[Federal Register Volume 70, Number 50 (Wednesday, March 16, 2005)]
[Notices]
[Pages 12938-12948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5186]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration


Voluntary Intermodal Sealift Agreement

AGENCY: Maritime Administration, DOT.

[[Page 12939]]


ACTION: Notice of Voluntary Intermodal Sealift Agreement (VISA).

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SUMMARY: The Maritime Administration (MARAD) announces the extension of 
the Voluntary Intermodal Sealift Agreement (VISA) until September 30, 
2005, pursuant to provision of the Defense Production Act of 1950, as 
amended. The purpose of the VISA is to make intermodal shipping 
services/systems, including ships, ships' space, intermodal equipment 
and related management services, available to the Department of Defense 
as required to support the emergency deployment and sustainment of U.S. 
military forces. This is to be accomplished through cooperation among 
the maritime industry, the Department of Transportation and the 
Department of Defense.

FOR FURTHER INFORMATION CONTACT: Taylor E. Jones II, Director, Office 
of Sealift Support, Room 7304, Maritime Administration, 400 Seventh 
Street SW., Washington, DC 20590, (202) 366-3423, Fax (202) 366-3128.

SUPPLEMENTARY INFORMATION: Section 708 of the Defense Production Act of 
1950, as amended, (50 U.S.C. App. 2158), as implemented by regulations 
of the Federal Emergency Management Agency (44 CFR Part 332), 
``Voluntary agreements for preparedness programs and expansion of 
production capacity and supply'', authorizes the President, upon a 
finding that conditions exist which may pose a direct threat to the 
national defense or its preparedness programs, ``* * * to consult with 
representatives of industry, business, financing, agriculture, labor 
and other interests * * *'' in order to provide the making of such 
voluntary agreements. It further authorizes the President to delegate 
that authority to individuals who are appointed by and with the advice 
and consent of the Senate, upon the condition that such individuals 
obtain the prior approval of the Attorney General after the Attorney 
General's consultation with the Federal Trade Commission. Section 501 
of Executive Order 12919, as amended, delegated this authority of the 
President to the Secretary of Transportation (Secretary), among others. 
By DOT Order 1900.9, the Secretary delegated to the Maritime 
Administrator the authority under which the VISA is sponsored. Through 
advance arrangements in joint planning, it is intended that 
participants in VISA will provide capacity to support a significant 
portion of surge and sustainment requirements in the deployment of U.S. 
military forces during war or other national emergency.
    The text of the VISA was first published in the Federal Register on 
February 13, 1997, to be effective for a two-year term until February 
13, 1999. The VISA document has been extended and subsequently 
published in the Federal Register every two years. The last extension 
was published on February 25, 2003. The text of the VISA herein is 
identical to the text previously published in the Federal Register.
    The text published herein will now be implemented. Copies will be 
made available to the public upon request.
    Text of the Voluntary Intermodal Sealift Agreement:

Voluntary Intermodal Sealift Agreement (VISA)

9 December 1996

Table of Contents

Abbreviations

Definitions

Preface

I. Purpose
II. Authorities
    A. MARAD
    B. USTRANSCOM
III. General
    A. Concept
    B. Responsibilities
    C. Termination of Charter, Leases and Other Contractual 
Arrangements
    D. Modification/Amendment of This Agreement
    E. Administrative Expenses
    F. Record Keeping
    G. MARAD Reporting Requirements
IV. Joint Planning Advisory Group
V. Activation of VISA Contingency Provisions
    A. General
    B. Notification of Activation
    C. Voluntary Capacity
    D. Stage I
    E. Stage II
    F. Stage III
    G. Partial Activation
VI. Terms and Conditions
    A. Participation
    B. Agreement of Participant
    C. Effective Date and Duration of Participation
    D. Participant Termination of VISA
    E. Rules and Regulations
    F. Carrier Coordination Agreements
    G. Enrollment of Capacity (Ships and Equipment)
    H. War Risk Insurance
    I. Antitrust Defense
    J. Breach of Contract Defense
    K. Vessel Sharing Agreements
VII. Application and Agreement

Figure 1--VISA Activation Process Diagram

Abbreviations

    ``AMC''--Air Mobility Command
    ``CCA''--Carrier Coordination Agreements
    ``CDS''--Construction Differential Subsidy
    ``CFR''--Code of Federal Regulations
    ``CONOPS''--Concept of Operations
    ``DoD''--Department of Defense
    ``DOJ''--Department of Justice
    ``DOT''--Department of Transportation
    ``DPA''--Defense Production Act
    ``EUSC''--Effective United States Control
    ``FAR''--Federal Acquisition Regulations
    ``FEMA''--Federal Emergency Management Agency
    ``FTC''--Federal Trade Commission
    ``JCS''--Joint Chiefs of Staff
    ``JPAG''--Joint Planning Advisory Group
    ``MARAD''--Maritime Administration, DOT
    ``MSP''--Maritime Security Program
    ``MSC''--Military Sealift Command
    ``MTMC''--Military Transportation Management Command
    ``NCA''--National Command Authorities
    ``NDRF''--National Defense Reserve Fleet maintained by MARAD
    ``ODS''--Operating Differential Subsidy
    ``RRF''--Ready Reserve Force component of the NDRF
    ``SecDef''--Secretary of Defense
    ``SecTrans''--Secretary of Transportation
    ``USCINCTRANS''--Commander in Chief, United States Transportation 
Command
    ``USTRANSCOM''--United States Transportation Command (including its 
sealift transportation component, Military Sealift Command)
    ``VISA''--Voluntary Intermodal Sealift Agreement
    ``VSA''--Vessel Sharing Agreement
    Definitions--For purposes of this agreement, the following 
definitions apply:
    Administrator--Maritime Administrator.
    Agreement--Agreement (proper noun) refers to the Voluntary 
Intermodal Sealift Agreement (VISA).
    Attorney General--Attorney General of the United States.
    Broker--A person who arranges for transportation of cargo for a 
fee.
    Carrier Coordination Agreement (CCA)--An agreement between two or 
more Participants or between Participant and non-Participant carriers 
to coordinate their services in a Contingency, including agreements to: 
(i) Charter vessels or portions of the cargo-carrying capacity of 
vessels; (ii) share cargo handling equipment, chassis, containers and 
ancillary transportation equipment; (iii) share

