[Federal Register Volume 59, Number 158 (Wednesday, August 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20196]
[[Page Unknown]]
[Federal Register: August 17, 1994]
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Part VIII
Department of Transportation
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Maritime Administration
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Voluntary Intermodal Sealift Agreement; Notice
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
Voluntary Intermodal Sealift Agreement
Agency: Maritime Administration, Department of Transportation.
Action: Notice of Voluntary Intermodal Sealift Agreement (VISA).
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SUMMARY: The Maritime Administration (MARAD) announces establishment of
the Voluntary Intermodal Sealift Agreement (VISA), pursuant to section
708 of the Defense Production Act of 1950, as amended (50 U.S.C. App.
2158). This is a new voluntary agreement and is issued in accordance
with the provisions of 44 CFR part 332. The purpose of 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 through cooperation among the
maritime industry, the Department of Transportation and the Department
of Defense. Through advance arrangements in joint planning it is
intended that the participants will provide capacity to support a
significant portion of surge and sustainment requirements in dry cargo
or intermodal equipment emergencies.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas M.P. Christensen, Director,
Office of National Security Plans, Room Pl-1303, Maritime
Administration, 400 Seventh Street SW., Washington DC 20590, (202) 366-
5900, Fax (202) 488-0941.
SUPPLEMENTARY INFORMATION: The complete, draft text of VISA is
published below. Copies of VISA and the associated application form are
being sent, unsolicited, to U.S.-owned companies which provide
intermodal shipping services/systems. Copies also are available to the
public upon request.
NOTICE OF MEETING: An open meeting for the purpose of developing the
final text of VISA will convene at 2 p.m., Wednesday, August 31, 1994,
in Room 10234, Nassif Building, U.S. Department of Transportation, 400
Seventh Street, SW., Washington, DC 20590. Representatives of the
maritime and intermodal transportation industry and interested members
of the public are invited to attend. Telephonic or facsimile notice of
intent to attend, given to the point of contact above, will assure
adequate seating and more convenient access at security-controlled
entrances.
TEXT OF THE VOLUNTARY INTERMODAL SEALIFT AGREEMENT: Standby Voluntary
Agreement under Public Law 774, 81st Congress, as amended; ``Voluntary
Intermodal Sealift Agreement'' (VISA).
Table of Contents
ABBREVIATIONS
DEFINITIONS
PREFACE
VOLUNTARY INTERMODAL SEALIFT AGREEMENT
I. PURPOSE
II. AUTHORITIES
III. GENERAL
A. Need for this Agreement
B. History of this Agreement
C. Participation
D. Effective Date and Duration of Participation
E. Withdrawal from this Agreement
F. Standby Period
G. Rules and Regulations
H. Modification/Amendment of this Agreement
I. Administrative Expenses
J. Record Keeping
K. Requisition of Ships of Non-Participants
L. Plan of Action
IV. ANTITRUST DEFENSE
V. BREACH OF CONTRACT DEFENSE
VI. TERMS AND CONDITIONS
A. Agreement by Participant
B. Pooling Resources
C. Equitable Contribution of Shipping Capacity
D. Equitable Contribution of Intermodal Equipment
E. Enrollment of Ships and Equipment
F. Compensation
G. War Risk Insurance
VII. INTERMODAL SEALIFT COORDINATING COMMITTEE
VIII. ACTIVATION OF THIS AGREEMENT
A. Determination of Necessity
B. Intermodal Sealift Coordinating Committee
C. The Representative of the Secretary of Defense
D. Ship and Space Chartering
E. Leases of Intermodal Equipment
F. Management Service Contracts
G. Termination of Charters, Leases and Other Contractual
Arrangements
IX. JOINT PLANNING IN THE STANDBY PERIOD
X. PLAN OF ACTION: DEVELOPMENT MEETING
XI. APPLICATION AND AGREEMENT
ABBREVIATIONS
``USCINCTRANS''--Commander-in-Chief, United States Transportation
Command
``DOD''--Department of Defense
``DOT''--Department of Transportation
``FEMA''--Federal Emergency Management Agency
``FTC''--Federal Trade Commission
``MARAD''--Maritime Administration, DOT
``MSC''--Military Sealift Command
``NDRF''--National Defense Reserve Fleet maintained by MARAD
``RRF''--Ready Reserve Force component of the NDRF
``SecDef''--Secretary of Defense
``USTRANSCOM''--United States Transportation Command
DEFINITIONS
``Administrator''--Maritime Administrator.
