10 U.S.C. § 2631 — Preference for United States vessels in

Page 2026 TITLE 10—ARMED FORCES § 2631 ‘‘(1) waive, exempt, or reduce any requirement, in- cluding any security clearance requirements, regard- ing transportation protective services for any trans- portation service provider; or ‘‘(2) allow the award of a contract or order to a transportation service provider for any shipment that requires any transportation protective service if such transportation service provider is not authorized by the Department of Defense to transport cargo regard- ing such a transportation protective service. ‘‘(b) TRANSPORTATION PROTECTIVE SERVICE; TRANS- PORTATION SERVICE PROVIDER DEFINED.—In this section, the terms ‘transportation protective service’ and ‘transportation service provider’ have the meanings given such terms, respectively, in the publication of the Military Surface Deployment and Distribution Command of the Department of Defense issued Sep- tember 12, 2022, and titled ‘MILITARY FREIGHT TRAFFIC UNIFIED RULES PUBLICATION-1 (MFTURP-1)’, or any successor thereto.’’ AIR TRANSPORTATION OF CIVILIAN DEPARTMENT OF DEFENSE PERSONNEL TO AND FROM AFGHANISTAN Pub. L. 115–91, div. A, title X, § 1098, Dec. 12, 2017, 131 Stat. 1626, provided that: ‘‘(a) POLICY REVIEW.—Not later than 90 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall conduct a policy review re- garding the use of commercial air transportation or al- ternative forms of air transportation to transport civil- ian personnel of the Department of Defense to and from Afghanistan. ‘‘(b) REPORT TO CONGRESS.—Not later than 90 days after the completion of the policy review required by subsection (a), the Secretary shall submit to the Com- mittees on Armed Services of the Senate and House of Representatives a report on the results of such review. ‘‘(c) UPDATED GUIDELINES.—Not later than 90 days after the completion of the policy review required by subsection (a), the Secretary shall issue updated guide- lines, based on the report submitted under subsection (b), regarding the use of commercial air transportation or alternative forms of air transportation to transport civilian personnel of the Department to and from Af- ghanistan.’’ § 2631. Preference for United States vessels in transporting supplies by sea (a) IN GENERAL.—Supplies bought for the Army, Navy, Air Force, Marine Corps, or Space Force, or for a Defense Agency, or otherwise transported by the Department of Defense, may only be transported by sea in— (1) a vessel belonging to the United States; or (2) a vessel of the United States (as such term is defined in section 116 of title 46). (b) WAIVER AND NOTIFICATION.—(1) The Sec- retary of Defense may waive the requirement under subsection (a) if such a vessel is— (A) not available at a fair and reasonable rate for commercial vessels of the United States; or (B) otherwise not available. (2) At least once each fiscal year, the Sec- retary of Defense shall submit, in writing, to the appropriate congressional committees a notice of any waiver granted under this subsection and the reasons for such waiver. (c) REQUIREMENTS FOR REFLAGGING OR REPAIR WORK.—(1) In each request for proposals to enter into a time-charter contract for the use of a ves- sel for the transportation of supplies under this section, the Secretary of Defense shall require that— (A) any reflagging or repair work on a vessel for which a proposal is submitted in response to the request for proposals be performed in the United States (including any territory of the United States); and (B) any corrective and preventive mainte- nance or repair work on a vessel under con- tract pursuant to this section relevant to the purpose of such contract be performed in the United States (including any territory of the United States) for the duration of the con- tract, to the greatest extent practicable. (2) The Secretary of Defense may waive a re- quirement under paragraph (1) if the Secretary determines that such waiver is critical to the national security of the United States. The Sec- retary shall immediately submit, in writing, to the appropriate congressional committees a no- tice of any waiver granted under this paragraph and the reasons for such waiver. (3) In this subsection: (A) The term ‘‘reflagging or repair work’’ means work performed on a vessel— (i) to enable the vessel to meet applicable standards to become a vessel of the United States; or (ii) to convert the vessel to a more useful military configuration. (B) The term ‘‘corrective and preventive maintenance or repair’’ means— (i) maintenance or repair actions per- formed as a result of a failure in order to re- turn or restore equipment to acceptable per- formance levels; and (ii) scheduled maintenance or repair ac- tions to prevent or discover functional fail- ures. (d) COMPLIANCE.