Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Notices 47305 

http://www.regulations.gov at any time 

or to the Docket Management Facility in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Maria G. Delgado, ANM–113, (425) 227– 

2775, FAA, Transport Airplane 

Directorate, 1601 Lind Ave., SW., 

Renton, Washington 98057–3356; or 

Ralen Gao, ARM–200, (202) 267–3168, 

FAA, Office of Rulemaking, 800 

Independence Ave., SW., Washington, 

DC 20591. This notice is published 

pursuant to 14 CFR 11.85. 

Issued in Washington, DC on September 9, 

2009. 

Pamela Hamilton-Powell, 

Director, Office of Rulemaking. 

Petition for Exemption 

Docket No.: FAA–2009–0809. 

Petitioner: Airbus. 

Sections of 14 CFR Affected: 

§§ 25.305(b) and 25.307. 

Description of Relief Sought: The 

petitioner requests an exemption from 

the requirements of §§ 25.305(b) and 

25.307 for certain Airbus Model A330– 

233 and –323 airplanes. If granted, this 

exemption would be time-limited to 

permit installation of Pratt & Whitney 

PW4168A–1D engines without a fan 

cowl hinge upgrade, until Airbus can 

substantiate that the current fan cowl 

hinge design does not require the 

upgrade. 

[FR Doc. E9–22117 Filed 9–14–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Maritime Administration 

Procedures for Determining Vessel 

Service Categories for Purposes of the 

Cargo Preference Act 

AGENCY: U.S. Department of 

Transportation, Maritime 

Administration. 

ACTION: Notice. 

SUMMARY: Pursuant to a Memorandum 

of Understanding Among the United 

States Department of Agriculture, the 

United States Department of 

Transportation, and the United States 

Agency for International Development 

Regarding Procedures for Determining 

Vessel Service Categories for Purposes 

of the Cargo Preference Act, dated 

September 4, 2009 (the MOU, a copy of 

which is attached hereto and posted at 

the Web site of the Maritime 

Administration (MARAD), http:// 

www.marad.dot.gov), notice is hereby 

given by MARAD that procedures as set 

forth herein are established for vessel 

owners or operators to designate the 

service category of individual vessels for 

purposes of compliance with the Cargo 

Preference Act (CPA). Where the owner 

or operator designates the category of its 

vessel, such self-designations will be 

docketed in the public record, 

published, and an opportunity will be 

provided for comment by interested 

parties. Each self-designation and the 

record supporting it is subject to review 

by MARAD. If MARAD disagrees with a 

self-designation, the process for 

determination, appeal and further 

administrative review is set forth below. 

These procedures are intended to be 

interim procedures implementing the 

MOU entered into by MARAD, the 

United States Department of Agriculture 

(USDA), and the United States Agency 

for International Development (USAID) 

and a 2002 Department of Justice 

interpretation of the CPA, pending the 

formal promulgation of regulations by 

MARAD. 

Background 

The CPA requires that Federal 

agencies take ‘‘necessary and 

practicable’’ steps to ensure that 

privately-owned U.S.-flag vessels 

transport at least 50 percent of the gross 

tonnage of cargo sponsored under the 

food assistance programs specified 

below ‘‘(computed separately for dry 

bulk carriers, dry cargo liners, and 

tankers) * * * to the extent such vessels 

are available at fair and reasonable rates 

for commercial vessels of the United 

States, in a manner that will ensure a 

fair and reasonable participation of 

commercial vessels of the United States 

in those cargoes by geographic areas.’’ 

46 U.S.C. 55305(b). An additional 25 

percent of gross tonnage is to be 

transported in accordance with the 

requirements of 46 U.S.C. 55314. 

USAID and USDA provide food aid 

commodities to meet humanitarian food 

needs in the developing world. They 

either contract directly with, or provide 

guidance to, other entities for purposes 

of reimbursement regarding the 

transportation of such food aid through 

a competitive bidding system among 

private ocean carriers. The award of 

transportation contracts to ocean 

carriers is subject to the requirements of 

the CPA. 

This Federal Register notice and the 

procedures set forth herein are intended 

to cover the following food assistance 

programs: Titles I, II, and III programs 

of the Food for Peace Act, the Food for 

Progress program of the Food Security 

Act of 1985, the McGovern-Dole 

International Food for Education and 

Child Nutrition program of the Farm 

Security and Rural Investment Act of 

2002, the Section 416(b) program of the 

Agricultural Act of 1949, and the Bill 

Emerson Humanitarian Trust of the Bill 

Emerson Humanitarian Trust Act. 

