Voluntary Intermodal Sealift Agreement; Extension and Modification
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Abstract
The Maritime Administration (MARAD) announces the extension of the Voluntary Intermodal Sealift Agreement (VISA) until October 1, 2029, pursuant to Section 708 of the Defense Production Act of 1950, as amended. VISA is intended to make intermodal shipping services/systems, including ships, ships' space, intermodal facilities and equipment, and related management services, available to the Department of Defense (DoD) as required to support the emergency deployment and sustainment of U.S. Armed Forces through cooperation among the maritime industry, the Department of Transportation (DOT), and DoD. In addition to extending VISA for an additional 5 years for existing participants, MARAD is modifying VISA for new applicants by making certain modifications to the Agreement, including clarification of what is meant by shipping services/systems, and the required vessel certifications for program entry. MARAD has also updated references to authorities and statutory and regulatory citations.
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[Federal Register Volume 89, Number 202 (Friday, October 18, 2024)]
[Notices]
[Pages 83941-83949]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23974]
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
Voluntary Intermodal Sealift Agreement; Extension and
Modification
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Notice.
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SUMMARY: The Maritime Administration (MARAD) announces the extension of
the Voluntary Intermodal Sealift Agreement (VISA) until October 1,
2029, pursuant to Section 708 of the Defense Production Act of 1950, as
amended. VISA is intended to make intermodal shipping services/systems,
including ships, ships' space, intermodal facilities and equipment, and
related management services, available to the Department of Defense
(DoD) as required to support the emergency deployment and sustainment
of U.S. Armed Forces through cooperation among the maritime industry,
the Department of Transportation (DOT), and DoD. In addition to
extending VISA for an additional 5 years for existing participants,
MARAD is modifying VISA for new applicants by making certain
modifications to the Agreement, including clarification of what is
meant by shipping services/systems, and the required vessel
certifications for program entry. MARAD has also updated references to
authorities and statutory and regulatory citations.
DATES: This agreement will be effective on October 1, 2024, superseding
the existing VISA agreement, as published in the Federal Register on
October 29, 2014 (79 FR 64462-70) and renewed on September 30, 2019 (84
FR 51710-11).
FOR FURTHER INFORMATION CONTACT: David J. Hatcher, Office of Sealift
Support, Room W25-310, Maritime Administration, 1200 New Jersey Avenue
SE, Washington, DC 20590, (202) 366-0688, Fax (202) 366-5904.
SUPPLEMENTARY INFORMATION: Section 708 of the Defense Production Act of
1950, as amended (50 U.S.C. 4558) (DPA Sec. 708), authorizes the
President to consult with representatives of industry, business,
finance, agriculture, labor, and other interests to establish voluntary
emergency preparedness agreements, following a finding that conditions
exist which may pose a direct threat to the national defense or its
preparedness programs. 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 (FTC). Section
401 of Executive Order (E.O.) 13603 (Mar. 16, 2012) delegated this
authority of the President to the Secretary of Transportation
(SecTrans), among others. In accordance with 49 CFR 1.93(l), SecTrans
delegated VISA's sponsorship authority to the Maritime Administrator,
in consultation and coordination with the DOT's Office of Intelligence,
Security and Emergency Response. Through advance arrangements in joint
planning, VISA participants will provide capacity to support a
significant portion of surge and sustainment requirements in the
deployment of U.S. military forces during a time of war or national
emergency, or whenever the Secretary of Defense (or delegate)
determines that it is necessary for national security or contingency
operations.
The text of VISA was first published in the Federal Register on
February 13, 1997, effective for an initial two-year term expiring on
February 13, 1999 (62 FR 6838-46). The VISA document had been extended
and subsequently published in the Federal Register every two years.
Effective September 30, 2009, Congress amended DPA Sec. 708 to note
that each voluntary agreement expires five (5) years after the date it
becomes effective. MARAD updated the VISA agreement language most
recently in 2014, as published in the Federal Register on October 29,
2014 (79 FR 64462-70), and extended the effective period of that
language by five years until October 1, 2024, by notice in the Federal
Register on September 30, 2019 (84 FR 51710-11). The agreement
published in this notice incorporates, among other changes: (1) updates
to vessel eligibility requirements, as first published in the Federal
Register on January 31, 2018 (83 FR 4552-54); (2) changes to the
requirements for coastwise trading waivers under 46 U.S.C. 501,
pursuant to statutory amendments enacted in 2021 and 2022; (3)
clarifications of certain definitions and obligations on VISA
stakeholders; and (4) certain non-substantive clerical updates.