``Attorney General''--Attorney General of the United States.
``Chairman''--Chairman of the FTC.
``Committee''--Intermodal Sealift Coordinating Committee
``Controlling interest''--more than a 50 percent interest by stock
ownership or otherwise.
``Director''--Director of FEMA.
``Intermodal equipment''--containers (including flat racks and
seasheds), chassis, trailers, tractors, lifts, cranes and other
ancillary items.
``Intermodal shipping services/systems''--includes ships, ship's
space, intermodal equipment, terminals, related management services,
and any parts of the foregoing.
``Management services''--management expertise and experience,
intermodal terminal management, information resources and control
and tracking systems.
``Participant''--a signatory party to this Agreement, and otherwise
as defined in this Agreement, III.C.
``Representative of SecDef''--USTRANSCOM.
``Secretary''--Secretary of Transportation.
Preface
Pursuant to the authority contained in section 708 of the Defense
Production Act of 1950, as amended (50 U.S.C. App. 2158) (Section 708),
the Administrator, after consultation with representatives of ocean
carriers providing intermodal shipping services/systems and with
representatives of companies which lease containers, chassis and other
intermodal equipment, has developed this standby agreement for
voluntary contribution of intermodal shipping services/systems needed
to meet national defense requirements.
USTRANSCOM procures commercial shipping capacity to meet normal
peacetime requirements for ships and intermodal shipping services/
systems through arrangements with common carriers (including services
contracts), with contract carriers and by charter. DOD, through
USTRANSCOM, maintains and operates a fleet of ships owned by or under
charter to the Federal government, in sufficient numbers to meet those
logistic needs of the military services which cannot be met by
commercial service. Ships of the RRF may be selectively activated for
peacetime military tests and exercises, and to satisfy military surge
operational requirements which cannot be met by commercial shipping in
time of war, national emergency, or military contingency. Foreign-flag
shipping may be used if no U.S.-flag ships can meet the operational
requirement. Through advance arrangements in joint planning described
in IX. of this Agreement, it is intended that Participants will provide
capacity to support a significant portion of surge and sustainment
requirements in dry cargo and intermodal equipment emergencies.
In time of war or national emergency, ships may be requisitioned
under authority of section 902 of the Merchant Marine Act, 1936, as
amended (46 App. U.S.C. 1242) (Section 902).
In some military contingency operations, more shipping capacity and
related services may be required than are available under peacetime
arrangements, but general mobilization of shipping by requisition may
not be appropriate. This Agreement provides for the voluntary
contribution of intermodal shipping services/systems in such a way as
to distribute the burden of such contributions in proportion to the
capacity owned and controlled by each Participant.
This Agreement will provide DOD with access to privately-owned
intermodal shipping services/systems, will provide door-to-door
intermodal capacity, will create a pool of vessels, vessel capacity and
intermodal equipment needed in support of national defense activities
and will provide Participants a defense to civil and criminal action
for violation of antitrust laws in carrying out this Agreement.
This Agreement establishes the terms, conditions and general
procedures under which each Participant agrees voluntarily to make
intermodal shipping services/systems available at the request of the
Administrator.
This Agreement is designed to create close working relationships
among the Administrator, USTRANSCOM and Participants through which
military needs and the needs of the civil economy can be met by
cooperative action. Participants are allowed maximum flexibility to
adjust commercial operations by cooperation, rationalization of
services and pooling of vessels, vessel capacity and intermodal
equipment, Provided, such measures are approved, in advance, by the
Administrator.
The shipping capacity made available voluntarily under this
Agreement may be supplemented by ships requisitioned, under Section
902, from non-Participants in this Agreement and from Participants.
The containers and chassis made available voluntarily under this
Agreement may be supplemented by services and equipment accessed by the
Administrator through the provisions of 46 CFR Part 340.
The SecDef will be asked to concur in this Agreement at the
appropriate stage. SecDef will be asked to approve this Agreement 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) (Section
909). Withdrawal from or termination of participation in this Agreement
does not excuse a Participant from Section 909 or any other provision
of law if said withdrawn or terminated Participant is otherwise subject
thereto.