MARAD, an operating administration 

of the Department of Transportation, is 

responsible for prescribing regulations 

and guidance governing the 

implementation of the CPA by other 

Government agencies, such as USAID 

and USDA. 46 U.S.C. 55305(d); 49 CFR 

1.66(e). MARAD maintains a list on its 

Web site at http://www.marad.dot.gov/

documents/MAR730_MasterVesselList

forCargoPreference.pdf that sets forth 

vessel designations for CPA purposes 

through and including September 30, 

2009. The procedures contained in this 

Notice apply to both U.S. flag and 

foreign flag vessels and must be used by 

vessel owners or operators to request 

any designation or re-designation of 

such vessels by service type, for 

purposes of participation in CPA 

programs. MARAD will publish an 

initial list of vessel designations on 

October 7, 2009. After a comment 

period and administrative review 

process (as described below), MARAD 

will publish a new vessel list on its Web 

site, http://www.marad.dot.gov. 

USAID, USDA and the MARAD have 

been involved in litigation that 

challenges the proper interpretation and 

implementation of the Cargo Preference 

Act by these agencies for the Title II 

program under the Food for Peace Act 

(Title II), including Maersk Line Ltd v. 

Vilsack, U.S.D.C. (E.D. Va) 1:09cv747. 

As the parties acknowledged in a July 

10, 2009 settlement of the Maersk 

litigation, the Government agencies 

involved in that litigation were unable 

to provide a unified Government 

position with respect to the proper 

implementation of the 2002 Department 

of Justice interpretation of the CPA. The 

attached MOU serves to clarify the 

position of the United States with 

respect to certain requirements of the 

CPA, and represents the unified 

Government position on the proper 

method for implementing the 

Department of Justice’s 2002 CPA 

determination. 

For purposes of determining 

compliance with the statutory 75 

percent requirement for shipments on 

U.S. flag vessels, each of the affected 

agencies (that is, MARAD, USAID, and 

USDA) will record contracts awarded 

under the food assistance programs 

specified above based solely upon the 

vessel service category for the vessel 

upon which the cargo is carried, for 

both foreign flag and U.S.-flag vessels, 


sroberts on DSKD5P82C1PROD with NOTICES
47306 Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Notices 

as shown on the MARAD list of CPA 

vessels without regard to the nature of 

the cargo carried. The list is available in 

the Cargo Preference section of 

MARAD’s Web site at http://www.

marad.dot.gov/documents/MAR730_

MasterVesselListforCargoPreference.pdf. 

Pursuant to the MOU and the 

procedures outlined herein, the list 

shall be revised periodically to reflect 

appropriate vessel designations. The 

contract award date for contracts 

awarded under these food assistance 

programs will be the basis of 

measurement for compliance purposes. 

Bills of lading quantities will be used to 

validate the compliance percentages. 

Initial Self-Designation Process 

Prior to October 1, 2009, all vessel 

owners or operators, including owners 

or operators of foreign flag vessels, may 

self-designate the service type of vessels 

they own or operate as either a dry bulk 

carrier or dry cargo liner, and report this 

designation to MARAD in writing. The 

current treatment of tankers is not 

affected by these procedures, and no 

self-designation is required or expected 

for tankers. 

The owner or operator should include 

a justification of the designation it seeks 

based upon the CPA evaluation criteria 

listed below, and the general character 

of the vessel’s service—that is, irregular 

service or regularly scheduled service. If 

no self-designation is made by a vessel’s 

owner or operator, the vessel’s 

categorization will remain as it is 

currently designated in the MARAD list, 

unless and until MARAD makes a 

different determination as to the proper 

category for the vessel, or a vessel owner 

or operator requests a re-designation as 

outlined in the procedures below. 

Self-Designation Applications and 

Their Contents 

A separate written application is 

required for each vessel. Each 

application must refer to docket 

MARAD–2007–0001. Each application 

must address the CPA evaluation 

criteria listed in points a. through e. 

below. At a minimum, each application 

must also contain the following 

information: 

—Name of vessel with IMO number; 

—Name and complete business address 

of owner or operator, including e-mail 

address, if available; 

—Business phone number (including 

any extension number) of owner or 

operator, if available; 

—Desired designation of vessel; and 

—Justification for desired designation 

The justification submitted should 

include all documentation that the 

owner or operator relies upon in 

support of the desired designation. This 

may include: 

a. The advertisement of service; 

b. Regularity of service; 

c. Offering of service to specific 

routes, and planned schedules; 

d. Characteristics of service other than 

vessel design and 

e. Historical performance in recent 

months. 

The application may also include any 

other information that demonstrates the 

general character of the vessel’s service, 

that is, irregular service or regularly 

scheduled service. Each application 

must be signed, and each applicant 

must certify that the information 

contained in the application is true and 

correct to the best of the knowledge and 

belief of the applicant. 

Please see the Addresses section 

below concerning where to transmit this 

information. Electronic submission of 

the application and related documents 

is strongly encouraged to facilitate 

timely processing. Alternatively, such 

materials may be submitted by express 

delivery service. All such information 

shall become a matter of public record 

and will be placed in the public docket 

at the Department of Transportation. 

