
national emergency.
The text of the VISA was first
published in the Federal Register on
February 13, 1997, to be effective for a
two-year term until February 13, 1999.
The VISA document has been extended
and subsequently published in the
Federal Register every two years. The
last extension was published on
February 25, 2003. The text of the VISA
herein is identical to the text previously
published in the Federal Register.
The text published herein will now be
implemented. Copies will be made
available to the public upon request.
Text of the Voluntary Intermodal
Sealift Agreement:
Voluntary Intermodal Sealift
Agreement (VISA)
9 December 1996
Table of Contents
Abbreviations
Definitions
Preface
I. Purpose
II. Authorities
A. MARAD
B. USTRANSCOM
III. General
A. Concept
B. Responsibilities
C. Termination of Charter, Leases and
Other Contractual Arrangements
D. Modification/Amendment of This
Agreement
E. Administrative Expenses
F. Record Keeping
G. MARAD Reporting Requirements
IV. Joint Planning Advisory Group
V. Activation of VISA Contingency
Provisions
A. General
B. Notification of Activation
C. Voluntary Capacity
D. Stage I
E. Stage II
F. Stage III
G. Partial Activation
VI. Terms and Conditions
A. Participation
B. Agreement of Participant
C. Effective Date and Duration of
Participation
D. Participant Termination of VISA
E. Rules and Regulations
F. Carrier Coordination Agreements
G. Enrollment of Capacity (Ships and
Equipment)
H. War Risk Insurance
I. Antitrust Defense
J. Breach of Contract Defense
K. Vessel Sharing Agreements
VII. Application and Agreement
Figure 1—VISA Activation Process Diagram
Abbreviations
‘‘AMC’’—Air Mobility Command
‘‘CCA’’—Carrier Coordination
Agreements
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‘‘CDS’’—Construction Differential
Subsidy
‘‘CFR’’—Code of Federal Regulations
‘‘CONOPS’’—Concept of Operations
‘‘DoD’’—Department of Defense
‘‘DOJ’’—Department of Justice
‘‘DOT’’—Department of
Transportation
‘‘DPA’’—Defense Production Act
‘‘EUSC’’—Effective United States
Control
‘‘FAR’’—Federal Acquisition
Regulations
‘‘FEMA’’—Federal Emergency
Management Agency
‘‘FTC’’—Federal Trade Commission
‘‘JCS’’—Joint Chiefs of Staff
‘‘JPAG’’—Joint Planning Advisory
Group
‘‘MARAD’’—Maritime
Administration, DOT
‘‘MSP’’—Maritime Security Program
‘‘MSC’’—Military Sealift Command
‘‘MTMC’’—Military Transportation
Management Command
‘‘NCA’’—National Command
Authorities
‘‘NDRF’’—National Defense Reserve
Fleet maintained by MARAD
‘‘ODS’’—Operating Differential
Subsidy
‘‘RRF’’—Ready Reserve Force
component of the NDRF
‘‘SecDef’’—Secretary of Defense
‘‘SecTrans’’—Secretary of
Transportation
‘‘USCINCTRANS’’—Commander in
Chief, United States Transportation
Command
‘‘USTRANSCOM’’—United States
Transportation Command (including its
sealift transportation component,
Military Sealift Command)
‘‘VISA’’—Voluntary Intermodal
Sealift Agreement
‘‘VSA’’—Vessel Sharing Agreement
Definitions—For purposes of this
agreement, the following definitions
apply:
Administrator—Maritime
Administrator.
Agreement—Agreement (proper noun)
refers to the Voluntary Intermodal
Sealift Agreement (VISA).
Attorney General—Attorney General
of the United States.
Broker—A person who arranges for
transportation of cargo for a fee.
Carrier Coordination Agreement
(CCA)—An agreement between two or
more Participants or between
Participant and non-Participant carriers
to coordinate their services in a
Contingency, including agreements to:
(i) Charter vessels or portions of the
cargo-carrying capacity of vessels; (ii)
share cargo handling equipment,
chassis, containers and ancillary
transportation equipment; (iii) share
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wharves, warehouse, marshaling yards
and other marine terminal facilities; and
(iv) coordinate the movement of vessels.
Chairman—FTC—Chairman of the
Federal Trade Commission (FTC).
Charter—Any agreement or
commitment by which the possession or
services of a vessel are secured for a
period of time, or for one or more
voyages, whether or not a demise of the
vessel.
Commercial—Transportation service
provided for profit by privately owned
(not government owned) vessels to a
private or government shipper. The type
of service may be either common carrier
or contract carriage.
Contingency—Includes, but is not
limited to a ‘‘contingency operation’’ as
defined at 10 App. U.S.C. 101(a)(13),
and a JCS-directed, NCA-approved
action undertaken with military forces
in response to: (i) Natural disasters; (ii)
terrorists or subversive activities; or (iii)
required military operations, whether or
not there is a declaration of war or
national emergency.
Contingency contracts—DoD contracts
in which Participants implement
advance commitments of capacity and
services to be provided in the event of
a Contingency.
Contract carrier—A for-hire carrier
who does not hold out regular service to
the general public, but instead contracts,
for agreed compensation, with a
particular shipper for the carriage of
cargo in all or a particular part of a ship
for a specified period of time or on a
specified voyage or voyages.
Controlling interest—More than a 50percent interest by stock ownership.
Director—FEMA—Director of Federal
Emergency Management Agency
(FEMA).
Effective U.S. Control (EUSC)—U.S.
citizen-owned ships which are
registered in certain open registry
countries and which the United States
can rely upon for defense in national
security emergencies. The term has no
legal or other formal significance. U.S.
citizen-owned ships registered in
Liberia, Panama, Honduras, the
Bahamas and the Republic of the
Marshall Islands are considered under
effective U.S. control. EUSC registries
are recognized by the Maritime
Administration after consultation with
the Department of Defense. (MARAD
OPLAN 001A, 17 July 1990)
Enrollment Contract—The document,
executed and signed by MSC, and the
individual carrier enrolling that carrier
into VISA Stage III.
Foreign flag vessel—A vessel
registered or documented under the law
of a country other than the United States
of America.
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Intermodal equipment—Containers
(including specialized equipment),
chassis, trailers, tractors, cranes and
other materiel handling equipment, as
well as other ancillary items.
Liner—Type of service offered on a
definite, advertised schedule and giving
relatively frequent sailings at regular
intervals between specific ports or
ranges.
Liner throughput capacity—The
system/intermodal capacity available
and committed, used or unused,
depending on the system cycle time
necessary to move the designated
capacity through to destination. Liner
throughput capacity shall be calculated
as: static capacity (outbound from
CONUS) X voyage frequency X.5.
Management services—Management
expertise and experience, intermodal
terminal management, information
resources, and control and tracking
systems.
Ocean Common carrier—An entity
holding itself out to the general public
to provide transportation by water of
passengers or cargo for compensation;
which assumes responsibility for
transportation from port or point of
receipt to port or point of destination;
and which operates and utilizes a vessel
operating on the high seas for all or part
of that transportation. (As defined in 46
App. U.S.C. 1702, 801, and 842
regarding international, interstate, and
intercoastal commerce respectively.)
Operator—An ocean common carrier
or contract carrier that owns or controls
or manages vessels by which ocean
transportation is provided.
Organic sealift—Ships considered to
be under government control or longterm charter—Fast Sealift Ships, Ready
Reserve Force and commercial ships
under long-term charter to DoD.
Participant—A signatory party to
VISA, and otherwise as defined within
Section VI of this document.
Person—Includes individuals and
corporations, partnerships, and
associations existing under or
authorized by the laws of the United
States or any state, territory, district, or
possession thereof, or of a foreign
country.
SecTrans—Secretary of
Transportation.
Service contract—A contract between
a shipper (or a shipper’s association)
and an ocean common carrier (or
conference) in which the shipper makes
a commitment to provide a certain
minimum quantity of cargo or freight
revenue over a fixed time period, and
the ocean common carrier or conference
commits to a certain rate or rate
schedule, as well as a defined service
level (such as assured space, transit
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time, port rotation, or similar service
features), as defined in the Shipping Act
of 1984. The contract may also specify
provisions in the event of
nonperformance on the part of either
party.
Standby period—The interval
between the effective date of a
Participant’s acceptance into the
Agreement and the activation of any
stage, and the periods between
deactivation of all stages and any later
activation of any stage.
U.S. Flag Vessel—A vessel registered
or documented under the laws of the
United States of America.
USTRANSCOM—The United States
Transportation Command and its
component commands (AMC, MSC and
MTMC).
Vessel Sharing Agreement (VSA)
Capacity—Space chartered to a
Participant for carriage of cargo, under
its commercial contracts, service
contracts or in common carriage, aboard
vessels shared with another carrier or
carriers pursuant to a commercial vessel
sharing agreement under which the
carriers may compete with each other
for the carriage of cargo. In U.S. foreign
trades the agreement is filed with the
Federal Maritime Commission (FMC) in
conformity with the Shipping Act of
1984 and implementing regulations.
Volunteers—Any vessel owner/
operator who is an ocean carrier and
who offers to make capacity, resources
or systems available to support
contingency requirements.
Preface
The Administrator, pursuant to the
authority contained in Section 708 of
the Defense Production Act of 1950, as
amended (50 App. U.S.C. 2158)(Section
708)(DPA), in cooperation with the
Department of Defense (DoD), has
developed this Agreement [hereafter
called the Voluntary Intermodal Sealift
Agreement (VISA)] to provide DoD the
commercial sealift and intermodal
shipping services/systems necessary to
meet national defense Contingency
requirements.
USTRANSCOM procures commercial
shipping capacity to meet requirements
for ships and intermodal shipping
services/systems through arrangements
with common carriers, with contract
carriers and by charter. DoD (through
USTRANSCOM) and Department of
Transportation (DOT) (through MARAD)
maintain and operate a fleet of ships
owned by or under charter to the
Federal Government to meet the logistic
needs of the military services which
cannot be met by existing commercial
service. Ships of the Ready Reserve
Force (RRF) are selectively activated for
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peacetime military tests and exercises,
and to satisfy military operational
requirements which cannot be met by
commercial shipping in time of war,
national emergency, or military
Contingency. Foreign-flag shipping is
used in accordance with applicable
laws, regulations and policies.
The objective of VISA is to provide
DoD a coordinated, seamless transition
from peacetime to wartime for the
acquisition of commercial sealift and
intermodal capability to augment DoD’s
organic sealift capabilities. This
Agreement establishes the terms,
conditions and general procedures by
which persons or parties may become
VISA Participants. Through advance
joint planning among USTRANSCOM,
MARAD and the Participants,
Participants may provide predetermined
capacity in designated stages to support
DoD Contingency requirements.
VISA is designed to create close
working relationships among MARAD,
USTRANSCOM and Participants
through which Contingency needs and
the needs of the civil economy can be
met by cooperative action. During
Contingencies, Participants are afforded
maximum flexibility to adjust
commercial operations by Carrier
Coordination Agreements (CCA), in
accordance with applicable law.
Participants will be afforded the first
opportunity to meet DoD peacetime and
Contingency sealift requirements within
applicable law and regulations, to the
extent that operational requirements are
met. In the event VISA Participants are
unable to fully meet Contingency
requirements, the shipping capacity
made available under VISA may be
supplemented by ships/capacity from
non-Participants in accordance with
applicable law and by ships
requisitioned under Section 902 of the
Merchant Marine Act, 1936 (as
amended) (46 App. U.S.C. 1242). In
addition, containers and chassis made
available under VISA may be
supplemented by services and
equipment acquired by USTRANSCOM
or accessed by the Administrator
through the provisions of 46 CFR Part
340.
The Secretary of Defense (SecDef) has
approved VISA as a sealift readiness
program for the purpose of Section 909
of the Merchant Marine Act, 1936, as
amended (46 App. U.S.C. 1248).