In accordance with DPA Sec. 708(f)(2), the Maritime Administrator
continues to find that VISA is necessary to respond to direct threats
to the national defense or its preparedness programs, and sought a
concurrent finding from the Assistant Attorney General for the
Antitrust Division, Department of Justice (whose authority has been
delegated from the Attorney General in accordance with 28 CFR 0.40(l)),
in consultation with the Chair of the Federal Trade Commission, that
the objectives of VISA may not be reasonably achieved through either a
voluntary plan having fewer anticompetitive effects or the absence of
such a voluntary agreement or plan of action. By notice in the Federal
Register on October 2, 2024 (89 FR 80264-65), the Assistant Attorney
General for the Antitrust Division, Department of Justice, in
consultation with the Chair of the Federal Trade Commission, made such
a concurrent finding on September 26, 2024. Therefore, in accordance
with DPA Sec. 708(f)(2), VISA may be extended for another five-year
term. The text published herein supersedes the 2014 language, as
renewed in 2019, for an effective period of five years, ending October
1, 2029. Copies of this agreement will be made available to the public
upon request.
Voluntary Intermodal Sealift Agreement (VISA)
Table of Contents
Definitions
Preface
I. Purpose
II. Authorities
A. MARAD
B. USTRANSCOM
III. General
A. Concept
B. Responsibilities
[[Page 83942]]
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 (JPAG)
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. Participant Terms and Conditions
A. Participation
B. Agreement of Participant
C. Effective Date and Duration of Agreement
D. Participant Termination of VISA
E. Carrier Coordination Agreements
F. Vessel Qualifications
G. Enrollment of Intermodal Capacity--Vessels, Facilities, and
Equipment
H. War Risk Insurance
I. Antitrust Defense
J. Breach of Contract Defense
K. Vessel Sharing Agreements
VII. Application and Agreement
Abbreviations
CCA--Carrier Coordination Agreement
CFR--Code of Federal Regulations
CONOPS--Concept of Operations
DoD--United States Department of Defense
DOJ--United States Department of Justice
DOT--United States Department of Transportation
DPA--Defense Production Act of 1950, as amended (50 U.S.C. Chapter
55)
E.O.-Executive Order
FEMA--Federal Emergency Management Agency
FMC--Federal Maritime Commission
FOIA--Freedom of Information Act (5 U.S.C. 552)
FTC--Federal Trade Commission
JCS--Joint Chiefs of Staff
JPAG--Joint Planning Advisory Group
MARAD--Maritime Administration
MSP--Maritime Security Program (46 U.S.C. 53101-11)
SecDef--United States Secretary of Defense
SecTrans--United States Secretary of Transportation
U.S.C.--United States Code
USCG--United States Coast Guard
USTRANSCOM--United States Transportation Command, inclusive of its
military service component commands Air Mobility Command, Military
Sealift Command, and Military Surface Deployment and Distribution
Command, and its subordinate command Joint Enabling Capabilities
Command
VISA--Voluntary Intermodal Sealift Agreement
VSA--Vessel Sharing Agreement
Definitions
For purposes of this Agreement, the following definitions apply:
Administrator--Maritime Administrator, unless otherwise stipulated.
Agreement--Agreement (proper noun) refers to 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: (1) charter vessels or portions of the cargo-carrying
capacity of vessels; (2) share cargo handling equipment, chassis,
containers and ancillary transportation equipment; (3) share
wharves, warehouse, marshaling yards and other marine terminal
facilities; and (4) coordinate the movement of vessels.
Charter--Any agreement or commitment by which the possession or
services of a vessel are secured for a period, or for one or more
voyages, whether or not by a demise of the vessel.
Combatant Commander--Any of the military officers defined under 10
U.S.C. 164.
Commander--Combatant Commander, USTRANSCOM, unless otherwise
stipulated.
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--A military operation that is either designated by the
Secretary of Defense as a contingency operation or becomes a
contingency operation as a matter of law, in accordance with 10
U.S.C. 101(a)(13).
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.
Dry cargo--Includes (1) any non-liquid good or commodity and (2)
liquids shipped in pre-packaged containers (such as bottled drinking
water). It does not include any bulk liquid cargo shipped directly
in the holds of vessels.