—The Secretary of Defense shall ensure that contracting officers of the De- partment of Defense award contracts under this section to responsible offerors and monitor and ensure compliance with the requirements of this section. The Secretary shall— (1) ensure that timely, accurate, and com- plete information on contractor performance under this section is included in any con- tractor past performance database used by an executive agency; and (2) exercise appropriate contractual rights and remedies against contractors who fail to comply with this section, or subchapter I of chapter 553 of title 46, as determined by the Secretary of Transportation under such sub- chapter, including by— (A) determining that a contractor is ineli- gible for an award of such a contract; or (B) terminating such a contract or suspen- sion or debarment of the contractor for such contract. (e) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.—In this section, the term ‘‘appropriate congressional committees’’ means— (1) the Committees on Armed Services of the Senate and the House of Representatives; (2) the Committee on Transportation and In- frastructure of the House of Representatives; and (3) the Committee on Commerce, Science, and Transportation of the Senate. Page 2027 TITLE 10—ARMED FORCES § 2631 (Aug. 10, 1956, ch. 1041, 70A Stat. 146; Pub. L. 103–160, div. A, title III, § 315(a), Nov. 30, 1993, 107 Stat. 1619; Pub. L. 116–92, div. A, title X, § 1033, Dec. 20, 2019, 133 Stat. 1580; Pub. L. 116–283, div. A, title IX, § 924(b)(3)(GG), title X, § 1024(a)(1), Jan. 1, 2021, 134 Stat. 3822, 3841.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 2631 ......... 10:1365. 34:528. Apr. 28, 1904, ch. 1766, 33 Stat. 518. The word ‘‘supplies’’ is substituted for the words ‘‘coal, provisions, fodder, or supplies of any descrip- tion’’, in 10:1365 and 34:528. The words ‘‘pursuant to law’’ and ‘‘the use of’’, in 10:1365 and 34:528, are omitted as surplusage. The words ‘‘as otherwise provided by law’’, in 10:1365 and 34:528, are used rather than the words ‘‘under the law as it now exists’’, in section 1 of the Act of April 28, 1904, ch. 1766, 33 Stat. 518. The word ‘‘may’’ is substituted for the word ‘‘shall’’. The words ‘‘However, if’’ are substituted for the words ‘‘unless * * * in which case’’. The words ‘‘private persons’’ are substituted for the words ‘‘private parties or compa- nies’’, in 10:1365 and 34:528. The last sentence is sub- stituted for the proviso of 10:1365 and 34:528. Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1024(a)(1), amended section generally. Prior to amendment, section related to pref- erence to United States vessels for transportation by sea of supplies. Subsec. (a). Pub. L. 116–283, § 924(b)(3)(GG), which di- rected amendment of subsec. (a) by substituting ‘‘Ma- rine Corps, or Space Force’’ for ‘‘or Marine Corps’’, was executed by making the substitution in subsec. (a) as amended by section 1024(a)(1) of Pub. L. 116–283, to re- flect the probable intent of Congress. 2019—Subsec. (a). Pub. L. 116–92, § 1033(1), inserted ‘‘or for a Defense Agency’’ after ‘‘Marine Corps’’ in first sentence. Subsec. (b)(2) to (4). Pub. L. 116–92, § 1033(2), added par. (2), redesignated former pars. (2) and (3) as (3) and (4), respectively, and in par. (4), substituted ‘‘a requirement under paragraph (1) or (2)’’ for ‘‘the requirement de- scribed in paragraph (1)’’. 1993—Pub. L. 103–160 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1993 AMENDMENT Pub. L. 103–160, div. A, title III, § 315(b), Nov. 30, 1993, 107 Stat. 1619, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply to a vessel for which reflagging or repair work is necessary to be performed after the date of the enactment of this Act [Nov. 30, 1993].’’ OBTAINING CARRIAGE BY VESSEL: CRITERION REGARDING OVERHAUL, REPAIR, AND MAINTENANCE OF VESSELS IN THE UNITED STATES Pub. L. 109–364, div. A, title X, § 1017, Oct. 17, 2006, 120 Stat. 2379, as amended by Pub. L. 110–181, div. A, title X, § 1063(c)(9), div. C, title XXXV, § 3526(a), Jan. 28, 2008, 122 Stat. 323, 601, provided that: ‘‘(a) ACQUISITION POLICY.—In order to maintain the national defense industrial base, the Secretary of De- fense shall issue an acquisition policy that establishes, as a criterion required to be considered in obtaining carriage by vessel of cargo for the Department of De- fense, the extent to which an offeror of such carriage had overhaul, repair, and maintenance work for cov- ered vessels of the offeror performed in shipyards lo- cated in the United States. ‘‘(b) COVERED VESSELS.