Voluntary Intermodal Sealift
Agreement
I. Purpose
A. The Administrator has made a
determination, in accordance with
Section 708(c)(1) of the Defense
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Production Act (DPA) of 1950, that
conditions exist which may pose a
direct threat to the national defense of
the United States or its preparedness
programs and, under the provisions of
Section 708, has certified to the
Attorney General that a standby
agreement for utilization of intermodal
shipping services/systems is necessary
for the national defense. The Attorney
General, in consultation with the
Chairman of the Federal Trade
Commission, has issued a finding that
dry cargo shipping capacity to meet
national defense requirements cannot be
provided by the industry through a
voluntary agreement having less
anticompetitive effects or without a
voluntary agreement.
B. The purpose of VISA is to provide
a responsive transition from peace to
Contingency operations through precoordinated agreements for sealift
capacity to support DoD Contingency
requirements. VISA establishes
procedures for the commitment of
intermodal shipping services/systems to
satisfy such requirements. VISA will
change from standby to active status
upon activation by appropriate
authority of any of the Stages, as
described in Section V.
C. It is intended that VISA promote
and facilitate DoD’s use of existing
commercial transportation resources
and integrated intermodal
transportation systems, in a manner
which minimizes disruption to
commercial operations, whenever
possible.
D. Participants’ capacity which may
be committed pursuant to this
Agreement may include all intermodal
shipping services/systems and all ship
types, including container, partial
container, container/bulk, container/
roll-on/roll-off, roll-on/roll-off (of all
varieties), breakbulk ships, tug and
barge combinations, and barge carrier
(LASH, SeaBee).
II. Authorities
A. MARAD
1. Sections 101 and 708 of the DPA,
as amended (50 App. U.S.C. 2158);
Executive Order 12919, 59 FR 29525,
June 7, 1994; Executive Order 12148, 3
CFR 1979 Comp., p. 412, as amended;
44 CFR Part 332; DOT Order 1900.8; 46
CFR Part 340.
2. Section 501 of Executive Order
12919, as amended, delegated the
authority of the President under Section
708 to SecTrans, among others. By DOT
Order 1900.8, SecTrans delegated to the
Administrator the authority under
which VISA is sponsored.
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B. USTRANSCOM
1. Section 113 and Chapter 6 of Title
10 of the United States Code.
2. DoD Directive 5158.4 designating
USCINCTRANS to provide air, land,
and sea transportation for the DoD.
III. General
A. Concept
1. VISA provides for the staged, timephased availability of Participants’
shipping services/systems to meet NCAdirected DoD Contingency requirements
in the most demanding defense oriented
sealift emergencies and for less
demanding defense oriented situations
through prenegotiated Contingency
contracts between the government and
Participants (see Figure 1). Such
arrangements will be jointly planned
with MARAD, USTRANSCOM, and
Participants in peacetime to allow
effective, and efficient and best valued
use of commercial sealift capacity,
provide DoD assured Contingency
access, and minimize commercial
disruption, whenever possible.
a. Stages I and II provide for
prenegotiated contracts between the
DoD and Participants to provide sealift
capacity against all projected DoD
Contingency requirements. These
agreements will be executed in
accordance with approved DoD
contracting methodologies.
b. Stage III will provide for additional
capacity to the DoD when Stages I and
II commitments or volunteered capacity
are insufficient to meet Contingency
requirements, and adequate shipping
services from non-Participants are not
available through established DoD
contracting practices or U.S.
Government treaty agreements.
2. Activation will be in accordance
with procedures outlined in Section V
of this Agreement.
3. Following is the prioritized order
for utilization of commercial sealift
capacity to meet DoD peacetime and
Contingency requirements:
a. U.S. Flag vessel capacity operated
by a Participant and U.S. Flag Vessel
Sharing Agreement (VSA) capacity of a
Participant.
b. U.S. Flag vessel capacity operated
by a non-Participant.
c. Combination U.S./foreign flag
vessel capacity operated by a Participant
and combination U.S./foreign flag VSA
capacity of a Participant.
d. Combination U.S./foreign flag
vessel capacity operated by a nonParticipant.
e. U.S. owned or operated foreign flag
vessel capacity and VSA capacity of a
Participant.
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f. U.S. owned or operated foreign flag
vessel capacity and VSA capacity of a
non-Participant.
g. Foreign-owned or operated foreign
flag vessel capacity of a non-Participant.
4. Under Section VI.F. of this
Agreement, Participants may implement
CCAs to fulfill their contractual
commitments to meet VISA
requirements.
B. Responsibilities
1. The SecDef, through
USTRANSCOM, shall:
a. Define time-phased requirements
for Contingency sealift capacity and
resources required in Stages I, II and III
to augment DoD sealift resources.
b. Keep MARAD and Participants
apprised of Contingency sealift capacity
required and resources committed to
Stages I and II.
c. Obtain Contingency sealift capacity
through the implementation of specific
prenegotiated DoD Contingency
contracts with Participants.
d. Notify the Administrator upon
activation of any stage of VISA.
e. Co-chair (with MARAD) the Joint
Planning Advisory Group (JPAG).
f. Establish procedures, in accordance
with applicable law and regulation,
providing Participants with necessary
determinations for use of foreign flag
vessels to replace an equivalent U.S.
Flag capacity to transport a Participant’s
normal peacetime DoD cargo, when
Participant’s U.S. Flag assets are
removed from regular service to meet
VISA Contingency requirements.
g. Provide a reasonable time to permit
an orderly return of a Participant’s
vessel(s) to its regular schedule and
termination of its foreign flag capacity
arrangements as determined through
coordination between DoD and the
Participants.
h. Review and endorse Participants’
requests to MARAD for use of foreign
flag replacement capacity for non-DoD
government cargo, when U.S. Flag
capacity is required to meet
Contingency requirements.
2. The SecTrans, through MARAD,
shall:
a. Review the amount of sealift
resources committed in DoD contracts to
Stages I and II and notify
USTRANSCOM if a particular level of
VISA commitment will have serious
adverse impact on the commercial
sealift industry’s ability to provide
essential services. MARAD’s analysis
shall be based on the consideration that
all VISA Stage I and II capacity
committed will be activated. This
notification will occur on an annual
basis upon USCINCTRANS’ acceptance
of VISA commitments from the
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Participants. If so advised by MARAD,
USTRANSCOM will adjust the size of
the stages or provide MARAD with
justification for maintaining the size of
those stages. USTRANSCOM and
MARAD will coordinate to ensure that
the amount of sealift assets committed
to Stages I and II will not have an
adverse, national economic impact.
b. Coordinate with DOJ for the
expedited approval of CCAs.
c. Upon request by USCINCTRANS
and approval by SecDef to activate Stage
III, allocate sealift capacity and
intermodal assets to meet DoD
Contingency requirements. DoD shall
have priority consideration in any
allocation situation.
d. Establish procedures, pursuant to
Section 653(d) of the Maritime Security
Act (MSA), for determinations regarding
the equivalency and duration of the use
of foreign flag vessels to replace U.S.
Flag vessel capacity to transport the
cargo of a Participant which has entered
into an operating agreement under
Section 652 of the MSA and whose U.S.
Flag vessel capacity has been removed
from regular service to meet VISA
contingency requirements. Such foreign
flag vessels shall be eligible to transport
cargo subject to the Cargo Preference
Act of 1904 (10 U.S.C. 2631), P.R. 17 (46
App. U.S.C. 1241–1), and P.L. 664 (46
App. U.S.C. 1241(b)). However, any
procedures regarding the use of such
foreign flag vessels to transport cargo
subject to the Cargo Preference Act of
1904 must have the concurrence of
USTRANSCOM before it becomes
effective.
e. Co-chair (with USTRANSCOM) the
JPAG.
f. Seek necessary Jones Act waivers as
required. To the extent feasible,
participants with Jones Act vessels or
vessel capacity will use CCAs or other
arrangements to protect their ability to
maintain services for their commercial
customers and to fulfill their
commercial peacetime commitments
with U.S. Flag vessels. In situations
where the activation of this Agreement
deprives a Participant of all or a portion
of its Jones Act vessels or vessel
capacity and, at the same time, creates
a general shortage of Jones Act vessel(s)
or vessel capacity on the market, the
Administrator may request that the
Secretary of the Treasury grant a
temporary waiver of the provisions of
the Jones Act to permit a Participant to
charter or otherwise utilize non-Jones
Act vessel(s) or vessel capacity, with
priority consideration recommended for
U.S. crewed vessel(s) or vessel capacity.
The vessel(s) or vessel capacity for
which such waivers are requested will
be approximately equal to the Jones Act
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vessel(s) or vessel capacity chartered or
under contract to the DoD, and any
waiver that may be granted will be
effective for the period that the Jones
Act vessel(s) or vessel capacity is on
charter or under contract to the DoD
plus a reasonable time for termination of
the replacement charters as determined
by the Administrator.
C. Termination of Charters, Leases and
Other Contractual Arrangements
1. USTRANSCOM will notify the
Administrator as soon as possible of the
prospective termination of charters,
leases, management service contracts or
other contractual arrangements made by
the DoD under this Agreement.
2. In the event of general
requisitioning of ships under 46 App.
U.S.C. 1242, the Administrator shall
consider commitments made with the
DoD under this Agreement.
D. Modification/Amendment of This
Agreement
1. The Attorney General may modify
this Agreement, in writing, after
consultation with the Chairman-FTC,
SecTrans, through his representative
MARAD, and SecDef, through his
representative USCINCTRANS.
Although Participants may withdraw
from this Agreement pursuant to
Section VI.D, they remain subject to
VISA as amended or modified until
such withdrawal.
2. The Administrator, USCINCTRANS
and Participants may modify this
Agreement at any time by mutual
agreement, but only in writing with the
approval of the Attorney General and
the Chairman-FTC.
3. Participants may propose
amendments to this Agreement at any
time.
E. Administrative Expenses
Administrative and out-of-pocket
expenses incurred by a participant shall
be borne solely by the participant.
F. Record Keeping
1. MARAD has primary responsibility
for maintaining carrier VISA application
records in connection with this
Agreement. Records will be maintained
in accordance with MARAD
Regulations. Once a carrier is selected as
a VISA Participant, a copy of the VISA
application form will be forwarded to
USTRANSCOM.
2. In accordance with 44 CFR
332.2(c), MARAD is responsible for the
making and record maintenance of a full
and verbatim transcript of each JPAG
meeting. MARAD shall send this
transcript, and any voluntary agreement
resulting from the meeting, to the
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Attorney General, the Chairman-FTC,
the Director-FEMA, any other party or
repository required by law and to
Participants upon their request.
3. USTRANSCOM shall be the official
custodian of records related to the
contracts to be used under this
Agreement, to include specific
information on enrollment of a
Participant’s capacity in VISA.
4. In accordance with 44 CFR
332.3(d), a Participant shall maintain for
five (5) years all minutes of meetings,
transcripts, records, documents and
other data, including any
communications with other Participants
or with any other member of the
industry or their representatives, related
to the administration, including
planning related to and implementation
of Stage activations of this Agreement.
Each Participant agrees to make such
records available to the Administrator,
USCINCTRANS, the Attorney General,
and the Chairman-FTC for inspection
and copying at reasonable times and
upon reasonable notice. Any record
maintained by MARAD or
USTRANSCOM pursuant to paragraphs
1, 2, or 3 of this subsection shall be
available for public inspection and
copying unless exempted on the
grounds specified in 5 U.S.C 552(b) or
identified as privileged and confidential
information in accordance with Section
708(e).
G. MARAD Reporting Requirements
MARAD shall report to the DirectorFEMA, as required, on the status and
use of this agreement.
IV. Joint Planning Advisory Group
A. The JPAG provides
USTRANSCOM, MARAD and VISA
Participants a planning forum to:
1. Analyze DoD Contingency sealift/
intermodal service and resource
requirements.
2. Identify commercial sealift capacity
that may be used to meet DoD
requirements, related to Contingencies
and, as requested by USTRANSCOM,
exercises and special movements.
3. Develop and recommend Concepts
of Operations (CONOPS) to meet DoDapproved Contingency requirements
and, as requested by USTRANSCOM,
exercises and special movements.