Foreign-flag vessel--A vessel registered or documented under the
laws 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.
Management services--Management expertise and experience, intermodal
terminal management, information resources, and control and tracking
systems.
Military Services--Includes the armed services identified in 10
U.S.C. 101(a)(4): United States Army, United States Navy, United
States Air Force, United States Marine Corps, United States Space
Force, and United States Coast Guard.
Ocean common carrier--In accordance with 46 U.S.C. 40102, an entity
holding itself out to the general public to provide transportation
by water of passengers or cargo for compensation that (1) assumes
responsibility for transportation from port or point of receipt to
port or point of destination, and (2) operates and utilizes a vessel
operating on the high seas for all or part of that transportation.
Operator--An ocean common carrier or contract carrier that owns or
controls or manages vessels by which ocean transportation is
provided.
Organic sealift--For the purposes of this Agreement, ships
considered to be under government control or long-term charter,
including Fast Sealift Ships, Ready Reserve Force vessels and
commercial ships under long-term charter to DoD.
Participant--A vessel operator that (1) successfully applies to join
VISA, in accordance with Section VII of this document, and (2)
enters into a USTRANSCOM VISA Contingency Contract. This may be
augmented under the terms of Section VI(A) of this document.
Person--Includes individuals and corporations, partnerships, and
associations existing under or authorized by the laws of the United
States or any state, territory, district, or possession thereof, or
of a foreign country.
Service contract--As defined in 46 U.S.C. 40102(21), 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). The contract may also specify
provisions in the event of nonperformance on the part of either
party.
Standby--The interval between the effective date of a Participant's
acceptance into VISA 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 commercial vessel registered or documented under
the laws of the United States of America in accordance with 46
U.S.C. Chapter 121 and any associated regulations and instructions
promulgated by USCG.
USTRANSCOM VISA Contingency Contract--The contract between a
signatory party to VISA and USTRANSCOM establishing the minimum
terms and conditions for VISA capacity activation. Attachment I of
the contract is executed and signed by MSC, MARAD, USTRANSCOM and
the individual carrier to enroll that carrier's vessel capacity into
VISA Stages I, II and III.
Vessel Sharing Agreement (VSA) Capacity--Space chartered to a
Participant for carriage of cargo, under its commercial contracts,
service contracts or in common
[[Page 83943]]
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.
Volunteer--Any vessel owner or 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 U.S.C. 4558),
in cooperation with DoD, developed the Voluntary Intermodal Sealift
Agreement (VISA) to provide DoD with assured access to the commercial
sealift and intermodal shipping services/systems necessary to meet
wartime, national emergency, national security, or contingency
operation requirements.
United States Transportation Command (USTRANSCOM) procures
commercial shipping capacity to meet requirements for ships and
intermodal shipping services/systems through arrangements with common
carriers, with contract carriers and by charter. DoD (through
USTRANSCOM) and DOT (through MARAD) maintain and operate a fleet of
ships owned by or under charter to the Federal Government to meet the
logistics needs of the Military Services and Combatant Commanders that
cannot be met by existing commercial service. Government-controlled
ships are selectively activated for peacetime military tests and
exercises, and to satisfy military operational requirements that 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.
VISA has been established to provide DoD with a coordinated,
seamless transition from peacetime to armed conflict 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. During contingencies, Participants are afforded maximum
flexibility to adjust commercial operations by Carrier Coordination
Agreements (CCAs), 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 the Government's 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 46 U.S.C. 56301. In addition, containers and
chassis made available under VISA may be supplemented by services and
equipment acquired by USTRANSCOM or accessed by the Administrator.
I. Purpose
A. The Administrator has determined, in accordance with DPA Section
708(c)(1), that conditions exist that 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 an emergency preparedness agreement for utilization of
U.S.-flag commercial vessels and intermodal shipping services/systems
is necessary for the national defense. The Attorney General, in
consultation with the FTC Chair, 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. VISA provides a responsive transition from peace to contingency
operations through pre-coordinated agreements for sealift capacity to
support DoD contingency requirements and 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 described in Section V.
C. VISA promotes and facilitates 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/
facilities and all ship types, including container, geared container,
partial container, container/bulk, container/roll-on/roll-off, roll-on/
roll-off (of all varieties), multi-purpose/heavy lift, breakbulk ships,
and tug and barge combinations.