[[Page 12940]]

wharves, warehouse, marshaling yards and other marine terminal 
facilities; and (iv) coordinate the movement of vessels.
    Chairman--FTC--Chairman of the Federal Trade Commission (FTC).
    Charter--Any agreement or commitment by which the possession or 
services of a vessel are secured for a period of time, or for one or 
more voyages, whether or not a demise of the vessel.
    Commercial--Transportation service provided for profit by privately 
owned (not government owned) vessels to a private or government 
shipper. The type of service may be either common carrier or contract 
carriage.
    Contingency--Includes, but is not limited to a ``contingency 
operation'' as defined at 10 App. U.S.C. 101(a)(13), and a JCS-
directed, NCA-approved action undertaken with military forces in 
response to: (i) Natural disasters; (ii) terrorists or subversive 
activities; or (iii) required military operations, whether or not there 
is a declaration of war or national emergency.
    Contingency contracts--DoD contracts in which Participants 
implement advance commitments of capacity and services to be provided 
in the event of a Contingency.
    Contract carrier--A for-hire carrier who does not hold out regular 
service to the general public, but instead contracts, for agreed 
compensation, with a particular shipper for the carriage of cargo in 
all or a particular part of a ship for a specified period of time or on 
a specified voyage or voyages.
    Controlling interest--More than a 50-percent interest by stock 
ownership.
    Director--FEMA--Director of Federal Emergency Management Agency 
(FEMA).
    Effective U.S. Control (EUSC)--U.S. citizen-owned ships which are 
registered in certain open registry countries and which the United 
States can rely upon for defense in national security emergencies. The 
term has no legal or other formal significance. U.S. citizen-owned 
ships registered in Liberia, Panama, Honduras, the Bahamas and the 
Republic of the Marshall Islands are considered under effective U.S. 
control. EUSC registries are recognized by the Maritime Administration 
after consultation with the Department of Defense. (MARAD OPLAN 001A, 
17 July 1990)
    Enrollment Contract--The document, executed and signed by MSC, and 
the individual carrier enrolling that carrier into VISA Stage III.
    Foreign flag vessel--A vessel registered or documented under the 
law of a country other than the United States of America.
    Intermodal equipment--Containers (including specialized equipment), 
chassis, trailers, tractors, cranes and other materiel handling 
equipment, as well as other ancillary items.
    Liner--Type of service offered on a definite, advertised schedule 
and giving relatively frequent sailings at regular intervals between 
specific ports or ranges.
    Liner throughput capacity--The system/intermodal capacity available 
and committed, used or unused, depending on the system cycle time 
necessary to move the designated capacity through to destination. Liner 
throughput capacity shall be calculated as: static capacity (outbound 
from CONUS) X voyage frequency X.5.
    Management services--Management expertise and experience, 
intermodal terminal management, information resources, and control and 
tracking systems.
    Ocean Common carrier--An entity holding itself out to the general 
public to provide transportation by water of passengers or cargo for 
compensation; which assumes responsibility for transportation from port 
or point of receipt to port or point of destination; and which operates 
and utilizes a vessel operating on the high seas for all or part of 
that transportation. (As defined in 46 App. U.S.C. 1702, 801, and 842 
regarding international, interstate, and intercoastal commerce 
respectively.)
    Operator--An ocean common carrier or contract carrier that owns or 
controls or manages vessels by which ocean transportation is provided.
    Organic sealift--Ships considered to be under government control or 
long-term charter--Fast Sealift Ships, Ready Reserve Force and 
commercial ships under long-term charter to DoD.
    Participant--A signatory party to VISA, and otherwise as defined 
within Section VI of this document.
    Person--Includes individuals and corporations, partnerships, and 
associations existing under or authorized by the laws of the United 
States or any state, territory, district, or possession thereof, or of 
a foreign country.
    SecTrans--Secretary of Transportation.
    Service contract--A contract between a shipper (or a shipper's 
association) and an ocean common carrier (or conference) in which the 
shipper makes a commitment to provide a certain minimum quantity of 
cargo or freight revenue over a fixed time period, and the ocean common 
carrier or conference commits to a certain rate or rate schedule, as 
well as a defined service level (such as assured space, transit time, 
port rotation, or similar service features), as defined in the Shipping 
Act of 1984. The contract may also specify provisions in the event of 
nonperformance on the part of either party.
    Standby period--The interval between the effective date of a 
Participant's acceptance into the Agreement and the activation of any 
stage, and the periods between deactivation of all stages and any later 
activation of any stage.
    U.S. Flag Vessel--A vessel registered or documented under the laws 
of the United States of America.
    USTRANSCOM--The United States Transportation Command and its 
component commands (AMC, MSC and MTMC).
    Vessel Sharing Agreement (VSA) Capacity--Space chartered to a 
Participant for carriage of cargo, under its commercial contracts, 
service contracts or in common carriage, aboard vessels shared with 
another carrier or carriers pursuant to a commercial vessel sharing 
agreement under which the carriers may compete with each other for the 
carriage of cargo. In U.S. foreign trades the agreement is filed with 
the Federal Maritime Commission (FMC) in conformity with the Shipping 
Act of 1984 and implementing regulations.
    Volunteers--Any vessel owner/operator who is an ocean carrier and 
who offers to make capacity, resources or systems available to support 
contingency requirements.

