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Table of Contents
211.1 General purpose and scope; legislation.
211.2 Definitions.
211.3 Cooperating sponsor agreements; program procedure.
211.4 Availability and shipment of commodities.
211.5 Obligations of cooperating sponsor.
211.6 Processing,repackaging, and labeling commodities.
211.7 Arrangements for entry and handling in foreign country.
211.8 Disposition of commodities unfit for authorized use.
211.9 Liability for loss damage or improper distribution of commodities.
211.10 Records and reporting requirements.
211.11 Suspension, termination, and expiration of program.
211.12 Waiver and amendment authority.
Sec. 211.1 General purpose and scope; legislation.
(a) Legislation. The Agricultural Trade Development and Assistance Act of 1954, as amended (Pub. L. 480), was further revised by the Agricultural Development and Trade Act of 1990, Public Law 101-624, 104 Stat. 3632-65
(1990). The legislation implemented by the regulation in this part
(as of the date of issuance of this part) includes sections of Public Law 480, as follows: Sections 1, 2, 3, 201, 202, 203, 207, 401, 402, 403, 404, 406, 407, 408, 409, 413 and 414. Pursuant to title II of Public Law 480, A.I.D. may transfer agricultural commodities to address famine or other urgent or extraordinary relief requirements; combat malnutrition, especially in children and mothers; carry out activities that attempt to alleviate the causes of hunger, mortality and morbidity; promote economic and community development; promote sound environmental practices; and carry out feeding programs. Agricultural commodities may be provided to meet emergency food needs through foreign governments and private or public organizations, including intergovernmental organizations. Section 202
(a) of Public Law 480 authorizes A.I.D., notwithstanding any other provision of law, to provide agricultural commodities for emergency food needs in such manner and on such terms and conditions as A.I.D. determines
appropriate to respond to the emergency. Agricultural commodities also may be provided for non-emergency assistance through private voluntary organizations or cooperatives which are, to the extent
practicable, registered with A.I.D., and through intergovernmental organizations.
(b) Terms and conditions. This part 211, also known as A.I.D. Regulation 11, provides the standard terms and conditions applicable to title II programs, except those conducted by agencies of the United Nations and the World Food Program. The Operational Plan submitted by a cooperating sponsor may propose, and justify, the waiver of any section of this Regulation that is not required by statute. If A.I.D. approves a waiver, the specific section or subsection waived will be identified in the Transfer Authorization signed by the cooperating sponsor and A.I.D. or in an attachment, prepared by A.I.D., that is appended to the Operational Plan.
Sec. 211.2 Definitions.
(a) A.I.D. means the Agency for International Development or any successor agency, including, when applicable, each USAID. USAID means an office of A.I.D. located in a foreign country. AID/W
means the office of A.I.D. located in Washington, DC.
(b) Annual Estimate of Requirements or AER (Form A.I.D. 1550-3, Exhibit E, A.I.D. Handbook 9) is a statistical update of the Operational
Plan which is signed by the cooperating sponsor requesting commodities under title II estimating the quantities equired. When signed by AID/W, the AER together with the Food for
Peace Program Agreement between A.I.D. and the cooperating sponsor, the approved Operational Plan, and this Regulation 11 form a
donation agreement between A.I.D. and the cooperating sponsor with
respect to the commodities included in the AER.
(c) CCC means the Commodity Credit Corporation, a corporate agency and instrumentality of the United States within the U.S.
Department of Agriculture.
(d)(1) Cooperating sponsor means an entity, within or without the United States, governmental or not, such as the foreign government, the American Red Cross, the intergovernmental organization, or the private voluntary organization or cooperative, which enters into an agreement with the U.S. Government for the use of agricultural commodities or funds.
(2) Governmental cooperating sponsor means a foreign government which has signed a Transfer Authorization under which agricultural commodities are donated for emergency purposes only.Governmental cooperating sponsors are treated here as a group separate from other cooperating sponsors since they are eligible only for emergency programs and their circumstances are different in such matters as rules governing shipping and in certain other aspects of agreements.
(3) Nongovernmental cooperating sponsor means a cooperating sponsor which is a private voluntary organization, a cooperative, the American Red Cross, or other private or public agency. An intergovernmental organization also is treated as A nongovernmental cooperating sponsor in this Regulation 11 Unless the text or context indicates otherwise.
(e) Cooperative means a private sector organization whose members own and control the organization and share in its services and its profits and that provides business
services and outreach in cooperative development for its membership.
(f) Diplomatic Posts means the offices of the Department of State located in foreign countries and may include Embassies, Legations, and Consular offices. Since A.I.D. is responsible
for title II programs, references in this Regulation to Diplomatic
Posts apply only with respect to those countries where there
is
no USAID.
(g) Disaster relief organizations means organizations which
are authorized by AID/W, USAID or a Diplomatic Post to assist
disaster victims.