The Director, after consultation with the Attorney General and the
Chairman, has concurred in this Agreement.
Voluntary Intermodal Sealift Agreement
I. Purpose
This Agreement establishes procedures for the contribution of
intermodal shipping services/systems to satisfy DOD needs. This
Agreement will change from standby to active status upon a joint
determination by the Secretary and SecDef that a dry cargo shipping
capacity emergency or an intermodal equipment emergency affecting the
national defense exists; that the defense requirement cannot be met by
voluntary arrangements other than this Agreement; and that the
requirement can be met more efficiently by activating this Agreement
than by requisitioning ships under Section 902.
This Agreement includes all intermodal shipping services/systems
and all intermodal ship types, including container, partial container,
container/bulk, container/roll-on/roll-off, roll-on/roll-off and barge
carrier (LASH, SeaBee, etc.). Breakbulk ships may be enrolled in this
Agreement at the discretion of the Administrator. When consideration is
being given to diverting intermodal shipping services/systems from
commercial to defense use, an ocean carrier's entire contribution will
be considered. The object of this Agreement is to promote and
facilitate the use of entire intermodal transportation systems and to
maximize DOD's use of commercial transportation resources while at the
same time attempting to minimize disruption to commercial operations.
The Agreement does, however, provide for the utilization of components
of such systems (e.g., particular ship types) as necessary. Through
advanced arrangements developed during peacetime joint planning
described in section IX of this Agreement, it is intended that
Participants will provide capability to support a significant portion
of surge and sustainment requirements in dry cargo intermodal equipment
emergencies.
II. Authorities
Section 708 of the Defense Production Act, as amended (50 U.S.C.
App. 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.
Section 501 of Executive Order 12919 delegated the authority of the
President under Section 708 to the Secretary, among others. By DOT
Order 1900.8, the Secretary delegated to the Administrator the
authority under which this Agreement is sponsored.
III. General
A. Need for this Agreement--1. The Administrator has found, in
accordance with Section 708(c)(1), 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 voluntary agreement
for utilization of intermodal shipping services/systems is necessary
for the national defense.
2. The quantity of military dry cargo (unit equipment, sustaining
supplies and ammunition) to be moved for support of a military
contingency, national emergency, or war in a foreign area could exceed
the shipping capacity normally available for charter or use from the
commercial sector. It is desirable to avoid the disruptive effects of
ship requisition and of intermodal equipment allocation so long as
military requirements can be met by voluntary cooperation between the
maritime industry and the Federal government. The Attorney General, in
consultation with the Chairman, has issued a finding that dry cargo
capacity to meet national defense requirements cannot be provided by
the industry through a voluntary agreement having less anti-competitive
effects or without a voluntary agreement.
B. History of this Agreement--The concept of this Agreement
originated in discussions between MARAD and DOD officials on
arrangements to promote timely availability of ships, equipment and
management services needed to operate them. Most U.S.-flag shipping
companies operate ships as part of an integrated land/ocean
transportation system. In times of emergency, DOD needs not only
vessels and intermodal equipment, but also the management expertise to
operate such assets as transportation systems.
It is anticipated that the Merchant Marine Act, 1936, as amended
(46 App. U.S.C. 1101 et seq.) will be amended in accordance with H.R.
4003 to provide for operating agreements between vessel owners or
operators and the Secretary. This Agreement will constitute an
Emergency Preparedness Program within the meaning of the amended Title
VI of the Act proposed in H.R. 4003. This Agreement will constitute a
sealift readiness program when approved by the SecDef and will meet all
the conditions set forth under Section 909. An ocean carrier which is a
Participant in this Agreement is eligible for award of a Shipping
Agreement or a Container Agreement from MSC without enrollment in any
other program. An ocean carrier eligible to participate in this
Agreement but which elects not to do so is subject to enrollment in the
MSC Sealift Readiness Program (SRP) if it (1) receives operating-
differential subsidy or construction-differential subsidy or (2) wishes
to carry DOD cargo. A carrier, while a Participant in this Agreement,
will be subject only to the provisions of this Agreement and not to the
provisions of the SRP.
C. Participation--1. An ocean carrier may become a Participant by
submitting an executed copy of the form referenced in XI. below. Any
ocean carrier organized under the laws of a State of the United States,
or the District of Columbia, may be a Participant.