Preface

    The Administrator, pursuant to the authority contained in Section 
708 of the Defense Production Act of 1950, as amended (50 App. U.S.C. 
2158)(Section 708)(DPA), in cooperation with the Department of Defense 
(DoD), has developed this Agreement [hereafter called the Voluntary 
Intermodal Sealift Agreement (VISA)] to provide DoD the commercial 
sealift and intermodal shipping services/systems necessary to meet 
national defense Contingency requirements.
    USTRANSCOM procures commercial shipping capacity to meet 
requirements for ships and intermodal shipping services/systems through 
arrangements with common carriers, with contract carriers and by 
charter. DoD (through USTRANSCOM) and Department of Transportation 
(DOT) (through MARAD) maintain and operate a fleet of ships owned by or 
under charter to the Federal Government to meet the logistic needs of 
the military services which cannot be met by existing commercial 
service. Ships of the Ready Reserve Force (RRF) are selectively 
activated for

[[Page 12941]]

peacetime military tests and exercises, and to satisfy military 
operational requirements which cannot be met by commercial shipping in 
time of war, national emergency, or military Contingency. Foreign-flag 
shipping is used in accordance with applicable laws, regulations and 
policies.
    The objective of VISA is to provide DoD a coordinated, seamless 
transition from peacetime to wartime for the acquisition of commercial 
sealift and intermodal capability to augment DoD's organic sealift 
capabilities. This Agreement establishes the terms, conditions and 
general procedures by which persons or parties may become VISA 
Participants. Through advance joint planning among USTRANSCOM, MARAD 
and the Participants, Participants may provide predetermined capacity 
in designated stages to support DoD Contingency requirements.
    VISA is designed to create close working relationships among MARAD, 
USTRANSCOM and Participants through which Contingency needs and the 
needs of the civil economy can be met by cooperative action. During 
Contingencies, Participants are afforded maximum flexibility to adjust 
commercial operations by Carrier Coordination Agreements (CCA), in 
accordance with applicable law.
    Participants will be afforded the first opportunity to meet DoD 
peacetime and Contingency sealift requirements within applicable law 
and regulations, to the extent that operational requirements are met. 
In the event VISA Participants are unable to fully meet Contingency 
requirements, the shipping capacity made available under VISA may be 
supplemented by ships/capacity from non-Participants in accordance with 
applicable law and by ships requisitioned under Section 902 of the 
Merchant Marine Act, 1936 (as amended) (46 App. U.S.C. 1242). In 
addition, containers and chassis made available under VISA may be 
supplemented by services and equipment acquired by USTRANSCOM or 
accessed by the Administrator through the provisions of 46 CFR Part 
340.
    The Secretary of Defense (SecDef) has approved VISA as a sealift 
readiness program for the purpose of Section 909 of the Merchant Marine 
Act, 1936, as amended (46 App. U.S.C. 1248).

Voluntary Intermodal Sealift Agreement

I. Purpose

    A. The Administrator has made a determination, in accordance with 
Section 708(c)(1) of the Defense Production Act (DPA) of 1950, that 
conditions exist which may pose a direct threat to the national defense 
of the United States or its preparedness programs and, under the 
provisions of Section 708, has certified to the Attorney General that a 
standby agreement for utilization of intermodal shipping services/
systems is necessary for the national defense. The Attorney General, in 
consultation with the Chairman of the Federal Trade Commission, has 
issued a finding that dry cargo shipping capacity to meet national 
defense requirements cannot be provided by the industry through a 
voluntary agreement having less anticompetitive effects or without a 
voluntary agreement.
    B. The purpose of VISA is to provide a responsive transition from 
peace to Contingency operations through pre-coordinated agreements for 
sealift capacity to support DoD Contingency requirements. VISA 
establishes procedures for the commitment of intermodal shipping 
services/systems to satisfy such requirements. VISA will change from 
standby to active status upon activation by appropriate authority of 
any of the Stages, as described in Section V.
    C. It is intended that VISA promote and facilitate DoD's use of 
existing commercial transportation resources and integrated intermodal 
transportation systems, in a manner which minimizes disruption to 
commercial operations, whenever possible.
    D. Participants' capacity which may be committed pursuant to this 
Agreement may include all intermodal shipping services/systems and all 
ship types, including container, partial container, container/bulk, 
container/roll-on/roll-off, roll-on/roll-off (of all varieties), 
breakbulk ships, tug and barge combinations, and barge carrier (LASH, 
SeaBee).

II. Authorities

A. MARAD

    1. Sections 101 and 708 of the DPA, as amended (50 App. U.S.C. 
2158); Executive Order 12919, 59 FR 29525, June 7, 1994; Executive 
Order 12148, 3 CFR 1979 Comp., p. 412, as amended; 44 CFR Part 332; DOT 
Order 1900.8; 46 CFR Part 340.
    2. Section 501 of Executive Order 12919, as amended, delegated the 
authority of the President under Section 708 to SecTrans, among others. 
By DOT Order 1900.8, SecTrans delegated to the Administrator the 
authority under which VISA is sponsored.

B. USTRANSCOM

    1. Section 113 and Chapter 6 of Title 10 of the United States Code.
    2. DoD Directive 5158.4 designating USCINCTRANS to provide air, 
land, and sea transportation for the DoD.

III. General

A. Concept

    1. VISA provides for the staged, time-phased availability of 
Participants' shipping services/systems to meet NCA-directed DoD 
Contingency requirements in the most demanding defense oriented sealift 
emergencies and for less demanding defense oriented situations through 
prenegotiated Contingency contracts between the government and 
Participants (see Figure 1). Such arrangements will be jointly planned 
with MARAD, USTRANSCOM, and Participants in peacetime to allow 
effective, and efficient and best valued use of commercial sealift 
capacity, provide DoD assured Contingency access, and minimize 
commercial disruption, whenever possible.
    a. Stages I and II provide for prenegotiated contracts between the 
DoD and Participants to provide sealift capacity against all projected 
DoD Contingency requirements. These agreements will be executed in 
accordance with approved DoD contracting methodologies.
    b. Stage III will provide for additional capacity to the DoD when 
Stages I and II commitments or volunteered capacity are insufficient to 
meet Contingency requirements, and adequate shipping services from non-
Participants are not available through established DoD contracting 
practices or U.S. Government treaty agreements.
    2. Activation will be in accordance with procedures outlined in 
Section V of this Agreement.
    3. Following is the prioritized order for utilization of commercial 
sealift capacity to meet DoD peacetime and Contingency requirements:
    a. U.S. Flag vessel capacity operated by a Participant and U.S. 
Flag Vessel Sharing Agreement (VSA) capacity of a Participant.
    b. U.S. Flag vessel capacity operated by a non-Participant.
    c. Combination U.S./foreign flag vessel capacity operated by a 
Participant and combination U.S./foreign flag VSA capacity of a 
Participant.
    d. Combination U.S./foreign flag vessel capacity operated by a non-
Participant.
    e. U.S. owned or operated foreign flag vessel capacity and VSA 
capacity of a Participant.

