§1187b. National security requirements
(a) Emergency Preparedness Agreement
(1) Requirement to enter Agreement
The Secretary of Transportation shall establish an Emergency Preparedness Program under this section that is approved by the Secretary of Defense. Under the program, the Secretary of Transportation shall include in each operating agreement under this part 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 part.
(2) Terms of Agreement
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 (including any natural disaster, international peace operation, or contingency operation (as that term is defined in section 101 of title 10)), a contractor for a vessel covered by an operating agreement under this part shall make available commercial transportation resources (including services). The basic terms of the Emergency Preparedness Agreements shall be established pursuant to consultations among the Secretary, the Secretary of Defense, and Maritime Security Program contractors. 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) Participation after expiration of operating agreement
Except as provided by section 1187a(m) of this Appendix, the Secretary may not require, through an Emergency Preparedness Agreement or operating agreement, that a contractor continue to participate in an Emergency Preparedness Agreement when the operating agreement with the contractor has expired according to its terms or is otherwise no longer in effect.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.
(b) Resources made available
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 may determine to be necessary, seeking to minimize disruption of the contractor's service to commercial shippers.
(c) Compensation
(1) In general
The Secretary of Transportation shall provide in each Emergency Preparedness Agreement for fair and reasonable compensation for all commercial transportation resources provided pursuant to this section.
(2) Specific requirements
Compensation under this subsection-
(A) shall not be less than the contractor's commercial market charges for like transportation resources;
(B) shall include all the contractor's costs associated with provision and use of the contractor's commercial resources to meet emergency requirements;
(C) in the case of a charter of an entire vessel, shall be fair and reasonable;
(D) shall be in addition to and shall not in any way reflect amounts payable under section 1187a of this Appendix; and
(E) shall be provided from the time that a vessel or resource is diverted from commercial service until the time that it reenters commercial service.
(3) Approval of amount by Secretary of Defense
No compensation may be provided for a vessel under this subsection unless the amount of the compensation is approved by the Secretary of Defense.
(d) Temporary replacement vessels
Notwithstanding any other provision of this part or of other law to the contrary-
(1) a contractor or other person that commits to make available a vessel or vessel capacity under the Emergency Preparedness Program or another primary sealift readiness program approved by the Secretary of Defense may, during the activation of that vessel or capacity under that program, operate or employ in foreign commerce a foreign-flag vessel or foreign-flag vessel capacity as a temporary replacement for the activated vessel or capacity; and
(2) such replacement vessel or vessel capacity shall be eligible during the replacement period to transport preference cargoes subject to section 2631 of title 10, section 1241–1 of this Appendix, and sections 1241(a), 1241(b), and 1241f of this Appendix to the same extent as the eligibility of the vessel or vessel capacity replaced.
(e) Redelivery and liability of United States for damages
(1) In general
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 Government shall fully compensate the contractor for any necessary repair or replacement.
(2) Limitation on liability of United States
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.
(3) Limitation on application of other requirements
Sections 1242 and 1248 of this Appendix shall not apply to a vessel while it is covered by an Emergency Preparedness Agreement under this part. Any Emergency Preparedness Agreement entered into by a contractor shall supersede any other agreement between that contractor and the Government for vessel availability in time of war or national emergency.
(June 29, 1936, ch. 858, title VI, §653, as added
Amendments
1997-Subsec. (d)(1).
Section Referred to in Other Sections
This section is referred to in sections 1187a, 1222 of this Appendix.