2. A company which owns, or has obtained through lease, intermodal
equipment may become a Participant by submitting an executed copy of
the form referenced in XI. below. Such a company must be organized
under the laws of a State of the United States or the District of
Columbia.
3. The term ``Participant'' includes the entity signing this
Agreement and all United States subsidiaries and affiliates of that
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.
4. The term ``Participant'' also includes the controlled non-
domestic subsidiaries and affiliates of the entity signing this
Agreement; Provided, that the Administrator grants specific approval
for their inclusion.
5. An entity having an operating agreement with the Secretary shall
be a ``Participant.''
6. An entity electing to place itself in a readiness program, such
as Section 909 or Section 1202(c) of the Merchant Marine Act, 1936, as
amended (46 App. U.S.C. 1282(c)), shall, upon signing this Agreement,
be a ``Participant.''
7. Periodically, a list of Participants will be published in the
Federal Register.
D. Effective Date and Duration of Participation--Participation in
this Agreement is effective upon execution of the application form by
both the Participant and the Administrator, or their designees, and
remains in effect until terminated by the Administrator, the Attorney
General, or the Director, on due notice by letter, telegram, or
publication in the Federal Register, or until the Participant
withdraws.
E. Withdrawal from this Agreement--A Participant may withdraw from
this Agreement, subject to fulfillment of obligations incurred under
this Agreement prior to the date such withdrawal becomes effective, by
giving 30 days written notice to the Administrator; Provided however,
that a Participant having an operating agreement with the Secretary
will not withdraw from this Agreement during the period the operating
agreement is in effect. Withdrawal from this Agreement will not deprive
a Participant of an antitrust defense otherwise available to it in
accordance with Section 708. Withdrawal by a Participant subject to
authorities referred to in C.6. above merely revives direct application
of those authorities to the Participant at withdrawal.
F. Standby Period--The ``standby period'' is the interval between
the effective date of the Administrator's acceptance of an application
and the date of activation of this Agreement as prescribed in VIII.
below. The Administrator's acceptance of an application does not have
or imply any constraint or other effect on the Participant's business
operations during the standby period.
G. Rules and Regulations--A Participant acknowledges and agrees to
abide by all provisions of Section 708, and regulations related thereto
which are promulgated by the Secretary, the Attorney General, the
Chairman and the Director. Standards and procedures pertaining to
voluntary agreements have been promulgated in 44 CFR Part 332. Note is
taken that 46 CFR Part 340 establishes procedures for assigning the
priority for use and the allocation of shipping services, containers
and chassis. The Administrator will inform Participants of new and
amended rules and regulations as they are issued.
H. Modification/Amendment of this Agreement--The Attorney General
may modify this Agreement, in writing, after consultation with the
Chairman and the Administrator. The Administrator may modify this
Agreement, in writing, with the concurrence or at the direction of the
Director after consultation with the Attorney General and the Chairman.
Modifications initiated by the Administrator will be submitted to the
Director with the concurrence of the representative of SecDef. If
modification of IX. below is proposed, the Administrator will also seek
the concurrence of USTRANSCOM. USTRANSCOM or a Participant may propose
amendments to this Agreement at any time.
I. Administrative Expenses--Administrative and out-of-pocket
expenses incurred by a Participant during the standby period shall be
borne solely by the Participant. Such expenses may include, among other
things, traveling to meetings, making reports of owned, chartered and
leased intermodal ships and equipment as contemplated in VI.E. below
and keeping records as contemplated in III.J. below.
J. Record Keeping--1. MARAD and USTRANSCOM have primary
responsibility for maintaining records in accordance with 44 CFR Part
332.
2. The Director of MARAD's Office of National Security Plans shall
be the official custodian of records related to the carrying out of
this Agreement.
3. 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 carrying out of this Agreement. Each
Participant agrees to make available to the Administrator, the Attorney
General, the Director and the Chairman for inspection and copying at
reasonable times and upon reasonable notice any item that the
Participant is required hereby to maintain. Any record maintained by
MARAD or USTRANSCOM under this subsection shall be available for public
inspection and copying unless exempted on the grounds specified in 5
U.S.C. 552(b) (1), (3) and (4) or identified as privileged and
confidential information in accordance with Section 708(e).