[[Page 12942]]

    f. U.S. owned or operated foreign flag vessel capacity and VSA 
capacity of a non-Participant.
    g. Foreign-owned or operated foreign flag vessel capacity of a non-
Participant.
    4. Under Section VI.F. of this Agreement, Participants may 
implement CCAs to fulfill their contractual commitments to meet VISA 
requirements.

B. Responsibilities

    1. The SecDef, through USTRANSCOM, shall:
    a. Define time-phased requirements for Contingency sealift capacity 
and resources required in Stages I, II and III to augment DoD sealift 
resources.
    b. Keep MARAD and Participants apprised of Contingency sealift 
capacity required and resources committed to Stages I and II.
    c. Obtain Contingency sealift capacity through the implementation 
of specific prenegotiated DoD Contingency contracts with Participants.
    d. Notify the Administrator upon activation of any stage of VISA.
    e. Co-chair (with MARAD) the Joint Planning Advisory Group (JPAG).
    f. Establish procedures, in accordance with applicable law and 
regulation, providing Participants with necessary determinations for 
use of foreign flag vessels to replace an equivalent U.S. Flag capacity 
to transport a Participant's normal peacetime DoD cargo, when 
Participant's U.S. Flag assets are removed from regular service to meet 
VISA Contingency requirements.
    g. Provide a reasonable time to permit an orderly return of a 
Participant's vessel(s) to its regular schedule and termination of its 
foreign flag capacity arrangements as determined through coordination 
between DoD and the Participants.
    h. Review and endorse Participants' requests to MARAD for use of 
foreign flag replacement capacity for non-DoD government cargo, when 
U.S. Flag capacity is required to meet Contingency requirements.
    2. The SecTrans, through MARAD, shall:
    a. Review the amount of sealift resources committed in DoD 
contracts to Stages I and II and notify USTRANSCOM if a particular 
level of VISA commitment will have serious adverse impact on the 
commercial sealift industry's ability to provide essential services. 
MARAD's analysis shall be based on the consideration that all VISA 
Stage I and II capacity committed will be activated. This notification 
will occur on an annual basis upon USCINCTRANS' acceptance of VISA 
commitments from the Participants. If so advised by MARAD, USTRANSCOM 
will adjust the size of the stages or provide MARAD with justification 
for maintaining the size of those stages. USTRANSCOM and MARAD will 
coordinate to ensure that the amount of sealift assets committed to 
Stages I and II will not have an adverse, national economic impact.
    b. Coordinate with DOJ for the expedited approval of CCAs.
    c. Upon request by USCINCTRANS and approval by SecDef to activate 
Stage III, allocate sealift capacity and intermodal assets to meet DoD 
Contingency requirements. DoD shall have priority consideration in any 
allocation situation.
    d. Establish procedures, pursuant to Section 653(d) of the Maritime 
Security Act (MSA), for determinations regarding the equivalency and 
duration of the use of foreign flag vessels to replace U.S. Flag vessel 
capacity to transport the cargo of a Participant which has entered into 
an operating agreement under Section 652 of the MSA and whose U.S. Flag 
vessel capacity has been removed from regular service to meet VISA 
contingency requirements. Such foreign flag vessels shall be eligible 
to transport cargo subject to the Cargo Preference Act of 1904 (10 
U.S.C. 2631), P.R. 17 (46 App. U.S.C. 1241-1), and P.L. 664 (46 App. 
U.S.C. 1241(b)). However, any procedures regarding the use of such 
foreign flag vessels to transport cargo subject to the Cargo Preference 
Act of 1904 must have the concurrence of USTRANSCOM before it becomes 
effective.
    e. Co-chair (with USTRANSCOM) the JPAG.
    f. Seek necessary Jones Act waivers as required. To the extent 
feasible, participants with Jones Act vessels or vessel capacity will 
use CCAs or other arrangements to protect their ability to maintain 
services for their commercial customers and to fulfill their commercial 
peacetime commitments with U.S. Flag vessels. In situations where the 
activation of this Agreement deprives a Participant of all or a portion 
of its Jones Act vessels or vessel capacity and, at the same time, 
creates a general shortage of Jones Act vessel(s) or vessel capacity on 
the market, the Administrator may request that the Secretary of the 
Treasury grant a temporary waiver of the provisions of the Jones Act to 
permit a Participant to charter or otherwise utilize non-Jones Act 
vessel(s) or vessel capacity, with priority consideration recommended 
for U.S. crewed vessel(s) or vessel capacity. The vessel(s) or vessel 
capacity for which such waivers are requested will be approximately 
equal to the Jones Act vessel(s) or vessel capacity chartered or under 
contract to the DoD, and any waiver that may be granted will be 
effective for the period that the Jones Act vessel(s) or vessel 
capacity is on charter or under contract to the DoD plus a reasonable 
time for termination of the replacement charters as determined by the 
Administrator.

C. Termination of Charters, Leases and Other Contractual Arrangements

    1. USTRANSCOM will notify the Administrator as soon as possible of 
the prospective termination of charters, leases, management service 
contracts or other contractual arrangements made by the DoD under this 
Agreement.
    2. In the event of general requisitioning of ships under 46 App. 
U.S.C. 1242, the Administrator shall consider commitments made with the 
DoD under this Agreement.