Public Comments, MARAD’s Initial 

Determination, and Appeals 

On or before October 7, 2009, MARAD 

will publish in the Federal Register for 

public comment a list of the initial selfdesignations received from vessel 

owners or operators. Interested parties 

may comment on these proposed selfdesignations within 10 calendar days of 

publication. If MARAD publishes the 

self-designation list on October 7, 2009, 

then the tenth day will be a Saturday 

(October 17), and thus comments should 

be received no later than the close of 

business on October 19, 2009. The close 

of business is 5 p.m. local Washington, 

DC time. 

If MARAD disagrees with an owner’s 

or operator’s initial self-designation, it 

will notify the owner or operator within 

15 calendar days of the close of the 

public comment period. That 

notification will include MARAD’s 

initial determination of vessel type 

category. Unless MARAD disagrees with 

an owner’s or operator’s initial selfdesignation in writing within 15 

calendar days of the close of the public 

comment period, these self-designations 

will remain in effect until vessel owners 

or operators submit a request for redesignation. If the owner or operator 

changes the characteristics of its service 

such that the factual basis for its selfdesignation is no longer in effect, then 

the owner or operator shall seek redesignation at its earliest opportunity. 

Vessel owners or operators may 

appeal to the Maritime Administrator 

within 10 calendar days of receiving the 

initial determination. Such appeals 

should be express delivered or 

electronically transmitted to the docket 

address as set forth below. 

The Maritime Administrator will 

issue a final determination of vessel 

designation within 30 calendar days of 

receiving the appeal, after consultation 

with the United States Department of 

State, USAID, and USDA. 

Vessel Designation Pending Appeal 

If MARAD disagrees with an owner’s 

or operator’s initial self-designation, 

vessels will be treated in accordance 

with MARAD’s initial determination 

through the appeal period starting from 

the time of MARAD’s determination. 

However, if a solicitation and/or bid 

award occurs between the time in which 

self-designations are received by 

MARAD but prior to MARAD’s written 

notification of initial determination, 

such solicitation and/or bid award will 

be based on the self-designation. 

Standards for Determining Vessel 

Service 

In accordance with the Department of 

Justice’s 2002 interpretation of the CPA, 

in determining whether a vessel may be 

appropriately categorized as a ‘‘dry bulk 

carrier’’ or ‘‘dry cargo liner,’’ MARAD 

will evaluate the vessel’s service, that is, 

whether the vessel is engaged in 

irregular or regularly scheduled service. 

A dry cargo liner vessel is a vessel in 

regularly scheduled service. A dry bulk 

carrier vessel is vessel that is in 

irregular service. 

In evaluating the service of a 

particular vessel, MARAD will consider 

the following criteria: 

a. The advertisement of service; 

b. Regularity of service; 

c. Offering of service to specific 

routes, and planned schedules; 

d. Characteristics of service other than 

vessel design; 

e. Historical performance in recent 

months. 

Applicants for self-designation or redesignation should provide information, 

data, and material related to these five 

criteria as well as the more general 

description of the vessel’s service as 

regular or irregular. 

Vessels for Which No Self-Designation 

Is Received 

For vessels for which MARAD does 

not receive a written self-designation by 

October 1, 2009, MARAD will 

determine a vessel-type designation 


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Notices 47307 

based on the criteria listed in points a 

through e above. All such MARAD 

designations shall be placed on 

MARAD’s Web site. An owner or 

operator of a vessel designated by 

MARAD under this procedure shall 

receive notice of such designation. Such 

notice can be sent to such owner or 

operator’s e-mail or regular address. 

MARAD may also publish a notice of 

such determination in the Federal 

Register. The owner or operator can 

appeal that determination within ten 

calendar days of the date of receipt of 

such notice of determination or within 

ten calendar days of publication in the 

Federal Register, whichever date is 

earlier, under the procedures outlined 

above. 

New Vessels Brought Online After 

October 1, 2009 

If a new vessel is brought online after 

October 1, 2009, the vessel owner or 

operator may voluntarily make an initial 

self-designation of the vessel’s service 

category for CPA purposes, following 

the same procedure as vessels which 

have been self-designated prior to 

October 1, 2009. The timing and 

procedures relating to the initial 

determination will govern these new 

vessel self-designations. 

Re-designations 

Commencing January 1, 2010, vessel 

owners or operators may request redesignations from MARAD on a 

quarterly basis. Re-designation of any 

individual vessel can occur no more 

than twice per calendar year. However, 

no re-designations may be filed until the 

completion of the initial selfdesignation administrative process. 

All requests for re-designation should 

be made in writing and should include 

justification of such requests for redesignation based upon the criteria 

listed in points a. through e. above, and 

the general character of the vessel’s 

service, that is, irregular service or 

regularly scheduled service. The vessel 

owner or operator also should include 

an explanation as to why the initial 

designation no longer applies. Each 

request for re-designation must be 

signed, and each vessel owner or 

operator must certify that the 

information submitted in the request for 

re-designation is true and correct to the 

best of the knowledge and belief of the 

requesting party. 