B. The JPAG will be co-chaired by
MARAD and USTRANSCOM, and will
convene as jointly determined by the cochairs.
C. The JPAG will consist of
designated representatives from
MARAD, USTRANSCOM, each
Participant, and maritime labor. Other
attendees may be invited at the
discretion of the co-chairs as necessary
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to meet JPAG requirements.
Representatives will provide technical
advice and support to ensure maximum
coordination, efficiency and
effectiveness in the use of Participants’
resources. All Participants will be
invited to all open JPAG meetings. For
selected JPAG meetings, attendance may
be limited to designated Participants to
meet specific operational requirements.
1. The co-chairs may establish
working groups within JPAG.
Participants may be assigned to working
groups as necessary to develop specific
CONOPS.
2. Each working group will be cochaired by representatives designated by
MARAD and USTRANSCOM.
D. The JPAG will not be used for
contract negotiations and/or contract
discussions between carriers and the
DoD; such negotiations and/or
discussions will be in accordance with
applicable DoD contracting policies and
procedures.
E. The JPAG co-chairs shall:
1. Notify the Attorney General, the
Chairman-FTC, Participants and the
maritime labor representative of the
time, place and nature of each JPAG
meeting.
2. Provide for publication in the
Federal Register of a notice of the time,
place and nature of each JPAG meeting.
If the meeting is open, a Federal
Register notice will be published
reasonably in advance of the meeting. If
a meeting is closed, a Federal Register
notice will be published within ten (10)
days after the meeting and will include
the reasons for closing the meeting.
3. Establish the agenda for each JPAG
meeting and be responsible for
adherence to the agenda.
4. Provide for a full and complete
transcript or other record of each
meeting and provide one copy each of
transcript or other record to the
Attorney General, the Chairman-FTC,
and to Participants, upon request.
F. Security Measures—The co-chairs
will develop and coordinate appropriate
security measures so that Contingency
planning information can be shared
with Participants to enable them to plan
their commitments.
V. Activation of VISA Contingency
Provisions
A. General
VISA may be activated at the request
of USCINCTRANS, with approval of
SecDef, as needed to support
Contingency operations. Activating
voluntary commitments of capacity to
support such operations will be in
accordance with prenegotiated
Contingency contracts between DoD and
Participants.
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12943
B. Notification of Activation
1. USCINCTRANS will notify the
Administrator of the activation of Stages
I, II, and III.
2. The Administrator shall notify the
Attorney General and the Chairman-FTC
when it has been determined by DoD
that activation of any Stage of VISA is
necessary to meet DoD Contingency
requirements.
C. Voluntary Capacity
1. Throughout the activation of any
Stages of this Agreement, DoD may
utilize voluntary commitment of sealift
capacity or systems.
2. Requests for volunteer capacity will
be extended simultaneously to both
Participants and other carriers. First
priority for utilization will be given to
Participants who have signed Stage I
and/or II contracts and are capable of
meeting the operational requirements.
Participants providing voluntary
capacity may request USTRANSCOM to
activate their prenegotiated Contingency
contracts; to the maximum extent
possible, USTRANSCOM, where
appropriate, shall support such
requests. Volunteered capacity will be
credited against Participants’ staged
commitments, in the event such stages
are subsequently activated.
3. In the event Participants are unable
to fully meet Contingency requirements,
or do not voluntarily offer to provide the
required capacity, the shipping capacity
made available under VISA may be
supplemented by ships/capacity from
non-Participants.
4. When voluntary capacity does not
meet DoD Contingency requirements,
DoD will activate the VISA stages as
necessary.
D. Stage I
1. Stage I will be activated in whole
or in part by USCINCTRANS, with
approval of SecDef, when voluntary
capacity commitments are insufficient
to meet DoD Contingency requirements.
USCINCTRANS will notify the
Administrator upon activation.
2. USTRANSCOM will implement
Stage I Contingency contracts as needed
to meet operational requirements.
E. Stage II
1. Stage II will be activated, in whole
or in part, when Contingency
requirements exceed the capability of
Stage I and/or voluntarily committed
resources.
2. Stage II will be activated by
USCINCTRANS, with approval of
SecDef, following the same procedures
discussed in paragraph D above.
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F. Stage III
1. Stage III will be activated, in whole
or in part, when Contingency
requirements exceed the capability of
Stages I and II, and other shipping
services are not available. This stage
involves DoD use of capacity and
vessels operated by Participants which
will be furnished to DoD when required
in accordance with this Agreement. The
capacity and vessels are allocated by
MARAD on behalf of SecTrans to
USCINCTRANS.
2. Stage III will be activated by
USCINCTRANS upon approval by
SecDef. Upon activation, DoD SecDef
will request SecTrans to allocate sealift
capacity based on DoD requirements, in
accordance with Title 1 of DPA, to meet
the Contingency requirement. All
Participants’ capacity committed to
VISA is subject to use during Stage III.
3. Upon allocation of sealift assets by
SecTrans, through its designated
representative MARAD, USTRANSCOM
will negotiate and execute Contingency
contracts with Participants, using preapproved rate methodologies as
established jointly by SecTrans and
SecDef in fulfillment of Section 653 of
the Maritime Security Act of 1996. Until
execution of such contract, the
Participant agrees that the assets remain
subject to the provisions of Section 902
of the Merchant Marine Act of 1936,
Title 46 App. U.S.C. 1242.
4. Simultaneously with activation of
Stage III, the DoD Sealift Readiness
Program (SRP) will be activated for
those carriers still under obligation to
that program.
G. Partial Activation
As used in this Section V, activation
‘‘in part’’ of any Stage under this
Agreement shall mean one of the
following:
1. Activation of only a portion of the
committed capacity of some, but not all,
of the Participants in any Stage that is
activated; or
2. Activation of the entire committed
capacity of some, but not all, of the
Participants in any Stage that is
activated; or
3. Activation of only a portion of the
entire committed capacity of all of the
Participants in any Stage that is
activated.
VI. Terms and Conditions
A. Participation
1. Any U.S. Flag vessel operator
organized under the laws of a State of
the United States, or the District of
Columbia, may become a ‘‘Participant’’
in this Agreement by submitting an
executed copy of the form referenced in
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Section VII, and by entering into a VISA
Enrollment Contract with DoD which
establishes a legal obligation to perform
and which specifies payment or
payment methodology for all services
rendered.
2. The term ‘‘Participant’’ includes the
entity described in VI.A.1 above, and all
United States subsidiaries and affiliates
of the entity which own, operate,
charter or lease ships and intermodal
equipment in the regular course of their
business and in which the entity holds
a controlling interest.
3. Upon request of the entity
executing the form referenced in Section
VII, the term ‘‘Participant’’ may include
the controlled non-domestic
subsidiaries and affiliates of such entity
signing this Agreement, provided that
the Administrator, in coordination with
USCINCTRANS, grants specific
approval for their inclusion.
4. Any entity receiving payments
under the Maritime Security Program
(MSP), pursuant to the Maritime
Security Act of 1996 (MSA) (Pub. L.
104–239), shall become a ‘‘Participant’’
with respect to all vessels enrolled in
MSP at all times until the date the MSP
operating agreement would have
terminated according to its original
terms. The MSP operator shall be
enrolled in VISA as a Stage III
Participant, at a minimum. Such
participation will satisfy the
requirement for an MSP participant to
be enrolled in an emergency
preparedness program approved by
SecDef as provided in Section 653 of the
MSA.
5. A Participant shall be subject only
to the provisions of this Agreement and
not to the provisions of the SRP.
6. MARAD shall publish periodically
in the Federal Register a list of
Participants.
B. Agreement of Participant
1. Each Participant agrees to provide
commercial sealift and/or intermodal
shipping services/systems in accordance
with DoD Contingency contracts.
USTRANSCOM will review and
approve each Participant’s commitment
to ensure it meets DoD Contingency
requirements. A Participant’s capacity
commitment to Stages I and II will be
one of the considerations in determining
the level of DoD peacetime contracts
awarded with the exception of Jones Act
capacity (as discussed in paragraph 4
below).
2. DoD may also enter into
Contingency contracts, not linked to
peacetime contract commitments, with
Participants, as required to meet Stage I
and II requirements.
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3. Commitment of Participants’
resources to VISA is as follows:
a. Stage III: A carrier desiring to
participate in DoD peacetime contracts/
traffic must commit no less than 50% of
its total U.S. Flag capacity into Stage III.
Carriers receiving DOT payments under
the MSP, or carriers subject to Section
909 of Merchant Marine Act of 1936, as
amended, that are not enrolled in the
SRP will have vessels receiving such
assistance enrolled in Stage III.
Participants’ capacity under charter to
DoD will be considered ‘‘organic’’ to
DoD, and does not count towards the
Participant’s Contingency commitment
during the period of the charter.
Participants utilized under Stage III
activation will be compensated based
upon a DoD pre-approved rate
methodology.
b. Stages I and II: DoD will annually
develop and publish minimum
commitment requirements for Stages I
and II. Normally, the awarding of a longterm (i.e., one year or longer) DoD
contract, exclusive of charters, will
include the annual predesignated
minimum commitment to Stages I and/
or II. Participants desiring to bid on DoD
peacetime contracts will be required to
provide commitment levels to meet
DoD-established Stage I and/or II
minimums on an annual basis.
Participants may gain additional
consideration for peacetime contract
cargo allocation awards by committing
capacity to Stages I and II beyond the
specified minimums. If the Participant
is awarded a contract reflecting such a
commitment, that commitment shall
become the actual amount of a
Participant’s U.S. Flag capacity
commitment to Stages I and II. A
Participant’s Stage III U.S. Flag capacity
commitment shall represent its total
minimum VISA commitment. That
Participant’s Stage I and II capacity
commitments as well as any volunteer
capacity contribution by Participant are
portions of Participant’s total VISA
commitment. Participants activated
during Stages I and II will be
compensated in accordance with
prenegotiated Contingency contracts.
4. Participants exclusively operating
vessels engaged in domestic trades will
be required to commit 50% of that
capacity to Stage III. Such Participants
will not be required to commit capacity
to Stages I and II as a consideration of
domestic peacetime traffic and/or
contract award. However, such
Participants may voluntarily agree to
commit capacity to Stages I and/or II.
5. The Participant owning, operating,
or controlling an activated ship or ship
capacity will provide intermodal
equipment and management services
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needed to utilize the ship and
equipment at not less than the
Participant’s normal efficiency, in
accordance with the prenegotiated
Contingency contracts implementing
this Agreement.
C. Effective Date and Duration of
Participation
1. Participation in this Agreement is
effective upon execution by MARAD of
the submitted form referenced in
Section VII, and approval by
USTRANSCOM by execution of an
Enrollment Contract, for Stage III, at a
minimum.
2. VISA participation remains in
effect until the Participant terminates
the Agreement in accordance with
paragraph D below, or termination of
the Agreement in accordance with 44
CFR Sec. 332.4. Notwithstanding
termination of VISA or participation in
VISA, obligations pursuant to executed
DoD peacetime contracts shall remain in
effect for the term of such contracts and
are subject to all terms and conditions
thereof.
D. Participant Termination of VISA
1. Except as provided in paragraph 2
below, a Participant may terminate its
participation in VISA upon written
notice to the Administrator. Such
termination shall become effective 30
days after written notice is received,
unless obligations incurred under VISA
by virtue of activation of any
Contingency contract cannot be fulfilled
prior to the termination date, in which
case the Participant shall be required to
complete the performance of such
obligations. Voluntary termination by a
carrier of its VISA participation shall
not act to terminate or otherwise
mitigate any separate contractual
commitment entered into with DoD.
2. A Participant having an MSP
operating agreement with SecTrans
shall not withdraw from this Agreement
at any time during the original term of
the MSP operating agreement.
3. A Participant’s withdrawal, or
termination of this Agreement, will not
deprive a Participant of an antitrust
defense otherwise available to it in
accordance with DPA Section 708 for
the fulfillment of obligations incurred
prior to withdrawal or termination.
4. A Participant otherwise subject to
the DoD SRP that voluntarily withdraws
from this Agreement will become
subject again to the DoD SRP.