(h) Disaster victims means persons who, because of flood,
drought, fire, earthquake, other natural or man-made
disasters,
or extraordinary relief requirements, are in need of food,
feed,
or other assistance.
(i) Duty free means exempt from all customs duties, toll
charges, taxes or governmental impositions levied on the act
of
importation.
(j)
(1) Food for Peace Program Agreement establishes a
nongovernmental organization as a cooperating sponsor for
which
A.I.D. agrees to authorize future transfers of commodities in
accordance with title II of Public Law 480 and Regulation 11
and
the cooperating sponsor agrees to accept transfer of
commodities
in accordance with approved programs under title II and
A.I.D.
Regulation 11 and related procedures.
(2) Host Country Food for Peace Program Agreement means an
agreement between the cooperating sponsor and the foreign
government of each cooperating country which authorizes the
cooperating sponsor to conduct activities there in a manner
consistent with the terms and conditions set forth within
this
Regulation 11.
(3) Recipient Agency Agreement means a written agreement
between the cooperating sponsor and a recipient agency prior
to
the transfer to the recipient agency of commodities,
monetized
proceeds, or other program income for distribution or
implementation of an approved program.
(k) Free alongside ship (f.a.s.) includes all costs of
transportation and delivery of the goods to the dock. ``Free
on
board'' (f.o.b.) includes costs for delivering the goods and
loading them aboard the carrier at a specific location.
(l) Institutions means nonpenal, public or nonprofit private
establishments that operate for charitable or welfare
purposes where needy persons reside and receive meals including, but
not limited to, homes for the aged, mentally and physically
handicapped, refugee camps, and leprosy asylums.
(m) Intergovernmental organizations means agencies sponsored
and supported by two or more nations, one of which is the
United States.
(n) Marine salvage means the compensation made to those by
whose assistance a vessel or its cargo has been saved from
impending peril or recovered from actual loss.
(o) Monetized proceeds means funds generated from the sale of
title II commodities in approved monetization programs.
Monetized proceeds should be deposited in a special interest-bearing
account for control and monitoring.
(p) Nonprofit means that the residue of income over operating
expenses accruing in any activity, project, or program is
used solely for the operation of such activity, project, or program.
(q) Operational Plan is a plan submitted by the cooperating
sponsor or potential cooperating sponsor describing the
proposed use of commodity and/or monetized proceeds and/or program
income. All references in this Regulation to the Operational Plan
shall include the AER that relates to such Operational Plan.
(r) Private voluntary organization means a not-for-profit,
nongovernmental organization (in the case of a United States
organization, an organization that is exempt from Federal
Income Taxes under section 501 (c) (3) of the Internal Revenue Code of
1986) that receives funds from private sources, voluntary
contributions of money, staff time, or in-kind support from
the public, and that is engaged or is planning to engage in
voluntary, charitable or development assistance activities (other than religious activities).
(s) Program income means gross income earned by the
cooperating sponsor or recipient agencies from activities
supported under the approved program during the program
period,
including, but not limited to, interest earned on deposits of
monetized proceeds, revenue from income generating
activities, funds accruing from the sale of containers and nominal
voluntary contributions by recipients made on the basis of ability to
pay.
(t) Recipient agencies means schools, institutions, welfare
agencies, disaster relief organizations, and public or
private agencies whose food distribution functions or project
activities are sponsored by the cooperating sponsor and which receive
for distribution to eligible recipients commodities or monetized
proceeds or program income for approved project activities. A
cooperating sponsor may be a recipient agency.
(u) Recipients means persons who receive food assistance or
the benefit of monetized proceeds or program income because
of
their economic or nutritional condition or who are otherwise
eligible to receive commodities for their own use or other
assistance in accordance with the terms and conditions of the
approved Operational Plan or Transfer Authorization.
(v) Registered private voluntary organization or cooperative
means a nonprofit private voluntary organization or
cooperative
registered with, and approved by, A.I.D. The term includes
foreign as well as U.S. registered nonprofit voluntary
organizations and cooperatives. For discussion of
registration, see 22 C.F.R. part 203, A.I.D. Regulation 3, Registration of
Agencies for Voluntary Foreign Aid. In reviewing and
approving proposals, A.I.D., at its discretion, may give preference to
registered private voluntary organizations and cooperatives
over those that are not and to U.S. private voluntary
organizations and cooperatives over those that are foreign.
(w) Transfer Authorization or TA means the document signed by
the cooperating sponsor and A.I.D. which describes
commodities and the program in which they will be used. The TA
incorporates A.I.D. Regulation 11 and authorizes CCC to ship the commodities.
(x) USDA means the U.S. Department of Agriculture.
(y) Welfare agencies means public or private voluntary
organizations that provide care, including food assistance,
to
needy persons who are not residents of institutions.
Sec. 211.3 Cooperating sponsor agreements; program procedure.