Until MARAD makes a subsequent 

determination with regard to a vessel 

owner’s or operator’s request for vessel 

re-designation, the prior vessel category 

will remain in place and be used by the 

vessel’s owner or operator, USAID, 

USDA, and MARAD for CPA purposes. 

All requests for re-designation will be 

published in the Federal Register for 

public comment. Interested parties may 

comment on these proposed vessel redesignations within 10 calendar days of 

publication. 

Within 15 calendar days of the close 

of the comment period for a proposed 

vessel re-designation, MARAD will 

provide, in writing, a determination of 

a vessel’s re-designation. Requests for 

re-designation become effective upon 

MARAD’s written determination of a 

vessel’s re-designation. 

Vessel owners or operators may 

appeal MARAD’s determination of a 

request for re-designation. Such appeals 

must be addressed in writing to the 

Maritime Administrator within 10 

calendar days of receiving the 

determination. If there is an appeal, 

MARAD will issue a final written 

determination of re-designation within 

30 calendar days of receiving the 

appeal, after consultation with the 

United States Department of State, 

USAID, and USDA. 

Administrative Changes 

MARAD will, on its own initiative or 

at the request of a vessel owner or 

operator, undertake to make 

administrative changes to the list of 

vessels published on its Web site. Such 

administrative changes may include the 

self-designations and designation 

determinations as described above, and 

the following: (1) The change of the 

name of a current vessel; (2) the change 

of ownership of a current vessel solely 

to reflect the new owner of the vessel; 

(3) a typographical error; and (4) the 

deletion of a vessel due to change of flag 

or scrapping. 

Calculating Time Periods for 

Compliance 

If any deadline listed in this section 

falls on a Saturday, Sunday, or legal 

holiday, the period in question will run 

until the end of the next day that is not 

a Saturday, Sunday or legal holiday. 

MARAD List of Designations 

Subject to the procedures described 

above, MARAD will compile and 

maintain these self-designations, redesignations, and MARAD 

determinations into a list of vessels by 

category type, for the purpose of 

indicating which vessels are eligible for 

preference to carry cargo subject to 46 

U.S.C. 55305 and 55314. 

In accordance with the parameters 

above, a current list of vessels by type 

will be published quarterly on 

MARAD’s Web site, and will be 

amended periodically as administrative 

changes are made. No changes will be 

made to this list, other than by the 

procedures provided for above. 

Prohibition of Dual Service 

Owners or operators of a vessel that 

engages in service that may be 

characterized as meeting more than one 

of the three vessel service categories 

must choose one category that reflects 

the predominant character of the 

vessel’s service as measured by tonnage 

carried, routes served, number of 

voyages, the criteria above, or some 

other measurable criteria supporting the 

designation excluding vessel design. 

Certification Requirements 

The procedures set forth in this 

Notice are intended to result in full and 

fair consideration of all applications by 

vessel owners or operators. These 

procedures are dependent upon vessel 

owners or operators providing full and 

accurate information to MARAD in 

support of their applications and/or 

requests for re-designation or in any 

comments we receive. To that end, we 

reiterate the requirement as set forth 

above that those submitting materials 

and/or comments to MARAD in these 

proceedings must certify that the 

information contained therein is true 

and correct to the best of their 

knowledge and belief. 

Paperwork Reduction Act 

This notice involves information 

collection requirements subject to the 

Paperwork Reduction Act (PRA), 

specifically the self-designation 

documentation that vessel owners must 

send with respect to any vessel for 

which they choose to self-designate the 

type of service for the vessel, and, any 

subsequent voluntary quarterly requests 

for re-designation. For the content of 

these information collection 

requirements, see the section of this 

notice entitled ‘‘Self-Designation 

Applications and Their Contents.’’ 

Title: Applications for SelfDesignation of Vessels, and Vessel ReDesignation. 

Need for Information: The 

information is required to administer 

the interagency Memorandum of 

Understanding (MOU). Regarding 

Procedures for Determining Vessel 

Service Categories for the Purpose of the 

Cargo Preference Act. 

Use of Information: The Maritime 

Administration would use the data 

submitted by vessel operators to create 

a list of Vessel Self-Designations, and to 

determine whether it agreed or 

disagreed with a vessel owner’s 

designation of a vessel. It will use data 

submitted with Re-designation Requests 

to determine whether or not a vessel 


sroberts on DSKD5P82C1PROD with NOTICES
47308 Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Notices 

should be re-designated into a different 

service category. 

Frequency: For current vessel owners 

who choose to submit a self-designation, 

the information collection would occur 

only once. Under the MOU, if a new 

vessel comes on line or vessel owner 

subsequently seeks to change its 

designation, a new application would 

have to be submitted. Optional vessel 

re-designation requests can be 

submitted quarterly. 

