§53107 — Title 46 Shipping | U.S. Code

Summary

The Secretary must set up an Emergency Preparedness Program that the Secretary of Defense approves. Under that program, every operating agreement must include a requirement that the contractor quickly sign an Emergency Preparedness Agreement with the Secretary after the operating agreement starts. Those Emergency Preparedness Agreements must make a contractor’s commercial transportation resources available to the Secretary of Defense during war, a national emergency, or whenever the Secretary of Defense says they are needed for national security or a contingency operation (as defined in section 101 of title 10, United States Code). The Secretary and the Secretary of Defense set the basic terms, and extra terms can be added if the Secretary of Defense approves. Any agreement that starts or is renewed after the date of enactment of the National Defense Authorization Act for Fiscal Year 2010 must require non-lethal defenses for vessels carrying Department of Defense cargo in Coast Guard‑designated high‑piracy areas, with those measures set jointly by the Secretary of Defense and the head of the department that runs the Coast Guard. Contractors cannot be forced to stay in an Emergency Preparedness Agreement after their operating agreement ends, but they may volunteer to continue. “Commercial transportation resources” includes vessels and vessel space, intermodal systems and equipment, terminals, and related services. The Secretary of Defense must pay fair and reasonable compensation (at least the contractor’s commercial market charges) from the time resources are required until they are returned and ready for commercial use; this pay is separate from amounts under section 53106. A contractor may temporarily use a foreign‑flag vessel as a replacement for a U.S. vessel activated under these agreements, and that replacement can carry preference cargoes during the replacement. When activation ends, returned resources must be in the same good condition except for normal wear, or the Secretary of Defense must pay for repairs or replacement. Unless the agreement or another law says otherwise, the Government is not liable for a contractor’s lost business or other consequential damages from activation.

Title 46, §53107

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(a)The Secretary shall establish an Emergency Preparedness Program under this section that is approved by the Secretary of Defense. Under the program, the Secretary, in conjunction with the Secretary of Defense, shall include in each operating agreement under this chapter a requirement that the contractor enter into an Emergency Preparedness Agreement under this section with the Secretary. The Secretary shall negotiate and enter into an Emergency Preparedness Agreement with each contractor as promptly as practicable after the contractor has entered into an operating agreement under this chapter.

(b)(1)An Emergency Preparedness Agreement under this section shall require that a contractor for a vessel covered by an operating agreement under this chapter shall make commercial transportation resources (including services) available, upon request by the Secretary of Defense during a time of war or national emergency, or whenever the Secretary of Defense determines that it is necessary for national security or contingency operation (as that term is defined in section 101 of title 10, United States Code).

(2)(A)The basic terms of the Emergency Preparedness Agreement shall be established (subject to subparagraph (B)) by the Secretary and the Secretary of Defense.

(B)In any Emergency Preparedness Agreement, the Secretary and a contractor may agree to additional or modifying terms appropriate to the contractor’s circumstances if those terms have been approved by the Secretary of Defense.

(3)(A)The Emergency Preparedness Agreement for any operating agreement that first takes effect or is renewed after the date of enactment of the National Defense Authorization Act for Fiscal Year 2010 shall require that any vessel operating under the agreement in the carriage of cargo for the Department of Defense in an area that is designated by the Coast Guard as an area of high risk of piracy shall be equipped with, at a minimum, appropriate non-lethal defense measures to protect the vessel, crew, and cargo from unauthorized seizure at sea.

(B)The Secretary of Defense and the Secretary of the department in which the Coast Guard is operating shall jointly prescribe the non-lethal defense measures that are required under this paragraph.

(c)Except as provided by section 53105(d), the Secretary may not require, through an Emergency Preparedness Agreement or operating agreement, that a contractor continue to participate in an Emergency Preparedness Agreement after the operating agreement with the contractor has expired according to its terms or is otherwise no longer in effect. After expiration of an Emergency Preparedness Agreement, a contractor may volunteer to continue to participate in such an agreement.