—A vessel is a covered vessel of an offeror under this section if the vessel is— ‘‘(1) owned, operated, or controlled by the offeror; and ‘‘(2) qualified to engage in the carriage of cargo in the coastwise or non-contiguous trade under sections 12112 and 50501 and chapter 551 of title 46, United States Code. ‘‘(c) APPLICATION OF POLICY.—The acquisition policy shall include rules providing for application of the pol- icy to covered vessels as expeditiously as is practicable based on the nature of carriage obtained, and by no later than June 1, 2007. ‘‘(d) REGULATIONS.— ‘‘(1) IN GENERAL.—The Secretary shall prescribe regulations as necessary to carry out the acquisition policy and submit such regulations to the Commit- tees on Armed Services of the Senate and the House of Representatives, by not later than June 1, 2007. ‘‘(2) INTERIM REGULATIONS.— ‘‘(A) IN GENERAL.—The Secretary may prescribe interim regulations as necessary to carry out the acquisition policy. For this purpose, the Secretary is excepted from compliance with the notice and comment requirements of section 553 of title 5, United States Code. ‘‘(B) SUBMISSION TO CONGRESS.—Upon the issuance of interim regulations under this paragraph, the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Rep- resentatives the interim regulations and a descrip- tion of the acquisition policy developed (or being developed) under subsection (a). ‘‘(C) EXPIRATION.—All interim regulations pre- scribed under the authority of this paragraph that are not earlier superseded by final regulations shall expire no later than June 1, 2007. ‘‘(e) ANNUAL REPORT.—The Secretary, acting through the United States Transportation Command, shall an- nually submit to the Committees on Armed Services of the Senate and the House of Representatives a report regarding overhaul, repair, and maintenance performed on covered vessels of each offeror of carriage to which the acquisition policy applies. ‘‘(f) DEFINITIONS.—In this section: ‘‘(1) FOREIGN SHIPYARD.—The term ‘foreign ship- yard’ means a shipyard that is not located in the United States. ‘‘(2) UNITED STATES.—The term ‘United States’ means— ‘‘(A) any State of the United States; and ‘‘(B) Guam.’’ [Pub. L. 110–181, div. C, title XXXV, § 3526(a), Jan. 28, 2008, 122 Stat. 601, which directed amendment of section 1017(b)(2) of Pub. L. 109–364, set out above, by sub- stituting ‘‘sections 12112, 50501, and 55102 of title 46, United States Code’’ for ‘‘section 27 of the Merchant Marine Act, 1920 (46 U.S.C. 883), section 12106 of title 46, United States Code, and section 2 of the Shipping Act, 1916 (46 U.S.C. App. 802)’’, could not be executed because those words did not appear subsequent to amendment by section 1063(c)(9) of Pub. L. 110–181, which was effec- tive as of Oct. 17, 2006, and as if included in Pub. L. 109–364 as enacted. See Effective Date of 2008 Amend- ment note under section 624 of this title.] Executive Documents DELEGATION OF AUTHORITY UNDER THE CARGO PREFERENCE ACT Memorandum of the President of the United States, Aug. 7, 1985, 50 F.R. 36565, provided: Memorandum for the Honorable Caspar W. Wein- berger, the Secretary of Defense By virtue of the authority vested in me as President by the Constitution and statutes of the United States of America, including Section 301 of Title 3 of the United States Code, I hereby delegate to the Secretary of Defense all the functions vested in me by the Cargo Page 2028 TITLE 10—ARMED FORCES § 2631a preference Act of 1904, 10 U.S.C. 2631. This authority may be redelegated. This memorandum shall be published in the Federal Register. RONALD REAGAN. § 2631a. Contingency planning: sealift and re- lated intermodal transportation require- ments (a) CONSIDERATION OF PRIVATE CAPABILITIES.— The Secretary of Defense shall ensure that all studies and reports of the Department of De- fense, and all actions taken in the Department of Defense, concerning sealift and related inter- modal transportation requirements take into consideration the full range of the transpor- tation and distribution capabilities that are available from operators of privately owned United States flag merchant vessels. (b) PRIVATE CAPACITIES PRESENTATIONS.