E. Rules and Regulations
Each Participant acknowledges and
agrees to abide by all provisions of DPA
Section 708, and regulations related
thereto which are promulgated by the
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Secretary, the Attorney General, and the
Chairman-FTC. Standards and
procedures pertaining to voluntary
agreements have been promulgated in
44 CFR Part 332. 46 CFR Part 340
establishes procedures for assigning the
priority for use and the allocation of
shipping services, containers and
chassis. The JPAG will inform
Participants of new and amended rules
and regulations as they are issued in
accordance with law and administrative
due process. Although Participants may
withdraw from VISA, they remain
subject to all authorized rules and
regulations while in Participant status.
F. Carrier Coordination Agreements
(CCA)
1. When any Stage of VISA is
activated or when DoD has requested
volunteer capacity pursuant to Section
V.B. of VISA, Participants may
implement approved CCAs to meet the
needs of the DoD and to minimize the
disruption of their services to the civil
economy.
2. A CCA for which the parties seek
the benefit of Section 708(j) of the DPA
shall be identified as such and shall be
submitted to the Administrator for
approval and certification in accordance
with Section 708(f)(1)(A) of the DPA.
Upon approval and certification, the
Administrator shall transmit the
Agreement to the Attorney General for
a finding in accordance with Section
708(f)(1)(B) of the DPA. Parties to
approved CCAs may avail themselves of
the antitrust defenses set forth in
Section 708(j) of the DPA. Nothing in
VISA precludes Participants from
engaging in lawful conduct (including
carrier coordination activities) that lies
outside the scope of an approved Carrier
Coordination Agreement; but antitrust
defenses will not be available pursuant
to Section 708(j) of the DPA for such
conduct.
3. Participants may seek approval for
CCAs at any time.
G. Enrollment of Capacity (Ships and
Equipment)
1. A list identifying the ships/capacity
and intermodal equipment committed
by a Participant to each Stage of VISA
will be prepared by the Participant and
submitted to USTRANSCOM within
seven days after a carrier has become a
Participant. USTRANSCOM will
maintain a record of all such
commitments. Participants will notify
USTRANSCOM of any changes not later
than seven days prior to the change.
2. USTRANSCOM will provide a copy
of each Participant’s VISA commitment
data and all changes to MARAD.
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12945
3. Information which a Participant
identifies as privileged or business
confidential/proprietary data shall be
withheld from public disclosure in
accordance with Section 708(h)(3) and
Section 705(e) of the DPA, 5 App. U.S.C.
552(b), and 44 CFR Part 332.
4. Enrolled ships are required to
comply with 46 CFR Part 307,
Establishment of Mandatory Position
Reporting System for Vessels.
H. War Risk Insurance
1. Where commercial war risk
insurance is not available on reasonable
terms and conditions, DOT shall
provide non-premium government war
risk insurance, subject to the provisions
of Section 1205 of the Merchant Marine
Act, 1936, as amended (46 App. U.S.C.
1285(a)).
2. Pursuant to 46 CFR 308.1(c), the
Administrator (or DOT) will find each
ship enrolled or utilized under this
agreement eligible for U.S. Government
war risk insurance.
I. Antitrust Defense
1. Under the provisions of DPA
Section 708, each carrier shall have
available as a defense to any civil or
criminal action brought under the
antitrust laws (or any similar law of any
State) with respect to any action taken
to develop or carry out this Agreement,
that such act was taken in the course of
developing or carrying out this
Agreement and that the Participant
complied with the provisions of DPA
Section 708 and any regulation
thereunder, and acted in accordance
with the terms of this Agreement.
2. This defense shall not be available
to the Participant for any action
occurring after termination of this
Agreement. This defense shall not be
available upon the modification of this
Agreement with respect to any
subsequent action that is beyond the
scope of the modified text of this
Agreement, except that no such
modification shall be accomplished in a
way that will deprive the Participant of
antitrust defense for the fulfillment of
obligations incurred.
3. This defense shall be available only
if and to the extent that the Participant
asserting it demonstrates that the action,
which includes a discussion or
agreement, was within the scope of this
Agreement.
4. The person asserting the defense
bears the burden of proof.
5. The defense shall not be available
if the person against whom it is asserted
shows that the action was taken for the
purpose of violating the antitrust laws.
6. As appropriate, the Administrator,
on behalf of SecTrans, and DoD will
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support agreements filed by Participants
with the Federal Maritime Commission
that are related to the standby or
Contingency implementation of VISA.
J. Breach of Contract Defense
Under the provisions of DPA Section
708, in any action in any Federal or
State court for breach of contract, there
shall be available as a defense that the
alleged breach of contract was caused
predominantly by action taken by a
Participant during an emergency
(including action taken in imminent
anticipation of an emergency) to carry
out this Agreement. Such defense shall
not release the party asserting it from
any obligation under applicable law to
mitigate damages to the greatest extent
possible.
K. Vessel Sharing Agreements (VSA)
1. VISA allows Participants the use of
a VSA to utilize non-Participant U.S.
Flag or foreign-owned and operated
foreign flag vessel capacity as a
substitute for VISA Contingency
capability provided:
a. The foreign flag capacity is utilized
in accordance with cargo preference
laws and regulations.
b. The use of a VSA, either currently
in use or a new proposal, as a
substitution to meet DoD Contingency
requirements is agreed upon by
USTRANSCOM and MARAD.
c. The Participant carrier
demonstrates adequate control over the
offered VSA capacity during the period
of utilization.
d. Service requirements are satisfied.
e. Participant is responsible to DoD
for the carriage or services contracted
for. Though VSA capacity may be
utilized to fulfill a Contingency
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commitment, a Participant’s U.S. Flag
VSA capacity in another Participant’s
vessel shall not act in a manner to
increase a Participant’s capacity
commitment to VISA.
2. Participants will apprise MARAD
and USTRANSCOM in advance of any
change in a VSA of which it is a
member, if such changes reduce the
availability of Participant capacity
provided for in any approved and
accepted Contingency Concept of
Operations.
3. Participants will not act as a broker
for DoD cargo unless requested by
USTRANSCOM.
VII. Application and Agreement
The Administrator, in coordination
with USCINCTRANS has adopted the
form on page 31 (‘‘Application to
Participate in the Voluntary Intermodal
Sealift Agreement’’) on which
intermodal ship operators may apply to
become a Participant in this Agreement.
The form incorporates, by reference, the
terms of this Agreement.
United States of America, Department
of Transportation, Maritime
Administration.
Application To Participate in the Voluntary
Intermodal Sealift Agreement
The applicant identified below hereby
applies to participate in the Maritime
Administration’s agreement entitled
‘‘Voluntary Intermodal Sealift Agreement.’’
The text of said Agreement is published in
lllll Federal Register lllll,
lllll, 19ll. This Agreement is
authorized under Section 708 of the Defense
Production Act of 1950, as amended (50 App.
U.S.C. 2158). Regulations governing this
Agreement appear at 44 CFR Part 332 and are
reflected at 49 CFR Subtitle A.
The applicant, if selected, hereby
acknowledges and agrees to the incorporation
PO 00000
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by reference into this Application and
Agreement of the entire text of the Voluntary
Intermodal Sealift Agreement published in
lllll Federal Register lllll,
lllll, 19ll, as though said text were
physically recited herein.
The Applicant, as a Participant, agrees to
comply with the provisions of Section 708 of
the Defense Production Act of 1950, as
amended, the regulations of 44 CFR Part 332
and as reflected at 49 CFR Subtitle A, and the
terms of the Voluntary Intermodal Sealift
Agreement. Further, the applicant, if selected
as a Participant, hereby agrees to
contractually commit to make specifically
enrolled vessels or capacity, intermodal
equipment and management of intermodal
transportation systems available for use by
the Department of Defense and to other
Participants as discussed in this Agreement
and the subsequent Department of Defense
Voluntary Intermodal Sealift Agreement
Enrollment Contract for the purpose of
meeting national defense requirement.
Attest:
lllllllllllllllllllll
(Corporate Secretary)
(CORPORATE SEAL)
Effective Date:
lllllllllllllllllllll
(Secretary)
(SEAL)
lllllllllllllllllllll
(Applicant-Corporate Name)
lllllllllllllllllllll
(Signature)
lllllllllllllllllllll
(Position Title)
United States of America, Department of
Transportation, Maritime
Administration.
By:
lllllllllllllllllllll
Maritime Administrator
By Order of the Maritime Administrator.
Dated: March 11, 2005.
Joel C. Richard,
Secretary, Maritime Administration.
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EN16MR05.001</GPH>
Federal Register / Vol. 70, No. 50 / Wednesday, March 16, 2005 / Notices
12948
Federal Register / Vol. 70, No. 50 / Wednesday, March 16, 2005 / Notices
[FR Doc. 05–5186 Filed 3–15–05; 8:45 am]
BILLING CODE 4910–81–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
[Docket: RSPA–98–4957]
Request for Public Comments and
Office of Management and Budget
(OMB) Approval of an Existing
Information Collection (2137–0049)
Pipeline and Hazardous
Materials Safety Administration
(PHMSA) Department of Transportation
(DOT).
ACTION: Notice.
AGENCY:
SUMMARY: A person owning or operating
a pipeline facility is required to
maintain records, make reports, and
provide information to the Secretary of
Transportation at the Secretary’s
request. The Secretary, through PHMSA,
uses this information to decide whether
the owner or operator is complying with
the Pipeline Safety Law (49 U.S.C.).
This notice is published (pursuant to
the Paperwork Reduction Act of 1995)
to measure the need for paperwork
collection from gas pipeline operators,
to find ways to minimize the burden on
these operators, to find ways to enhance
the quality of information collected, and
to verify the accuracy of PHMSA’s
estimate of the burden (measured in
work hours) on private entities. This
notice also seeks approval from OMB to
renew the existing approval of this
paperwork collection.
DATES: Comments on this notice must be
received by May 16, 2005 to be assured
of consideration.
ADDRESSES: You may submit written
comments to the docket by any of the
following methods:
• Mail: Dockets Facility, U.S.
Department of Transportation, Room
PL–401, 400 Seventh Street, SW.,
20590–0001. Anyone wanting
confirmation of mailed comments must
include a self-addressed stamped
postcard.
• Hand delivery or courier: Room PL–
401, 400 Seventh Street, SW.,
Washington, DC. The Dockets Facility is
open from 10 am to 5 pm, Monday
through Friday, except Federal holidays.
• Web site: Go to https://dms.dot.gov,
click on ‘‘Comments/Submissions’’ and
follow instructions at the site.
All written comments should identify
the docket number and notice number
stated in the heading of this notice.
Docket access. For copies of this
notice or other material in the docket,
VerDate jul<14>2003
16:45 Mar 15, 2005
Jkt 205001
you may contact the Dockets Facility by
phone (202–366–9329) or visit the
facility at the above street address. For
Web access to the dockets to read and
download filed material, go to https://
dms.dot.gov/search. Then type in the
last four digits of the docket number
shown in the heading of this notice, and
click on ‘‘Search.’’
Anyone can search the electronic
form of all comments filed in any of our
dockets by the name of the individual
submitting the comment (or signing the
comment, if submitted for an
association, business, labor union, etc.).
You may review DOT’s complete
Privacy Act Statement in the April 11,
2000 issue of the Federal Register (65
FR 19477) or go to https://dms.dot.gov.
Interested persons are invited to send
comments regarding the burden
estimated or any other aspect of this
collection of information, including any
of the following subjects: (1) The
necessity and utility of the proposed
information collection for the proper
performance of the agency’s functions;
(2) the accuracy of the estimated
burden; (3) ways to enhance the quality,
utility, and clarity of the information to
be collected; and (4) the use of
automated collection techniques or
other forms of information technology to
minimize the information collection
burden.
information and also ensure that gas
pipelines are operated in a safe manner.
As used in this notice, ‘information
collection’ and ‘paperwork collection’
are synonymous, and include all work
related to preparing and disseminating
information related to this
recordkeeping requirement including
completing paperwork, gathering
information and conducting telephone
calls.
