Federal Register: July 9, 2007 (Volume 72, Number 130)
DOCID: fr09jy07-14 FR Doc 07-3309
AGENCY FOR INTERNATIONAL DEVELOPMENT
Agency for International Development
CFR Citation: 22 CFR Part 201
RIN ID: RIN 0412-AA-51
USA ID: [USAID Regulation 1]
NOTICE: PROPOSED RULES
DOCID: fr09jy07-14
DOCUMENT ACTION: Notice of proposed rulemaking.
SUBJECT CATEGORY:
Rules and Procedures Applicable to Commodity Transactions Financed by USAID: Miscellaneous Amendments
DATES: Submit comments on or before September 7, 2007.
DOCUMENT SUMMARY:
The U.S. Agency for International Development (USAID) proposes to amend its regulation governing commodity transactions that are financed by USAID to:
1. Revise the criteria for noncompetitive procurement for private sector programs to more closely reflect privatesector practices; 2. revise the commodity and package marking requirements to address the use of the new USAID Identity; 3. revise and add definitions to better specify the terminology used; 4. revise agency organizational names and acronyms to specify the current USAID usage; 5. reinstate Sec. 201.13 coverage on ocean transportation costs because it was inadvertently deleted from prior editions; 6. provide for advertising publicsector procurements over $25,000 in the USAID Procurement Bulletins as the primary means of advertising these procurements to U.S. suppliers (in lieu of advertising publicsector procurements over $100,000 in ``FedBizOpps,'' the successor to ``Commerce Business Daily'') to facilitate prompt public notification of procurement opportunities and minimize government expense in providing notice; 7. make numerous clarifications and editorial amendments to better specify the regulation; and 8. specify the current Paperwork Reduction Act approval expirations, as required by the Act.
SUMMARY:
Commodity transactions financed by USAID; applicable rules and procedures; miscellaneous amendments,
SUPPLEMENTAL INFORMATION
Public Participation: Because security screening precautions have slowed the delivery and dependability of surface mail to USAID/ Washington, USAID recommends sending all comments to the Federal eRulemaking Portal listed above (all comments must be in writing to be reviewed).
All comments will be made available for public review without change, including any personal information provided, from three days after receipt to finalization of rule at http://www.Regulations.gov.
Order of Precedence: The procurement of commodities and commodity related services by other parties that are financed by USAID pursuant to 22 CFR part 201, as opposed to those that are procured by USAID, are not normally subject to 48 CFR chapters 1 and 7 (the Federal Acquisition Regulation [FAR] and the USAID Acquisition Regulation [AIDAR]). In exceptional circumstances where this part 201 is made applicable, pursuant to Sec. 201.02, to a transaction that is subject to 48 CFR chapters 1 and 7, the latter shall take precedence in areas of conflict except under authority of a FAR or AIDAR deviation pursuant to 48 CFR 1.4 or 48 CFR 701.4; and Sec. 201.02 has been clarified to so state.
Executive Order 12866 determination: This rule is significant under Executive Order 12866 and has been reviewed by the Office of Management and Budget. The rule has been reviewed in accordance with the Regulatory Flexibility Act. USAID has determined that the rule will not have a significant economic impact on a substantial number of small entities, and therefore a Regulatory Flexibility Analysis is not required.
Paperwork Reduction Act statement: OMB approvals for information collections under this regulation are addressed in Sec. 201.03 and Appendices A and B to part 201.
List of Subjects in 22 CFR Part 201
Administrative practice and procedure, Commodity procurement, Foreign relations.
For the reasons set out in the preamble, USAID proposes to amend 22 CFR part 201 as follows:
[[Page 37140]]
PART 201RULES AND PROCEDURES APPLICABLE TO COMMODITY TRANSACTIONS FINANCED BY USAID
1. The authority citation continues to read as follows:
Authority: 22 U.S.C. 2381.
Subpart ADefinitions and Scope of This Part
2. Revise Sec. 201.01 to read as follows:
Sec. 201.01 Definitions.
As used in this part, the following terms shall have the meanings: (The) Act means the Foreign Assistance Act of 1961, as amended from time to time.
Approved applicant means the individual or organization designated by the borrower/grantee to establish credits with banks in favor of suppliers or to instruct banks to make payments to suppliers, and includes any agent acting on behalf of such approved applicant.
Bank means a banking institution organized under the laws of the United States, or any State, commonwealth, territory, or possession thereof, or the District of Columbia.
Borrower/grantee means the government of any cooperating country, or any agency, instrumentality or political subdivision thereof, or any private entity, to which USAID directly makes funds available by loan or grant.
Commission means any payment or allowance made or agreed to be made by a supplier to any person for the contribution which that person has made to securing the sale for the supplier or which the person makes to securing similar sales on a continuing basis for the supplier.
Commodity means any material, article, supply, goods, or equipment.
Commodity Approval Application means the Application for Approval of Commodity Eligibility (Form USAID 11) which appears as Appendix B to this part 201.
Commodityrelated services means delivery services and/or incidental services.
Cooperating country means the country receiving the USAID assistance subject to provisions of this part 201.