D. Modification/Amendment of This Agreement

    1. The Attorney General may modify this Agreement, in writing, 
after consultation with the Chairman-FTC, SecTrans, through his 
representative MARAD, and SecDef, through his representative 
USCINCTRANS. Although Participants may withdraw from this Agreement 
pursuant to Section VI.D, they remain subject to VISA as amended or 
modified until such withdrawal.
    2. The Administrator, USCINCTRANS and Participants may modify this 
Agreement at any time by mutual agreement, but only in writing with the 
approval of the Attorney General and the Chairman-FTC.
    3. Participants may propose amendments to this Agreement at any 
time.

E. Administrative Expenses

    Administrative and out-of-pocket expenses incurred by a participant 
shall be borne solely by the participant.

F. Record Keeping

    1. MARAD has primary responsibility for maintaining carrier VISA 
application records in connection with this Agreement. Records will be 
maintained in accordance with MARAD Regulations. Once a carrier is 
selected as a VISA Participant, a copy of the VISA application form 
will be forwarded to USTRANSCOM.
    2. In accordance with 44 CFR 332.2(c), MARAD is responsible for the 
making and record maintenance of a full and verbatim transcript of each 
JPAG meeting. MARAD shall send this transcript, and any voluntary 
agreement resulting from the meeting, to the

[[Page 12943]]

Attorney General, the Chairman-FTC, the Director-FEMA, any other party 
or repository required by law and to Participants upon their request.
    3. USTRANSCOM shall be the official custodian of records related to 
the contracts to be used under this Agreement, to include specific 
information on enrollment of a Participant's capacity in VISA.
    4. In accordance with 44 CFR 332.3(d), a Participant shall maintain 
for five (5) years all minutes of meetings, transcripts, records, 
documents and other data, including any communications with other 
Participants or with any other member of the industry or their 
representatives, related to the administration, including planning 
related to and implementation of Stage activations of this Agreement. 
Each Participant agrees to make such records available to the 
Administrator, USCINCTRANS, the Attorney General, and the Chairman-FTC 
for inspection and copying at reasonable times and upon reasonable 
notice. Any record maintained by MARAD or USTRANSCOM pursuant to 
paragraphs 1, 2, or 3 of this subsection shall be available for public 
inspection and copying unless exempted on the grounds specified in 5 
U.S.C 552(b) or identified as privileged and confidential information 
in accordance with Section 708(e).

G. MARAD Reporting Requirements

    MARAD shall report to the Director-FEMA, as required, on the status 
and use of this agreement.

IV. Joint Planning Advisory Group

    A. The JPAG provides USTRANSCOM, MARAD and VISA Participants a 
planning forum to:
    1. Analyze DoD Contingency sealift/intermodal service and resource 
requirements.
    2. Identify commercial sealift capacity that may be used to meet 
DoD requirements, related to Contingencies and, as requested by 
USTRANSCOM, exercises and special movements.
    3. Develop and recommend Concepts of Operations (CONOPS) to meet 
DoD-approved Contingency requirements and, as requested by USTRANSCOM, 
exercises and special movements.
    B. The JPAG will be co-chaired by MARAD and USTRANSCOM, and will 
convene as jointly determined by the co-chairs.
    C. The JPAG will consist of designated representatives from MARAD, 
USTRANSCOM, each Participant, and maritime labor. Other attendees may 
be invited at the discretion of the co-chairs as necessary to meet JPAG 
requirements. Representatives will provide technical advice and support 
to ensure maximum coordination, efficiency and effectiveness in the use 
of Participants' resources. All Participants will be invited to all 
open JPAG meetings. For selected JPAG meetings, attendance may be 
limited to designated Participants to meet specific operational 
requirements.
    1. The co-chairs may establish working groups within JPAG. 
Participants may be assigned to working groups as necessary to develop 
specific CONOPS.
    2. Each working group will be co-chaired by representatives 
designated by MARAD and USTRANSCOM.
    D. The JPAG will not be used for contract negotiations and/or 
contract discussions between carriers and the DoD; such negotiations 
and/or discussions will be in accordance with applicable DoD 
contracting policies and procedures.
    E. The JPAG co-chairs shall:
    1. Notify the Attorney General, the Chairman-FTC, Participants and 
the maritime labor representative of the time, place and nature of each 
JPAG meeting.
    2. Provide for publication in the Federal Register of a notice of 
the time, place and nature of each JPAG meeting. If the meeting is 
open, a Federal Register notice will be published reasonably in advance 
of the meeting. If a meeting is closed, a Federal Register notice will 
be published within ten (10) days after the meeting and will include 
the reasons for closing the meeting.
    3. Establish the agenda for each JPAG meeting and be responsible 
for adherence to the agenda.
    4. Provide for a full and complete transcript or other record of 
each meeting and provide one copy each of transcript or other record to 
the Attorney General, the Chairman-FTC, and to Participants, upon 
request.
    F. Security Measures--The co-chairs will develop and coordinate 
appropriate security measures so that Contingency planning information 
can be shared with Participants to enable them to plan their 
commitments.

V. Activation of VISA Contingency Provisions

A. General

    VISA may be activated at the request of USCINCTRANS, with approval 
of SecDef, as needed to support Contingency operations. Activating 
voluntary commitments of capacity to support such operations will be in 
accordance with prenegotiated Contingency contracts between DoD and 
Participants.

B. Notification of Activation

    1. USCINCTRANS will notify the Administrator of the activation of 
Stages I, II, and III.
    2. The Administrator shall notify the Attorney General and the 
Chairman-FTC when it has been determined by DoD that activation of any 
Stage of VISA is necessary to meet DoD Contingency requirements.

C. Voluntary Capacity

    1. Throughout the activation of any Stages of this Agreement, DoD 
may utilize voluntary commitment of sealift capacity or systems.
    2. Requests for volunteer capacity will be extended simultaneously 
to both Participants and other carriers. First priority for utilization 
will be given to Participants who have signed Stage I and/or II 
contracts and are capable of meeting the operational requirements. 
Participants providing voluntary capacity may request USTRANSCOM to 
activate their prenegotiated Contingency contracts; to the maximum 
extent possible, USTRANSCOM, where appropriate, shall support such 
requests. Volunteered capacity will be credited against Participants' 
staged commitments, in the event such stages are subsequently 
activated.
    3. In the event Participants are unable to fully meet Contingency 
requirements, or do not voluntarily offer to provide the required 
capacity, the shipping capacity made available under VISA may be 
supplemented by ships/capacity from non-Participants.
    4. When voluntary capacity does not meet DoD Contingency 
requirements, DoD will activate the VISA stages as necessary.

