46 U.S.C. § 53102 — Establishment of Maritime Security Fleet

Page 400 TITLE 46—SHIPPING § 53102 Section 603, amended Aug. 4, 1939, ch. 417, § 8, 53 Stat. 1185; Pub. L. 87–45, § 4, May 27, 1961, 75 Stat. 91; Pub. L. 87–243, Sept. 14, 1961, 75 Stat. 513; Pub. L. 91–469, §§ 15–17, 35(a), (i), Oct. 21, 1970, 84 Stat. 1023, 1024, 1035, 1036; Pub. L. 97–31, § 12(94), Aug. 6, 1981, 95 Stat. 161, related to con- tracts for payment of subsidy. Section 604, amended June 23, 1938, ch. 600, § 21, 52 Stat. 959; Aug. 4, 1939, ch. 417, § 9, 53 Stat. 1185; Pub. L. 97–31, § 12(95), Aug. 6, 1981, 95 Stat. 162, related to au- thorization of additional subsidy. Section 605, amended July 17, 1952, ch. 939, § 15, 66 Stat. 764; Pub. L. 86–3, § 18(b)(2), Mar. 18, 1959, 73 Stat. 12; Pub. L. 86–518, § 1, June 12, 1960, 74 Stat. 216; Pub. L. 89–348, § 1(9), Nov. 8, 1965, 79 Stat. 1310; Pub. L. 91–469, §§ 18, 19, 26(b), 35(a), (j), Oct. 21, 1970, 84 Stat. 1025, 1026, 1034–1036; Pub. L. 97–31, § 12(96), Aug. 6, 1981, 95 Stat. 162; Pub. L. 104–239, § 3(a), Oct. 8, 1996, 110 Stat. 3126, related to vessels excluded from subsidy. Section 606, amended June 23, 1938, ch. 600, § 22, 52 Stat. 960; July 17, 1952, ch. 939, § 16, 66 Stat. 764; May 10, 1956, ch. 247, § 1, 70 Stat. 148; Pub. L. 86–624, § 35(b), July 12, 1960, 74 Stat. 421; Pub. L. 87–45, § 5, May 27, 1961, 75 Stat. 91; Pub. L. 91–469, §§ 20, 35(a), (k), Oct. 21, 1970, 84 Stat. 1026, 1035, 1036; Pub. L. 97–31, § 12(96), Aug. 6, 1981, 95 Stat. 162, related to readjustments, change in serv- ice, withdrawal from service, payment of excess profits, wages, etc., and American materials. Section 607 was classified to section 1177 of the former Appendix to this title and was primarily re- pealed and restated as chapter 535 of this title by Pub. L. 109–304, §§ 8(c), 19, Oct. 6, 2006, 120 Stat. 1586, 1710. For disposition of sections of the former Appendix to this title, see Disposition Table preceding section 101 of this title. Section 608, amended Pub. L. 97–31, § 12(98), Aug. 6, 1981, 95 Stat. 162, related to sale or assignment of con- tract, consent of Secretary, purchaser subject to terms of contract, and rescinding contract on transfer with- out consent. Section 609, amended June 23, 1938, ch. 600, § 29, 52 Stat. 961; Pub. L. 97–31, § 12(99), Aug. 6, 1981, 95 Stat. 162, related to withholding payment to defaulting con- tractor. Section 610, amended Pub. L. 97–31, § 12(99), Aug. 6, 1981, 95 Stat. 162, related to vessels eligible for subsidy. Section 611, added June 23, 1938, ch. 600, § 30, 52 Stat. 961; and amended Pub. L. 85–791, § 17, Aug. 28, 1958, 72 Stat. 947; Pub. L. 86–518, § 4, June 12, 1960, 74 Stat. 216; Pub. L. 97–31, § 12(100), Aug. 6, 1981, 95 Stat. 162, related to transfer of vessels to foreign registry on default of United States. Section 612 was classified to section 1182 of the former Appendix to this title and was repealed by Pub. L. 101–225, title III, § 307(7), Dec. 12, 1989, 103 Stat. 1925. Section 613, added Pub. L. 87–45, § 1, May 27, 1961, 75 Stat. 89; and amended Pub. L. 90–358, §§ 1, 2, June 22, 1968, 82 Stat. 248; Pub. L. 91–250, May 14, 1970, 84 Stat. 215; Pub. L. 92–323, June 30, 1972, 86 Stat. 389; Pub. L. 97–31, § 12(102), Aug. 6, 1981, 95 Stat. 162, related to off- season cruises by passenger vessels. Section 614, added Pub. L. 97–35, title XVI, § 1603, Aug. 13, 1981, 95 Stat. 751, related to suspension of operating differential subsidy contracts by operator recipients. Section 615, added Pub. L. 97–35, title XVI, § 1610, Aug. 13, 1981, 95 Stat. 753, related to construction, recon- struction, or acquisition of vessels over five thousand deadweight tons in foreign shipyards and preconditions. Section 616, added Pub. L. 104–239, § 3(b), Oct. 8, 1996, 110 Stat. 3127, related to wind-up of program. Title VI of act June 29, 1936, ch. 858, which comprised this note, consisted of sections 601 to 611 and 613 to 616 which were classified to sections 1171 