CPA Memorandum of Understanding

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

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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://

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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

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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,

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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.

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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

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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.

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.

Public Comments, MARAD’s Initial
Determination, and Appeals

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.

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

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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

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

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

sroberts on DSKD5P82C1PROD with NOTICES

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.

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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

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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

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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

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may comment on these proposed selfdesignations within 10 calendar days of
publication.
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.

ADDRESSES:

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:
[email protected]. 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:

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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

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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:

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19:12 Sep 14, 2009

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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 self-

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designations 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.

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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.

sroberts on DSKD5P82C1PROD with NOTICES

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.

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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

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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
Departmental Offices, Treasury.
Notice of open meeting.

AGENCY:
ACTION:

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
[email protected] or by
telephone at (202) 622–5770 (not a toll
free number). Additional information
regarding the Financial Literacy and
Education Commission and the

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15SEN1