Respondents: It is estimated the 

owners or operators of up to 120 U.S.- 

registered vessels, and an unknown but 

larger number of foreign-registered 

vessels, could possibly apply for selfdesignation and/or re-designation. It is 

important to note that, under the MOU, 

vessel owners are not required to do so. 

Vessel owners who are satisfied with 

MARAD’s existing designation 

presumably would not submit an 

application. Consequently, MARAD 

believes that a significantly smaller 

number than the maximum potential 

number of respondents will actually 

submit applications. 

Burden Estimate: This estimate 

assumes a range of between 10 and 100 

actual applications, in which case the 

number of burden hours involved 

would vary from 60–600 hours 

assuming six hours per application or 

80–800 hours assuming eight hours per 

application. Assuming an approximate 

cost of $50 per hour to perform the 

information collection tasks, this would 

result in a range of costs from $3,000 to 

$40,000 for the self-designation 

application process. While MARAD 

believes that the actual number of 

applications received will be nearer the 

lower end of this range, the range is 

provided to account for the uncertainty 

surrounding the decisions of vessel 

owners. 

Form(s): There is no specific form 

used for collecting the information, but, 

the elements of the data elements of the 

information collection are listed in the 

Federal Register Notice above. 

Average Burden Hours per 

Respondent: Between six and eight 

hours per application. 

The Office of Management and Budget 

has approved this information 

collection on an emergency basis, as 

described under 5 CFR 1320.13, with 

Control Number 2133–0540. 

DATES: Vessel status self-designations 

must be received by the Maritime 

Administration through the Department 

of Transportation docket office by 5 

p.m. EDT on September 30, 2009. The 

Maritime Administrator intends to 

publish all self-designations no later 

than October 7, 2009. Interested parties 

may comment on these proposed selfdesignations within 10 calendar days of 

publication. 

ADDRESSES: Self-designation 

applications and requests for redesignation should prominently refer to 

docket number MARAD–2007–0001 and 

may be submitted electronically via the 

Internet at http://www.regulations.gov. 

Self-designation applications and 

requests for re-designation may also be 

submitted by hand or by express 

delivery to the Docket Clerk, U.S. 

Department of Transportation, Docket 

Operations, M–30, West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590. 

All self-designation applications and 

requests for re-designation will become 

part of this docket and will be available 

for inspection and copying at the above 

address between 10 a.m. and 5 p.m., 

EDT or EST, as applicable, Monday 

through Friday, except Federal holidays. 

An electronic version of this document 

and all documents entered into this 

docket is available on the World Wide 

Web at http://www.regulations.gov. 

Additional Docketing 

Upon receipt, each application will be 

assigned a unique docket number. All 

subsequent filings including public 

comments and appeal will be made 

public on that docket. 

FOR FURTHER INFORMATION CONTACT: Jean 

E. McKeever, Associate Administrator 

for Business and Workforce 

Development, Maritime Administration, 

1200 New Jersey Ave., SE., Washington, 

DC 20590; phone: (202) 366–5737; fax: 

(202) 366–6988; or e-mail: 

jean.mckeever@dot.gov. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

1–800–877–8339 to contact the above 

individuals during business hours. The 

FIRS is available twenty-four hours a 

day, seven days a week, to leave a 

message or question with the above 

individuals. You will receive a reply 

during normal business hours. 

Dated: September 10, 2009. 

By Order of the Acting Maritime 

Administrator. 

Christine S. Gurland, 

Acting Secretary, Maritime Administration. 

For your information, the following is 

the text of the Memorandum of 

Understanding, dated September 4, 

2009: 

Memorandum of Understanding Among 

the United States Department of 

Agriculture, the United States 

Department of Transportation, and the 

United States Agency for International 

Development Regarding Procedures for 

Determining Vessel Service Categories 

for Purposes of the Cargo Preference 

Act 

A. Background 

The Cargo Preference Act of 1954 

(CPA), as amended, requires that 

Federal agencies take ‘‘necessary and 

practicable’’ steps to ensure that 

privately-owned U.S.-flag vessels 

transport at least 50 percent of the gross 

tonnage of cargo sponsored under the 

food assistance programs specified 

below, ‘‘(computed separately for dry 

bulk carriers, dry cargo liners, and 

tankers) * * * to the extent such vessels 

are available at fair and reasonable rates 

for commercial vessels of the United 

States, in a manner that will ensure a 

fair and reasonable participation of 

commercial vessels of the United States 

in those cargoes by geographic areas.’’ 

46 U.S.C. 55305(b). An additional 25 

percent of gross tonnage is to be 

transported in accordance with the 

requirements of 46 U.S.C. 55314. 