to 1181 and 1183 to 1185a, respectively, of the former Appendix to this title, prior to the enactment of Pub. L. 109–304 and elimi- nation of that Appendix. For complete disposition of those sections, see Disposition Table preceding section 101 of this title. CONTRACT PROVISIONS Act June 29, 1936, ch. 858, title VIII, §§ 801, 802, 809, 49 Stat. 2011, 2015, as amended, was repealed or transferred by Pub. L. 114–120, title III, § 313(a), (c)(1)(A), Feb. 8, 2016, 130 Stat. 58. Section 801, amended Pub. L. 97–31, § 12(119), Aug. 6, 1981, 95 Stat. 164, which related to provision for books and records, filing balance sheets, inspection and audit- ing by Secretary, and rescission of contract on failure to comply with provisions, was transferred to section 57522 of this title by Pub. L. 114–120, title III, § 313(c)(1)(A), Feb. 8, 2016, 130 Stat. 58. Section 802, amended June 29, 1936, ch. 858, title VIII, § 802, 49 Stat. 2011; June 23, 1938, ch. 600, § 33, 52 Stat. 962; Aug. 7, 1939, ch. 555, § 2, 53 Stat. 1254; Pub. L. 97–31, § 12(120), Aug. 6, 1981, 95 Stat. 164, related to purchase or requisition of vessels by United States and amount of payment, prior to repeal by Pub. L. 114–120, title III, § 313(a), Feb. 8, 2016, 130 Stat. 58. Section 809, amended Pub. L. 91–469, § 26(a), Oct. 21, 1970, 84 Stat. 1034; Pub. L. 94–10, § 3, Mar. 23, 1975, 89 Stat. 16; Pub. L. 94–127, § 4, Nov. 13, 1975, 89 Stat. 680; Pub. L. 96–470, title II, § 201(a), Oct. 19, 1980, 94 Stat. 2241; Pub. L. 97–31, § 12(121), Aug. 6, 1981, 95 Stat. 164; Pub. L. 97–35, title XVI, § 1604, Aug. 13, 1981, 95 Stat. 751; Pub. L. 109–304, §§ 14(b), 19, Oct. 6, 2006, 120 Stat. 1702, 1710, which consisted of subsecs. (a) and (b), related to requirement that contracts designed equitably for all ports, minimum allocation of funds, report to Congress, and preference to citizens of United States, prior to re- peal by Pub. L. 114–120, title III, § 313(a), Feb. 8, 2016, 130 Stat. 58. Subsec. (b) of section 809 had already been re- pealed by Pub. L. 109–304, § 19, Oct. 6, 2006, 120 Stat. 1710. ENROLLMENT IN SEALIFT READINESS PROGRAM Act June 29, 1936, ch. 858, title IX, § 909, as added by Pub. L. 97–35, title XVI, § 1605, Aug. 13, 1981, 95 Stat. 752, provided that: ‘‘No vessel may receive construction dif- ferential subsidy or operating differential subsidy if it is not offered for enrollment in a sealift readiness pro- gram approved by the Secretary of Defense.’’ § 53102. Establishment of Maritime Security Fleet (a) IN GENERAL.—The Secretary of Transpor- tation, in consultation with the Secretary of De- fense, shall establish a fleet of active, commer- cially viable, militarily useful, privately owned vessels to meet national defense and other secu- rity requirements and maintain a United States presence in international commercial shipping. The Fleet shall consist of privately owned, United States-documented vessels for which there are in effect operating agreements under this chapter, and shall be known as the Mari- time Security Fleet. (b) VESSEL ELIGIBILITY.—A vessel is eligible to be included in the Fleet if— (1) the vessel meets the requirements of paragraph (1), (2), (3), or (4) of subsection (c); (2) the vessel is operated (or in the case of a vessel to be constructed, will be operated) in providing transportation in foreign commerce; (3) the vessel is self-propelled and— (A) is a tank vessel that is 10 years of age or less on the date the vessel is included in the Fleet; or (B) is any other type of vessel that is 15 years of age or less on the date the vessel is included in the Fleet; (4) the vessel— (A) is suitable for use by the United States for national defense or military purposes in time of war or national emergency, as deter- mined by the Secretary of Defense; and (B) is commercially viable, as determined by the Secretary; and (5) the vessel— Page 401 TITLE 46—SHIPPING § 53102 (A) is a United States-documented vessel; or (B) is not a United States-documented ves- sel, but— (i) the owner of the vessel has dem- onstrated an intent to have the vessel doc- umented under chapter 121 of this title if it is included in the Fleet; and (ii) at the time an operating agreement for the vessel is entered into under this chapter, the vessel is eligible for docu- mentation under chapter 121 of this title. (c) REQUIREMENTS REGARDING CITIZENSHIP OF OWNERS, CHARTERERS, AND OPERATORS.