[Federal Register: July 9, 2007 (Volume 72, Number 130)]
[Proposed Rules]
[Page 37139-37154]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jy07-14]
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AGENCY FOR INTERNATIONAL DEVELOPMENT
22 CFR Part 201
[USAID Regulation 1]
RIN 0412-AA-51
Rules and Procedures Applicable to Commodity Transactions
Financed by USAID: Miscellaneous Amendments
AGENCY: U.S. Agency for International Development.
ACTION: Notice of proposed rulemaking.
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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 private-sector 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 public-sector
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 public-sector 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.
DATES: Submit comments on or before September 7, 2007.
ADDRESSES: submit comments by any of the following means:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions there for submitting comments.
Fax: (202) 216-3395.
Mail: USAID, Office of Acquisition and Assistance, Policy
Division, Room 7.9-18, 1300 Pennsylvania Avenue, NW., Washington, DC
20523-0001.
Instructions: All submissions must include the title of the
proposed action, and Regulatory Information Number (RIN) for this
rulemaking. Please include your name, title, organization, postal
address, telephone number, and e-mail address in the text of the
message.
FOR FURTHER INFORMATION CONTACT: Kenneth Monsess, Telephone: (202) 712-
4913, E-mail: kmonsess@usaid.gov.
SUPPLEMENTARY 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 201--RULES 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 A--Definitions 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.
Commodity-related 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
commodity-related 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.
Non-vessel-operating 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 commodity-related
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 commodity-related 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 Geo-Code 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 Geo-Code 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 commodity-related 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 commodity-related 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
record-keeping requirements established by this part 201(OMB Control
No. 0412-0514), 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 Payments--Insurance
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 USAID-financed commodity programs. The
information is required from suppliers in order to receive payment for
commodities or commodity-related 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 20523-7800; and
(2) Office of Management and Budget,
Paperwork Reduction Project (0412-0514), Washington, DC 20503.
Subpart B--Conditions 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
[[Page 37142]]
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 20523-7900, (Telephone (202) 712-4283 or (202)
712-5060).
(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 47.403-1 (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 20523-7900, (Telephone (202) 712-4283 or (202)
712-5060).
(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 USAID-financed 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) Non-availability 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 C--Procurement 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
[[Page 37143]]
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 20523-7900
(Telephone (202) 712-4283 or (202) 712-5060). 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 20523-7900
(Telephone (202) 712-4283 or (202) 712-5060). These requests shall
contain the name and contact information for the importer, a full
description of the commodities and any commodity-related 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 supplier-importer 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 brand-name 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 on-hand 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
end-product; 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 D--Responsibilities 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 Sub-Brandmark,
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) Semi-finished 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
20590-0001; and
(2) U.S. Agency for International Development, Office of
Acquisition and Assistance, Transportation Division (M/OAA/T), 1300
Pennsylvania Avenue, NW., Washington, DC 20523-7900.
(g) Adjustment refunds, credits, and allowances. All adjustments in
the purchase price in an USAID-financed 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 20523-7700, 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 20523-7700, 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 20523-7900, 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 E--General Provisions Relating to USAID Financing of
Commodities and Commodity-Related Services.
16. Amend Sec. 201.42 to revise the section heading to read as
follows:
Sec. 201.42 Re-export of USAID-financed commodities.
* * * * *
Subpart F--Payment 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
20590-0001; and
(2) U.S. Agency for International Development, Office of
Acquisition and Assistance, Transportation Division (M/OP/TC), 1300
Pennsylvania Avenue, NW., Washington, DC 20523-7900.
(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 20523-7900, 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 20523-7700, 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 G--Price 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 20523-7700, 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 H--Rights 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 6116-01-P
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Dated: June 22, 2007.
Michael F. Walsh,
Procurement Executive.
[FR Doc. 07-3309 Filed 7-6-07; 8:45 am]
BILLING CODE 6116-01-C