K. Requisition of Ships of Non-Participants--The Administrator may
requisition ships of non-Participants to supplement capacity made
available under this Agreement and to balance the economic burden of
defense support among ocean carriers.
L. Plan of Action--The Participants, under the leadership of the
Administrator, or the Administrator's designee, shall adopt one or more
documents to implement this Agreement. Documents to implement this
Agreement shall be styled ``Plan of Action.
IV. Antitrust Defense
A. Under the provisions of Section 708, each Participant in this
Agreement 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 or a Plan of Action, that such act was taken in the course of
developing or carrying out this Agreement or a Plan of Action and that
the Participant complied with the provisions of Section 708 and any
regulation thereunder, and acted in accordance with the terms of this
Agreement or a Plan of Action.
B. This defense shall not be available to the Participant for any
action occurring after termination of this Agreement. Nor shall it 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.
C. The defense shall be available only if and to the extent that
the person asserting it demonstrates that the action was within the
scope of this Agreement or a Plan of Action.
D. The person asserting the defense bears the burden of proof.
E. 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.
F. As appropriate, the Administrator will support applications by
Participants to the Federal Maritime Commission or the Interstate
Commerce Commission to exempt this Agreement and any Plan of Action
from the operation of statutes administered by either agency.
V. Breach of Contract Defense
Under the provisions of 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 to carry out this
Agreement or a Plan of Action. Such defense shall not release the party
asserting it from any obligation under applicable law to mitigate
damages to the greatest extent possible.
VI. Terms and Conditions
A. Agreement by Participant--1. Each Participant agrees to
contribute intermodal shipping services/systems in accordance with this
Agreement and any Plan of Action applicable to the Participant and at
such times and in such amounts as the Administrator shall determine to
be necessary to meet essential needs of DOD for transportation of
military supplies and equipment during the period this Agreement is
activated.
2. Participant agrees to provide all necessary elements to operate
the intermodal transportation services/systems it contributes.
3. Each participant agrees to provide, on request, management
services needed to operate the contributed intermodal transportation
services/systems; including inland container and trailer and other
services, for the movement to and from ports of equipment which is
owned, operated, or controlled by a Participant.
4. Whenever possible, the Participant which owns, operates, or
controls a ship or ship capacity contributed will provide the
intermodal equipment and management services needed to utilize the ship
at full efficiency. However, upon the recommendation of the Committee
and at the Administrator's discretion, the ships and intermodal
equipment of a Participant may be placed under the operational
management and control of another Participant.
B. Pooling Resources--Each Participant agrees to make intermodal
shipping services/systems and intermodal equipment available to other
Participants when requested by the Administrator, on the advice of the
Committee. Such requests will be made in order to meet the defense
requirement, to ensure that overall contributions are made on a
proportionate basis, and to assure that no Participant is unduly
hampered in meeting the needs of the civil economy consistent with
priorities established by the President.
Participants may agree to cooperate, to rationalize services and to
pool intermodal assets in order to meet the defense requirement,
equalize the burden of the contribution and insure continued support to
the civil economy; Provided, however, that such activities involving
Participants in the normal course of business when this Agreement has
not been activated and not to facilitate meeting requirements or
requests of the Administrator are not covered by this Agreement.
C. Equitable Contribution of Shipping Capacity--1. Each Participant
agrees to contribute ships and ship's space under this Agreement in
accordance with VIII.B.1. and 2. below. The contribution should be in
the proportion of its ``controlled tonnage'' in each shipping capacity
category to the total ``controlled tonnage'' of all Participants in
each such category. Because exact proportions may not be feasible, and
because unique requirements for a particular category of ships or
capacity may arise, each Participant agrees that variations are
permissible at the discretion of the Administrator. Any Participant may
offer to increase its contribution.
2. ``Controlled tonnage'' consists of:
a. Ships which are owned or chartered in by a Participant and
documented under United States law;
b. PLUS non-U.S.-documented feeder ships, in which a Participant or
any of its subsidiaries or controlled affiliates has a controlling
interest and which are operated as an extension of U.S.-flag line haul
service;
c. PLUS any other non-U.S.-flag ships which a Participant may offer
to designate as ``controlled tonnage'' and to which the Administrator
agrees; and
d. LESS ships owned or controlled by a Participant which are
chartered, leased, or contracted out to others for remaining periods of
at least six months from the effective date of activation of this
Agreement and for which there is no termination clause for war,
national emergency, or military contingency.