D. Stage I

    1. Stage I will be activated in whole or in part by USCINCTRANS, 
with approval of SecDef, when voluntary capacity commitments are 
insufficient to meet DoD Contingency requirements. USCINCTRANS will 
notify the Administrator upon activation.
    2. USTRANSCOM will implement Stage I Contingency contracts as 
needed to meet operational requirements.

E. Stage II

    1. Stage II will be activated, in whole or in part, when 
Contingency requirements exceed the capability of Stage I and/or 
voluntarily committed resources.
    2. Stage II will be activated by USCINCTRANS, with approval of 
SecDef, following the same procedures discussed in paragraph D above.

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F. Stage III

    1. Stage III will be activated, in whole or in part, when 
Contingency requirements exceed the capability of Stages I and II, and 
other shipping services are not available. This stage involves DoD use 
of capacity and vessels operated by Participants which will be 
furnished to DoD when required in accordance with this Agreement. The 
capacity and vessels are allocated by MARAD on behalf of SecTrans to 
USCINCTRANS.
    2. Stage III will be activated by USCINCTRANS upon approval by 
SecDef. Upon activation, DoD SecDef will request SecTrans to allocate 
sealift capacity based on DoD requirements, in accordance with Title 1 
of DPA, to meet the Contingency requirement. All Participants' capacity 
committed to VISA is subject to use during Stage III.
    3. Upon allocation of sealift assets by SecTrans, through its 
designated representative MARAD, USTRANSCOM will negotiate and execute 
Contingency contracts with Participants, using pre-approved rate 
methodologies as established jointly by SecTrans and SecDef in 
fulfillment of Section 653 of the Maritime Security Act of 1996. Until 
execution of such contract, the Participant agrees that the assets 
remain subject to the provisions of Section 902 of the Merchant Marine 
Act of 1936, Title 46 App. U.S.C. 1242.
    4. Simultaneously with activation of Stage III, the DoD Sealift 
Readiness Program (SRP) will be activated for those carriers still 
under obligation to that program.

G. Partial Activation

    As used in this Section V, activation ``in part'' of any Stage 
under this Agreement shall mean one of the following:
    1. Activation of only a portion of the committed capacity of some, 
but not all, of the Participants in any Stage that is activated; or
    2. Activation of the entire committed capacity of some, but not 
all, of the Participants in any Stage that is activated; or
    3. Activation of only a portion of the entire committed capacity of 
all of the Participants in any Stage that is activated.

VI. Terms and Conditions

A. Participation

    1. Any U.S. Flag vessel operator organized under the laws of a 
State of the United States, or the District of Columbia, may become a 
``Participant'' in this Agreement by submitting an executed copy of the 
form referenced in Section VII, and by entering into a VISA Enrollment 
Contract with DoD which establishes a legal obligation to perform and 
which specifies payment or payment methodology for all services 
rendered.
    2. The term ``Participant'' includes the entity described in VI.A.1 
above, and all United States subsidiaries and affiliates of the entity 
which own, operate, charter or lease ships and intermodal equipment in 
the regular course of their business and in which the entity holds a 
controlling interest.
    3. Upon request of the entity executing the form referenced in 
Section VII, the term ``Participant'' may include the controlled non-
domestic subsidiaries and affiliates of such entity signing this 
Agreement, provided that the Administrator, in coordination with 
USCINCTRANS, grants specific approval for their inclusion.
    4. Any entity receiving payments under the Maritime Security 
Program (MSP), pursuant to the Maritime Security Act of 1996 (MSA) 
(Pub. L. 104-239), shall become a ``Participant'' with respect to all 
vessels enrolled in MSP at all times until the date the MSP operating 
agreement would have terminated according to its original terms. The 
MSP operator shall be enrolled in VISA as a Stage III Participant, at a 
minimum. Such participation will satisfy the requirement for an MSP 
participant to be enrolled in an emergency preparedness program 
approved by SecDef as provided in Section 653 of the MSA.
    5. A Participant shall be subject only to the provisions of this 
Agreement and not to the provisions of the SRP.
    6. MARAD shall publish periodically in the Federal Register a list 
of Participants.

B. Agreement of Participant

    1. Each Participant agrees to provide commercial sealift and/or 
intermodal shipping services/systems in accordance with DoD Contingency 
contracts. USTRANSCOM will review and approve each Participant's 
commitment to ensure it meets DoD Contingency requirements. A 
Participant's capacity commitment to Stages I and II will be one of the 
considerations in determining the level of DoD peacetime contracts 
awarded with the exception of Jones Act capacity (as discussed in 
paragraph 4 below).
    2. DoD may also enter into Contingency contracts, not linked to 
peacetime contract commitments, with Participants, as required to meet 
Stage I and II requirements.
    3. Commitment of Participants' resources to VISA is as follows:
    a. Stage III: A carrier desiring to participate in DoD peacetime 
contracts/traffic must commit no less than 50% of its total U.S. Flag 
capacity into Stage III. Carriers receiving DOT payments under the MSP, 
or carriers subject to Section 909 of Merchant Marine Act of 1936, as 
amended, that are not enrolled in the SRP will have vessels receiving 
such assistance enrolled in Stage III. Participants' capacity under 
charter to DoD will be considered ``organic'' to DoD, and does not 
count towards the Participant's Contingency commitment during the 
period of the charter. Participants utilized under Stage III activation 
will be compensated based upon a DoD pre-approved rate methodology.
    b. Stages I and II: DoD will annually develop and publish minimum 
commitment requirements for Stages I and II. Normally, the awarding of 
a long-term (i.e., one year or longer) DoD contract, exclusive of 
charters, will include the annual predesignated minimum commitment to 
Stages I and/or II. Participants desiring to bid on DoD peacetime 
contracts will be required to provide commitment levels to meet DoD-
established Stage I and/or II minimums on an annual basis. Participants 
may gain additional consideration for peacetime contract cargo 
allocation awards by committing capacity to Stages I and II beyond the 
specified minimums. If the Participant is awarded a contract reflecting 
such a commitment, that commitment shall become the actual amount of a 
Participant's U.S. Flag capacity commitment to Stages I and II. A 
Participant's Stage III U.S. Flag capacity commitment shall represent 
its total minimum VISA commitment. That Participant's Stage I and II 
capacity commitments as well as any volunteer capacity contribution by 
Participant are portions of Participant's total VISA commitment. 
Participants activated during Stages I and II will be compensated in 
accordance with prenegotiated Contingency contracts.
    4. Participants exclusively operating vessels engaged in domestic 
trades will be required to commit 50% of that capacity to Stage III. 
Such Participants will not be required to commit capacity to Stages I 
and II as a consideration of domestic peacetime traffic and/or contract 
award. However, such Participants may voluntarily agree to commit 
capacity to Stages I and/or II.
    5. The Participant owning, operating, or controlling an activated 
ship or ship capacity will provide intermodal equipment and management 
services