Dead freight means freight charges paid by the charterer of vessel for the contracted space, which is left partially unoccupied.
Delivery means the transfer to, or for the account of, an importer of the right to possession of a commodity, or, with respect to a commodityrelated service, the rendering to, or for the account of, an importer of any such service.
Delivery service means any service customarily performed in a commercial export transaction which is necessary to effect a physical transfer of commodities to the cooperating country. Examples of such services are the following: export packing, local drayage in the source country (including waiting time at the dock), ocean and other freight, loading, heavy lift, wharfage, tollage, switching, dumping and trimming, lighterage, insurance, commodity inspection services, and services of a freight forwarder. Delivery services may also include work and materials necessary to meet USAID marking requirements.
Demurrage means charge for the failure to remove cargo from equipment within the allowed time. Also, a charge for failure to load or unload a ship within the allowed time
Despatch means an incentive payment paid to a carrier for loading and unloading the cargo faster than agreed. Usually negotiated only in charter parties.
Detention means the penalty paid by the carrier for delay of equipment or a vessel.
Implementing document means any document, including a letter of commitment, issued by USAID which authorizes the use of USAID funds for the procurement of commodities and/or commodity related services and which specifies conditions which will apply to such procurement.
Importer means any person or organization, governmental or otherwise, in the cooperating country who is authorized by the borrower/grantee to use USAID funds under this Regulation for the procurement of commodities, and includes any borrower/grantee who undertakes such procurement.
Incidental services means the installation or erection of USAID financed equipment, or the training of personnel in the maintenance, operation and use of such equipment.
Incoterms means the standard trade definitions that are most commonly used in international sales contracts. Devised and published by the International Chamber of Commerce, they are found on its Internet Web site: http://www.iccwbo.org/incoterms/preambles.asp.
Mission means the USAID Mission or representative in a cooperating country.
Nonvesseloperating common carrier (NVOCC) means a common carrier pursuant to Sec. Sec. 3(6) and 3(17) of the Shipping Act of 1984 that does not operate any of the vessels by which the ocean transportation is provided, and is a shipper in its relationship with an ocean carrier.
Origin means the country where a commodity is mined, grown, or produced. A commodity is produced when, through manufacturing, processing, or substantial and major assembling of components, a commercially recognized new commodity results that is significantly different in basic characteristics or in purpose of utility from its components.
Purchase contract means any contract or similar arrangement under which a supplier furnishes commodities and/or commodityrelated services financed under this part.
Responsible bidder means one who (one) has the technical expertise, management capability, workload capacity, and financial resources to perform the work successfully or the ability to obtain them, (two) has a satisfactory record of integrity and business ethics, and (three) is otherwise qualified and eligible to receive an award under applicable laws and regulations.
Responsive bid means a bid that complies with all the terms and conditions of the invitation for bids without material modification. A material modification is a modification which affects the price, quantity, quality, delivery or installation date of the commodity or which limits in any way responsibilities, duties, or liabilities of the bidder or any rights of the importer or USAID as any of the foregoing have been specified or defined in the invitation for bids.
Schedule B means the ``Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported from the United States'' issued and amended from time to time by the U.S. Bureau of the Census, Department of Commerce and available as stated in 15 CFR 30.92.
Source means the country from which a commodity is shipped to the cooperating country, or the cooperating country if the commodity is located therein at the time of the purchase. Where, however, a commodity is shipped from a free port or bonded warehouse in the form in which received therein, source means the country from which the commodity was shipped to the free port or bonded warehouse.
State means the District of Columbia or any State, commonwealth, territory or possession of the United States.
Supplier means any person or organization, governmental or otherwise, who furnishes commodities and/or commodityrelated services financed under this part 201.
Supplier's Certificate means Form USAID 282 ``Supplier's Certificate and
[[Page 37141]]
Agreement with the U.S. Agency for International Development,''
including the ``Invoice and Contract Abstract'' on the reverse of such
form (which appears as Appendix A to this part 201), or any substitute
form which may be prescribed in the letter of commitment or other pertinent implementing document.
Tariff means a publication setting forth the charges, rates, and rules of transportation companies.
United States means the United States of America, any State(s) of the United States, the District of Columbia, and areas of U.S. associated sovereignty, including commonwealths, territories, and possessions.
USAID means the U.S. Agency for International Development or any successor agency, including when applicable, each USAID Mission abroad.
USAID GeoCode Table means the official listing of current USAID geographic codes, a mandatory reference in USAID's Automated Directives System, Chapter 260, Geographic Codes, which may be found at: http://www.usaid.gov/policy/ads/200/260.pdf .
USAID Geographic Code means a code in the USAID GeoCode Table which designates a country, a group of countries, or an otherwise defined area. The principal USAID geographic codes used for identifying source, origin and nationality for commodities and services financed by USAID are described in Sec. 228.03 of this chapter.
USAID Identity (Identity) means the official marking for the United States Agency for International Development (USAID) comprised of the USAID logo or seal and new brandmark with the tagline that clearly communicates our assistance is ``from the American people.'' The USAID Identity is available on the USAID Web site at http://www.usaid.gov/branding and is provided without royalty, license or other fee.