3. The laws of the country of documentation may require the
approval of that government before ships on its register can be covered
by this Agreement. The Participant agrees to make a good faith effort
to obtain the required approval.
4. The categories of ships are:
a. Roll-on/roll-off (RO/RO) ships. RO/RO ships which do not have
installed ramps should be supplied with portable ramps, to the extent
practicable, by the Participant.
b. Combination container-RO/RO ships.
c. Barge carriers (LASH, SeaBee, etc.) The appropriate number of
lighters should be supplied to operate the vessel at full efficiency.
d. Containerships, both self-sustaining and non-self-sustaining.
Three containers should be provided per container space.
e. Partial containerships and container bulk. Three containers
should be provided per container space.
f. Breakbulk ships.
5. The contribution of each Participant shall be calculated by the
Administrator as soon as possible after this Agreement is activated.
The following standards will be used to determine proportionate
contributions of ``controlled tonnage'':
a. RO/RO ships--Square feet (meters) of cargo deck area.
b. Combination container--RO/RO--Square feet (meters) and container
capacity (expressed in twenty-foot equivalent units).
c. Barge Carrier--Cargo deadweight capacity.
d. Partial containerships and container bulk--Cargo deadweight.
e. Self-sustaining containerships--Total below deck and on deck
container capacity (expressed in twenty-foot equivalent units).
f. Non-self-sustaining containerships--Total below deck and on deck
container capacity (expressed in twenty-foot equivalent units).
g. Breakbulk ships--Cargo deadweight.
6. A ship on charter to a Participant shall not be subject to
contribution under this Agreement in the case where the period of
contribution would be longer than the remaining term of the
Participant's charter or in a case where the contribution would
otherwise breach the terms of the charter party, but such tonnage shall
be included in the calculation of the Participant's controlled tonnage.
7. The ``controlled tonnage'' of each Participant shall be divided
into two categories:
a. Level I--Vessels of the Participant which are:
i. Subject to Title VI of the Merchant Marine Act, 1936, as amended
(46 App. U.S.C. 1171 et seq.) It is anticipated that Title VI will be
amended in accordance with H.R. 4003 to provide for operating
agreements between vessel owners or operators and the Secretary.
Vessels covered by an operating agreement are in Level I.
ii. Otherwise required by law to be made available to meet national
defense requirements.
b. Level II--All other vessels of the Participant.
Level I vessels shall be provided immediately in response to the
call of the Administrator and instructions of the Administrator are to
be observed with the utmost dispatch. Level I vessels will be called
into service before Level II vessels.
Level II vessels shall be provided according to the schedule set
forth in the call of the Administrator. Level II vessels will be called
into service if and when Level I vessels actually provided are not
sufficient to meet the emergency. A Participant may offer Level II
vessels for service as Level I vessels.
8. Other than the specific use of ships described in VI.C.2.b.
(foreign-flag feeder vessels), it is expected that vessels covered by
an operating agreement will be utilized to the maximum extent possible
for line haul service to meet DOD requirements. When a specific ship
covered by an operating agreement is removed from regular service to
meet DOD requirements, a foreign-flag ship may be employed to replace
the ship taken from regular service.
9. The Administrator retains the right under law to requisition
ships of Participants. A Participant's ships which are directly
requisitioned by the United States or which are under other U.S.
Government voluntary arrangements shall be credited against the
Participant's proportionate contribution under this Agreement. Ships on
charter to DOD when this Agreement is activated shall not be so
credited.
D. Equitable Contribution of Intermodal Equipment--
1. ``Controlled intermodal equipment'' shall mean such equipment as
is needed in the operation of a Participant's intermodal shipping
system and which a Participant owns or leases.
2. During the standby period, the Administrator shall determine the
inventory of controlled intermodal equipment as of a specific date each
year.
3. When an ocean carrier Participant contributes containerships or
partial containerships, or capacity, it will provide containers in
accordance with VI.C.4. above and chassis as specified in a Plan of
Action.