E. 46 U.S.C. 53107 directs SecTrans to establish an Emergency
Preparedness Agreement in conjunction with SecDef, as part of the
Maritime Security Program (MSP), that requires MSP participants to make
their commercial transportation resources (including services)
available to SecDef during times of armed conflict, national emergency,
or whenever SecDef determines that such resources are necessary for
national security or Contingency operations. VISA is the designated
Emergency Preparedness Agreement for MSP, and participation in VISA
fulfills the requirements of 46 U.S.C. 53107 on MSP participants.
II. Authorities
A. Department of Transportation and MARAD
1. DPA Section 708, as amended (50 U.S.C. 4558); E.O. 13603; E.O.
12656; 49 CFR 1.93(l); 49 CFR 1.81(a)(10).
2. Section 401 of E.O. 13603 delegated the authority of the
President under Section 708 to SecTrans, among others. By 49 CFR
1.93(l), in consultation and coordination with DOT's Office of
Intelligence, Security and Emergency Response, SecTrans delegated to
the Administrator the authority under which VISA is sponsored.
3. 46 U.S.C. 53107.
4. 46 U.S.C. 501(b).
B. Department of Defense and USTRANSCOM
1. 10 U.S.C. 113, 161-69.
2. Unified Command Plan, designating the Commander as the DoD
Single Manager for Transportation, including ``[p]roviding common-user
and commercial transportation, terminal management, and aerial
refueling.''
3. DoD Directive (DoDD) 4500.09, Transportation and Traffic
Management, designating the Commander as the DoD single manager for
transportation for other than Service-unique or theater-assigned assets
and provide common-user and commercial air, land, and sea
transportation and delegating functions to serve as the DoD
representative for Maritime Security Fleet actions that SecDef is
authorized to take under 46 U.S.C. Ch. 531.
4. DoD Instruction 4500.57, which further designates the Commander
as the DoD authority to request MARAD activation of Ready Reserve Force
(RRF) vessels pursuant to 46 U.S.C. 57100, which may be used for
contingency operations, exercises, training and
[[Page 83944]]
testing, and other defense purposes for which scheduled or chartered
commercial sealift assets are not available or suitable.
III. General
A. Concept
1. VISA provides for the staged, time-phased availability of
Participants' shipping services/systems to meet SecDef-directed DoD
Contingency requirements in the most demanding defense-oriented sealift
emergencies and for less demanding defense-oriented situations through
pre-negotiated Contingency contracts between the government and
Participants. Such arrangements will be jointly planned among MARAD,
USTRANSCOM, and Participants in peacetime to allow for effective,
efficient, and best valued use of commercial sealift capacity, provide
DoD assured access, and minimize commercial disruption, whenever
possible.
a. Stages I and II provide for pre-negotiated contingency contracts
between USTRANSCOM and Participants to provide sealift capacity against
all projected DoD Contingency requirements. These agreements will be
executed in accordance with approved DoD contracting methodologies.
b. Stage III will provide for additional capacity to DoD when
Stages I and II commitments or volunteered capacity are insufficient to
meet Contingency requirements, and adequate shipping services from non-
participants are not available through established DoD contracting
practices or U.S. Government treaty agreements.
2. Activation will be in accordance with procedures outlined in
Section V of this Agreement.
3. Following is the prioritized order for utilization of commercial
sealift capacity to meet DoD peacetime and Contingency requirements:
a. U.S.-flag vessel capacity operated by a Participant and U.S.-
flag 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.
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. SecDef, through USTRANSCOM, will:
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 pre-negotiated USTRANSCOM 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)
(see section IV).
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 USTRANSCOM 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. SecTrans, through MARAD, will:
a. Review the amount of sealift resources committed under
USTRANSCOM contracts to Stages I and II and notify USTRANSCOM if a
particular level of VISA commitment will have serious adverse impact on
the U.S.-flag Merchant Marine's ability to provide essential maritime
transportation and intermodal shipping services. MARAD's analysis will
be based on the consideration that all VISA Stage I and II capacity
committed will be activated. This notification will occur on an as
required basis upon the Commander's acceptance of VISA commitments from
the Participants. If 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 volume of sealift assets committed to Stages I and II will not
have an adverse national economic impact.
b. Coordinate with DOJ for the expedited approval of CCAs.
c. Upon request by the Commander and approval by SecDef to activate
Stage III, allocate sealift capacity and intermodal assets to meet DoD
Contingency requirements. DoD will have priority consideration in any
allocation situation.