USAID Regulation 28 means ``Rules on Source, Origin and Nationality for Commodities and Services Financed by USAID,'' published as 22 CFR Part 228.
USAID/W means the USAID in Washington, DC 20523, including any office thereof.
Vessel operating common carrier (VOCC) means an ocean common carrier pursuant to Sec. 3(18) of the Shipping Act of 1984 which operates the vessel by which ocean transportation is provided.
3. Amend Sec. 201.02 to republish paragraph (a) and add paragraph (d) to read as follows:
Sec. 201.02 Scope and application.
(a) The appropriate implementing documents will indicate whether
and the extent to which this part 201 shall apply to the procurement of
commodities or commodityrelated services or both. Whenever this part
201 is applicable, those terms and conditions of this part will govern
which are in effect on the date of issuance of the direct letter of
commitment to the supplier; if a bank letter of commitment is
applicable, the terms and conditions govern which are in effect on the
date of issuance of an irrevocable letter of credit under which payment
is made or is to be made from funds made available under the Act, or,
if no such letter of credit has been issued, on the date payment
instructions for payment from funds made available under the Act are received by the paying bank.
* * * * *
(d) When procurements of commodities and commodityrelated services
are subject to both this part 201 and to 48 CFR chapters 1 and 7, the
latter shall take precedence in instances of conflict, except under
authority of a deviation authorized under 48 CFR 1.4 or 48 CFR 701.4.
4. Revise Sec. 201.03 to read as follows:
Sec. 201.03 Office of Management and Budget (OMB) approval under the Paperwork Reduction Act.
(a) OMB has approved the following information collection and
recordkeeping requirements established by this part 201(OMB Control No. 04120514), expiring March 31, 2009:
201.13(b)(1)(a) Ocean Transportation Waivers
201.15(c) Unavailability U.S. Flag Ocean Vessel
201.31(f) Shipping Documents
201.31(g) Notice of Adjustments
201.32(b) Notice of Adjustments
201.32(c) Notice of Loss PaymentsInsurance
201.51(c) Bank Charges and Reports
201.52(a) Payment Documents
201.74 Additional Bank Recordkeeping
(b) USAID will use the information requested in these sections to
verify compliance with statutory and regulatory requirements and to
assist in the administration of USAIDfinanced commodity programs. The
information is required from suppliers in order to receive payment for
commodities or commodityrelated services. The public reporting burden
for this collection of information is estimated to average a half hour
per response, including the time required for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information. The
Agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number. Send comments regarding this burden estimate
or any other aspect of this collection of information, including suggestions for reducing this burden, to:
(1) U.S. Agency for International Development, Office of
Acquisition and Assistance, Policy Division (M/OAA/P), 1300 Pennsylvania Avenue, NW., Washington, DC 205237800; and
(2) Office of Management and Budget,
Paperwork Reduction Project (04120514), Washington, DC 20503. Subpart BConditions Governing the Eligibility of Procurement Transactions for USAID Financing
5. Amend Sec. 201.11 to revise paragraphs (a), (b), (d) introductory text, and (d)(2) to read as follows:
Sec. 201.11 Eligibility of commodities.
* * * * *
(a) Description and condition of the commodity. The commodity shall
conform to the description in the implementing document. Unless
otherwise authorized by USAID in writing, the commodity shall be
unused, and may not have been disposed of as surplus by any governmental agency.
(b) Source, origin, and nationality. The authorized source for
procurement shall be a country or countries authorized in the
implementing document by name or by reference to a USAID geographic
code. The source and origin of a commodity must be an authorized source
country. The applicable rules on the source and origin for commodities
and on the nationality of suppliers of commodities and commodity
related services are in subparts B, C, and F of part 228 of this chapter.
* * * * *
(d) Medium of transportation (See Sec. Sec. 228.21 and 228.22 of this chapter). Shipment shall not be effected:
(1) * * *
(2) Under any ocean or air charter which has not received prior
approval by U.S. Agency for International Development, Office of Acquisition and Assistance, Transportation Division.
* * * * *
6. Amend Sec. 201.13 to revise paragraphs (b), and (e) to read as follows:
Sec. 201.13 Eligibility of delivery services.
* * * * *
(b) Transportation costs.(1) Ocean transportation costs. (i) Unless
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otherwise authorized, USAID will finance only those ocean
transportation costs which meet the requirements of this paragraph (b)(1).
(A) When Geographic Code 000 is the authorized source for
procurement, USAID will finance only those costs incurred on vessels under U.S. flag registry.
(B) When Geographic Code 941 is the authorized source for
procurement, USAID will finance only those costs incurred on vessels
under flag registry of countries in Code 941 and the cooperating country.
(C) USAID will finance costs incurred on vessels under flag
registry of any country not designated as foreign policy restricted if
the costs are part of the total cost of a through bill of lading paid
to a carrier for the initial carriage on a vessel which is authorized
in accordance with paragraphs (b)(1)(i)(A) and (b)(1)(i)(B) of this section.
