Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 55947 

Geographic Region: Maine to Florida. 

Dated: September 16, 2005. 

By order of the Maritime Administrator. 

Joel C. Richard, 

Secretary, Maritime Administration. 

[FR Doc. 05–18979 Filed 9–22–05; 8:45 am] 

BILLING CODE 4910–81–P 

DEPARTMENT OF TRANSPORTATION 

Maritime Administration 

[Docket No. 2005 22502] 

Requested Administrative Waiver of 

the Coastwise Trade Laws 

AGENCY: Maritime Administration, 

Department of Transportation. 

ACTION: Invitation for public comments 

on a requested administrative waiver of 

the Coastwise Trade Laws for the vessel 

SNOW GOOSE. 

SUMMARY: As authorized by Pub. L. 105–

383 and Pub. L. 107–295, the Secretary 

of Transportation, as represented by the 

Maritime Administration (MARAD), is 

authorized to grant waivers of the U.S.- 

build requirement of the coastwise laws 

under certain circumstances. A request 

for such a waiver has been received by 

MARAD. The vessel, and a brief 

description of the proposed service, is 

listed below. The complete application 

is given in DOT docket 2005–22502xxxx 

at http://dms.dot.gov. Interested parties 

may comment on the effect this action 

may have on U.S. vessel builders or 

businesses in the U.S. that use U.S.-flag 

vessels. 

If MARAD determines, in accordance 

with Pub. L. 105–383 and MARAD’s 

regulations at 46 CFR part 388 (68 FR 

23084; April 30, 2003), that the issuance 

of the waiver will have an unduly 

adverse effect on a U.S.-vessel builder or 

a business that uses U.S.-flag vessels in 

that business, a waiver will not be 

granted. Comments should refer to the 

docket number of this notice and the 

vessel name in order for MARAD to 

properly consider the comments. 

Comments should also state the 

commenter’s interest in the waiver 

application, and address the waiver 

criteria given in § 388.4 of MARAD’s 

regulations at 46 CFR part 388. 

DATES: Submit comments on or before 

October 24, 2005. 

ADDRESSES: Comments should refer to 

docket number MARAD–2005 22502. 

Written comments may be submitted by 

hand or by mail to the Docket Clerk, 

U.S. DOT Dockets, Room PL–401, 

Department of Transportation, 400 7th 

St., SW., Washington, DC 20590–0001. 

You may also send comments 

electronically via the Internet at http:// 

dmses.dot.gov/submit/. All comments 

will become part of this docket and will 

be available for inspection and copying 

at the above address between 10 a.m. 

and 5 p.m., e.t., Monday through Friday, 

except Federal holidays. An electronic 

version of this document and all 

documents entered into this docket is 

available on the World Wide Web at 

http://dms.dot.gov. 

FOR FURTHER INFORMATION CONTACT: 

Sharon Cassidy, U.S. Department of 

Transportation, Maritime 

Administration, MAR–830 Room 7201, 

400 Seventh Street, SW., Washington, 

DC 20590. Telephone (202) 366–5506. 

SUPPLEMENTARY INFORMATION: As 

described by the applicant the intended 

service of the vessel SNOW GOOSE is: 

Intended Use: ‘‘SNOW GOOSE is in 

the charter fleet at San Juan Sailing, 

Bellingham WA. She is used for 

bareboat charter and also for sailing 

instruction in the sailing school. In the 

latter capacity, a San Juan Sailing 

skipper (USCG licensed) takes 6 or 

fewer passengers for American Sailing 

Association instruction. These are 

generally multi-day cruises.’’

Geographic Region: ‘‘Washington 

State, USA: Primarily Bellingham area 

and San Juan Islands.’’

Dated: September 16, 2005. 

By order of the Maritime Administrator. 

Joel C. Richard, 

Secretary, Maritime Administration. 

[FR Doc. 05–18984 Filed 9–22–05; 8:45 am] 

BILLING CODE 4910–81–P 

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 the extension of 

the Voluntary Intermodal Sealift 

Agreement (VISA) until October 1, 2007, 

pursuant to 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–

2323, 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 March 

16, 2005. The text of the VISA herein 

has been amended to reflect the 

Emergency Preparedness Agreement 

requirements as contained in the 

Maritime Security Act of 2003 for 

participants in the Maritime Security 

Program. The text published herein will 

now be implemented. Copies will be 

made available to the public upon 

request. 

55948 Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 

Text of the Voluntary Intermodal 

Sealift Agreement: 

Voluntary Intermodal Sealift 

Agreement (VISA) 

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 

‘‘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. FEMA is an 

element of the Emergency 

Preparedness and Response 

Directorate, Department of 

Homeland Security. 