(a) Food for Peace
Program Agreement. A nongovernmental
organization is eligible to be a cooperating sponsor for
regular programs under paragraph (d)(2)(i) of this section only after
it has entered into a Food For Peace Program Agreement with
A.I.D. that incorporates the terms and conditions set forth in
Regulation 11.
(b) Host Country Food for Peace Program Agreement.
Nongovernmental and intergovernmental cooperating sponsors
shall, in addition to the Food for Peace Program Agreement, enter into
a separate written Host Country Food for Peace Agreement with
the foreign government of each country for which title II
commodities are transferred to the cooperating sponsor. This agreement
shall establish the terms and conditions needed by a
nongovernmental cooperating sponsor to conduct a title II program in the
country in accordance with the applicable requirements of this part.
The cooperating sponsor shall provide USAID or the Diplomatic Post
a copy of each executed Host Country Food for Peace Agreement.
Where such written agreement is not appropriate or feasible,
USAID or the Diplomatic Post shall assure AID/W, in writing,
that the program can be effectively implemented in compliance with
this Regulation without such an agreement.
(c) Recipient Agency Agreement. Prior to the transfer of
commodities, monetized proceeds, or program income to a
recipient agency for distribution or implementation of an approved
program, the cooperating sponsor shall execute with such agency a
written agreement which shall:
(1) Describe the approved uses of commodities, monetized
proceeds and program income in a manner consistent with the
approved Operational Plan or TA;
(2) Require the recipient agency to pay the cooperating
sponsor the value of any commodities, monetized proceeds or
program income that are used for purposes not permitted under
the Recipient Agency Agreement or that are lost, damaged or
misused as a result of the recipient agency's failure to exercise
reasonable care with respect to such commodities, monetized proceeds or program income; and
(3) Incorporate by reference or otherwise the terms and conditions set forth in this Regulation 11.
The Operational Plan may indicate those transfers of commodities,
monetized proceeds or program income for which the cooperating
sponsor and A.I.D. agree that a Recipient Agency Agreement would
not be appropriate or feasible. In any case, the cooperating
sponsor shall remain responsible for such commodities,
monetized proceeds and program income in accordance with the terms of
this Regulation 11 and the Operational Plan or TA. The cooperating
sponsor shall provide USAID or the Diplomatic Post a copy of
each executed Recipient Agency Agreement.
(d) Program procedure-- (1) Requests for programs. A program
may be requested by any cooperating sponsor, including
private
voluntary organizations, cooperatives, foreign governments
(for
emergencies only), and international organizations.
(2) Approval of programs. There are two basic patterns of
decision typically employed in approving a request for title
II
assistance:
(i) Regular programs. The cooperating sponsor submits to
A.I.D. an Operational Plan or multi-year Operational Plan
(see
appendix I), describing the program proposed. Also, an AER
will
be submitted to A.I.D. along with the Operational Plan,
estimating the quantities of commodities required for each
program proposed. AID/W's approval of and signature on the
AER
completes this decision process.
(ii) Individual programs. The other basic pattern of decision
making results in a Transfer Authorization. The TA is used
for
all emergency government-to-government programs, and for
nongovernmental cooperating sponsor programs which do not fit
within the Program Agreement/AER framework. The TA will
include
by reference Regulation 11.
(3) Subject to availability. A.I.D.'s agreement to transfer
commodities is subject to the availability of appropriations and
agricultural commodities during each United States Government
fiscal year to which it applies.
(4) Timing of decision. Under Public Law 480, section 207
(a),
within 45 days of its submission to AID/W, a decision must be
made on a proposal submitted by a private voluntary
organization
or cooperative, concurred in by USAID or the Diplomatic Post.
The
decision shall detail the reasons for approval or denial, and
if
denied, conditions to be met for approval. In addition, a
USAID
or Diplomatic Post must decide whether or not to concur in
the
proposal within 45 days of receiving it or provide a written
explanation to the private voluntary organization or
cooperative
and AID/W of the reasons USAID or the Diplomatic Post needs
more
time to consider the proposal.
Sec. 211.4 Availability and shipment of commodities.
(a) Shipment, distribution and use of commodities.
Commodities shall be available for shipment, distribution and
use
in accordance with the provisions of the approved Operational
Plan and AER, or TA and this Regulation 11.
(b) Transfer of title and delivery.
(1) Unless the approved
Operational Plan or TA provides otherwise, title to the
commodity
shall pass--
(i) For nongovernmental cooperating sponsors, at the point in
the United States at which the ocean carrier or its agents
take
possession of the cargo
(generally f.a.s. or f.o.b. vessel
U.S.
port); or
(ii) For governmental cooperating sponsors, at the
destination port of entry, upon completion of discharge by
the
ocean carrier
(non-landlocked countries), or at the
destination
point of entry, upon completion of delivery by the inland
carrier
(landlocked countries).