(D) When a commodity is shipped out of a free port or bonded
warehouse, ocean transportation costs for the shipment to the free port
or bonded warehouse are eligible for USAID financing as follows:
(1) The commodity was shipped on vessels under the flag registry of
a country within the authorized geographic code, if the commodity was shipped in anticipation of USAID financing, or
(2) The commodity was shipped on vessels under the flag registry of
a country within Geographic Code 935, if the commodity was not shipped in anticipation of USAID financing.
(ii) When an eligible flag vessel is not available for shipment, a
supplier may request a waiver of the eligibility requirements, prior to shipment, from:
USAID, Office of Acquisition and Assistance, Transportation
Division, Washington, DC 205237900, (Telephone (202) 7124283 or (202) 7125060).
(2) International air transportation costs. (i) USAID will finance
only those international air transportation costs which meet the
requirements of this paragraph (b)(2). For the purposes of this
paragraph, U.S. flag air carrier means one of a class of air carriers
holding a certificate under section 401 of the Federal Aviation Act of
1958 (49 U.S.C. 1371) authorizing operations between the United States and or its territories and one or more foreign countries.
(ii)(A) Under USAID grants and under USAID loans, when the
authorized source for procurement is Geographic Code 000, USAID will
finance only those costs incurred on U.S. flag carriers unless such service is not available.
(B) Under USAID loans, when the authorized source for procurement
is Geographic Code 941, USAID will finance only those costs incurred on
United States, cooperating country, or Geographic Code 941 flag air carriers unless such service is not available.
(C) USAID will finance international air transportation costs
incurred on aircraft under flag registry of any country not designated
foreign policy restricted if the costs are part of the total cost on a
through bill of lading paid to an eligible carrier for initial
international carriage on an aircraft which is eligible in accordance
with paragraph (b)(2)(ii)(A) or (b)(2)(ii)(B) of this section.
(iii)(A) Expenditures for international air transportation
furnished by air carriers which are not eligible under the provisions
of paragraph (b)(2)(ii) will be financed by USAID only when service by
eligible air carriers is unavailable. Criteria for determining when
service by eligible air carriers is unavailable are the same as those
published at 48 CFR 47.4031 (Reference: http://acquisition.gov/far/index.html ) for determining when U.S. flag air carriers are
unavailable. Additional guidance on determining when service is unavailable may be obtained from:
USAID, Office of Acquisition and Assistance, Transportation
Division, Washington, DC 205237900, (Telephone (202) 7124283 or (202) 7125060).
(B) When service by eligible flag air carriers is unavailable, any Geographic Code 935 air carrier may be used.
(C) In the event the supplier selects an air carrier other than an
eligible flag carrier for international air transportation, it must
include the following certification on invoices which include such transportation cost:
Certification of unavailability of eligible flag air carriers:
I hereby certify that transportation service by eligible flag
air carriers was unavailable for the following reason(s): (state reason(s)).
(3) Other conditions and limitations. Notwithstanding paragraphs
(b)(1) and (b)(2) of this section, unless otherwise authorized, USAID will not finance transportation costs:
(i) For shipment beyond the point of entry in the cooperating
country except when intermodal transportation service covering the
carriage of cargo from point of origin to destination is used, and the
point of destination, as stated in the carrier's through bill of lading, is established in the carrier's tariff; or
(ii) On a transportation medium owned, operated or under the
control of any country not included in Geographic Code 935; or
(iii) Under any ocean or air charter covering full or part cargo
(whether for a single voyage, consecutive voyages, or a time period)
which has not received prior approval by USAID, Office of Acquisition and Assistance, Transportation Division; or
(iv) Which are attributable to brokerage commissions which exceed
the limitations specified in Sec. 201.65(h) or to address commissions, dead freight, demurrage or detention.
* * * * *
(e) Suspension and debarment. In order to be eligible for USAID
financing, the costs of any delivery services must be paid to carriers,
insurers, or suppliers of inspection services who, prior to approval of
the USAID Commodity Approval Application, have neither been suspended
nor debarred under part 208 of this chapter, nor included on the
``Lists of Parties Excluded from Federal Procurement or Nonprocurement
Programs'' published by the U.S. General Services Administration (Ref;
http://www.epls.gov/).
7. Amend Sec. 201.14 to revise the last sentence to read as follows:
Sec. 201.14 Eligibility of bid and performance bonds and guaranties.
* * * Nationality requirements for sureties, insurance companies or
banks that issue bonds or guaranties under USAIDfinanced transactions are set forth in Sec. 228.38(b) of this chapter.
8. Amend Sec. 201.15 to revise the first sentence of paragraph (c) to read as follows:
Sec. 201.15 U.S. flag vessel shipping requirements.
* * * * *
(c) Nonavailability of U.S. flag vessels. Upon application of the
borrower/grantee or the supplier, USAID, Office of Acquisition and
Assistance, Transportation Division, shall determine and advise the
applicant whether privately owned U.S. flag vessels are available for
any specific shipment of commodities at fair and reasonable rates. * * *
* * * * *
Subpart CProcurement Procedures; Responsibilities of Importers
9. Amend Sec. 201.22 to revise paragraph (h)(1) to read as follows:
Sec. 201.22 Procurement under public sector procedures.