‘‘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 

‘‘NCA;’’—National Command 

Authorities 

‘‘NDRF;’’—National Defense Reserve 

Fleet maintained by MARAD 

‘‘RRF;’’—Ready Reserve Force 

component of the NDRF 

‘‘SecDef;’’—Secretary of Defense 

‘‘SecTrans’’—Secretary of 

Transportation 

‘‘SDDC’’Military Surface Deployment 

and Distribution Command 

‘‘Commander’’—Commander, United 

States Transportation Command 

‘‘USTRANSCOM’’—United States 

Transportation Command 

(including its components, Air 

Mobility Command, Military Sealift 

Command and Military Surface 

Deployment and Distribution 

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 

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 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). The Director—FEMA is also 

Under Secretary for Emergency 

Preparedness and Response, Department 

of Homeland Security. 

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 because these do 

not have any laws that prohibit U.S. 

requisition. EUSC registries are 

recognized by the Maritime 

Administration after consultation with 

DoD. (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 

Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 55949 

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 and 801 regarding 

international and interstate 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—For the purposes of 

this agreement 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. 

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. 

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 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 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. Government controlled ships 

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. 

TheSecDef 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) and (46 U.S.C. 53107). 

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. 

55950 Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 

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 as amended, 59 

FR 29525, June 7, 1994; Executive Order 

12148, as amended, 3 CFR 1979 Comp., 

p. 412, as amended; 44 CFR part 332; 

DOT Order 1900.9; 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 1900.9, 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 

the Commander to provide common 

user air, land, and sea transportation for 

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 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 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 

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 as required 

basis upon the Commander’s 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 the Commander 

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 53107(f) of the Maritime 

Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 55951 

Security Act of 2003 (MSA 2003) (Pub. 

L. 108–136, 117 Stat. 1392), 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 

53103 of the MSA 2003 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 that is subject to the Cargo 

Preference Act of 1904 (10 U.S.C. 2631), 

P.R. 17 (46 App. U.S.C. 1241–1), and 

Pub. L. 664 (46 App. U.S.C. 1241(a) and 

(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 Homeland Security 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 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 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 

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 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 the Commander. 

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, Commander 

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, 

the Commander, 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 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 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. 

55952 Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 

D. The JPAG will not be used for 

contract negotiations and/or contract 

discussions between carriers and 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 the Commander, 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. The Commander 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 the Commander, with 

approval of SecDef, when voluntary 

capacity commitments are insufficient 

to meet DoD Contingency requirements. 

The Commander 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 the 

Commander, 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 the 

Commander. 

2. Stage III will be activated by the 

Commander upon approval by SecDef. 

Upon activation, 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, the Commander 

will negotiate and execute Contingency 

contracts with Participants, using preapproved rate methodologies as 

established jointly by SecTrans and 

SecDef in fulfillment of section 53107 of 

the MSA 2003. 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 

Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 55953 

subsidiaries and affiliates of such entity 

signing this Agreement, provided that 

the Administrator, in coordination with 

the Commander, grants specific 

approval for their inclusion. 

4. Any entity receiving payments 

under the Maritime Security Program 

(MSP), pursuant to the MSA 2003 (Pub. 

L. 108–136, 117 Stat. 1392)), 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 53107 of 

the MSA 2003. 

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 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. 

55954 Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 

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 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 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 

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 the Commander has adopted the 

following form (‘‘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, 20l. This 

Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Notices 55955 

1The transaction includes approximately 0.87 

miles of rail line in Carteret County, NC, from 

approximately milepost 0.0 (in or near Morehead 

City) to approximately milepost 0.87 at Gallants 

Channel (in or near Morehead City), serving the 

intermediate stations of Marsh Island and Radio 

Island, as well as all spur tracks, yard tracks, side 

tracks, interchange tracks and industrial tracks 

located on the Port. The transaction also includes 

approximately 4 miles of intra-terminal track. 

2The Board previously determined that SPA’s 

acquisition of the subject line did not require Board 

action and it declined to exercise jurisdiction over 

the transaction. See North Carolina State Ports 

Authority—Acquisition Exemption—North Carolina 

Ports Railway Commission, STB Finance Docket 

No. 34258 (STB served Oct. 31, 2002). 

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, 

20l, 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: 

lllllllllllllllllll

(Corporate Secretary) 

(CORPORATE SEAL) 

Effective Date: lllllllllll

(Secretary) 

(SEAL) 

lllllllllllllllllll

(Applicant-Corporate Name) 

lllllllllllllllllll

(Signature) 

lllllllllllllllllll

(Position Title) 

United States of America, Department of 

Transportation, Maritime 

Administration 

By: llllllllllllllll

Maritime Administrator 

Dated: September 19, 2005. 