Except as A.I.D. may otherwise agree in writing, the
cooperating
sponsor shall retain title to commodities, monetized
proceeds,
and program income transferred to a recipient agency for
distribution or use in accordance with the Operational Plan
or
TA.
(2) Nongovernmental cooperating sponsors shall make the
necessary arrangements to accept commodities at the points of
availability designated by CCC.
(c) Processing, handling, transportation and other costs.
(1)
Except as othervise provided in the Operational Plan or TA,
the
United States will pay in accordance with this paragraph
(c)
processing, handling, transportation, and other incidental
costs
incurred in making commodities available to cooperating
sponsors
at U.S. ports or U.S. inland destinations, up to the point at
which the ocean carrier takes possession of the cargo.
(2) The United States will finance the transfer of
commodities at the lowest combination inland and ocean
transportation costs as determined by the United States and
in
sizes and types of packages announced as applicable. If a
nongovernmental cooperating sponsor requests changes to these
standards which are made by the United States as an
accommodation
to the cooperating sponsor and these changes result in costs
over
those the United States otherwise would have incurred, the
cooperating sponsor shall reimburse the United States for these
increased costs promptly upon request.
(3) All costs and expenses incurred subsequent to the
transfer of title to cooperating sponsors shall be borne by
them
except as otherwise provided herein. Upon the determination
that
it is in the interests of the program to do so, the United
States
may pay or reimburse the following additional costs:
(i) Ocean transportation costs from U.S. ports to the
designated ports of entry abroad; or
(ii) Ocean transportation costs from U.S. ports to designated
points of entry abroad in the case--
(A) Of landlocked countries,
(B) Where ports cannot be used effectively because of natural
or other disturbances,
(C) Where carriers to a specific country are unavailable, or
(D) Where a substantial savings in cost or time can be
effected by the utilization of points of entry other than
ports;
or
(iii) In the case of commodities for urgent and extraordinary
relief requirements, including prepositioned commodities,
transportation costs from designated points of entry or ports
of
entry abroad to storage and distribution centers and
associated
storage and distribution costs.
(d) Payment or reimbursement of ocean freight costs. When
A.I.D. contracts for ocean carriage, carriers shall be paid
by
A.I.D., as provided in their contracts of affreightment, upon
presentation of Standard Form 1034 and three copies of 1034A
(Public Voucher for purchases and services other than
personal),
together with three copies of the related on-board ocean bill
of
lading, one copy of which must contain the following
certification signed by an authorized representative of the
steamship company:
I certify that this document is a true and correct copy of
the original on-board ocean bill of lading under which the
goods
herein described were located on the above-named vessel and
that
the original and all other copies thereof have been clearly
marked as not to be certified for billing.
______________________________________________________________
__
(Name of steamship co.)
By
(Authorized representative)
Such documents shall be submitted to: Transportation
Division,
Office of Procurement,
(FA/OP/TRANS), Agency for
International
Development, Washington, DC 20523. Except for duty, taxes and
other costs excluded by Sec. 211.7
(a) and
(b) of this
Regulation
11, nongovernmental cooperating sponsors booking their own
vessels will be reimbursed as provided in A.I.D. Regulation 2
(part 202 of this chapter) for ocean freight authorized by
the
United States upon presentation to AID/W of proof of payment
to
the ocean carrier. However, freight prepaid bills of lading
which indicate firm incurrence of freight costs will be
accepted
by A.I.D. as evidence of payment to the ocean carrier
provided
that the nongovernmental cooperating sponsor agrees to ensure
that such carrier is actually paid no later than 7 calendar
days
following receipt of U.S. Government funds by the sponsor or
its
agent. A.I.D. will reimburse nongovernmental cooperating
sponsors
only up to a maximum of 2\1/2\ percent commission paid to
their
freight forwarders as a result of booking Public Law 480,
title
II cargo. Similarly, when A.I.D. books cargo, a maximum of
2\1/2\
percent commission may be paid by the contracted carrier.
Proof
of payment of commissions must be submitted with requests for
reimbursement.
(e) Shipping instructions--
(1) Shipments booked by A.I.D.
Requests for shipment of commodities shall originate with the
cooperating sponsor and shall be submitted to USAID or the
Diplomatic Post for clearance and transmittal to AID/W. AID/W
shall, through cables or letters to USAID or the Diplomatic
Post,
provide cooperating sponsors
(and, where applicable, private
voluntary organization or cooperative headquarters) with names
of
vessels, expected times of arrival
(ETAs), and other
pertinent
information on shipments booked by A.I.D. As soon as possible
but not later than 7 days from the time of exportation of
commodities, A.I.D.'s freight forwarding contractor shall
send
applicable ocean bills of lading by airmail, or by the
fastest
means available, to USDA
(Chief, Processed Commodities
Division,
Kansas City ASCS Commodity Office
(KCCO), P.O. Box 419205,
Kansas
City, Missouri 64141-6205), to USAID or the Diplomatic Post
(and
where applicable to the USAID Controller and nongovernmental
cooperating sponsor headquarters and field representative),
to
AID/W, FA/OP/TRANS
(see Sec. 211.4
(d)), and to the consignee
in
sufficient time to advise of the arrival of the shipment.