d. Establish procedures, pursuant to 46 U.S.C. 53107(f), for
determinations regarding the selection, 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 46 U.S.C. 53103 whose U.S.-flag vessel
capacity has been removed from regular service to meet VISA contingency
requirements. Such foreign-flag vessels shall be eligible to transport
cargo that is subject to U.S.-flag preference cargo requirements of 10
U.S.C. 2631 (with respect to military cargo or cargo otherwise
transported by DoD) and 46 U.S.C. 55302-05 (with respect to all other
cargoes shipped by, or on account of, an agency of the United States
Government). However, any procedures regarding the use of such foreign-
flag vessels to transport cargo subject to 10 U.S.C. 2631 must have an
approved waiver in accordance with 10 U.S.C. 2631 and its implementing
delegations and regulations.
e. Co-chair (with USTRANSCOM) the JPAG.
f. Review requests by Participants to the Secretary of Homeland
Security under 46 U.S.C. 501(b) to waive compliance with the coastwise
transportation requirements under 46 U.S.C. 55102 if U.S. coastwise-
qualified vessels are activated under VISA and make determinations of
U.S. coastwise-qualified vessel non-availability during a VISA
activation. To the extent feasible, participants with U.S. coastwise-
qualified vessels or vessel capacity will use CCAs or other
arrangements to fulfill their VISA commitments to protect their ability
to maintain domestic services for their commercial customers and to
fulfill their commercial peacetime commitments with U.S.-flag vessels.
In situations where the activation of VISA deprives a Participant of
all or a portion of its U.S. coastwise-qualified vessels or vessel
capacity and, at the same time, creates a general shortage of U.S.
coastwise-qualified vessel(s) or vessel
[[Page 83945]]
capacity on the domestic market, based on market surveys, Participants
with coastwise-qualified tonnage may apply for vessel-specific waivers
under 46 U.S.C. 501(b). The vessel(s) or vessel capacity for which such
waivers are requested will be approximately equal to the U.S.
coastwise-qualified vessel(s) or vessel capacity chartered or under
contract to DoD.
C. Termination of Charters, Leases and Other Contractual Arrangements
1. USTRANSCOM will notify the Administrator as soon as possible of
the prospective termination of charters, leases, management service
contracts or other contractual arrangements made by DoD under this
Agreement.
2. In the event of general requisitioning of ships under 46 U.S.C.
56301, the Administrator will consider commitments made with DoD under
this Agreement when selecting those vessels designated for requisition
by, purchase by, or charter for the use of, the Government.
D. Modification of This Agreement
1. The Attorney General may modify this Agreement, in writing,
after consultation with the FTC Chair, SecTrans, through their
representative MARAD, and SecDef, through their representative the
Commander. Although Participants may withdraw from this Agreement
pursuant to Section VI.D, they remain subject to VISA as modified until
such withdrawal.
2. The Administrator, Commander, and Participants may modify this
Agreement at any time by mutual agreement, but only in writing with the
approval of the Attorney General and the FTC Chair.
3. Participants may propose modifications to this Agreement at any
time.
E. Administrative Expenses
Administrative and out-of-pocket expenses incurred by a participant
must be borne solely by the Participant.
F. Record Keeping
1. MARAD will maintain carrier VISA application records in
accordance with applicable DOT directives. Once a carrier is selected
as a VISA Participant, MARAD will forward a copy of the VISA
application form to USTRANSCOM.
2. In accordance with 44 CFR 332.2(c), MARAD will record JPAG
meetings and make a full and verbatim transcript available for public
inspection upon request, subject to FOIA exemptions under 5 U.S.C.
552(b). MARAD will send this transcript, and any voluntary agreement
resulting from the meeting, to the Attorney General, the FTC Chair, the
FEMA Administrator, any other party or repository required by law, and
to Participants upon their request.
3. USTRANSCOM will be the official custodian of records related to
the Contingency contracts to be used under this Agreement, including
specific information on enrollment of a Participant's capacity in VISA.
4. In accordance with 44 CFR 332.3(d), a Participant must 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 of VISA, including
planning related to and implementation of Stage activations of this
Agreement. Each Participant agrees to make such records available to
the Administrator, the Commander, the Attorney General, and the FTC
Chair 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 must be available
for public inspection and copying unless exempted under FOIA on the
grounds specified in 5 U.S.C. 552(b)(1), (b)(3), or (b)(4), in
accordance with DPA Section 708 and implementing regulations at 44 CFR
part 332.5.