* * * * *
(h) Advertising.(1) Requirements. For each procurement estimated to exceed $25,000, or equivalent (exclusive
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of ocean and air transportation costs), notice of the availability of
the invitations for bids, requests for quotations, or specific
information about procurements shall be published by the USAID Office
of Acquisition and Assistance, Transportation Division, in a
Procurement Information Bulletin that is posted on USAID's Internet Web
site at: http://www.usaid.gov/business/ocean/solicitation.logon.html.
The purchaser shall submit three copies of each invitation for bids or
request for quotations (if any) to the USAID Mission with its request
for advertising. The Mission will forward the request for advertising
and the procurement documents to USAID, Office of Acquisition and
Assistance, Transportation Division. The request for advertising should
be transmitted to arrive at least 45 days prior to the final date for
receiving bids or quotations in: USAID, Office of Acquisition and
Assistance, Transportation Division, Washington, DC 205237900
(Telephone (202) 7124283 or (202) 7125060). The purchaser may, in
addition, advertise in appropriate local, regional, and international
journals, newspapers, etc., and otherwise, in accordance with local practice.
* * * * *
10. Amend Sec. 201.23 to revise paragraphs (a), (b), (c), and (e) to read as follows:
Sec. 201.23 Procurement under private sector procedures.
(a) General requirements. Procurements under private sector
procedures will normally be carried out by importers using negotiated
procurement procedures, unless the importer chooses to follow the
procedures in Sec. 201.22. Procurement on a negotiated basis shall be
in accordance with good commercial practice. Unless solicitations by
the importer for quotations or offers fall within the criteria of
paragraph (e) of this section, they shall be made uniformly to a
reasonable number of prospective suppliers, including, where feasible,
producers of a commodity, and all quotations or offers received,
whether or not specifically solicited, shall be given consideration before making an award.
(b) Publicizing. To provide suppliers in the United States with an
opportunity to participate in furnishing commodities which may be
purchased on a negotiated basis under USAID financing, USAID will
advertise on its Internet Web site at: http://www.usaid.gov/business/ocean/solicitation.logon.html the existence of the program, the
commodities traditionally being solicited, and the underlying
procedures used in each cooperating country. USAID will not publicize
specific proposed purchases which are to be undertaken by private
sector importers on a negotiated basis unless specifically requested to
do so by the importer in accordance with the provisions of paragraph (c) of this section.
(c) Notification. If the importer elects to solicit quotations and
offers for specific proposed purchases through publication by USAID,
USAID will notify prospective suppliers of the export opportunity
through Procurement Information Bulletins. Requests for such
notification shall be submitted to: USAID, Office of Acquisition and
Assistance, Transportation Division, Washington, DC 205237900
(Telephone (202) 7124283 or (202) 7125060). These requests shall
contain the name and contact information for the importer, a full
description of the commodities and any commodityrelated services
required, applicable price and delivery terms and other relevant
procurement data, in the English language. The metric system of
measurements shall be used for specifications unless USAID determines
in writing that such use is impractical or is likely to cause
significant inefficiencies or the loss of markets to U.S. firms. * * * * *
(e) Procurement under special supplierimporter relationships and
special situations. (1) Solicitation of offers from more than one supplier is not required if:
(i) The importer is the supplier's regularly authorized distributor or dealer;
(ii) The importer is purchasing a registered brandname commodity
from a supplier who is the exclusive distributor of that commodity to the area of the importer;
(iii) The importer has standardized on a particular brand product
in order to benefit from compatibility with onhand equipment through
economies in maintenance of spare parts inventories and/or greater familiarity by operating personnel;
(iv) The importer has standardized on a particular brand product in
order to benefit from a stronger local dealer organization, better
repair facilities, and/or the requirement for a special design or operational characteristics;
(v) A manufacturing importer has standardized on one brand name
intermediate good used in production, in order to ensure a standard endproduct; or
(vi) The necessary equipment, materials, or spare parts are available from only one source.
(2) USAID may require the importer to furnish, or cause to be
furnished, to USAID documentary evidence of the existence of the criteria described in paragraph (e)(1) of this section.
* * * * *
11. The heading for Sec. 201.24 is revised to read as follows: Sec. 201.24 Progress and advance payments [applicable only to public sector programs].
* * * * *
12. The heading for Sec. 201.25 is revised to read as follows: Sec. 201.25 Bid and performance bonds and guaranties [applicable only to public sector programs].
* * * * *
13. The heading for Sec. 201.26 is revised to read as follows:
201.26 Expenditure of marine insurance loss payments [applicable only to public sector programs].
* * * * *
Subpart DResponsibilities of Suppliers
14. Amend Sec. 201.31 to revise paragraphs (b)(2), (d) (f), (g), and (i) to read as follows:
Sec. 201.31 Suppliers of commodities.