(2) Shipments booked by nongovernmental cooperating sponsor.
Requests for shipment of commodities shall originate with the
cooperating sponsor and shall be cleared by USAID or the
Diplomatic Post before transmittal to the cooperating
sponsor's
headquarters for concurrence and issuance. USAID or the
Diplomatic Post shall promptly clear such requests for
shipment
of commodities or, if there is reason for delay or
disapproval,
advise the cooperating sponsor and AID/W within seven
(7) days
of
receipt of requests for shipment. After the cooperating
sponsor
headquarters concurs in the request and issues the order, the
original will be sent promptly to AID/W which will forward it
to CCC for procurement action with a copy to USAID or the
Diplomatic Post. Headquarters of cooperating sponsors which
book
their own shipments shall provide their representatives and
USAID
or the Diplomatic Post with the names of vessels, ETAs and
other
pertinent information on shipments booked. At the time of
exportation of commodities, the booking agent representing
the
cooperating sponsor shall send applicable ocean bills of
lading
by airmail or by the fastest means available to USDA
(Chief,
Processed Commodities Division, Kansas City ASCS Commodity
Office
(KCCO), P.O. Box 419205, Kansas City, Missouri 64141-6205),
to
USAID or the Diplomatic Post
(and where applicable to the
USAID
Controller and the nongovernmental cooperating sponsor
representative), to AID/W, FA/OP/TRANS
(see Sec. 211.4
(d)), and
to the consignee in the country of destination in sufficient
time
to advise of the arrival of the shipment. Nongovernmental
cooperating sponsors also will forward cable advice of actual
exportation to their program directors in countries within
the
Caribbean area in view of the short transit time from U.S.
port
to destination.
(3) Cooperating sponsors awarding USAID-financed ocean
transportation bookings of food aid under the Public Law 480,
title II program shall follow consistent, transparent, fair
and
effective procedures. In order to promote these objectives,
USAID
may formulate, and from time-to-time amend, uniform standard
booking guidelines relating to such bookings. Guidelines will
be
finalized only after consultation with affected cooperating
sponsors, freight forwarders and carriers as required by the
Agricultural Development and Trade Act of 1990 or other
applicable legislation. Copies of the guidelines and any
proposed
amendments may be obtained from the Transportation Division,
Office of Procurement, Agency for International Development,
Washington, DC 20523.
(f) Tolerances. Delivery by the United States to the
cooperating sponsor at point of transfer of title within a
tolerance of 5 percent
(2 percent in the case of quantities
over
10,000 metric tons) plus or minus, of the quantity ordered
for
shipment shall be regarded as completion of delivery. There
shall
be no tolerance with respect to the ocean carrier's
responsibility to deliver the entire cargo shipped and the
United
States assumes no obligation for failure by an ocean carrier
to
complete delivery to port of discharge.
(g) Conflict of interest.
(1) Pursuant to section 407
(c)
(4)
of Public Law 480, a person may not be an agent, broker,
consultant, or other representative of the U.S. Government,
an
importer, or an importing country in connection with
agricultural
commodities provided under Public Law 480 during a fiscal year
in
which such person acts as an agent, broker, consultant or
other
representative of a person engaged in providing ocean
transportation or ocean transportation-related services for
such
commodities.
(i) For purposes of section 407
(c)
(4), the term
``transportation-related services'' means lightening,
stevedoring, bagging or inland
transportation to the destination point.
(ii) The prohibition does not preclude payment by ocean
carriers of compensation or brokerage fees on a
shipment-by-shipment basis as provided in governing tariffs
or
charter parties to persons performing freight forwarding or
charter broking services under contract to the U.S.
Government.
(2) Pursuant to section 407
(d)
(3) of Public Law 480, freight
agents employed by A.I.D. under title I, II or III of Public
Law
480 shall not represent any other foreign government during
the
period of their contract with the United States Government.
This
restriction applies both to charter brokers and freight
forwarders whether they are prime contractors or
subcontractors
of A.I.D.
(3) This paragraph
(g) does not apply to shipments booked by
nongovernmental cooperating sponsors or their agents. [57 FR
19766, May 7, 1992, as amended at 60 FR 36991, July 19, 1995]
Sec. 211.5 Obligations of cooperating sponsor.
(a) Operational Plans. Each cooperating sponsor shall submit
a description of the programs it is sponsoring or proposes to
sponsor to USAID or the Diplomatic Post for its approval.
