6838 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices

DEPARTMENT OF TRANSPORTATION

Maritime Administration

Voluntary Intermodal Sealift

Agreement

AGENCY: Maritime Administration, DOT.

ACTION: Notice of Voluntary Intermodal

Sealift Agreement (VISA).

SUMMARY: The Maritime Administration

(MARAD) announces establishment of

the Voluntary Intermodal Sealift

Agreement (VISA), 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: Mr.

Thomas M.P. Christensen, Director,

Office of National Security Plans, Room

P1–1303, Maritime Administration, 400

Seventh Street SW., Washington, DC

20590, (202) 366–5900, Fax (202) 488–

0941.

SUPPLEMENTARY INFORMATION: Section

708 of the Defense Production Act of

1950 (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,

among others. By DOT Order 1900.8, 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.

A proposed draft text of the VISA was

published in the Federal Register on

August 17, 1994 (59 FR 42466) and a

modified text of VISA was published in

the Federal Register on October 19,

1995 (60 FR 54144). 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 nonParticipant 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 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.
Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices 6839

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

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
6840 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices

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 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.

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.

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
Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices 6841

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

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
6842 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices

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

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.

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.

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
Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices 6843

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) (P.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 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

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 § 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.
6844 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices

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

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
Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices 6845

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

lll Federal Register llllll,

llllll, 19lll. 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

lll Federal Register llllll,

llllll, 19lll, 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: lllllllllllll

lllllllllllllllllllll

(Secretary

(SEAL)

lllllllllllllllllllll

(Applicant-Corporate Name)

lllllllllllllllllllll

(Signature)

lllllllllllllllllllll

(Position Title)

United States of America, Department of

Transportation, Maritime Administration

By: llllllllllllllllll

Maritime Administrator

BILLING CODE 4910–81–P
6846 Federal Register / Vol. 62, No. 30 / Thursday, February 13, 1997 / Notices

Dated: February 10, 1997.

By Order of the Maritime Administrator.

Joel C. Richard,

Secretary.

[FR Doc. 97–3666 Filed 2–10–97; 4:10 pm]

BILLING CODE 4910–81–C