— (1) VESSEL OWNED AND OPERATED BY SECTION 50501 CITIZENS.—A vessel meets the require- ments of this paragraph if, during the period of an operating agreement under this chapter that applies to the vessel, the vessel will be owned and operated by one or more persons that are citizens of the United States under section 50501 of this title. (2) VESSEL OWNED BY SECTION 50501 CITIZEN OR UNITED STATES CITIZEN TRUST, AND CHARTERED TO DOCUMENTATION CITIZEN.—A vessel meets the requirements of this paragraph if— (A) during the period of an operating agreement under this chapter that applies to the vessel, the vessel will be— (i) owned by a person that is a citizen of the United States under section 50501 of this title or that is a United States citizen trust; and (ii) demise chartered to a person— (I) that is eligible to document the ves- sel under chapter 121 of this title; (II) the chairman of the board of direc- tors, chief executive officer, and a major- ity of the members of the board of direc- tors of which are citizens of the United States under section 50501 of this title, and are appointed and subjected to re- moval only upon approval by the Sec- retary; and (III) that certifies to the Secretary that there are no treaties, statutes, reg- ulations, or other laws that would pro- hibit the contractor for the vessel from performing its obligations under an oper- ating agreement under this chapter; (B) in the case of a vessel that will be de- mise chartered to a person that is owned or controlled by another person that is not a citizen of the United States under section 50501 of this title, the other person enters into an agreement with the Secretary not to influence the operation of the vessel in a manner that will adversely affect the inter- ests of the United States; and (C) the Secretary and the Secretary of De- fense notify the Committee on Armed Serv- ices and the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Armed Services of the House of Representatives that they concur with the certification required under sub- paragraph (A)(ii)(III), and have reviewed and agree that there are no other legal, oper- ational, or other impediments that would prohibit the contractor for the vessel from performing its obligations under an oper- ating agreement under this chapter. (3) VESSEL OWNED AND OPERATED BY DEFENSE CONTRACTOR.—A vessel meets the requirements of this paragraph if— (A) during the period of an operating agreement under this chapter that applies to the vessel, the vessel will be owned and oper- ated by a person that— (i) is eligible to document a vessel under chapter 121 of this title; (ii) operates or manages other United States-documented vessels for the Sec- retary of Defense, or charters other vessels to the Secretary of Defense; (iii) has entered into a special security agreement for purposes of this paragraph with the Secretary of Defense; (iv) makes the certification described in paragraph (2)(A)(ii)(III); and (v) in the case of a vessel described in paragraph (2)(B), enters into an agreement referred to in that paragraph; and (B) the Secretary and the Secretary of De- fense notify the Committee on Armed Serv- ices and the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Armed Services of the House of Representatives that they concur with the certification required under sub- paragraph (A)(iv), and have reviewed and agree that there are no other legal, oper- ational, or other impediments that would prohibit the contractor for the vessel from performing its obligations under an oper- ating agreement under this chapter. (4) VESSEL OWNED BY DOCUMENTATION CITIZEN AND CHARTERED TO SECTION 50501 CITIZEN.