(d)The commercial transportation resources to be made available under an Emergency Preparedness Agreement shall include vessels or capacity in vessels, intermodal systems and equipment, terminal facilities, intermodal and management services, and other related services, or any agreed portion of such nonvessel resources for activation as the Secretary of Defense may determine to be necessary, seeking to minimize disruption of the contractor’s service to commercial shippers.

(e)(1)The Secretary shall include in each Emergency Preparedness Agreement provisions approved by the Secretary of Defense under which the Secretary of Defense shall pay fair and reasonable compensation for all commercial transportation resources provided pursuant to this section.

(2)Compensation under this subsection—

(A)shall not be less than the contractor’s commercial market charges for like transportation resources;

(B)shall be fair and reasonable considering all circumstances;

(C)shall be provided from the time that a vessel or resource is required by the Secretary of Defense until the time that it is redelivered to the contractor and is available to reenter commercial service; and

(D)shall be in addition to and shall not in any way reflect amounts payable under section 53106.

(f)Notwithstanding section 55302(a), 55304, 55305, or 55314 of this title, section 2631 of title 10, or any other cargo preference law of the United States—

(1)a contractor may operate or employ in foreign commerce a foreign-flag vessel or foreign-flag vessel capacity as a temporary replacement for a United States-documented vessel or United States-documented vessel capacity that is activated by the Secretary of Defense under an Emergency Preparedness Agreement or under a primary Department of Defense-approved sealift readiness program; and

(2)such replacement vessel or vessel capacity shall be eligible during the replacement period to transport preference cargoes subject to section 55302(a), 55304, 55305, and 55314 of this title and section 2631 of title 10 to the same extent as the eligibility of the vessel or vessel capacity replaced.

(g)(1)All commercial transportation resources activated under an Emergency Preparedness Agreement shall, upon termination of the period of activation, be redelivered to the contractor in the same good order and condition as when received, less ordinary wear and tear, or the Secretary of Defense shall fully compensate the contractor for any necessary repair or replacement.

(2)Except as may be expressly agreed to in an Emergency Preparedness Agreement, or as otherwise provided by law, the Government shall not be liable for disruption of a contractor’s commercial business or other consequential damages to a contractor arising from activation of commercial transportation resources under an Emergency Preparedness Agreement.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The date of enactment of the National Defense Authorization Act for Fiscal Year 2010, referred to in subsec. (b)(3)(A), is the date of enactment of Pub. L. 111–84, which was approved Oct. 28, 2009.

Amendments

2013—Subsec. (b)(1). Pub. L. 112–239 amended par. (1) generally. Prior to amendment, text read as follows: “An Emergency Preparedness Agreement under this section shall require that upon a request by the Secretary of Defense during time of war or national emergency, or whenever determined by the Secretary of Defense to be necessary for national security or contingency operation (as that term is defined in section 101 of title 10, United States Code), a contractor for a vessel covered by an operating agreement under this chapter shall make available commercial transportation resources (including services).” 2009—Subsec. (b)(3). Pub. L. 111–84 added par. (3). 2006—Subsec. (f). Pub. L. 109–304 substituted “section 55302(a), 55304, 55305, or 55314 of this title, section 2631 of title 10” for “section 2631 of title 10, United States Code, the Act of

March 26, 1934 (46 U.S.C. App. 1241–1), section 901(a), 901(b), or 901b of the Merchant Marine Act, 1936 (46 U.S.C. App. 1241(a), 1241(b), or 1241f)” in introductory provisions and “section 55302(a), 55304, 55305, and 55314 of this title and section 2631 of title 10” for “section 2631 of title 10, United States Code, the Act of

March 26, 1934 (46 U.S.C. App. 1241–1), and section 901(a), 901(b), and 901b of the Merchant Marine Act, 1936 (46 U.S.C. App. 1241(a), 1241(b), and 1241b)” in par. (2).

§53107 National security requirements