The United States Agency for 

International Development (USAID) and 

the United States Department of 

Agriculture (USDA) provide food aid 

commodities to meet humanitarian food 

needs in the developing world under 

food assistance programs as specified 

below. USAID and USDA either contract 

directly with, or provide guidance to 

other entities for purposes of 

reimbursement regarding the 

transportation of such food aid through 

a competitive bidding system among 

private ocean carriers. The award of 

transportation contracts to ocean 

carriers is subject to the requirements of 

the Cargo Preference Act. This MOU 

covers the following food assistance 

programs: Titles I, II, and III programs 

of the Food for Peace Act, the Food for 

Progress program of the Food Security 

Act of 1985, the McGovern-Dole 

International Food for Education and 

Child Nutrition program of the Farm 

Security and Rural Investment Act of 

2002, the Section 416(b) program of the 

Agricultural Act of 1949, and the Bill 

Emerson Humanitarian Trust of the Bill 

Emerson Humanitarian Trust Act. 

The Maritime Administration 

(MARAD), an operating administration 

of the Department of Transportation, is 

responsible for prescribing regulations 

and guidance governing the 

implementation of the CPA by other 

Government agencies, such as USAID 


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Notices 47309 

and USDA. 46 U.S.C. 55305(d); 49 CFR 

1.66(e). 

USAID, USDA and the Maritime 

Administration are currently involved 

in litigation that challenges the proper 

interpretation and implementation of 

the Cargo Preference Act by these 

agencies for the Title II program under 

the Food for Peace Act (Title II), 

including Maersk Line Ltd v. Vilsack, 

U.S.D.C. (E.D. Va) 1:09cv747. As the 

parties acknowledged in a July 10, 2009 

settlement of the Maersk litigation, the 

Government agencies involved in that 

litigation were unable to provide a 

unified Government position with 

respect to the proper implementation of 

a 2002 Department of Justice 

interpretation of the CPA. 

This document serves to clarify the 

position of the United States with 

respect to the requirements of the CPA, 

and describes the procedures that 

ensure that food aid commodities 

continue to be shipped throughout the 

developing world on United States 

registered ocean vessels. This 

document, therefore, represents the 

unified Government position on the 

proper method for implementing the 

Department of Justice’s 2002 CPA 

determination. Accordingly, pursuant to 

the final paragraph of the July 10, 2009 

Maersk settlement, the United States 

now has a unified legal position, and 

the procedures detailed in the Maersk 

Settlement will be superseded with the 

procedures discussed herein as of 

October 1, 2009. 

B. Department of Justice Interpretation 

of the Cargo Preference Act 

In 2002, the Department of Justice, in 

connection with the resolution of earlier 

cargo preference litigation determined 

the litigation position of the United 

States with respect to, among other 

things, the proper manner for classifying 

vessels in accordance with the CPA. In 

the 2002 litigation, a dispute arose as to 

the proper interpretation of the terms 

‘‘dry bulk carrier’’ and ‘‘dry cargo liner’’ 

as those terms are used in the CPA. The 

Department of Justice concluded that 

the CPA’s requirement that at least 75 

percent of agricultural commodities be 

shipped by U.S. flag vessels ‘‘computed 

separately for dry bulk carriers, dry 

cargo liners and tankers’’ mandates that 

the U.S. vessels be divided into those 

three categories and further, that the 75 

percent minimum be computed 

separately for each category of vessel. 

Moreover, the Department of Justice 

concluded that the service offered 

determined a vessel’s classification as a 

‘‘dry bulk carrier’’ or ‘‘dry cargo liner.’’ 

In its conclusion, the Department of 

Justice stated that: 

In defining the terms ‘‘dry bulk carrier’’ 

and ‘‘dry cargo liner,’’ the government 

believes that at the time of the adoption of 

this provision of the [CPA] these terms did 

not refer to the type of vessel but rather to 

the service of the vessel. ‘‘Dry bulk carrier’’ 

refers to irregular service while ‘‘dry cargo 

liner’’ refers to regularly scheduled service. 

The Department of Justice’s 2002 

conclusions continue in effect and 

provide the background principles 

governing the terms of the procedures 

described herein. 

C. Determining Vessel Service Category 

Prior to October 1, 2009, all vessel 

owners or operators, including owners 

or operators of foreign flag vessels, may 

self-designate their service type as either 

a dry bulk carrier or dry cargo liner by 

vessel, and report this designation to 

MARAD in writing. The current 

treatment of tankers is not affected by 

this MOU, and no self-designation is 

required or expected for tankers. 

The owner or operator should include 

justification of such designation based 

upon the criteria listed in points a. 

through e. below, and the general 

character of the vessel’s service—that is, 

irregular or regularly scheduled. On or 

before October 7, 2009, MARAD will 

publish these self-designations in the 

Federal Register for public comment. 

Interested parties may comment on 

these proposed self-designations within 

10 calendar days of publication. 