—A vessel meets the requirements of this para- graph if, during the period of an operating agreement under this chapter that applies to the vessel, the vessel will be— (A) owned by a person that is eligible to document a vessel under chapter 121 of this title; and (B) demise chartered to a person that is a citizen of the United States under section 50501 of this title. (d) REQUEST BY SECRETARY OF DEFENSE.—The Secretary of Defense shall request the Secretary of Homeland Security to issue any waiver under section 501 of this title that is necessary for pur- poses of this chapter. (e) VESSEL STANDARDS.— (1) CERTIFICATE OF INSPECTION.—A vessel used to provide oceangoing transportation which the Secretary of the department in which the Coast Guard is operating deter- mines meets the criteria of subsection (b) of this section but which, on the date of enact- ment of the Maritime Security Act of 2003, is not documented under chapter 121 of this title, shall be eligible for a certificate of inspection if the Secretary determines that— (A) the vessel is classed by and designed in accordance with the rules of the American Bureau of Shipping, or another classification society accepted by the Secretary; (B) the vessel complies with applicable international agreements and associated Page 402 TITLE 46—SHIPPING § 53103 guidelines, as determined by the country in which the vessel was documented imme- diately before becoming documented under chapter 121; and (C) that country has not been identified by the Secretary as inadequately enforcing international vessel regulations as to that vessel. (2) CONTINUED ELIGIBILITY FOR CERTIFICATE.— Paragraph (1) does not apply to a vessel after any date on which the vessel fails to comply with the applicable international agreements and associated guidelines referred to in para- graph (1)(B). (3) RELIANCE ON CLASSIFICATION SOCIETY.— (A) IN GENERAL.—The Secretary may rely on a certification from the American Bureau of Shipping or, subject to subparagraph (B), another classification society accepted by the Secretary to establish that a vessel is in compliance with the requirements of para- graphs (1) and (2). (B) FOREIGN CLASSIFICATION SOCIETY.—The Secretary may accept certification from a foreign classification society under subpara- graph (A) only— (i) to the extent that the government of the foreign country in which the society is headquartered provides access on a recip- rocal basis to the American Bureau of Shipping; and (ii) if the foreign classification society has offices and maintains records in the United States. (f) AUTHORITY TO WAIVE AGE RESTRICTION FOR ELIGIBILITY OF A VESSEL TO BE INCLUDED IN FLEET.—The Secretary of Defense, in conjunc- tion with the Secretary of Transportation, may waive the application of an age restriction under subsection (b)(3) if the Secretaries jointly deter- mine that the waiver— (1) is in the national interest; (2) is appropriate to allow the maintenance of the economic viability of the vessel and any associated operating network; and (3) is necessary due to the lack of avail- ability of other vessels and operators that comply with the requirements of this chapter. (g) AUTHORITY TO EXTEND MAXIMUM SERVICE AGE FOR VESSEL.—The Secretary of Defense, in conjunction with the Secretary of Transpor- tation, may, for a particular participating fleet vessel, treat the ages specified in section 53101(5)(A)(ii) and section 53106(c)(3) as increased by up to 5 years if the Secretaries jointly deter- mine that it is in the national interest to do so. (Added Pub. L. 108–136, div. C, title XXXV, § 3531(a), Nov. 24, 2003, 117 Stat. 1805; amended Pub. L. 109–304, § 13(a)(1), Oct. 6, 2006, 120 Stat. 1700; Pub. L. 112–239, div. C, title XXXV, § 3508(b), Jan. 2, 2013, 126 Stat. 2223; Pub. L. 114–328, div. C, title XXXV, § 3502(a), Dec. 23, 2016, 130 Stat. 2774.) Editorial Notes REFERENCES IN TEXT The date of enactment of the Maritime Security Act of 2003, referred to in subsec. (e)(1), is the date of enact- ment of Pub. L. 108–136, which was approved Nov. 24, 2003. AMENDMENTS 2016—Subsec. (f). Pub. L. 114–328, § 3502(a)(2), sub- stituted ‘‘Authority To Waive Age Restriction for Eli- gibility of a Vessel To Be Included in Fleet’’ for ‘‘Waiv- er of Age Restriction’’ in heading. Subsec. (g). Pub. L. 114–328, § 3502(a)(1), added subsec. (g). 