G. MARAD Reporting Requirements
MARAD will report to the FEMA Administrator, as required, on the
status and use of this Agreement.
IV. Joint Planning Advisory Group (JPAG)
A. The Joint Planning Advisory Group (JPAG) provides USTRANSCOM,
MARAD and VISA Participants a planning forum to:
1. Analyze DoD Contingency sealift/intermodal service and resource
requirements.
2. Identify commercial sealift capacity that may be used to meet
DoD requirements, related to Contingencies and, as requested by
USTRANSCOM, exercises and special movements.
3. Develop and recommend CONOPS to meet DoD-approved Contingency
requirements and, as requested by USTRANSCOM, exercises and special
movements.
B. JPAG will be co-chaired by MARAD and USTRANSCOM and will convene
as jointly determined by the co-chairs.
C. 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. JPAG will not be used for contract negotiations and/or contract
discussions between carriers and DoD; such negotiations and/or
discussions will be in accordance with applicable DoD contracting
policies and procedures.
E. The JPAG co-chairs will:
1. Notify the Attorney General, the FTC Chair, 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 FTC Chair, 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 SecDef as needed to support
Contingency operations. Activating voluntary commitments of capacity to
[[Page 83946]]
support such operations will be in accordance with pre-negotiated
Contingency contracts between USTRANSCOM and Participants.
B. Notification of Activation
1. The Commander will notify the Administrator of the activation of
Stages I, II, and III.
2. The Administrator will notify the Attorney General and the FTC
Chair 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
USTRANSCOM Contingency contracts and are capable of meeting the
operational requirements. Participants providing voluntary capacity may
request USTRANSCOM to activate their pre-negotiated Contingency
contracts; to the maximum extent possible, USTRANSCOM, where
appropriate, will support such requests. Volunteered capacity will be
credited against Participants' staged commitments, in the event such
stages are subsequently activated.
3. In the event Participants are unable to fully meet Contingency
requirements, or do not voluntarily offer to provide the required
capacity, the shipping capacity made available under VISA may be
supplemented by ships/capacity from non-Participants.
4. When voluntary capacity does not meet DoD Contingency
requirements, DoD will activate the VISA stages as necessary.
D. Stage I
1. Stage I will be activated in whole or in part by the Commander,
with approval of SecDef, when voluntary capacity commitments are
insufficient to meet DoD Contingency requirements. The Commander will
notify the Administrator upon activation.
2. USTRANSCOM will implement Stage I Contingency contracts as
needed to meet operational requirements.
E. Stage II
1. Stage II will be activated, in whole or in part, when
Contingency requirements exceed the capability of Stage I and/or
voluntarily committed resources.
2. Stage II will be activated by the Commander, with approval of
SecDef, following the same procedures discussed in paragraph D above.
F. Stage III
1. Stage III will be activated, in whole or in part, when
Contingency requirements exceed the capability of Stages I and II, and
other shipping services are not available. This stage involves DoD use
of capacity and vessels operated by Participants which will be
furnished to DoD when required in accordance with this Agreement. The
capacity and vessels are allocated by MARAD on behalf of SecTrans to
the Commander.
2. Stage III will be activated by the Commander upon approval by
SecDef. Upon activation, SecDef will request SecTrans to allocate
sealift capacity based on DoD requirements, in accordance with Title 1
of DPA (50 U.S.C. 4511-18), to meet the Contingency requirement. All
Participants' capacity committed to VISA is subject to use during Stage
III.
3. Upon allocation of sealift assets by SecTrans, through its
designated representative MARAD, the Commander will execute Contingency
contracts with Participants, using standard negotiating procedures.
Until execution of such contract, the Participant agrees that the
assets remain subject to the provisions 46 U.S.C. 56301.
G. Partial Activation
As used in this Section V, the term activation in part of any Stage
under this Agreement means 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 the Participants in any Stage that is activated.
VI. Participant Terms and Conditions
A. Participation
1. Any U.S.-flag vessel operator organized under the laws of a
State or Territory 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
Contingency Contract with USTRANSCOM, which establishes a legal
obligation to perform and the compensation methodology for all services
rendered.
2. Consideration of a Participant's overall vessel capacity,
intermodal resources, facilities and equipment includes (1) assets
owned or operated by the applicant vessel operator described in VI.A.1
above, and (2) all United States subsidiaries and affiliates of the
vessel operator that own, operate, control, or bareboat charter vessels
and intermodal equipment in the regular course of their business and in
which the vessel operator holds a controlling interest.