If MARAD disagrees with an owner’s 

or operator’s initial self-designation, it 

will notify the owner or operator within 

15 calendar days of the close of the 

public comment period. That 

notification will include MARAD’s 

initial determination of vessel type 

category. Unless MARAD disagrees with 

an owner’s or operator’s initial selfdesignation in writing within 15 

calendar days of the close of the public 

comment period, these self-designations 

will stay in effect until vessel owners or 

operators submit a request for redesignation. 

Vessel owners or operators may 

appeal to the Maritime Administrator 

within 10 calendar days of receiving the 

initial determination. MARAD will 

issue a final determination of 

designation within 30 calendar days of 

receiving the appeal, after consultation 

with the Department of State, USAID, 

and the Department of Agriculture. 

If MARAD disagrees with an owner’s 

or operator’s initial self-designation, 

vessels will be treated in accordance 

with MARAD’s initial determination 

through the appeal period starting from 

the time of the determination. However, 

if a solicitation and/or bid award occurs 

between the time in which selfdesignations are received by MARAD 

but prior to MARAD’s written 

notification of initial determination, 

such solicitations will be based on the 

self-designation. 

Subject to the procedures described 

above, MARAD will compile these selfdesignations into a list of vessels by 

category type, for the purpose of 

indicating which vessels are eligible for 

preference to carry cargo subject to 46 

U.S.C. 55305 and 55314. For vessels 

which MARAD does not receive a 

written self-designation by October 1, 

2009, MARAD will determine a vesseltype designation based on the criteria 

listed in points a through e below. 

If a new vessel is brought online after 

October 1, 2009, the vessel owner or 

operator may voluntarily make an initial 

self-designation of the vessel’s service 

category, following the same procedure 

as vessels which have been selfdesignated prior to October 1, 2009. 

Commencing October 1, 2009, vessel 

owners or operators may request redesignations from MARAD on a 

quarterly basis. Re-designation of any 

individual vessel can occur no more 

than twice per calendar year. 

All requests for re-designation should 

be made in writing. The vessel owner or 

operator should include justification of 

such requests for re-designation based 

upon the criteria listed in points a 

through e below, and the general 

character of the vessel’s service, that is, 

irregular or regularly scheduled. 

In accordance with the Department of 

Justice’s 2002 interpretation of the CPA, 

in determining whether a vessel may be 

appropriately categorized as a ‘‘dry bulk 

carrier’’ or ‘‘dry cargo liner,’’ MARAD 

will evaluate the vessel’s service. In 

evaluating the service of a particular 

vessel, MARAD will consider the 

following criteria: 

a. The advertisement of service; 

b. Regularity of service; 

c. Offering of service to specific 

routes, and planned schedules; 

d. Characteristics of service other than 

vessel design; 

e. Historical performance in recent 

months. 

Until MARAD makes a subsequent 

determination with regard to a vessel 

owner’s or operator’s request for vessel 

re-designation, the prior vessel category 

will remain in place and be used by the 

vessel’s owner or operator, USAID, 

USDA, and MARAD for CPA purposes. 

All requests for re-designation will be 

published in the Federal Register for 

public comment. Interested parties may 

comment on these proposed vessel redesignations within 10 calendar days of 

publication. 


sroberts on DSKD5P82C1PROD with NOTICES
47310 Federal Register / Vol. 74, No. 177 / Tuesday, September 15, 2009 / Notices 

Within 15 calendar days of the close 

of the comment period, MARAD will 

provide, in writing, a determination of 

a vessel’s re-designation. Requests for 

re-designation become effective upon 

MARAD’s written determination of a 

vessel’s re-designation. 

Vessel owners or operators may 

appeal MARAD’s determination of a 

request for re-designation in writing 

within 10 calendar days of receiving the 

determination. If there is an appeal, 

MARAD will issue a final written 

determination of re-designation within 

30 calendar days of receiving the 

appeal, after consultation with the 

Department of State, USAID, and the 

Department of Agriculture. 

If any deadline listed in this section 

falls on a Saturday, Sunday, or legal 

holiday, the period in question will run 

until the end of the next day that is not 

a Saturday, Sunday or legal holiday. 

1. Prohibition of Dual Service 

For purposes of the Maritime 

Administration list, owners or operators 

of a vessel that engages in service that 

may be characterized as meeting more 

than one of the three vessel service 

categories must choose one category that 

reflects the predominant character of the 

vessel’s service as measured by tonnage 

carried, routes served, number of 

voyages, the criteria above, or some 

other measurable criteria supporting the 

designation excluding vessel design. 

2. Vessel List by Type 

In accordance with the parameters 

above, a current list of vessels by type 

will be published quarterly on 

MARAD’s Web site, and will be 

amended periodically as administrative 

changes are made. No changes will be 

made to this list, other than by the 

procedures provided under Sections C 

and D of this Memorandum of 

Understanding. 