2013—Subsec. (b). Pub. L. 112–239 amended subsec. (b) generally. Prior to amendment, subsec. (b) related to vessel eligibility, including provisions for certain roll- on/roll-off and LASH vessels. 2006—Subsec. (c). Pub. L. 109–304, § 13(a)(1)(A), (B), substituted ‘‘section 50501’’ for ‘‘section 2’’ in the head- ings of pars. (1), (2), and (4) and substituted ‘‘section 50501 of this title’’ for ‘‘section 2 of the Shipping Act, 1916 (46 U.S.C. App. 802)’’ in pars. (1), (2)(A)(i), (ii)(II), (B), and (4)(B). Subsec. (d). Pub. L. 109–304, § 13(a)(1)(C), substituted ‘‘section 501 of this title’’ for ‘‘the first section of Pub- lic Law 81–891 (64 Stat. 1120; 46 U.S.C. App. note prec. 3)’’. Subsec. (e)(1). Pub. L. 109–304, § 13(a)(1)(D), substituted ‘‘documented under chapter 121 of this title,’’ for ‘‘a documented vessel (as that term is defined in section 12101 of this title)’’ in introductory provisions and ‘‘documented under chapter 121’’ for ‘‘a documented vessel (as defined in that section)’’ in subpar. (B). Statutory Notes and Related Subsidiaries VESSEL STANDARDS Pub. L. 104–324, title XI, § 1137, Oct. 19, 1996, 110 Stat. 3988, as amended by Pub. L. 108–136, div. C, title XXXV, § 3534(b)(2), Nov. 24, 2003, 117 Stat. 1818, provided that: ‘‘(a) CERTIFICATE OF INSPECTION.—A vessel used to provide transportation service as a common carrier which the Secretary of Transportation determines meets the criteria of section 53102(b) of title 46, United States Code, but which on the date of enactment of this Act [Oct. 19, 1996] is not a documented vessel (as that term is defined in section 2101 [now section 106] of title 46, United States Code), shall be eligible for a certifi- cate of inspection if the Secretary determines that— ‘‘(1) the vessel is classed by and designed in accord- ance with the rules of the American Bureau of Ship- ping or another classification society accepted by the Secretary; ‘‘(2) the vessel complies with applicable inter- national agreements and associated guidelines, as de- termined by the country in which the vessel was doc- umented immediately before becoming a documented vessel (as defined in that section); and ‘‘(3) that country has not been identified by the Secretary as inadequately enforcing international vessel regulations as to that vessel. ‘‘(b) CONTINUED ELIGIBILITY FOR CERTIFICATE.—Sub- section (a) does not apply to a vessel after any date on which the vessel fails to comply with the applicable international agreements and associated guidelines re- ferred to in subsection (a)(2). ‘‘(c) RELIANCE ON CLASSIFICATION SOCIETY.— ‘‘(1) IN GENERAL.—The Secretary may rely on a cer- tification from the American Bureau of Shipping or, subject to paragraph (2), another classification soci- ety accepted by the Secretary to establish that a ves- sel is in compliance with the requirements of sub- sections (a) and (b). ‘‘(2) FOREIGN CLASSIFICATION SOCIETY.—The Sec- retary may accept certification from a foreign classi- fication society under paragraph (1) only— ‘‘(A) to the extent that the government of the for- eign country in which the society is headquartered provides access on a reciprocal basis to the Amer- ican Bureau of Shipping; and ‘‘(B) if the foreign classification society has of- fices and maintains records in the United States.’’ § 53103. Award of operating agreements (a) IN GENERAL.—The Secretary shall require, as a condition of including any vessel in the