4. Each Participant agrees to contribute intermodal equipment as
provided in a Plan of Action, which may require contribution in the
proportion of its inventory of each type of equipment to the total
inventory of that type held by all Participants; Provided, that, at the
discretion of the Administrator, on the advice of the Committee, when a
Participant contributes specialized equipment which is not available
from all Participants, its proportionate share of common types of
equipment may be adjusted so that its overall contribution is in
approximately the same proportion to its total available inventory as
are the overall contributions of other Participants to their available
inventories.
5. Prior to calls for contributions of intermodal equipment, the
Administrator, on the advice of the Committee, will determine the
portion and types of equipment to be acquired from the ship operating
companies and the portion and types of equipment to be acquired from
leasing companies.
6. A Participant may contribute intermodal equipment in excess of
its proportionate share with the approval of the Administrator, after
consultation with the Committee.
E. Enrollment of Ships and Equipment--
1. The Administrator will maintain a record of ships and equipment
enrolled under this Agreement according to a Plan of Action. A schedule
of ships and equipment which are owned and which are controlled by an
applicant and which the applicant proposes for enrollment will be
attached to the form referenced in VIII. below. Ships and equipment
will be enrolled on the date this Agreement becomes effective for the
Participant. Participants will notify the Administrator of all changes
to the schedule semi-annually on June 30 and December 31.
2. The Administrator will make the enrollment data available to
USTRANSCOM.
3. Information which a Participant identifies as privileged and
confidential shall be withheld from public disclosure in accordance
with Section 708(h)(3) and section 705(e) of the Defense Production Act
of 1950, as amended (50 U.S.C. App. 2155), 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.
F. Compensation--1. The Administrator shall, in consultation with
Participants and with the concurrence of USTRANSCOM, promulgate a
methodology for determining rates of compensation under this Agreement.
The methodology will be developed as a separate Plan of Action.
2. Employing the forms, including terms and conditions, found in
the Plan of Action developed under this Agreement, and the compensation
determined in accordance with the rate methodology (VI.F.1 and
implementing Plan of Action), the Administrator or his designee, or
USTRANSCOM or its designee, shall execute charters, leases and other
contractual arrangements which implement this Agreement upon its
activation.
G. War Risk Insurance--
1. SecDef will either reimburse for additional commercial war risk
insurance or provide no-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)) upon activation of this Agreement.
2. Each ship enrolled under this Agreement shall be eligible for
U.S. Government war risk insurance and for an interim insurance binder
under the provisions of 46 CFR Part 308, notwithstanding restrictions
on eligibility set out in Subpart A thereof.
VII. Intermodal Sealift Coordinating Committee
There shall be an Intermodal Sealift Coordinating Committee
comprising the Administrator or his designee, USCINCTRANS or his
designee and a representative from each of the Participants. The
functions of the Committee are described in VIII and IX below.
VIII. Activation of This Agreement
A. Determination of Necessity--This Agreement shall be activated
upon a joint determination by the Secretary and SecDef that a dry cargo
shipping capacity emergency or an intermodal equipment emergency
affecting the national defense exists, and that the defense
requirements cannot be met more effectively and timely without
activation of this Agreement. A dry cargo shipping capacity emergency
and an intermodal equipment emergency will be deemed to exist when dry
cargo shipping capacity and intermodal equipment required to support
operations of U.S. Forces outside the continental United States cannot
be supplied through the commercial market or other voluntary
arrangements. The Administrator shall notify the Attorney General and
the Chairman when such a determination is made.
B. Intermodal Sealift Coordinating Committee--
1. The Administrator or his designee shall chair the Committee, and
will be assisted by a USTRANSCOM staff member. Upon activation of this
Agreement, the Administrator or his designee shall convene a meeting of
the Committee for the purposes of advising participants of DOD
requirements, soliciting recommendations regarding the implementation
of this Agreement in accordance with previous joint planning, and
identifying any special circumstances affecting participants'
contributions. The Administrator or his designee will administer this
Agreement and will apportion the contributions of dry cargo capacity
and management services by the Participants to meet DOD requirements.
2. If any necessary Plan of Action has not been adopted at the time
of activation of this Agreement, the Administrator shall assure
completion of such Plan of Action in order to meet DOD requirements.