AID/W
will prescribe the format and timing for submittals and
provide
final approval of the Operational Plan. This Operational Plan
will include program purposes and goals; criteria for
measuring
program effectiveness; a description of the activities for
which
commodities, monetized proceeds, or program income will be
provided or used; and other specific provisions in addition
to
those set forth in this Regulation. Further, this description
will include information from which it may be determined that
the
distribution of commodities in the recipient country will not
result in a substantial disincentive to domestic production
and
that adequate storage facilities will be available in the
recipient country at the time of arrival of the commodity to
prevent spoilage or waste of the commodity. For preparation
of
the Operational Plan, see appendix I to this regulation. If a
cooperating sponsor submits a multi-year Operational Plan that
is
approved by A.I.D., the Operational Plan provided with an AER
each subsequent year should cover only those components or
features which require updating or the cooperating sponsor
proposes to change. A.I.D. will issue guidance each year
regarding Operational Plans that must be submitted by
cooperating
sponsors. Within the limits of the total amount of
commodities,
monetized proceeds and program income approved by A.I.D. in
the
Operational Plan, the cooperating sponsor may increase or
decrease by not to exceed 10 percent the amount of
commodities,
monetized proceeds or program income allocated to approved
program categories or components of the Operational Plan.
Such
adjustments must be identified specifically in the annual
report
submitted by a cooperating sponsor under Sec. 211.10
(b) of
the
Regulation. A cooperating sponsor may not otherwise deviate
from
the Operational Plan without the prior written approval of
A.I.D.
(b) Program supervision. Cooperating sponsors shall provide
adequate supervisory personnel for the efficient operation of
the
program, including personnel to:
(1) Plan, organize, implement, control, and evaluate programs
involving distribution of commodities or use of monetized
proceeds and program income,
(2) Make warehouse inspections, physical inventories, and
end-use checks of food or funds, and
(3) Review of books and records maintained by recipient
agencies that receive monetized proceeds and/or program
income.
Cooperating sponsors shall be represented by a person resident
in
the country of distribution or other nearby country approved
by
AID/W, who is appointed by and responsible to the cooperating
sponsor for distribution of commodities or use of monetized
proceeds or program income in accordance with the provisions
of
this regulation.
(c) Audits--
(1) By nongovernmental cooperating sponsors. A
nongovernmental cooperating sponsor shall arrange for
periodic
audits to be conducted in accordance with OMB Circular A-133,
including the OMB Compliance Supplement and the Statement of
Position Regarding Circular A-133 developed by the American
Institute of Certified Public Accountants. Nongovernmental
recipient agencies shall be treated as subrecipients under
OMB
Circular A-133, and governmental recipient agencies shall
furnish
the cooperating sponsor audits in accordance with the standard
in
paragraph
(c)
(2) of this section. The cooperating sponsor may
satisfy these audit responsibilities with respect to
recipient
agencies by relying on independent audits performed of
recipient
agencies or on appropriate procedures performed by the
cooperating sponsor's internal audit or program staff, by
expanding the scope of the independent financial and
compliance
audit of the cooperating sponsor to encompass testing of
recipient agency charges, or by a combination of these
procedures. The Generally Accepted Commodity Accounting
Principles issued by Food Aid Management, an association of
cooperating sponsors, may be used for commodity accounting.
(2) By governmental cooperating sponsors. A governmental
cooperating sponsor shall ensure that an audit satisfactory
to
A.I.D. is conducted annually with respect to donated
commodities
and monetized proceeds, if commodity sales are authorized
under
the agreement with A.I.D., including commodities and
monetized
proceeds transferred to or used by recipient agencies. The
audit
shall be a financial audit performed by the country's
principal
government audit agency or another audit agency or firm
acceptable to A.I.D. This audit should be conducted in
accordance
with generally accepted government auditing standards issued
by the United States General Accounting Office, or auditing
standards that have been prescribed by the laws of the country
or
adopted by public accountants or an association of public
accountants in the country, or Auditing Standards promulgated
by
the International Organization of Supreme Audit Institutions
or
International Auditing Practices Committee of the
International
Federation of Accountants. Both the auditor and the auditing
standards to be used by the cooperating sponsor must be
acceptable to A.I.D. The cooperating sponsor may satisfy
its audit responsibility with respect to recipient agencies
by
relying on independent audits of the recipient agency or on
appropriate procedures performed by internal audit or program
staff of the cooperating sponsor, by expanding the scope of
the
independent financial audit of the cooperating sponsor to
encompass testing of recipient agency charges or actions, or by
a
combination of these procedures. Recipient agencies that
receive
less than $25,000 of donated commodities and/or monetized
proceeds are excluded from the cooperating sponsor's audit
responsibility.
(d) Commodity requirements; AER. Each cooperating sponsor
shall submit to USAID or the Diplomatic Post,within such
times
and on the AER form prescribed by AID/W, estimates of
requirements showing the quantities of commodities required
for
each program proposed.
(e) No military distribution. Except as A.I.D. may otherwise
agree in writing, agricultural commodities donated by A.I.D.
shall not be distributed, handled or allocated by any
military
forces.