3. Upon request of the applicant executing the form referenced in
Section VII, Participants may include their controlled non-domestic
subsidiaries and affiliates as part of their capacity commitment,
provided that the Administrator, in coordination with the Commander,
grants specific approval for their inclusion.
4. Any vessel owner or operator receiving payments under a Maritime
Security Program (MSP) Operating Agreement, in accordance with 46
U.S.C. 53106, must 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
must 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 46 U.S.C. 53107.
5. A Participant is subject only to the provisions of this
Agreement.
6. MARAD shall publish a list of Participants periodically in the
Federal Register.
B. Agreement of Participant
1. Each Participant agrees to provide commercial sealift and/or
intermodal shipping services/systems in accordance with USTRANSCOM VISA
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, except for U.S. coastwise-qualified vessel
capacity as discussed in paragraph 4, below.
2. USTRANSCOM may also enter into Contingency contracts, not linked
to peacetime contract commitments, with Participants, as required to
meet Stage I and II requirements.
[[Page 83947]]
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 payments under MSP
Operating Agreements will have vessels receiving such assistance
enrolled in Stage III. Participants' capacity under long-term 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 whose capacity is utilized under Stage III activation will
be compensated based upon the negotiated rates by the Participant and
USTRANSCOM within the USTRANSCOM Contingency Contract.
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 DoD contract (i.e., one year or longer), 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 must 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 must 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 pre-negotiated USTRANSCOM VISA Contingency contracts.
4. Participants exclusively operating vessels engaged in domestic
trades will be required to commit 50% of that capacity to Stage III.
Such Participants will not be required to commit capacity to Stages I
and II as a consideration of domestic peacetime traffic and/or contract
award. However, such Participants may voluntarily agree to commit
capacity to Stages I and/or II.
5. The Participant owning, operating, or controlling an activated
ship or ship capacity will provide intermodal equipment and management
services needed to utilize the ship and equipment at not less than the
Participant's normal efficiency, in accordance with the pre-negotiated
USTRANSCOM VISA Contingency contracts implementing this Agreement.
6. Each Participant acknowledges and agrees to abide by all
provisions of DPA Section 708, as amended, and regulations related
thereto which are promulgated by SecTrans, the Attorney General, and
the FTC Chair. 49 CFR part 33 establishes procedures for assigning the
priority for use and the allocation of shipping services, containers,
and chassis to meet emergency requirements. 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 of the
terms of this Agreement.
C. Effective Date and Duration of the Agreement
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 USTRANSCOM VISA Contingency 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 must 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 will 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 must
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 MARAD must
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.
E. Carrier Coordination Agreements (CCA)
1. When any Stage of VISA is activated or when DoD has requested
volunteer capacity pursuant to Section V.B. of VISA, Participants may
implement approved CCAs to meet the needs of DoD and to minimize the
disruption of their services to the civil economy.
2. A CCA for which the parties seek the benefit of DPA Section
708(j) must be identified as such and be submitted to the Administrator
for approval and certification in accordance with DPA Section
708(f)(1)(A). Upon approval and certification, the Administrator will
transmit the Agreement to the Attorney General for a finding in
accordance with DPA Section 708(f)(1)(B). Parties to approved CCAs may
avail themselves of the antitrust defenses set forth in DPA Section
708(j). Nothing in VISA precludes Participants from engaging in lawful
conduct (including carrier coordination activities) that lies outside
the scope of an approved CCA; but antitrust defenses will not be
available pursuant to DPA Section 708(j) for such conduct.
3. Participants may seek approval for CCAs at any time.
F. Vessel Qualifications
1. All vessels enrolled in VISA must be capable of operating in
worldwide/intercontinental trades for dry cargoes (i.e., not tankers)
and must be capable of carrying military cargoes, including hazardous
cargoes, on transoceanic voyages. Participants must provide evidence of
this capability for all vessels they seek to enroll by submitting USCG
certificates of inspection, international load line certificates,
classification society survey reports, and/or documents of compliance
for the carriage of certain goods or operation in certain worldwide
geographic regions, as appropriate.