[[Page 12945]]

needed to utilize the ship and equipment at not less than the 
Participant's normal efficiency, in accordance with the prenegotiated 
Contingency contracts implementing this Agreement.

C. Effective Date and Duration of Participation

    1. Participation in this Agreement is effective upon execution by 
MARAD of the submitted form referenced in Section VII, and approval by 
USTRANSCOM by execution of an Enrollment Contract, for Stage III, at a 
minimum.
    2. VISA participation remains in effect until the Participant 
terminates the Agreement in accordance with paragraph D below, or 
termination of the Agreement in accordance with 44 CFR Sec. 332.4. 
Notwithstanding termination of VISA or participation in VISA, 
obligations pursuant to executed DoD peacetime contracts shall remain 
in effect for the term of such contracts and are subject to all terms 
and conditions thereof.

D. Participant Termination of VISA

    1. Except as provided in paragraph 2 below, a Participant may 
terminate its participation in VISA upon written notice to the 
Administrator. Such termination shall become effective 30 days after 
written notice is received, unless obligations incurred under VISA by 
virtue of activation of any Contingency contract cannot be fulfilled 
prior to the termination date, in which case the Participant shall be 
required to complete the performance of such obligations. Voluntary 
termination by a carrier of its VISA participation shall not act to 
terminate or otherwise mitigate any separate contractual commitment 
entered into with DoD.
    2. A Participant having an MSP operating agreement with SecTrans 
shall not withdraw from this Agreement at any time during the original 
term of the MSP operating agreement.
    3. A Participant's withdrawal, or termination of this Agreement, 
will not deprive a Participant of an antitrust defense otherwise 
available to it in accordance with DPA Section 708 for the fulfillment 
of obligations incurred prior to withdrawal or termination.
    4. A Participant otherwise subject to the DoD SRP that voluntarily 
withdraws from this Agreement will become subject again to the DoD SRP.

E. Rules and Regulations

    Each Participant acknowledges and agrees to abide by all provisions 
of DPA Section 708, and regulations related thereto which are 
promulgated by the Secretary, the Attorney General, and the Chairman-
FTC. Standards and procedures pertaining to voluntary agreements have 
been promulgated in 44 CFR Part 332. 46 CFR Part 340 establishes 
procedures for assigning the priority for use and the allocation of 
shipping services, containers and chassis. The JPAG will inform 
Participants of new and amended rules and regulations as they are 
issued in accordance with law and administrative due process. Although 
Participants may withdraw from VISA, they remain subject to all 
authorized rules and regulations while in Participant status.

F. Carrier Coordination Agreements (CCA)

    1. When any Stage of VISA is activated or when DoD has requested 
volunteer capacity pursuant to Section V.B. of VISA, Participants may 
implement approved CCAs to meet the needs of the DoD and to minimize 
the disruption of their services to the civil economy.
    2. A CCA for which the parties seek the benefit of Section 708(j) 
of the DPA shall be identified as such and shall be submitted to the 
Administrator for approval and certification in accordance with Section 
708(f)(1)(A) of the DPA. Upon approval and certification, the 
Administrator shall transmit the Agreement to the Attorney General for 
a finding in accordance with Section 708(f)(1)(B) of the DPA. Parties 
to approved CCAs may avail themselves of the antitrust defenses set 
forth in Section 708(j) of the DPA. Nothing in VISA precludes 
Participants from engaging in lawful conduct (including carrier 
coordination activities) that lies outside the scope of an approved 
Carrier Coordination Agreement; but antitrust defenses will not be 
available pursuant to Section 708(j) of the DPA for such conduct.
    3. Participants may seek approval for CCAs at any time.

G. Enrollment of Capacity (Ships and Equipment)

    1. A list identifying the ships/capacity and intermodal equipment 
committed by a Participant to each Stage of VISA will be prepared by 
the Participant and submitted to USTRANSCOM within seven days after a 
carrier has become a Participant. USTRANSCOM will maintain a record of 
all such commitments. Participants will notify USTRANSCOM of any 
changes not later than seven days prior to the change.
    2. USTRANSCOM will provide a copy of each Participant's VISA 
commitment data and all changes to MARAD.
    3. Information which a Participant identifies as privileged or 
business confidential/proprietary data shall be withheld from public 
disclosure in accordance with Section 708(h)(3) and Section 705(e) of 
the DPA, 5 App. U.S.C. 552(b), and 44 CFR Part 332.
    4. Enrolled ships are required to comply with 46 CFR Part 307, 
Establishment of Mandatory Position Reporting System for Vessels.