* * * * *
(b) * * *
(1) * * *
(2) The source and origin of the commodity complies with the
provisions of Sec. 201.11(b) relating to source as required by its contract, letter of credit or direct letter of commitment;
* * * * *
(d) Marking of shipping containers and commodities.(1) Affixing
the USAID Identity and identification numbers. The supplier of
commodities shall be responsible for assuring that all export
packaging, whether shipped from the United States or from any other
source country, carries the official USAID Identity. Additionally,
except as USAID may otherwise prescribe, when the supplier is given
notice by the importer that the importer is the government of the
cooperating country or any of its subdivisions or instrumentalities,
the supplier shall also be responsible for assuring that, in addition
to the shipping cartons or other export packaging, all commodities
carry the USAID Identity. The USAID financing document number shall be
marked on each export shipping carton and box in characters at least equal in height to the shipper's marks. When
[[Page 37144]]
commodities are shipped as containerized freight in a reusable shipping
container, the container is not considered export packaging within the
meaning of this paragraph and the outside of the container need not be
marked; however, the cartons, boxes, etc., inside the container must be marked.
(i) Durability of the USAID Identity. The USAID Identity shall be
affixed by metal plate, decalcomania, stencil, label, tag or other
means, depending upon the type of commodity or export packaging and the
nature of the surface to be marked. The USAID Identity placed on
commodities shall be as durable as the trademark, commodity or brand
name affixed by the producer; the USAID Identity on each export
packaging unit shall be affixed in a manner which assures that the
USAID Identity will remain legible until the units reaches the consignee.
(ii) Size of the USAID Identity. The size of the USAID Identity may
vary depending upon the size of the commodity and the size of the
export packaging, but it shall be at least as large as the trademark,
commodity or brand name affixed by the producer and in every case large enough to be clearly legible at a normal viewing distance.
(iii) Design, color, and other standards for the USAID Identity.
The USAID Identity, including the appropriate Country SubBrandmark,
shall conform in design and color to the appropriate template provided
at http://www.usaid.gov/branding/templates.html and affixed in
accordance with the USAID Graphic Standards Manual that is provided at
http://www.usaid.gov/branding/gsm.html.
(2) Exceptions to requirement for affixing the USAID Identity. (i)
Affixing the USAID Identity is not required on commodities purchased by
the private sector; however, suppliers shall affix the USAID Identity
and the required identification numbers on the export packaging in compliance with paragraph (d)(1) of this section.
(ii) To the extent the supplier determines that compliance is
impracticable, the USAID Identity shall not be required for:
(A) Raw materials shipped in bulk (including grain, coal, petroleum, oil, and lubricants);
(B) Vegetable fibers packaged in bales; and
(C) Semifinished products which are not packaged in any way.
(3) Waiver. If compliance with the marking requirement is found to
be impracticable with respect to other commodities not excepted by
paragraph (d)(2) of this section, the supplier (or, when appropriate,
the borrower/grantee) may request a waiver from USAID (the Regional Assistant Administrator or his/her designee).
(4) Marking at the port of discharge. If the supplier is unable to
meet the marking requirements before shipment, the supplier may, with
USAID concurrence, comply with them at the port of discharge.
(5) Recourse for noncompliance with marking requirements. If the
supplier fails to comply with the above marking requirements repeatedly
or if there are major lapses in compliance, USAID may withdraw approval
of the commodity transaction and require refund of any advances. * * * * *
(f) Distribution of shipping documents. The supplier shall make the
customary commercial document distribution, as well as any special
distribution (e.g., to the USAID Mission in the importing country)
which may be specified in the letter of credit, direct letter of
commitment or other payment instruction covering the transaction. Prior
to presenting the documents specified in Sec. 201.52 for payment, the
supplier shall mail not later than 30 days from the date of shipment a
legible copy of all rated ocean bill(s) of lading described in Sec. 201.52(a)(4)(i) to:
(1) U.S. Department of Transportation, Maritime Administration,
Office of Cargo Preference, 400 Seventh Street, SW., Washington, DC 205900001; and
(2) U.S. Agency for International Development, Office of
Acquisition and Assistance, Transportation Division (M/OAA/T), 1300 Pennsylvania Avenue, NW., Washington, DC 205237900.
(g) Adjustment refunds, credits, and allowances. All adjustments in
the purchase price in an USAIDfinanced transaction in favor of the
importer arising out of the terms of the contract or the customs of the
trade shall be made by the supplier in the form of a dollar payment to
USAID. Any such payment shall be transmitted to: USAID, Office of the
Chief Financial Officer, M/CFO/CMP, Washington, DC 205237700, or to
the respective USAID overseas Mission's Office of Financial Management.
It shall be accompanied by a statement explaining the adjustment and
shall specify the name and address of the importer, the date and amount
of the original invoice, and the identification number of the
implementing document, if known, under which the original transaction
was financed. USAID will advise the borrower/grantee of such adjustment
refunds received. Despatch earned by the supplier, other than despatch
earned at the port of loading on CIF and CFR shipments, shall be refunded to USAID in accordance with Sec. 201.67(a)(5).
* * * * *
(i) Termination or modification of USAID financing.
The supplier shall be responsible for compliance with the provisions of Sec. 201.45 applicable to it.