2. Participants may apply to enroll either self-propelled vessels,
tugs-and-barges, or both. If applying with tugs-and-barges,
Participants or applicants must provide MARAD satisfactory evidence
that tug service of sufficient horsepower will be available for all
barges proposed for enrollment in VISA,
[[Page 83948]]
and of the barges' capacity to carry military cargoes
intercontinentally.
3. If Participants offer vessels that they operate under bareboat
charter, such charters must state that the vessel's owner will not
interfere with the charterer's obligation to commit the chartered
vessels to VISA for the duration of the charter. If a Participant
offering tug-and-barge capacity does not own or bareboat charter
sufficient tug service for the barges it owns, then it must submit time
charters for the additional tugs needed to cover its barge capacity,
valid through the period of its VISA enrollment.
G. Enrollment of Intermodal Capacity Vessels, Facilities, and Equipment
1. Participant will prepare a list identifying the ships/capacity
and intermodal facilities, connections, and equipment committed by a
Participant to each Stage of VISA and submit such list to USTRANSCOM
within seven calendar 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. In accordance with DPA Section 708, as amended, and implementing
regulations at 44 CFR part 332.5, any information made available to
administer this agreement or plan of action must be made available for
public inspection and copying subject to FOIA exemptions under 5 U.S.C.
552(b)(1), (b)(3), or (b)(4). Information which a Participant
identifies as privileged or business confidential/proprietary data
shall be withheld from public disclosure in accordance with DPA
Sections 708(h)(3) and 705(e), or which qualifies for exemption from
public disclosure under 5 U.S.C. 552(b).
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 will provide non-premium
government war risk insurance, subject to the provisions of 46 U.S.C.
53905.
2. Pursuant to 46 CFR 308.1(c), the Administrator 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(j), each carrier must
have available as a defense to any civil or criminal action brought
under the antitrust laws of the United States, or any similar law of
any State, Territory, or the District of Columbia, 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 and any
regulation thereunder, and acted in accordance with the terms of this
Agreement.
2. This defense will not be available to the Participant for any
action occurring after termination of this Agreement. This defense will
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 will be
accomplished in a way that will deprive the Participant of antitrust
defense for the fulfillment of obligations incurred.
3. This defense will 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 will not be available if the person against whom it
is asserted shows that the action was taken for the purpose of
violating the antitrust laws.
6. As appropriate, the Administrator, on behalf of SecTrans, and
DoD will support agreements filed by Participants with FMC 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 court or the courts of any State, Territory, or the District of
Columbia for breach of contract, there will 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 will 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 that:
a. The foreign-flag capacity is utilized in accordance with 10
U.S.C. 2631, 46 U.S.C. 55302-05, and associated delegations and/or
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. Participant's 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 will not act in a manner to increase a
Participant's capacity commitment to VISA.
2. Participants will apprise MARAD and USTRANSCOM in advance of any
change in a VSA of which it is a member, if such changes reduce the
availability of Participant capacity provided for in any approved and
accepted Contingency Concept of Operations.
3. Participants will not act as a broker for DoD cargo unless
requested by USTRANSCOM.
VII. Application and Agreement
The Administrator, in coordination with the Commander, has adopted
the following form, titled Application to Participate in the Voluntary
Intermodal Sealift Agreement, by 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 ______, ______, _20_. This Agreement is authorized
under Section 708 of the Defense Production Act of 1950, as amended (50
U.S.C. 4558). Regulations governing this Agreement appear at 44 CFR
part 332
[[Page 83949]]
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 ______, ______, _20_, 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 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 USTRANSCOM Voluntary Intermodal
Sealift Agreement Contingency Contract for the purpose of meeting
national defense requirements.
Attest:
-----------------------------------------------------------------------
(Corporate Secretary)
Effective Date:
-----------------------------------------------------------------------
(Secretary)------------------------------------------------------------
(Applicant-Corporate Name)---------------------------------------------
(Signature)
-----------------------------------------------------------------------
(Position Title)
United States of America, Department of Transportation, Maritime
Administration
By:
-----------------------------------------------------------------------
Maritime Administrator
(Authority: Section 708 of the Defense Production Act, as amended
(50 U.S.C. 4558), 49 CFR 1.93(l), E.O. 13603, 49 CFR 1.81(a)(10),
E.O. 12656)
By Order of the Maritime Administrator.
T. Mitchell Hudson, Jr.,
Secretary, Maritime Administration.
[FR Doc. 2024-23974 Filed 10-17-24; 8:45 am]
BILLING CODE 4910-81-P
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</html>This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.