H. War Risk Insurance

    1. Where commercial war risk insurance is not available on 
reasonable terms and conditions, DOT shall provide non-premium 
government war risk insurance, subject to the provisions of Section 
1205 of the Merchant Marine Act, 1936, as amended (46 App. U.S.C. 
1285(a)).
    2. Pursuant to 46 CFR 308.1(c), the Administrator (or DOT) will 
find each ship enrolled or utilized under this agreement eligible for 
U.S. Government war risk insurance.

I. Antitrust Defense

    1. Under the provisions of DPA Section 708, each carrier shall have 
available as a defense to any civil or criminal action brought under 
the antitrust laws (or any similar law of any State) with respect to 
any action taken to develop or carry out this Agreement, that such act 
was taken in the course of developing or carrying out this Agreement 
and that the Participant complied with the provisions of DPA Section 
708 and any regulation thereunder, and acted in accordance with the 
terms of this Agreement.
    2. This defense shall not be available to the Participant for any 
action occurring after termination of this Agreement. This defense 
shall not be available upon the modification of this Agreement with 
respect to any subsequent action that is beyond the scope of the 
modified text of this Agreement, except that no such modification shall 
be accomplished in a way that will deprive the Participant of antitrust 
defense for the fulfillment of obligations incurred.
    3. This defense shall be available only if and to the extent that 
the Participant asserting it demonstrates that the action, which 
includes a discussion or agreement, was within the scope of this 
Agreement.
    4. The person asserting the defense bears the burden of proof.
    5. The defense shall not be available if the person against whom it 
is asserted shows that the action was taken for the purpose of 
violating the antitrust laws.
    6. As appropriate, the Administrator, on behalf of SecTrans, and 
DoD will

[[Page 12946]]

support agreements filed by Participants with the Federal Maritime 
Commission that are related to the standby or Contingency 
implementation of VISA.

J. Breach of Contract Defense

    Under the provisions of DPA Section 708, in any action in any 
Federal or State court for breach of contract, there shall be available 
as a defense that the alleged breach of contract was caused 
predominantly by action taken by a Participant during an emergency 
(including action taken in imminent anticipation of an emergency) to 
carry out this Agreement. Such defense shall not release the party 
asserting it from any obligation under applicable law to mitigate 
damages to the greatest extent possible.

K. Vessel Sharing Agreements (VSA)

    1. VISA allows Participants the use of a VSA to utilize non-
Participant U.S. Flag or foreign-owned and operated foreign flag vessel 
capacity as a substitute for VISA Contingency capability provided:
    a. The foreign flag capacity is utilized in accordance with cargo 
preference laws and regulations.
    b. The use of a VSA, either currently in use or a new proposal, as 
a substitution to meet DoD Contingency requirements is agreed upon by 
USTRANSCOM and MARAD.
    c. The Participant carrier demonstrates adequate control over the 
offered VSA capacity during the period of utilization.
    d. Service requirements are satisfied.
    e. Participant is responsible to DoD for the carriage or services 
contracted for. Though VSA capacity may be utilized to fulfill a 
Contingency commitment, a Participant's U.S. Flag VSA capacity in 
another Participant's vessel shall not act in a manner to increase a 
Participant's capacity commitment to VISA.
    2. Participants will apprise MARAD and USTRANSCOM in advance of any 
change in a VSA of which it is a member, if such changes reduce the 
availability of Participant capacity provided for in any approved and 
accepted Contingency Concept of Operations.
    3. Participants will not act as a broker for DoD cargo unless 
requested by USTRANSCOM.

VII. Application and Agreement

    The Administrator, in coordination with USCINCTRANS has adopted the 
form on page 31 (``Application to Participate in the Voluntary 
Intermodal Sealift Agreement'') on which intermodal ship operators may 
apply to become a Participant in this Agreement. The form incorporates, 
by reference, the terms of this Agreement.
    United States of America, Department of Transportation, Maritime 
Administration.

Application To Participate in the Voluntary Intermodal Sealift 
Agreement

    The applicant identified below hereby applies to participate in 
the Maritime Administration's agreement entitled ``Voluntary 
Intermodal Sealift Agreement.'' The text of said Agreement is 
published in ---------- Federal Register ----------, ----------, 
19----. This Agreement is authorized under Section 708 of the 
Defense Production Act of 1950, as amended (50 App. U.S.C. 2158). 
Regulations governing this Agreement appear at 44 CFR Part 332 and 
are reflected at 49 CFR Subtitle A.
    The applicant, if selected, hereby acknowledges and agrees to 
the incorporation by reference into this Application and Agreement 
of the entire text of the Voluntary Intermodal Sealift Agreement 
published in ---------- Federal Register ----------, ----------, 
19----, as though said text were physically recited herein.
    The Applicant, as a Participant, agrees to comply with the 
provisions of Section 708 of the Defense Production Act of 1950, as 
amended, the regulations of 44 CFR Part 332 and as reflected at 49 
CFR Subtitle A, and the terms of the Voluntary Intermodal Sealift 
Agreement. Further, the applicant, if selected as a Participant, 
hereby agrees to contractually commit to make specifically enrolled 
vessels or capacity, intermodal equipment and management of 
intermodal transportation systems available for use by the 
Department of Defense and to other Participants as discussed in this 
Agreement and the subsequent Department of Defense Voluntary 
Intermodal Sealift Agreement Enrollment Contract for the purpose of 
meeting national defense requirement.

Attest:
-----------------------------------------------------------------------
(Corporate Secretary)
(CORPORATE SEAL)
Effective Date:
-----------------------------------------------------------------------
(Secretary)
(SEAL)
-----------------------------------------------------------------------
(Applicant-Corporate Name)
-----------------------------------------------------------------------
(Signature)
-----------------------------------------------------------------------
(Position Title)
United States of America, Department of Transportation, Maritime 
Administration.
By:
-----------------------------------------------------------------------
Maritime Administrator

    By Order of the Maritime Administrator.

    Dated: March 11, 2005.
Joel C. Richard,
Secretary, Maritime Administration.

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[GRAPHIC] [TIFF OMITTED] TN16MR05.001


[[Page 12948]]


[FR Doc. 05-5186 Filed 3-15-05; 8:45 am]
BILLING CODE 4910-81-P