15. Amend Sec. 201.32 to revise the first sentence of paragraph (b) and paragraph (c) to read as follows:
Sec. 201.32 Suppliers of delivery services.
* * * * *
(b) Adjustment in the price of delivery services. The supplier of
delivery services shall pay to: USAID, Office of the Chief Financial
Officer, M/CFO/CMP, Washington, DC 205237700, or to the respective
USAID overseas Mission's Office of Financial Management, all
adjustments in the purchase price in favor of the importer (or person
purchasing the ocean transportation services) arising out of the terms of the contract or the customs of the trade. * * *
(c) Marine insurance reporting requirement. With respect to any
loss payment exceeding $10,000 in value which a supplier of marine
insurance makes under a marine insurance policy financed pursuant to
this part, the supplier of marine insurance shall, within 15 days of
making such payment, report to: USAID, Office of Acquisition and
Assistance, Transportation Division, Washington, DC 205237900, the
amount and date of the payment, a description of the commodity, the
USAID identification number, name of the carrier, vessel, and voyage
number (alternatively, flight or inland carrier run number), date of
the bill(s) of lading, the identity and address of the assured, and the
identity and address of the assignee of the assured to whom payment has actually been made.
Subpart EGeneral Provisions Relating to USAID Financing of Commodities and CommodityRelated Services.
16. Amend Sec. 201.42 to revise the section heading to read as follows:
Sec. 201.42 Reexport of USAIDfinanced commodities.
* * * * *
Subpart FPayment and Reimbursement
17. Amend Sec. 201.51 to revise paragraphs (b)(1) introductory
text, (b)(1)(vi), (c)(2)(i) introductory text, and (c)(4) to read as follows:
[[Page 37145]]
Sec. 201.51 Methods of financing.
* * * * *
(b) * * *
(1) Requests for bank letters of commitment. All requests for bank
letters of commitment shall be in the English language and shall be
submitted to USAID by the borrower/grantee. They shall contain the following:
* * * * *
(vi) Identification of the items to be financed under the letter of commitment.
* * * * *
(c) * * *
(2) * * *
(i) The monthly statement of advance account established under the letter of commitment showing:
* * * * *
(4) Report. The bank shall submit a report showing the financial
status of each letter of commitment issued to it by USAID. The content,
format and frequency of the report shall be prescribed in the letter of
commitment. The report shall be prepared and distributed according to
instructions contained in the letter of commitment. The report shall be certified by an authorized signatory of the bank.
* * * * *
18. Amend Sec. 201.52 to revise paragraphs (a)(1), (a)(2)(i)(F),
(a)(2)(iii)(A), (a)(2)(iii)(C), (a)(3) introductory text, (a)(3)(i),
first sentence of (a)(4) (i), (a)(4) (iii) introductory text, (a)(4)
(iii)(B), and first sentence of (a)(8), and add the phrase ``Note to
paragraph (a)(3):'' to the undesignated paragraph following (a)(3)(ii) and revise it to read as follows:
Sec. 201.52 Required documents.
(a) * * *
(1) Voucher. Voucher SF 1034 to be prepared by the borrower/
grantee, by the approved applicant, by the bank as assignee or agent
for the approved applicant, or, in the case of a direct letter of commitment, by the supplier.
(2) * * *
(i) * * *
(F) The delivery terms (e.g., FOB, FAS, CIF or CFR, as specified in the latest edition of Incoterms);
* * * * *
(iii) * * *
(A) The USAID marking requirements set forth in Sec. 201.31(d)
have been met or will, with USAID's concurrence, be met at the port of discharge;
(B) * * *
(C) If shipment is effected by ocean vessel, one copy of all
bill(s) of lading described in Sec. 201.52(a)(4) has been mailed to:
(1) U.S. Department of Transportation, Maritime Administration,
Division of National Cargo, 400 Seventh Street, SW., Washington, DC 205900001; and
(2) U.S. Agency for International Development, Office of
Acquisition and Assistance, Transportation Division (M/OP/TC), 1300 Pennsylvania Avenue, NW., Washington, DC 205237900.
(3) Charter party. A copy of any approved charter party under which shipment is made, submitted:
(i) By the commodity supplier whenever USAID finances any portion
of the dollar price of a commodity sale under CFR or CIF delivery terms, or
(ii) * * *
Note to paragraph (a)(3): If shipment is made under a
consecutive voyage or time charter and the person or organization
seeking reimbursement or payment has previously submitted to USAID a
copy of said charter party in support of a prior claim for
reimbursement or payment, such person or organization may, in lieu
of further submission of the charter party, certify to the fact of prior submission.