3. The Committee Chair shall:
a. Notify the Attorney General, the Chairman, the Director and all
Participants of the time, place and nature of each meeting and of the
proposed agenda of each meeting to be held to implement this Agreement;
b. Provide for publication in the Federal Register of a notice of
the time, place and nature of each such meeting. If a 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;
c. Establish the agenda for each meeting and be responsible for
adherence to the agenda;
d. 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, the Director, all Participants and
the designated staff member of DOD; and
e. Take necessary action to protect confidentiality of data
discussed with or obtained from Participants.
C. The Representative of the Secretary of Defense--USTRANSCOM is
the SecDef's representative in the implementation of this Agreement.
D. Ship and Space Chartering--Charters or other agreements for
ships, ship space or intermodal shipping services/systems will be
executed, as specified in the relevant Plan of Action.
E. Leases of Intermodal Equipment--Lease agreements for intermodal
equipment will be executed, as specified in the relevant Plan of
Action.
F. Management Service Contracts--Management service contracts will
be executed, as specified in the relevant Plan of Action.
G. Termination of Charters, Leases and Other Contractual
Arrangements
1. USTRANSCOM will notify the Administrator as far in advance as
possible of the prospective termination of charters, leases, management
service contracts or other contractual arrangements under this
Agreement.
2. If this Agreement is superseded by the general requisitioning of
ships, the Administrator, as a matter of discretion, may replace
charters made under this Agreement with charters made under
requisition.
IX. Joint Planning in the Standby Period
A. Chairmanship--During the standby period, when engaged in the
planning described in IX.B., the Committee will be co-chaired by MARAD
and USTRANSCOM.
B. Planning--
1. During the standby period the Committee may be convened to:
a. Develop a Plan of Action to implement this Agreement;
b. Consider amendments to this Agreement or a Plan of Action;
c. Engage in joint planning to meet military requirements for
intermodal shipping services/systems;
d. Test readiness under this Agreement to meet requirements by
participating in exercises, including military-sponsored exercises;
e. Evaluate capabilities under this Agreement to meet requirements;
and
f. Discuss methods for improving procedures under this Agreement in
order to meet requirements.
2. Meetings for joint planning will be convened annually during the
standby period, or more frequently if the co-Chairmen so determine.
C. Security Measures--The Administrator, in cooperation with
USTRANSCOM and with appropriate security measures, will provide for
sharing of wartime planning information with Participants, to enable
Participants to plan their wartime commitment.
X. Plan of Action: Development Meeting
The Administrator shall convene the Committee within ninety days of
the effective date of the first Participant's VISA. The purpose shall
be to develop a Plan of Action to implement this Agreement.
XI. Application and Agreement
The Administrator has adopted a form on which intermodal ship
operators and intermodal equipment leasing companies may apply to
become a Participant in this Agreement (``Application and Agreement to
Participate in the Voluntary Intermodal Sealift Agreement''). The form
incorporates by reference the terms of this Agreement.
By order of the Maritime Administrator.
Date: August 12, 1994.
James E. Saari,
Acting Secretary, Maritime Administration.
United States of America Department of Transportation Maritime
Administration
Application and Agreement to Participate in the Voluntary Intermodal
Sealift Agreement
The applicant identified below hereby applies to participate in the
Maritime Administration's voluntary 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 U.S.C. App. 2158). Regulations governing this Agreement
appear at 44 CFR Part 332 and are reflected at 49 CFR Subtitle A.
The Applicant 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 at 44 CFR Part 332 and as reflected at 49 CFR
Subtitle A, and the terms of the Voluntary Intermodal Sealift
Agreement. Further, the Applicant, as a Participant, subject to the
request of the Maritime Administrator, hereby agrees to voluntarily
make vessels, intermodal equipment and management of intermodal
transportation systems available for use by the Department of Defense
and to other Participants in this Agreement for the purpose of meeting
national defense requirements.
Attest:
----------------------------------------------------------------------
(Applicant-Corporate Name)
(CORPORATE SEAL)
Effective Date:--------------------------------------------------------
----------------------------------------------------------------------
(Secretary)
(SEAL)
----------------------------------------------------------------------
(Applicant-Corporate Name)
By:--------------------------------------------------------------------
(Signature)
----------------------------------------------------------------------
(Position Title)
UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION MARITIME
ADMINISTRATION
By: ______________-----------------------------------------------------
(Maritime Administrator
[FR Doc. 94-20196 Filed 8-16-94; 8:45 am]
BILLING CODE 4910-81-P