Type of Information Collection
Request: Renewal of Existing Collection.
Title of Information Collection:
Recordkeeping for Gas Pipeline
Operators.
OMB Approval Number: 2137–0049.
Frequency: Annually, and as needed.
Use: This collection is used by
PHMSA to ensure its statutory mandates
for gas pipeline safety.
Estimated Number of Respondents:
22,300.
Respondents: Gas pipeline operators.
Total Annual Hours Requested:
940,991.
Issued in Washington, DC, on March 7,
2005.
Theodore L. Willke,
Deputy Associate Administrator for Pipeline
Safety.
[FR Doc. 05–5190 Filed 3–15–05; 8:45 am]
BILLING CODE 4910–60–P
DEPARTMENT OF TRANSPORTATION
FOR FURTHER INFORMATION CONTACT:
Florence Hamn, Office of Pipeline
Safety, PHMSA, DOT, 400 Seventh
Street, SW., Washington, DC 20590
(202) 366–3015 or by e-mail at
Florence.Hamn@dot.gov.
The
Pipeline Safety Law (49 U.S.C. Chapter
601) grants the Secretary of
Transportation the authority to
prescribe minimum safety standards for
pipeline transportation and for pipeline
facilities. To enable the Secretary to
decide whether a person owning or
operating a pipeline facility is
complying with this chapter and
standards prescribed or orders issued
under this chapter, the person is
required to (i) maintain records, make
reports, and provide information the
Secretary requires; and (ii) make the
records, reports, and information
available when the Secretary requests.
These records help ascertain
compliance and provide information for
incident investigation. PHMSA is
requesting comments from gas pipeline
operators regarding the burden
associated with providing
recordkeeping requirements. The
feedback from this request will assist
PHMSA in assessing how it collects this
SUPPLEMENTARY INFORMATION:
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Pipeline and Hazardous Materials
Safety Administration
[Docket: RSPA–01–8663]
Request for Public Comments and
Office of Management and Budget
(OMB) Approval of an Existing
Information Collection (2137–0047)
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), Department of Transportation
(DOT).
ACTION: Notice.
AGENCY:
SUMMARY: This notice seeks public
comment on the need for PHMSA to
collect paperwork information from
hazardous liquid pipeline operators.
The mission of PHMSA is to ensure the
safe, reliable, and environmentally
sound operation of the nation’s
approximately 154,000 miles of
hazardous liquid pipelines. The
requested paperwork will ensure that
PHMSA can identify any trends in
hazardous liquid pipeline safety and
share it with the stakeholders for
effective inspection programs,
minimizing incidents. This notice is
published (pursuant to the Paperwork
Reduction Act of 1995) to measure the
E:\FR\FM\16MRN1.SGM
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]]>Agencies
[Federal Register Volume 70, Number 50 (Wednesday, March 16, 2005)]
[Notices]
[Pages 12938-12948]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5186]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Maritime Administration
Voluntary Intermodal Sealift Agreement
AGENCY: Maritime Administration, DOT.
[[Page 12939]]
ACTION: Notice of Voluntary Intermodal Sealift Agreement (VISA).
-----------------------------------------------------------------------
SUMMARY: The Maritime Administration (MARAD) announces the extension of
the Voluntary Intermodal Sealift Agreement (VISA) until September 30,
2005, pursuant to provision of the Defense Production Act of 1950, as
amended. The purpose of the VISA is to make intermodal shipping
services/systems, including ships, ships' space, intermodal equipment
and related management services, available to the Department of Defense
as required to support the emergency deployment and sustainment of U.S.
military forces. This is to be accomplished through cooperation among
the maritime industry, the Department of Transportation and the
Department of Defense.
FOR FURTHER INFORMATION CONTACT: Taylor E. Jones II, Director, Office
of Sealift Support, Room 7304, Maritime Administration, 400 Seventh
Street SW., Washington, DC 20590, (202) 366-3423, Fax (202) 366-3128.
SUPPLEMENTARY INFORMATION: Section 708 of the Defense Production Act of
1950, as amended, (50 U.S.C. App. 2158), as implemented by regulations
of the Federal Emergency Management Agency (44 CFR Part 332),
``Voluntary agreements for preparedness programs and expansion of
production capacity and supply'', authorizes the President, upon a
finding that conditions exist which may pose a direct threat to the
national defense or its preparedness programs, ``* * * to consult with
representatives of industry, business, financing, agriculture, labor
and other interests * * *'' in order to provide the making of such
voluntary agreements. It further authorizes the President to delegate
that authority to individuals who are appointed by and with the advice
and consent of the Senate, upon the condition that such individuals
obtain the prior approval of the Attorney General after the Attorney
General's consultation with the Federal Trade Commission. Section 501
of Executive Order 12919, as amended, delegated this authority of the
President to the Secretary of Transportation (Secretary), among others.
By DOT Order 1900.9, the Secretary delegated to the Maritime
Administrator the authority under which the VISA is sponsored. Through
advance arrangements in joint planning, it is intended that
participants in VISA will provide capacity to support a significant
portion of surge and sustainment requirements in the deployment of U.S.
military forces during war or other national emergency.
The text of the VISA was first published in the Federal Register on
February 13, 1997, to be effective for a two-year term until February
13, 1999. The VISA document has been extended and subsequently
published in the Federal Register every two years. The last extension
was published on February 25, 2003. The text of the VISA herein is
identical to the text previously published in the Federal Register.
The text published herein will now be implemented. Copies will be
made available to the public upon request.
Text of the Voluntary Intermodal Sealift Agreement:
Voluntary Intermodal Sealift Agreement (VISA)
9 December 1996
Table of Contents
Abbreviations
Definitions
Preface
I. Purpose
II. Authorities
A. MARAD
B. USTRANSCOM
III. General
A. Concept
B. Responsibilities
C. Termination of Charter, Leases and Other Contractual
Arrangements
D. Modification/Amendment of This Agreement
E. Administrative Expenses
F. Record Keeping
G. MARAD Reporting Requirements
IV. Joint Planning Advisory Group
V. Activation of VISA Contingency Provisions
A. General
B. Notification of Activation
C. Voluntary Capacity
D. Stage I
E. Stage II
F. Stage III
G. Partial Activation
VI. Terms and Conditions
A. Participation
B. Agreement of Participant
C. Effective Date and Duration of Participation
D. Participant Termination of VISA
E. Rules and Regulations
F. Carrier Coordination Agreements
G. Enrollment of Capacity (Ships and Equipment)
H. War Risk Insurance
I. Antitrust Defense
J. Breach of Contract Defense
K. Vessel Sharing Agreements
VII. Application and Agreement
Figure 1--VISA Activation Process Diagram
Abbreviations
``AMC''--Air Mobility Command
``CCA''--Carrier Coordination Agreements
``CDS''--Construction Differential Subsidy
``CFR''--Code of Federal Regulations
``CONOPS''--Concept of Operations
``DoD''--Department of Defense
``DOJ''--Department of Justice
``DOT''--Department of Transportation
``DPA''--Defense Production Act
``EUSC''--Effective United States Control
``FAR''--Federal Acquisition Regulations
``FEMA''--Federal Emergency Management Agency
``FTC''--Federal Trade Commission
``JCS''--Joint Chiefs of Staff
``JPAG''--Joint Planning Advisory Group
``MARAD''--Maritime Administration, DOT
``MSP''--Maritime Security Program
``MSC''--Military Sealift Command
``MTMC''--Military Transportation Management Command
``NCA''--National Command Authorities
``NDRF''--National Defense Reserve Fleet maintained by MARAD
``ODS''--Operating Differential Subsidy
``RRF''--Ready Reserve Force component of the NDRF
``SecDef''--Secretary of Defense
``SecTrans''--Secretary of Transportation
``USCINCTRANS''--Commander in Chief, United States Transportation
Command
``USTRANSCOM''--United States Transportation Command (including its
sealift transportation component, Military Sealift Command)
``VISA''--Voluntary Intermodal Sealift Agreement
``VSA''--Vessel Sharing Agreement
Definitions--For purposes of this agreement, the following
definitions apply:
Administrator--Maritime Administrator.
Agreement--Agreement (proper noun) refers to the Voluntary
Intermodal Sealift Agreement (VISA).
Attorney General--Attorney General of the United States.
Broker--A person who arranges for transportation of cargo for a
fee.
Carrier Coordination Agreement (CCA)--An agreement between two or
more Participants or between Participant and non-Participant carriers
to coordinate their services in a Contingency, including agreements to:
(i) Charter vessels or portions of the cargo-carrying capacity of
vessels; (ii) share cargo handling equipment, chassis, containers and
ancillary transportation equipment; (iii) share
[[Page 12940]]
wharves, warehouse, marshaling yards and other marine terminal
facilities; and (iv) coordinate the movement of vessels.
Chairman--FTC--Chairman of the Federal Trade Commission (FTC).
Charter--Any agreement or commitment by which the possession or
services of a vessel are secured for a period of time, or for one or
more voyages, whether or not a demise of the vessel.
Commercial--Transportation service provided for profit by privately
owned (not government owned) vessels to a private or government
shipper. The type of service may be either common carrier or contract
carriage.
Contingency--Includes, but is not limited to a ``contingency
operation'' as defined at 10 App. U.S.C. 101(a)(13), and a JCS-
directed, NCA-approved action undertaken with military forces in
response to: (i) Natural disasters; (ii) terrorists or subversive
activities; or (iii) required military operations, whether or not there
is a declaration of war or national emergency.
Contingency contracts--DoD contracts in which Participants
implement advance commitments of capacity and services to be provided
in the event of a Contingency.
Contract carrier--A for-hire carrier who does not hold out regular
service to the general public, but instead contracts, for agreed
compensation, with a particular shipper for the carriage of cargo in
all or a particular part of a ship for a specified period of time or on
a specified voyage or voyages.
Controlling interest--More than a 50-percent interest by stock
ownership.
Director--FEMA--Director of Federal Emergency Management Agency
(FEMA).
Effective U.S. Control (EUSC)--U.S. citizen-owned ships which are
registered in certain open registry countries and which the United
States can rely upon for defense in national security emergencies. The
term has no legal or other formal significance. U.S. citizen-owned
ships registered in Liberia, Panama, Honduras, the Bahamas and the
Republic of the Marshall Islands are considered under effective U.S.
control. EUSC registries are recognized by the Maritime Administration
after consultation with the Department of Defense. (MARAD OPLAN 001A,
17 July 1990)
Enrollment Contract--The document, executed and signed by MSC, and
the individual carrier enrolling that carrier into VISA Stage III.
Foreign flag vessel--A vessel registered or documented under the
law of a country other than the United States of America.
Intermodal equipment--Containers (including specialized equipment),
chassis, trailers, tractors, cranes and other materiel handling
equipment, as well as other ancillary items.
Liner--Type of service offered on a definite, advertised schedule
and giving relatively frequent sailings at regular intervals between
specific ports or ranges.
Liner throughput capacity--The system/intermodal capacity available
and committed, used or unused, depending on the system cycle time
necessary to move the designated capacity through to destination. Liner
throughput capacity shall be calculated as: static capacity (outbound
from CONUS) X voyage frequency X.5.
Management services--Management expertise and experience,
intermodal terminal management, information resources, and control and
tracking systems.
Ocean Common carrier--An entity holding itself out to the general
public to provide transportation by water of passengers or cargo for
compensation; which assumes responsibility for transportation from port
or point of receipt to port or point of destination; and which operates
and utilizes a vessel operating on the high seas for all or part of
that transportation. (As defined in 46 App. U.S.C. 1702, 801, and 842
regarding international, interstate, and intercoastal commerce
respectively.)
Operator--An ocean common carrier or contract carrier that owns or
controls or manages vessels by which ocean transportation is provided.
Organic sealift--Ships considered to be under government control or
long-term charter--Fast Sealift Ships, Ready Reserve Force and
commercial ships under long-term charter to DoD.
Participant--A signatory party to VISA, and otherwise as defined
within Section VI of this document.