D. Administrative Changes 

The Maritime Administration will, on 

its own initiative or at the request of a 

vessel owner or operator, undertake to 

make administrative changes to the list 

of vessels published on its Web site. 

Such administrative changes may 

include the self-designations and 

designation determinations as described 

above, and the following: (1) The change 

of the name of a current vessel; (2) the 

change of ownership of a current vessel 

solely to reflect the new owner of the 

vessel; (3) a typographical error; and (4) 

the deletion of a vessel due to change of 

flag or scrapping. 

E. Utilization of the Maritime 

Administration List of Vessels for Cargo 

Preference Compliance 

For purposes of determining 

compliance with the 75 percent 

requirement described above, each of 

the affected agencies (that is, the 

Maritime Administration, USAID, and 

USDA) will record contracts awarded 

under the food assistance programs 

specified above based solely upon the 

vessel service category for the vessel 

upon which the cargo is carried, for 

both foreign flag and U.S.-flag vessels, 

as shown on the Maritime 

Administration list, without regard to 

the nature of the cargo carried. The 

contract award date will be the basis of 

measurement for compliance purposes. 

Bills of lading quantities will be used to 

validate the compliance percentages. 

F. Utilization of the Shipping Agency 

Statistical Data for Cargo Preference 

Compliance 

For purposes of communicating 

statistical data for preference cargo 

tonnage shipped by USAID and USDA, 

MARAD, USAID, and USDA hereby 

agree that, at the inception of this 

agreement, each will post to their 

respective Web sites data from shipping 

agency calculations. These calculations 

will be based solely upon the vessel 

service category for the vessel upon 

which the cargo is carried, (for both 

foreign flag and U.S.-flag vessels) as 

shown on the Maritime Administration 

list without regard to the nature of the 

cargo carried. The contract award date 

will be the basis of measurement for 

compliance purposes. Bills of lading 

quantities will be used to validate the 

compliance percentages. MARAD will 

monitor and verify the data and agrees 

to post on their Web site the same data 

in the same format as the shipping 

agencies. Reconciliations and 

adjustments will be resolved in advance 

of publication through interagency 

consultation, which, if necessary, may 

include the Office of Management and 

Budget. 

This memorandum is not intended to, 

and does not, create any right or benefit, 

substantive or procedural, enforceable at 

law or in equity against the United 

States, its departments, agencies, or 

other entities, its officers or employees, 

or any other person. 

This MOU may be executed in two or 

more counterparts, each of which shall 

be deemed an original, but all of which 

shall constitute one and the same 

instrument. 

lllllllllllllllllll

David T. Matsuda 

Acting Administrator 

Maritime Administration 

U.S. Department of Transportation 

DATE: lllllllllllllll

lllllllllllllllllll

James Michel 

Counselor to the Agency 

U.S. Agency for International 

Development Administration 

DATE: lllllllllllllll

lllllllllllllllllll

Michael V. Michener 

Administrator 

Foreign Agricultural Service 

U.S. Department of Agriculture 

DATE: lllllllllllllll

[FR Doc. E9–22171 Filed 9–14–09; 8:45 am] 

BILLING CODE 4910–81–P 

DEPARTMENT OF THE TREASURY 

Open Meeting of the Financial Literacy 

and Education Commission 

AGENCY: Departmental Offices, Treasury. 

ACTION: Notice of open meeting. 

SUMMARY: This notice announces a 

public meeting of the Financial Literacy 

and Education Commission, established 

by the Financial Literacy and Education 

Improvement Act (Title V of the Fair 

and Accurate Credit Transactions Act of 

2003). 

DATES: This meeting of the Financial 

Literacy and Education Commission 

will be held on Thursday, September 

24, 2009, beginning at 10 a.m. 

ADDRESSES: The Financial Literacy and 

Education Commission meeting will be 

held in the Cash Room at the 

Department of the Treasury, located at 

1500 Pennsylvania Avenue, NW., 

Washington, DC 20220. To be admitted 

in the Treasury building, attendees must 

RSVP with their name as shown on a 

government-issued ID, organization 

represented (if any), phone number, 

date of birth, Social Security number 

and country of citizenship. To register, 

visit http://www.treasury.gov/ofe, click 

on the ‘‘Financial Literacy and 

Education Commission’’ and then click 

on ‘‘Event Summary and Registration.’’ 

For admittance to the Treasury building 

on the day of the meeting, attendees 

must present a government-issued ID, 

such as a driver’s license or passport, 

which includes a photo and date of 

birth. 

FOR FURTHER INFORMATION CONTACT: For 

additional information, contact Dubis 

Correal by e-mail at 

dubis.correal@do.treas.gov or by 

telephone at (202) 622–5770 (not a toll 

free number). Additional information 

regarding the Financial Literacy and 

Education Commission and the 


sroberts on DSKD5P82C1PROD with NOTICES