(4) Evidence of shipment. (i) A copy of the bill(s) of lading
(ocean, charter party, air, rail, barge, or truck) or parcel post
receipt evidencing shipment from the point of export in the source country or free port or bonded warehouse.* * *
* * * * *
(iii) When the supplier is not responsible under the terms of its
agreement with the importer for assuring that the commodities are
loaded on board the vessel, such as when delivery terms are FAS port of
shipment, the importer may request and USAID, Office of Acquisition and
Assistance, Transportation Division, Washington, DC 205237900, may
authorize the following documents, instead of a bill of lading, to be
submitted with a claim for reimbursement or payment for the commodities:
* * * * *
(B) A letter from the consignee addressed to USAID undertaking to
arrange for shipment of the goods to the cooperating country and to
deliver to: USAID, Office of the Chief Financial Officer, M/CFO/CMP,
Washington, DC 205237700, or to the respective USAID overseas
Mission's Office of Financial Management, within 15 days from the date
of shipment, a copy of the bill of lading evidencing shipment to the
cooperating country. The bill of lading shall indicate the carrier's
complete statement of charges, as in paragraph (a)(4)(i) of this section.
* * * * *
(8) Commodity approval application (Form AID 11). One signed
original (unless photocopies are authorized in the letter of
commitment) of the Commodity Approval Application executed by the commodity supplier and countersigned by USAID. * * *
* * * * *
Subpart GPrice Provisions
19. Amend Sec. 201.62 to revise paragraph (a) to read as follows:
Sec. 201.62 Responsibilities of borrower/grantee and of supplier.
(a) Responsibilities of borrower/grantee. The borrower/grantee shall insure that the importer:
(1) Procures in accordance with the conditions set forth in subpart C as applicable, and
(2) Except as provided otherwise in Sec. 201.22, pays no more than
the lowest available competitive price, including transportation cost, for the commodity.
* * * * *
20. Amend Sec. 201.63 to revise paragraphs (f)(1)(i) and (f)(2) to read as follows:
Sec. 201.63 Maximum prices for commodities.
* * * * *
(f) * * *
(1) * * *
(i) The maximum price FOB or FAS source country eligible for USAID
financing under the foregoing provisions of this Sec. 201.63: plus * * * * *
(2) The purchase price of a commodity FOB or FAS a free port or
bonded warehouse shall not exceed the maximum price established in
paragraph (f)(1) of this section, minus transportation costs from the
free port or bonded warehouse to the cooperating country, calculated on
the basis of the prevailing ocean freight rate from the free port or
bonded warehouse to the cooperating country for the type and flag of
vessel on which the commodity actually moved between those points. * * * * *
21. Amend Sec. 201.64 to revise first sentence of paragraph (b)(1) and paragraph (c)(2) introductory text to read as follows:
Sec. 201.64 Application of the price rules to commodities. * * * * *
(b) Calculation of commodity prices which involve transportation
costs. (1) In testing the purchase price which includes transportation
cost (customarily known as CFR or CIF price) for compliance with the
requirements of Sec. 201.63 (a), (c), (d) and (e), USAID will subtract
transportation cost as calculated by reference to the freight rate, for the type and flag of vessel on which the commodity was
[[Page 37146]]
shipped, prevailing on the date the purchase price is fixed. * * * * * * * *
(2) When a shipment is FOB or FAS a free port or bonded warehouse,
USAID will finance no more than the lower of the following: * * * * *
22. Amend Sec. 201.67 to revise paragraph (a)(2)(i) introductory
text, (a)(5)(i)(A), (a)(5)(i)(B), (a)(5)(ii) and to read as follows: Sec. 201.67 Maximum freight charges.
(a) Ocean freight rates.
* * * * *
(2) Maximum charter rates.
(i) USAID will not finance ocean freight under any charter which
has not been submitted to and received prior approval by USAID, Office
of Acquisition and Assistance, Transportation Division. USAID will not approve a charter if the freight rate exceeds: * * *
* * * * *
(5) Despatch.
* * * * *
(A) At the port of unloading on CIF or CFR shipments, or
(B) At the port of loading or unloading on FOB or FAS shipments, to
the extent that despatch exceeds demurrage incurred on the same voyage. * * * * *
(ii) Refunds of despatch, supported by the vessel's signed laytime
statement(s), must be transmitted to: USAID, Office of the Chief
Financial Officer, M/CFO/CMP, Washington, DC 205237700, or to the
respective USAID overseas Mission's Office of Financial Management,
within 90 days after date of discharge of cargo on which the despatch was earned.
* * * * *
Subpart HRights and Responsibilities of Banks
23. Amend Sec. 201.72 to revise paragraph (b)(2) to read as follows:
Sec. 201.72 Making payments.
* * * * *
(b) * * *
(2) Source and origin of commodities. The documents submitted in
connection with the claim for reimbursement on commodities may not
indicate that the source and origin of the commodities is inconsistent
with the USAID geographic code designation contained in the letter of commitment.
* * * * *
25. Revise Appendix A to Part 201 to read as follows:
Invoice and Contract Abstract/Supplier's Certificate and Agreement
With the U.S. Agency for International Development (AID 282) BILLING CODE 611601P
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Dated: June 22, 2007.
Michael F. Walsh,
Procurement Executive.
[FR Doc. 073309 Filed 7607; 8:45 am]
BILLING CODE 611601C
FOR FURTHER INFORMATION CONTACT
Kenneth Monsess, Telephone: (202) 712- 4913, Email: kmonsess@usaid.gov.