—The Secretary shall afford each operator of a vessel referred to in subsection (a), not less often than annually, an opportunity to present to the De- partment of Defense information on its port-to- port and intermodal transportation capacities. (Added Pub. L. 103–160, div. A, title XI, § 1173(a), Nov. 30, 1993, 107 Stat. 1767.) § 2632. Transportation to and from certain places of employment and on military installations (a)(1) Whenever the Secretary of the military department concerned determines that it is nec- essary for the effective conduct of the affairs of his department, the Secretary may provide the transportation described in paragraph (2). (2) Transportation that may be provided under this subsection is assured and adequate trans- portation by motor vehicle or water carrier as follows: (A) Transportation among places on a mili- tary installation (including any subinstalla- tion of a military installation). (B) Transportation to and from their places of duty or employment on a military installa- tion for persons covered by this subsection. (C) Transportation to and from a military installation for persons covered by this sub- section and their dependents, in the case of a military installation located in an area deter- mined by the Secretary concerned not to be adequately served by regularly scheduled, and timely, commercial or municipal mass transit services. (D) Transportation to and from their places of employment for persons attached to, or em- ployed in, a private plant that is manufac- turing material for that department, but only during a war or a national emergency declared by Congress or the President. (3) Except as provided under subsection (b)(3), transportation under this subsection shall be provided at reasonable rates of fare under regu- lations prescribed by the Secretary of Defense. (4) Persons covered by this subsection, in the case of any military installation, are members of the armed forces, employees of the military department concerned, and other persons at- tached to that department who are assigned to or employed at that installation. (b)(1) Transportation described in subpara- graphs (B), (C), and (D) of subsection (a)(2) may not be provided unless the Secretary concerned, or an officer of the department concerned des- ignated by the Secretary, determines that— (A) other facilities are inadequate and can- not be made adequate; (B) a reasonable effort has been made to in- duce operators of private facilities to provide the necessary transportation; and (C) the service to be furnished will make proper use of transportation facilities and will supply the most efficient transportation to the persons concerned. (2) The Secretary of Defense shall require that, in determining whether to provide trans- portation described in subsection (a)(2)(A) at any military installation, the Secretary of the military department concerned shall give care- ful consideration to the potential for saving en- ergy and reducing air pollution. (3) In providing transportation described in subsection (a)(2)(A) at any military installation, the Secretary concerned may not require a fare for the transportation of members of the armed forces if the transportation is incident to the performance of duty. In providing transpor- tation described in subsection (a)(2)(C) to and from any military installation, the Secretary concerned (under regulations prescribed under subsection (a)(3)) may waive any requirement for a fare. (4) The authority under subsection (a) to enter into contracts under which the United States is obligated to make outlays shall be effective for any fiscal year only to the extent that the budg- et authority for such outlays is provided in ad- vance by appropriation Acts. (c) To provide transportation under subsection (a), the department may— (1) buy, lease, or charter motor vehicles or water carriers having a seating capacity of 12 or more passengers; (2) maintain and operate that equipment by— (A) enlisted members of the Army, Navy, Air Force, Marine Corps, Space Force, or the Coast Guard, as the case may be; (B) employees of the department con- cerned; and (C) private persons under contract; and (3) lease or charter the equipment to private or public carriers for operation under terms that are considered necessary by the Sec- retary or by an officer of the department des- ignated by the Secretary, and that may pro- vide for the pooling of Government-owned and privately owned equipment and facilities and for the reciprocal use of that equipment. (d) Fares received under subsection (a), and proceeds of the leasing or chartering of equip- ment under subsection (c)(3), shall be covered into the Treasury as miscellaneous receipts. (Aug. 10, 1956, ch. 1041, 70A Stat. 146; Pub. L. 95–362, Sept. 11, 1978, 92 Stat. 596; Pub. L. 96–125, title VIII, § 807(a)–(c)(1), Nov. 26, 1979, 93 Stat. 949, 950; Pub. L. 100–180, div. A, title III, § 318(a)–(c), Dec. 4, 1987, 101 Stat. 1076, 1077; Pub. L. 116–283, div. A, title IX, § 924(b)(2)(A)(vii), Jan. 1, 2021, 134 Stat. 3821.)