Person--Includes individuals and corporations, partnerships, and
associations existing under or authorized by the laws of the United
States or any state, territory, district, or possession thereof, or of
a foreign country.
SecTrans--Secretary of Transportation.
Service contract--A contract between a shipper (or a shipper's
association) and an ocean common carrier (or conference) in which the
shipper makes a commitment to provide a certain minimum quantity of
cargo or freight revenue over a fixed time period, and the ocean common
carrier or conference commits to a certain rate or rate schedule, as
well as a defined service level (such as assured space, transit time,
port rotation, or similar service features), as defined in the Shipping
Act of 1984. The contract may also specify provisions in the event of
nonperformance on the part of either party.
Standby period--The interval between the effective date of a
Participant's acceptance into the Agreement and the activation of any
stage, and the periods between deactivation of all stages and any later
activation of any stage.
U.S. Flag Vessel--A vessel registered or documented under the laws
of the United States of America.
USTRANSCOM--The United States Transportation Command and its
component commands (AMC, MSC and MTMC).
Vessel Sharing Agreement (VSA) Capacity--Space chartered to a
Participant for carriage of cargo, under its commercial contracts,
service contracts or in common carriage, aboard vessels shared with
another carrier or carriers pursuant to a commercial vessel sharing
agreement under which the carriers may compete with each other for the
carriage of cargo. In U.S. foreign trades the agreement is filed with
the Federal Maritime Commission (FMC) in conformity with the Shipping
Act of 1984 and implementing regulations.
Volunteers--Any vessel owner/operator who is an ocean carrier and
who offers to make capacity, resources or systems available to support
contingency requirements.
Preface
The Administrator, pursuant to the authority contained in Section
708 of the Defense Production Act of 1950, as amended (50 App. U.S.C.
2158)(Section 708)(DPA), in cooperation with the Department of Defense
(DoD), has developed this Agreement [hereafter called the Voluntary
Intermodal Sealift Agreement (VISA)] to provide DoD the commercial
sealift and intermodal shipping services/systems necessary to meet
national defense Contingency requirements.
USTRANSCOM procures commercial shipping capacity to meet
requirements for ships and intermodal shipping services/systems through
arrangements with common carriers, with contract carriers and by
charter. DoD (through USTRANSCOM) and Department of Transportation
(DOT) (through MARAD) maintain and operate a fleet of ships owned by or
under charter to the Federal Government to meet the logistic needs of
the military services which cannot be met by existing commercial
service. Ships of the Ready Reserve Force (RRF) are selectively
activated for
[[Page 12941]]
peacetime military tests and exercises, and to satisfy military
operational requirements which cannot be met by commercial shipping in
time of war, national emergency, or military Contingency. Foreign-flag
shipping is used in accordance with applicable laws, regulations and
policies.
The objective of VISA is to provide DoD a coordinated, seamless
transition from peacetime to wartime for the acquisition of commercial
sealift and intermodal capability to augment DoD's organic sealift
capabilities. This Agreement establishes the terms, conditions and
general procedures by which persons or parties may become VISA
Participants. Through advance joint planning among USTRANSCOM, MARAD
and the Participants, Participants may provide predetermined capacity
in designated stages to support DoD Contingency requirements.
VISA is designed to create close working relationships among MARAD,
USTRANSCOM and Participants through which Contingency needs and the
needs of the civil economy can be met by cooperative action. During
Contingencies, Participants are afforded maximum flexibility to adjust
commercial operations by Carrier Coordination Agreements (CCA), in
accordance with applicable law.
Participants will be afforded the first opportunity to meet DoD
peacetime and Contingency sealift requirements within applicable law
and regulations, to the extent that operational requirements are met.
In the event VISA Participants are unable to fully meet Contingency
requirements, the shipping capacity made available under VISA may be
supplemented by ships/capacity from non-Participants in accordance with
applicable law and by ships requisitioned under Section 902 of the
Merchant Marine Act, 1936 (as amended) (46 App. U.S.C. 1242). In
addition, containers and chassis made available under VISA may be
supplemented by services and equipment acquired by USTRANSCOM or
accessed by the Administrator through the provisions of 46 CFR Part
340.
The Secretary of Defense (SecDef) has approved VISA as a sealift
readiness program for the purpose of Section 909 of the Merchant Marine
Act, 1936, as amended (46 App. U.S.C. 1248).
Voluntary Intermodal Sealift Agreement
I. Purpose
A. The Administrator has made a determination, in accordance with
Section 708(c)(1) of the Defense Production Act (DPA) of 1950, that
conditions exist which may pose a direct threat to the national defense
of the United States or its preparedness programs and, under the
provisions of Section 708, has certified to the Attorney General that a
standby agreement for utilization of intermodal shipping services/
systems is necessary for the national defense. The Attorney General, in
consultation with the Chairman of the Federal Trade Commission, has
issued a finding that dry cargo shipping capacity to meet national
defense requirements cannot be provided by the industry through a
voluntary agreement having less anticompetitive effects or without a
voluntary agreement.
B. The purpose of VISA is to provide a responsive transition from
peace to Contingency operations through pre-coordinated agreements for
sealift capacity to support DoD Contingency requirements. VISA
establishes procedures for the commitment of intermodal shipping
services/systems to satisfy such requirements. VISA will change from
standby to active status upon activation by appropriate authority of
any of the Stages, as described in Section V.
C. It is intended that VISA promote and facilitate DoD's use of
existing commercial transportation resources and integrated intermodal
transportation systems, in a manner which minimizes disruption to
commercial operations, whenever possible.
D. Participants' capacity which may be committed pursuant to this
Agreement may include all intermodal shipping services/systems and all
ship types, including container, partial container, container/bulk,
container/roll-on/roll-off, roll-on/roll-off (of all varieties),
breakbulk ships, tug and barge combinations, and barge carrier (LASH,
SeaBee).
II. Authorities
A. MARAD
1. Sections 101 and 708 of the DPA, as amended (50 App. U.S.C.
2158); Executive Order 12919, 59 FR 29525, June 7, 1994; Executive
Order 12148, 3 CFR 1979 Comp., p. 412, as amended; 44 CFR Part 332; DOT
Order 1900.8; 46 CFR Part 340.
2. Section 501 of Executive Order 12919, as amended, delegated the
authority of the President under Section 708 to SecTrans, among others.
By DOT Order 1900.8, SecTrans delegated to the Administrator the
authority under which VISA is sponsored.
B. USTRANSCOM
1. Section 113 and Chapter 6 of Title 10 of the United States Code.
2. DoD Directive 5158.4 designating USCINCTRANS to provide air,
land, and sea transportation for the DoD.
III. General
A. Concept
1. VISA provides for the staged, time-phased availability of
Participants' shipping services/systems to meet NCA-directed DoD
Contingency requirements in the most demanding defense oriented sealift
emergencies and for less demanding defense oriented situations through
prenegotiated Contingency contracts between the government and
Participants (see Figure 1). Such arrangements will be jointly planned
with MARAD, USTRANSCOM, and Participants in peacetime to allow
effective, and efficient and best valued use of commercial sealift
capacity, provide DoD assured Contingency access, and minimize
commercial disruption, whenever possible.
a. Stages I and II provide for prenegotiated contracts between the
DoD and Participants to provide sealift capacity against all projected
DoD Contingency requirements. These agreements will be executed in
accordance with approved DoD contracting methodologies.
b. Stage III will provide for additional capacity to the DoD when
Stages I and II commitments or volunteered capacity are insufficient to
meet Contingency requirements, and adequate shipping services from non-
Participants are not available through established DoD contracting
practices or U.S. Government treaty agreements.
2. Activation will be in accordance with procedures outlined in
Section V of this Agreement.
3. Following is the prioritized order for utilization of commercial
sealift capacity to meet DoD peacetime and Contingency requirements:
a. U.S. Flag vessel capacity operated by a Participant and U.S.
Flag Vessel Sharing Agreement (VSA) capacity of a Participant.
b. U.S. Flag vessel capacity operated by a non-Participant.
c. Combination U.S./foreign flag vessel capacity operated by a
Participant and combination U.S./foreign flag VSA capacity of a
Participant.
d. Combination U.S./foreign flag vessel capacity operated by a non-
Participant.
e. U.S. owned or operated foreign flag vessel capacity and VSA
capacity of a Participant.
[[Page 12942]]
f. U.S. owned or operated foreign flag vessel capacity and VSA
capacity of a non-Participant.
g. Foreign-owned or operated foreign flag vessel capacity of a non-
Participant.
4. Under Section VI.F. of this Agreement, Participants may
implement CCAs to fulfill their contractual commitments to meet VISA
requirements.
B. Responsibilities
1. The SecDef, through USTRANSCOM, shall:
a. Define time-phased requirements for Contingency sealift capacity
and resources required in Stages I, II and III to augment DoD sealift
resources.
b. Keep MARAD and Participants apprised of Contingency sealift
capacity required and resources committed to Stages I and II.
c. Obtain Contingency sealift capacity through the implementation
of specific prenegotiated DoD Contingency contracts with Participants.
d. Notify the Administrator upon activation of any stage of VISA.
e. Co-chair (with MARAD) the Joint Planning Advisory Group (JPAG).
f. Establish procedures, in accordance with applicable law and
regulation, providing Participants with necessary determinations for
use of foreign flag vessels to replace an equivalent U.S. Flag capacity
to transport a Participant's normal peacetime DoD cargo, when
Participant's U.S. Flag assets are removed from regular service to meet
VISA Contingency requirements.
g. Provide a reasonable time to permit an orderly return of a
Participant's vessel(s) to its regular schedule and termination of its
foreign flag capacity arrangements as determined through coordination
between DoD and the Participants.
h. Review and endorse Participants' requests to MARAD for use of
foreign flag replacement capacity for non-DoD government cargo, when
U.S. Flag capacity is required to meet Contingency requirements.
2. The SecTrans, through MARAD, shall:
a. Review the amount of sealift resources committed in DoD
contracts to Stages I and II and notify USTRANSCOM if a particular
level of VISA commitment will have serious adverse impact on the
commercial sealift industry's ability to provide essential services.
MARAD's analysis shall be based on the consideration that all VISA
Stage I and II capacity committed will be activated. This notification
will occur on an annual basis upon USCINCTRANS' acceptance of VISA
commitments from the Participants. If so advised by MARAD, USTRANSCOM
will adjust the size of the stages or provide MARAD with justification
for maintaining the size of those stages. USTRANSCOM and MARAD will
coordinate to ensure that the amount of sealift assets committed to
Stages I and II will not have an adverse, national economic impact.
b. Coordinate with DOJ for the expedited approval of CCAs.
c. Upon request by USCINCTRANS and approval by SecDef to activate
Stage III, allocate sealift capacity and intermodal assets to meet DoD
Contingency requirements. DoD shall have priority consideration in any
allocation situation.
d. Establish procedures, pursuant to Section 653(d) of the Maritime
Security Act (MSA), for determinations regarding the equivalency and
duration of the use of foreign flag vessels to replace U.S. Flag vessel
capacity to transport the cargo of a Participant which has entered into
an operating agreement under Section 652 of the MSA and whose U.S. Flag
vessel capacity has been removed from regular service to meet VISA
contingency requirements. Such foreign flag vessels shall be eligible
to transport cargo subject to the Cargo Preference Act of 1904 (10
U.S.C. 2631), P.R. 17 (46 App. U.S.C. 1241-1), and P.L. 664 (46 App.