By Order of the Maritime Administrator. 

Joel C. Richard, 

Secretary, Maritime Administration. 

[FR Doc. 05–18982 Filed 9–22–05; 8:45 am] 

BILLING CODE 4910–81–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Finance Docket No. 34749] 

Gulf & Ohio Railways Holding Co., Inc., 

H. Peter Claussen and Linda C. 

Claussen—Continuance in Control 

Exemption—Morehead & South Fork 

Railroad Co., Inc. 

Gulf & Ohio Railways Holding Co., 

Inc. (G&O), and H. Peter Claussen and 

Linda C. Claussen (the Claussens) 

(collectively applicants), have filed a 

verified notice of exemption to continue 

in control of Morehead & South Fork 

Railroad Co., Inc. (MHSF), upon 

MHSF’s becoming a Class III rail carrier. 

The transaction was scheduled to be 

consummated on or after September 1, 

2005. 

This transaction is related to the 

concurrently filed verified notice of 

exemption in STB Finance Docket No. 

34748, Morehead & South Fork Railroad 

Co., Inc.—Acquisition and Operation 

Exemption—Carolina Rail Service, LLC. 

In that proceeding, MHSF seeks to 

acquire from Carolina Rail Service, LLC 

(CRS), and operate CRS’s exclusive 

freight easement over all railroad tracks 

at the Port of Morehead City, NC.1 The 

tracks are owned by North Carolina 

State Ports Authority (SPA).2 MHSF will 

operate over the rail property pursuant 

to an operating agreement with SPA. 

G&O is a noncarrier that currently 

controls eight Class III rail carriers: 

Chattahoochee & Gulf Railroad Co., Inc. 

(CGR); Conecuh Valley Railroad Co., 

Inc. (CVR); Knoxville & Holston River 

Railroad Co., Inc. (KHR); Laurinburg & 

Southern Railroad Co., Inc. (LSR); 

Piedmont & Atlantic Railroad, Inc. 

(PAR); which operates under the trade 

name of Yadkin Valley Railroad, Rocky 

Mount & Western Railroad Co., Inc. 

(RMW); Three Notch Railroad Co., Inc. 

(TNR); and Wiregrass Central Railroad 

Company, Inc. (WCR). The Claussens, 

also noncarriers, control G&O and one 

Class III rail carrier, H&S Railroad, Inc. 

(H&S). 

Applicants state that: (1) The rail lines 

operated by CGR, CVR KHR, LSR, PAR, 

RMW, TNR, WCR, and H&S do not 

connect with the rail line being acquired 

by MHSF; (2) the continuance in control 

is not part of a series of anticipated 

transactions that would connect the rail 

line being acquired by MHSF with 

applicants’ rail lines; and (3) the 

transaction does not involve a Class I 

rail carrier. Therefore, the transaction is 

exempt from the prior approval 

requirements of 49 U.S.C. 11323. See 49 

CFR 1180.2(d)(2). The purpose of 

establishing MHSF and acquiring the 

line in STB Finance Docket No. 34748 

is to insulate the other affiliated 

railroads from the financial, legal, and 

operational risks associated with the 

transactions contemplated in that 

proceeding. 

Under 49 U.S.C. 10502(g), the Board 

may not use its exemption authority to 

relieve a rail carrier of its statutory 

obligation to protect the interests of its 

employees. Section 11326(c), however, 

does not provide for labor protection for 

transactions under section 11324 and 

11325 that involve only Class III rail 

carriers. Accordingly, the Board may not 

impose labor protective conditions here, 

because all of the carriers involved are 

Class III carriers. 

If the verified notice contains false or 

misleading information, the exemption 

is void ab initio. Petitions to revoke the 

exemption under 49 U.S.C. 10502(d) 

may be filed at any time. The filing of 

a petition to revoke will not 

automatically stay the transaction. 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 34749, must be filed with 

the Surface Transportation Board, 1925 

K Street, NW., Washington, DC 20423–

0001. In addition, one copy of each 

pleading must be served on RoseMichele Nardi, Weiner Brodsky Sidman 

Kider PC, 1300 19th St., NW., Fifth 

Floor, Washington, DC 20036–1609. 

Board decisions and notices are 

available on our Web site at http:// 

www.stb.dot.gov. 

Decided: September 16, 2005. 

By the Board, David M. Konschnik, 

Director, Office of Proceedings. 

Vernon A. Williams, 

Secretary. 

[FR Doc. 05–19026 Filed 9–22–05; 8:45 am] 

BILLING CODE 4915–01–P