(f) Determination of eligibility of recipients. Cooperating
sponsors shall be responsible for determining that the
recipients
and recipient agencies to whom they distribute commodities
are
eligible in accordance with the Operational Plan or TA and
this
Regulation. Cooperating sponsors shall impose upon recipient
agencies responsibility for determining that the recipients
to
whom they distribute commodities or provide assistance with
monetized proceeds or program income are eligible.
Commodities
shall be distributed free of charge except as provided in
paragraphs
(j) and
(k) of this section or as otherwise
authorized
by AID/W, but in no case will recipients be excluded from
receiving commodities because of inability to make a
contribution
to the cooperating sponsor for any purpose.
(g) No discrimination. Cooperating sponsors shall distribute
commodities to and conduct operations
(with food, monetized
proceeds, or program income) only with eligible recipient
agencies and eligible recipients without regard to political
affiliation, geographic location, ethnic, tribal or religious
identity or other factors extraneous to need and the
eligibility
criteria set forth in the approved Operational Plan or TA,
and
shall impose similar conditions upon recipient agencies.
(h) Public recognition. To the maximum extent practicable,
and with the cooperation of the host government, adequate
public
recognition shall be given in the press, by radio, and other
media that the commodities or assistance financed by
monetized
proceeds or program income have been provided through the
friendship of the American people as food for peace. At
distribution and feeding centers or other project sites the
cooperating sponsor shall, to the extent feasible, display
banners, posters, or similar media which shall contain
information similar to that prescribed for containers in
paragraph
(i) of this section. Recipients' individual
identification cards shall, insofar as practicable, be
imprinted
to contain such information.
(i) Containers--
(1) Markings. Unless otherwise specified in
the Operational Plan or TA, when commodities are packaged for
shipment from the United States, bags and other containers
shall
be marked with the CCC contract number or other
identification,
the A.I.D. emblem and the following information stated in
English:
(i) Name of commodity;
(ii) Provided through the friendship of the American people
as food for peace;
(iii) Not to be sold or exchanged
(where applicable).
(2) Disposal of containers. Cooperating sponsors may dispose
of containers, other than containers provided by carriers, in
which commodities are received in countries having approved
title
II programs, by sale or exchange, or may distribute the
containers free of charge to eligible food or fiber
recipients
for their personal use. If the containers are to be used
commercially, the cooperating sponsor must arrange for the
removal, obliteration, or cross out of the U.S.
Government markings from the containers prior to such use.
(j) Monetization programs. Provisions of this Regulation that
prohibit or restrict the sale of commodities or require
marking
or labeling of containers do not apply to the extent the sale of
commodities is approved by A.I.D. Cooperating sponsors are
not
required to monitor, manage, report on or account for the
distribution or use of commodities after title to the
commodities
has passed to buyers or other third parties pursuant to a
sale
under a monetization program and all sales proceeds have been
fully deposited in the special interest-bearing account
established by the cooperating sponsor for monetized proceeds.
However, the receipt and use of sales proceeds must be
monitored,
managed, reported and accounted for as provided in this
Regulation, with special reference to paragraphs
(k) and
(l)
of
this section, and Sec. 211.10. It is not mandatory that
commodities approved for monetization be imported and sold
free
from all duties and taxes, but nongovernmental cooperating
sponsors may negotiate agreements with the host government
permitting the tax-free import and sale of such commodities.
Even
where the cooperating sponsor negotiates tax-exempt status,
the
prices at which the cooperating sponsor sells the commodities
to
the purchaser should reflect prices that would be obtained in
a
commercial transaction, i.e., the prices would include the
cost of duties and taxes, except as A.I.D. may otherwise agree
in
writing. Thus, the amounts normally paid for duties and taxes
would accrue for the benefit of the cooperating sponsor's
approved program. Cooperating sponsors should refer to the
``Monetization Field Manual'' for more comprehensive guidance
on
setting the sales price. A copy of the Monetization Manual may
be
obtained from AID/W-FHA/PPE, Washington, DC 20523.
(k) Use of funds.
(1) Nongovernmental cooperating sponsors
and recipient agencies may use monetized proceeds and program
income to:
(i) Transport, store, distribute and otherwise enhance the
effectiveness of the use of donated commodities and products
thereof, including construction or improvement of storage
facilities or warehouses, handling, insect and rodent
control,
payment of personnel employed or used by the cooperating
sponsor
or recipient agencies in support of approved programs;
(ii) Implement income generating, community development,
health, nutrition, cooperative development, agricultural and
other developmental activities agreed upon by A.I.D. and the
cooperating sponsor;
(iii) Make investments, with the approval of A.I.D., and any
interest earned on such investments may be used for purposes
described in paragraphs
(k)
(l)
(i) and
(ii) of this section;
(iv) Improve their financial and other management systems;
and
(v) Pay indirect costs of the cooperating sponsor that are
allocable to the monetization program at the indirect cost
rate
approved by A.I.D. for the cooperating sponsor, the direct
and
indirect costs of an office maintained by the cooperating
sponsor
in the country where the monetization program is conducted
that
are allocable to the title II program there, and the costs of
a
regional office maintained by a cooperating sponsor that are
allocable to the cooperating sponsor's effort to enhance the
effectiveness of the use of commodities provided by A.I.D.
under
title II.