U.S.C. 1241(b)). However, any procedures regarding the use of such
foreign flag vessels to transport cargo subject to the Cargo Preference
Act of 1904 must have the concurrence of USTRANSCOM before it becomes
effective.
e. Co-chair (with USTRANSCOM) the JPAG.
f. Seek necessary Jones Act waivers as required. To the extent
feasible, participants with Jones Act vessels or vessel capacity will
use CCAs or other arrangements to protect their ability to maintain
services for their commercial customers and to fulfill their commercial
peacetime commitments with U.S. Flag vessels. In situations where the
activation of this Agreement deprives a Participant of all or a portion
of its Jones Act vessels or vessel capacity and, at the same time,
creates a general shortage of Jones Act vessel(s) or vessel capacity on
the market, the Administrator may request that the Secretary of the
Treasury grant a temporary waiver of the provisions of the Jones Act to
permit a Participant to charter or otherwise utilize non-Jones Act
vessel(s) or vessel capacity, with priority consideration recommended
for U.S. crewed vessel(s) or vessel capacity. The vessel(s) or vessel
capacity for which such waivers are requested will be approximately
equal to the Jones Act vessel(s) or vessel capacity chartered or under
contract to the DoD, and any waiver that may be granted will be
effective for the period that the Jones Act vessel(s) or vessel
capacity is on charter or under contract to the DoD plus a reasonable
time for termination of the replacement charters as determined by the
Administrator.
C. Termination of Charters, Leases and Other Contractual Arrangements
1. USTRANSCOM will notify the Administrator as soon as possible of
the prospective termination of charters, leases, management service
contracts or other contractual arrangements made by the DoD under this
Agreement.
2. In the event of general requisitioning of ships under 46 App.
U.S.C. 1242, the Administrator shall consider commitments made with the
DoD under this Agreement.
D. Modification/Amendment of This Agreement
1. The Attorney General may modify this Agreement, in writing,
after consultation with the Chairman-FTC, SecTrans, through his
representative MARAD, and SecDef, through his representative
USCINCTRANS. Although Participants may withdraw from this Agreement
pursuant to Section VI.D, they remain subject to VISA as amended or
modified until such withdrawal.
2. The Administrator, USCINCTRANS and Participants may modify this
Agreement at any time by mutual agreement, but only in writing with the
approval of the Attorney General and the Chairman-FTC.
3. Participants may propose amendments to this Agreement at any
time.
E. Administrative Expenses
Administrative and out-of-pocket expenses incurred by a participant
shall be borne solely by the participant.
F. Record Keeping
1. MARAD has primary responsibility for maintaining carrier VISA
application records in connection with this Agreement. Records will be
maintained in accordance with MARAD Regulations. Once a carrier is
selected as a VISA Participant, a copy of the VISA application form
will be forwarded to USTRANSCOM.
2. In accordance with 44 CFR 332.2(c), MARAD is responsible for the
making and record maintenance of a full and verbatim transcript of each
JPAG meeting. MARAD shall send this transcript, and any voluntary
agreement resulting from the meeting, to the
[[Page 12943]]
Attorney General, the Chairman-FTC, the Director-FEMA, any other party
or repository required by law and to Participants upon their request.
3. USTRANSCOM shall be the official custodian of records related to
the contracts to be used under this Agreement, to include specific
information on enrollment of a Participant's capacity in VISA.
4. In accordance with 44 CFR 332.3(d), a Participant shall maintain
for five (5) years all minutes of meetings, transcripts, records,
documents and other data, including any communications with other
Participants or with any other member of the industry or their
representatives, related to the administration, including planning
related to and implementation of Stage activations of this Agreement.
Each Participant agrees to make such records available to the
Administrator, USCINCTRANS, the Attorney General, and the Chairman-FTC
for inspection and copying at reasonable times and upon reasonable
notice. Any record maintained by MARAD or USTRANSCOM pursuant to
paragraphs 1, 2, or 3 of this subsection shall be available for public
inspection and copying unless exempted on the grounds specified in 5
U.S.C 552(b) or identified as privileged and confidential information
in accordance with Section 708(e).
G. MARAD Reporting Requirements
MARAD shall report to the Director-FEMA, as required, on the status
and use of this agreement.
IV. Joint Planning Advisory Group
A. The JPAG provides USTRANSCOM, MARAD and VISA Participants a
planning forum to:
1. Analyze DoD Contingency sealift/intermodal service and resource
requirements.
2. Identify commercial sealift capacity that may be used to meet
DoD requirements, related to Contingencies and, as requested by
USTRANSCOM, exercises and special movements.
3. Develop and recommend Concepts of Operations (CONOPS) to meet
DoD-approved Contingency requirements and, as requested by USTRANSCOM,
exercises and special movements.
B. The JPAG will be co-chaired by MARAD and USTRANSCOM, and will
convene as jointly determined by the co-chairs.
C. The JPAG will consist of designated representatives from MARAD,
USTRANSCOM, each Participant, and maritime labor. Other attendees may
be invited at the discretion of the co-chairs as necessary to meet JPAG
requirements. Representatives will provide technical advice and support
to ensure maximum coordination, efficiency and effectiveness in the use
of Participants' resources. All Participants will be invited to all
open JPAG meetings. For selected JPAG meetings, attendance may be
limited to designated Participants to meet specific operational
requirements.
1. The co-chairs may establish working groups within JPAG.
Participants may be assigned to working groups as necessary to develop
specific CONOPS.
2. Each working group will be co-chaired by representatives
designated by MARAD and USTRANSCOM.
D. The JPAG will not be used for contract negotiations and/or
contract discussions between carriers and the DoD; such negotiations
and/or discussions will be in accordance with applicable DoD
contracting policies and procedures.
E. The JPAG co-chairs shall:
1. Notify the Attorney General, the Chairman-FTC, Participants and
the maritime labor representative of the time, place and nature of each
JPAG meeting.
2. Provide for publication in the Federal Register of a notice of
the time, place and nature of each JPAG meeting. If the meeting is
open, a Federal Register notice will be published reasonably in advance
of the meeting. If a meeting is closed, a Federal Register notice will
be published within ten (10) days after the meeting and will include
the reasons for closing the meeting.
3. Establish the agenda for each JPAG meeting and be responsible
for adherence to the agenda.
4. Provide for a full and complete transcript or other record of
each meeting and provide one copy each of transcript or other record to
the Attorney General, the Chairman-FTC, and to Participants, upon
request.
F. Security Measures--The co-chairs will develop and coordinate
appropriate security measures so that Contingency planning information
can be shared with Participants to enable them to plan their
commitments.
V. Activation of VISA Contingency Provisions
A. General
VISA may be activated at the request of USCINCTRANS, with approval
of SecDef, as needed to support Contingency operations. Activating
voluntary commitments of capacity to support such operations will be in
accordance with prenegotiated Contingency contracts between DoD and
Participants.
B. Notification of Activation
1. USCINCTRANS will notify the Administrator of the activation of
Stages I, II, and III.
2. The Administrator shall notify the Attorney General and the
Chairman-FTC when it has been determined by DoD that activation of any
Stage of VISA is necessary to meet DoD Contingency requirements.
C. Voluntary Capacity
1. Throughout the activation of any Stages of this Agreement, DoD
may utilize voluntary commitment of sealift capacity or systems.
2. Requests for volunteer capacity will be extended simultaneously
to both Participants and other carriers. First priority for utilization
will be given to Participants who have signed Stage I and/or II
contracts and are capable of meeting the operational requirements.
Participants providing voluntary capacity may request USTRANSCOM to
activate their prenegotiated Contingency contracts; to the maximum
extent possible, USTRANSCOM, where appropriate, shall support such
requests. Volunteered capacity will be credited against Participants'
staged commitments, in the event such stages are subsequently
activated.
3. In the event Participants are unable to fully meet Contingency
requirements, or do not voluntarily offer to provide the required
capacity, the shipping capacity made available under VISA may be
supplemented by ships/capacity from non-Participants.
4. When voluntary capacity does not meet DoD Contingency
requirements, DoD will activate the VISA stages as necessary.
D. Stage I
1. Stage I will be activated in whole or in part by USCINCTRANS,
with approval of SecDef, when voluntary capacity commitments are
insufficient to meet DoD Contingency requirements. USCINCTRANS will
notify the Administrator upon activation.
2. USTRANSCOM will implement Stage I Contingency contracts as
needed to meet operational requirements.
E. Stage II
1. Stage II will be activated, in whole or in part, when
Contingency requirements exceed the capability of Stage I and/or
voluntarily committed resources.
2. Stage II will be activated by USCINCTRANS, with approval of
SecDef, following the same procedures discussed in paragraph D above.
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F. Stage III
1. Stage III will be activated, in whole or in part, when
Contingency requirements exceed the capability of Stages I and II, and
other shipping services are not available. This stage involves DoD use
of capacity and vessels operated by Participants which will be
furnished to DoD when required in accordance with this Agreement. The
capacity and vessels are allocated by MARAD on behalf of SecTrans to
USCINCTRANS.
2. Stage III will be activated by USCINCTRANS upon approval by
SecDef. Upon activation, DoD SecDef will request SecTrans to allocate
sealift capacity based on DoD requirements, in accordance with Title 1
of DPA, to meet the Contingency requirement. All Participants' capacity
committed to VISA is subject to use during Stage III.
3. Upon allocation of sealift assets by SecTrans, through its
designated representative MARAD, USTRANSCOM will negotiate and execute
Contingency contracts with Participants, using pre-approved rate
methodologies as established jointly by SecTrans and SecDef in
fulfillment of Section 653 of the Maritime Security Act of 1996. Until
execution of such contract, the Participant agrees that the assets
remain subject to the provisions of Section 902 of the Merchant Marine
Act of 1936, Title 46 App. U.S.C. 1242.
4. Simultaneously with activation of Stage III, the DoD Sealift
Readiness Program (SRP) will be activated for those carriers still
under obligation to that program.
G. Partial Activation
As used in this Section V, activation ``in part'' of any Stage
under this Agreement shall mean one of the following:
1. Activation of only a portion of the committed capacity of some,
but not all, of the Participants in any Stage that is activated; or
2. Activation of the entire committed capacity of some, but not
all, of the Participants in any Stage that is activated; or
3. Activation of only a portion of the entire committed capacity of
all of the Participants in any Stage that is activated.
VI. Terms and Conditions
A. Participation
1. Any U.S. Flag vessel operator organized under the laws of a
State of the United States, or the District of Columbia, may become a
``Participant'' in this Agreement by submitting an executed copy of the
form referenced in Section VII, and by entering into a VISA Enrollment
Contract with DoD which establishes a legal obligation to perform and
which specifies payment or payment methodology for all services
rendered.
2. The term ``Participant'' includes the entity described in VI.A.1
above, and all United States subsidiaries and affiliates of the entity
which own, operate, charter or lease ships and intermodal equipment in
the regular course of their business and in which the entity holds a
controlling interest.
3. Upon request of the entity executing the form referenced in
Section VII, the term ``Participant'' may include the controlled non-
domestic subsidiaries and affiliates of such entity signing this
Agreement, provided that the Administrator, in coordination with
USCINCTRANS, grants specific approval for their inclusion.
4. Any entity receiving payments under the Maritime Security
Program (MSP), pursuant to the Maritime Security Act of 1996 (MSA)
(Pub. L. 104-239), shall become a ``Participant'' with respect to all
vessels enrolled in MSP at all times until the date the MSP operating
agreement would have terminated according to its original terms. The
MSP operator shall be enrolled in VISA as a Stage III Participant, at a
minimum. Such participation will satisfy the requirement for an MSP
participant to be enrolled in an emergency preparedness program
approved by SecDef as provided in Section 653 of the MSA.
5. A Participant shall be subject only to the provisions of this
Agreement and not to the provisions of the SRP.
6. MARAD shall publish periodically in the Federal Register a list
of Participants.
B. Agreement of Participant
1. Each Participant agrees to provide commercial sealift and/or
intermodal shipping services/systems in accordance with DoD Contingency
contracts. USTRANSCOM will review and approve each Participant's
commitment to ensure it meets DoD Contingency requirements. A
Participant's capacity commitment to Stages I and II will be one of the
considerations in determining the level of DoD peacetime contracts
awarded with the exception of Jones Act capacity (as discussed in
paragraph 4 below).
2. DoD may also enter into Contingency contracts, not linked to
peacetime contract commitments, with Participants, as required to meet
Stage I and II requirements.
3. Commitment of Participants' resources to VISA is as follows:
a. Stage III: A carrier desiring to participate in DoD peacetime
contracts/traffic must commit no less than 50% of its total U.S. Flag
capacity into Stage III. Carriers receiving DOT payments under the MSP,
or carriers subject to Section 909 of Merchant Marine Act of 1936, as
amended, that are not enrolled in the SRP will have vessels receiving
such assistance enrolled in Stage III. Participants' capacity under
charter to DoD will be considered ``organic'' to DoD, and does not
count towards the Participant's Contingency commitment during the
period of the charter. Participants utilized under Stage III activation
will be compensated based upon a DoD pre-approved rate methodology.
b. Stages I and II: DoD will annually develop and publish minimum
commitment requirements for Stages I and II. Normally, the awarding of
a long-term (i.e., one year or longer) DoD contract, exclusive of
charters, will include the annual predesignated minimum commitment to
Stages I and/or II. Participants desiring to bid on DoD peacetime
contracts will be required to provide commitment levels to meet DoD-
established Stage I and/or II minimums on an annual basis. Participants
may gain additional consideration for peacetime contract cargo
allocation awards by committing capacity to Stages I and II beyond the
specified minimums. If the Participant is awarded a contract reflecting
such a commitment, that commitment shall become the actual amount of a
Participant's U.S. Flag capacity commitment to Stages I and II. A
Participant's Stage III U.S. Flag capacity commitment shall represent
its total minimum VISA commitment. That Participant's Stage I and II
capacity commitments as well as any volunteer capacity contribution by
Participant are portions of Participant's total VISA commitment.
Participants activated during Stages I and II will be compensated in
accordance with prenegotiated Contingency contracts.
4. Participants exclusively operating vessels engaged in domestic
trades will be required to commit 50% of that capacity to Stage III.
Such Participants will not be required to commit capacity to Stages I
and II as a consideration of domestic peacetime traffic and/or contract
award. However, such Participants may voluntarily agree to commit
capacity to Stages I and/or II.
5. The Participant owning, operating, or controlling an activated
ship or ship capacity will provide intermodal equipment and management
services
[[Page 12945]]
needed to utilize the ship and equipment at not less than the
Participant's normal efficiency, in accordance with the prenegotiated
Contingency contracts implementing this Agreement.
C. Effective Date and Duration of Participation
1. Participation in this Agreement is effective upon execution by
MARAD of the submitted form referenced in Section VII, and approval by
USTRANSCOM by execution of an Enrollment Contract, for Stage III, at a
minimum.
2. VISA participation remains in effect until the Participant
terminates the Agreement in accordance with paragraph D below, or
termination of the Agreement in accordance with 44 CFR Sec. 332.4.
Notwithstanding termination of VISA or participation in VISA,
obligations pursuant to executed DoD peacetime contracts shall remain
in effect for the term of such contracts and are subject to all terms
and conditions thereof.
D. Participant Termination of VISA
1. Except as provided in paragraph 2 below, a Participant may
terminate its participation in VISA upon written notice to the
Administrator. Such termination shall become effective 30 days after
written notice is received, unless obligations incurred under VISA by
virtue of activation of any Contingency contract cannot be fulfilled
prior to the termination date, in which case the Participant shall be
required to complete the performance of such obligations. Voluntary
termination by a carrier of its VISA participation shall not act to
terminate or otherwise mitigate any separate contractual commitment
entered into with DoD.
2. A Participant having an MSP operating agreement with SecTrans
shall not withdraw from this Agreement at any time during the original
term of the MSP operating agreement.
3. A Participant's withdrawal, or termination of this Agreement,
will not deprive a Participant of an antitrust defense otherwise
available to it in accordance with DPA Section 708 for the fulfillment
of obligations incurred prior to withdrawal or termination.
4. A Participant otherwise subject to the DoD SRP that voluntarily
withdraws from this Agreement will become subject again to the DoD SRP.
E. Rules and Regulations
Each Participant acknowledges and agrees to abide by all provisions
of DPA Section 708, and regulations related thereto which are
promulgated by the Secretary, the Attorney General, and the Chairman-
FTC. Standards and procedures pertaining to voluntary agreements have
been promulgated in 44 CFR Part 332. 46 CFR Part 340 establishes
procedures for assigning the priority for use and the allocation of
shipping services, containers and chassis. The JPAG will inform
Participants of new and amended rules and regulations as they are
issued in accordance with law and administrative due process. Although
Participants may withdraw from VISA, they remain subject to all
authorized rules and regulations while in Participant status.
F. Carrier Coordination Agreements (CCA)
1. When any Stage of VISA is activated or when DoD has requested
volunteer capacity pursuant to Section V.B. of VISA, Participants may
implement approved CCAs to meet the needs of the DoD and to minimize
the disruption of their services to the civil economy.
2. A CCA for which the parties seek the benefit of Section 708(j)
of the DPA shall be identified as such and shall be submitted to the
Administrator for approval and certification in accordance with Section
708(f)(1)(A) of the DPA. Upon approval and certification, the
Administrator shall transmit the Agreement to the Attorney General for
a finding in accordance with Section 708(f)(1)(B) of the DPA. Parties
to approved CCAs may avail themselves of the antitrust defenses set
forth in Section 708(j) of the DPA. Nothing in VISA precludes
Participants from engaging in lawful conduct (including carrier
coordination activities) that lies outside the scope of an approved
Carrier Coordination Agreement; but antitrust defenses will not be
available pursuant to Section 708(j) of the DPA for such conduct.
3. Participants may seek approval for CCAs at any time.
G. Enrollment of Capacity (Ships and Equipment)
1. A list identifying the ships/capacity and intermodal equipment
committed by a Participant to each Stage of VISA will be prepared by
the Participant and submitted to USTRANSCOM within seven days after a
carrier has become a Participant. USTRANSCOM will maintain a record of
all such commitments. Participants will notify USTRANSCOM of any
changes not later than seven days prior to the change.
2. USTRANSCOM will provide a copy of each Participant's VISA
commitment data and all changes to MARAD.
3. Information which a Participant identifies as privileged or
business confidential/proprietary data shall be withheld from public
disclosure in accordance with Section 708(h)(3) and Section 705(e) of
the DPA, 5 App. U.S.C. 552(b), and 44 CFR Part 332.
4. Enrolled ships are required to comply with 46 CFR Part 307,
Establishment of Mandatory Position Reporting System for Vessels.
H. War Risk Insurance
1. Where commercial war risk insurance is not available on
reasonable terms and conditions, DOT shall provide non-premium
government war risk insurance, subject to the provisions of Section
1205 of the Merchant Marine Act, 1936, as amended (46 App. U.S.C.
1285(a)).
2. Pursuant to 46 CFR 308.1(c), the Administrator (or DOT) will
find each ship enrolled or utilized under this agreement eligible for
U.S. Government war risk insurance.
I. Antitrust Defense
1. Under the provisions of DPA Section 708, each carrier shall have
available as a defense to any civil or criminal action brought under
the antitrust laws (or any similar law of any State) with respect to
any action taken to develop or carry out this Agreement, that such act
was taken in the course of developing or carrying out this Agreement
and that the Participant complied with the provisions of DPA Section
708 and any regulation thereunder, and acted in accordance with the
terms of this Agreement.
2. This defense shall not be available to the Participant for any
action occurring after termination of this Agreement. This defense
shall not be available upon the modification of this Agreement with
respect to any subsequent action that is beyond the scope of the
modified text of this Agreement, except that no such modification shall
be accomplished in a way that will deprive the Participant of antitrust
defense for the fulfillment of obligations incurred.
3. This defense shall be available only if and to the extent that
the Participant asserting it demonstrates that the action, which
includes a discussion or agreement, was within the scope of this
Agreement.
4. The person asserting the defense bears the burden of proof.
5. The defense shall not be available if the person against whom it
is asserted shows that the action was taken for the purpose of
violating the antitrust laws.
6. As appropriate, the Administrator, on behalf of SecTrans, and
DoD will
[[Page 12946]]
support agreements filed by Participants with the Federal Maritime
Commission that are related to the standby or Contingency
implementation of VISA.
J. Breach of Contract Defense
Under the provisions of DPA Section 708, in any action in any
Federal or State court for breach of contract, there shall be available
as a defense that the alleged breach of contract was caused
predominantly by action taken by a Participant during an emergency
(including action taken in imminent anticipation of an emergency) to
carry out this Agreement. Such defense shall not release the party
asserting it from any obligation under applicable law to mitigate
damages to the greatest extent possible.
K. Vessel Sharing Agreements (VSA)
1. VISA allows Participants the use of a VSA to utilize non-
Participant U.S. Flag or foreign-owned and operated foreign flag vessel
capacity as a substitute for VISA Contingency capability provided:
a. The foreign flag capacity is utilized in accordance with cargo
preference laws and regulations.
b. The use of a VSA, either currently in use or a new proposal, as
a substitution to meet DoD Contingency requirements is agreed upon by
USTRANSCOM and MARAD.
c. The Participant carrier demonstrates adequate control over the
offered VSA capacity during the period of utilization.
d. Service requirements are satisfied.
e. Participant is responsible to DoD for the carriage or services
contracted for. Though VSA capacity may be utilized to fulfill a
Contingency commitment, a Participant's U.S. Flag VSA capacity in
another Participant's vessel shall not act in a manner to increase a
Participant's capacity commitment to VISA.
2. Participants will apprise MARAD and USTRANSCOM in advance of any
change in a VSA of which it is a member, if such changes reduce the
availability of Participant capacity provided for in any approved and
accepted Contingency Concept of Operations.
3. Participants will not act as a broker for DoD cargo unless
requested by USTRANSCOM.
VII. Application and Agreement
The Administrator, in coordination with USCINCTRANS has adopted the
form on page 31 (``Application to Participate in the Voluntary
Intermodal Sealift Agreement'') on which intermodal ship operators may
apply to become a Participant in this Agreement. The form incorporates,
by reference, the terms of this Agreement.
United States of America, Department of Transportation, Maritime
Administration.
Application To Participate in the Voluntary Intermodal Sealift
Agreement
The applicant identified below hereby applies to participate in
the Maritime Administration's agreement entitled ``Voluntary
Intermodal Sealift Agreement.'' The text of said Agreement is
published in ---------- Federal Register ----------, ----------,
19----. This Agreement is authorized under Section 708 of the
Defense Production Act of 1950, as amended (50 App. U.S.C. 2158).
Regulations governing this Agreement appear at 44 CFR Part 332 and
are reflected at 49 CFR Subtitle A.
The applicant, if selected, hereby acknowledges and agrees to
the incorporation by reference into this Application and Agreement
of the entire text of the Voluntary Intermodal Sealift Agreement
published in ---------- Federal Register ----------, ----------,
19----, as though said text were physically recited herein.
The Applicant, as a Participant, agrees to comply with the
provisions of Section 708 of the Defense Production Act of 1950, as
amended, the regulations of 44 CFR Part 332 and as reflected at 49
CFR Subtitle A, and the terms of the Voluntary Intermodal Sealift
Agreement. Further, the applicant, if selected as a Participant,
hereby agrees to contractually commit to make specifically enrolled
vessels or capacity, intermodal equipment and management of
intermodal transportation systems available for use by the
Department of Defense and to other Participants as discussed in this
Agreement and the subsequent Department of Defense Voluntary
Intermodal Sealift Agreement Enrollment Contract for the purpose of
meeting national defense requirement.
Attest:
-----------------------------------------------------------------------
(Corporate Secretary)
(CORPORATE SEAL)
Effective Date:
-----------------------------------------------------------------------
(Secretary)
(SEAL)
-----------------------------------------------------------------------
(Applicant-Corporate Name)
-----------------------------------------------------------------------
(Signature)
-----------------------------------------------------------------------
(Position Title)
United States of America, Department of Transportation, Maritime
Administration.
By:
-----------------------------------------------------------------------
Maritime Administrator
By Order of the Maritime Administrator.
Dated: March 11, 2005.
Joel C. Richard,
Secretary, Maritime Administration.
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[GRAPHIC] [TIFF OMITTED] TN16MR05.001
[[Page 12948]]
[FR Doc. 05-5186 Filed 3-15-05; 8:45 am]
BILLING CODE 4910-81-P