(2) Monetized proceeds and program income may be used by the
cooperating sponsor and recipient agencies only for the purposes
described in the Operational Plan or TA, or otherwise approved
by
A.I.D., in writing, and only for such costs as would be
allowable
under OMB Circular A-122, as amended, ``Cost Principles for
Nonprofit Organizations''. A recipient agency may use not to
exceed $500 per year of voluntary contributions for
institutional, community or social development or other
humanitarian purposes without regard to the Operational Plan
or
TA or OMB Circular A-122.
(3) Governmental cooperating sponsors shall use monetized
proceeds and program income only for emergency purposes as
described in the TA with respect to such programs.
(4) Monetized proceeds and program income may not be used to
pay for the performance of abortions as a method of family
planning or to motivate or coerce any person to practice
abortions.
(5) Except as A.I.D. may otherwise agree in writing,
monetized proceeds may not be used to finance the production
for
export of agricultural commodities, or products thereof, that
would compete in the world market with similar agricultural
commodities, or products thereof, produced in the United
States,
if such competition would cause substantial injury to the
United
States producers, as determined by A.I.D.
(6)
(i) The cooperating sponsor shall use commercially
reasonable practices in construction activities and in
purchasing
goods and services with monetized proceeds or program income;
maintain a code of standards of conduct regarding conflicts
of
interest; carry out procurement transactions in a manner to
provide open and free competition to the maximum extent
practicable; and maintain and make available to A.I.D. in
accordance with Sec. 211.10 records and documents regarding
the
procurement of goods and services with monetized proceeds and
program income. Cooperating sponsors shall follow their own
requirements relating to bid guarantees, performance bonds
and
payment bonds when program income or monetized proceeds are
used
to finance construction or the improvement of facilities, but
shall consult with USAID or the Diplomatic Post regarding
such
requirements when the estimated cost of such construction
or improvements exceeds $100,000. Title to real and personal
property shall be vested in the cooperating sponsor, except
as
provided in the Operational Plan or TA or as A.I.D. may
otherwise
agree in writing, subject to the requirements of Sec. 211.11
upon
termination of the program.
(ii) Monetized proceeds and program income may not be used to
acquire, construct, alter or upgrade land, buildings or other
real property improvements that are used in whole or in part
for
sectarian purposes or which are owned or managed by a church
or
other organization engaged exclusively in religious activity.
Notwithstanding the preceding sentence, monetized proceeds or
program income may be used to finance repair or rehabilitation
of
an existing structure owned or managed by a church or
organization engaged exclusively in religious activity to the
extent necessary to avoid spoilage or loss of donated
commodities, provided that the structure is not used in whole
or
in part for any sectarian purpose while donated commodities
are
stored in it. The use of monetized proceeds or program income
to
finance construction of such a structure may be approved in
the
Operational Plan or TA or by USAID or the Diplomatic Post if
the
structure is needed and will be used for the storage of
donated
commodities for a sufficient period of time to warrant the
expenditure of monetized proceeds or program income and the
structure will not be used for any sectarian purpose during
this
period.
(l) Report on funds. The cooperating sponsor
(headquarters,
if there is more than one office) shall annually provide AID/W
a
report on the receipt and disbursement of all monetized
proceeds
and program income by cooperating sponsors and recipient
agencies. This report should include the source of the funds,
by
country, and how the funds were used. This annual report
should
be submitted to AID/W by December 31 of each calendar year
for
the fiscal year ending September 30 of that calendar year.
(m) No displacement of sales. Except in the case of emergency
or disaster situations, the donation of commodities furnished
for
these programs shall not result in increased availability for
export by the recipient country of the same or like
commodities
and shall not interfere with or displace sales in the
recipient
country which might otherwise take place. A country may be
exempt
from this proviso if circumstances warrant. USAIDs should
seek
AID/W guidance on this matter.
(n) Commodities borrowed or exchanged for programs. After the
date of the program approval by AID/W, but before arrival at
the
distribution point of the commodities authorized, the
cooperating
sponsor may, with prior approval of USAID or the Diplomatic
Post,
borrow the same or similar commodities from available sources
to
meet program requirements provided that:
(1) Borrowed commodities which are used in accordance with
the terms of the Operational Plan or TA will be replaced with
commodities transferred by A.I.D. The amount of commodities
transferred to replace borrowed commodities shall be
established
by mutual agreement between the cooperating sponsor and USAID
or
the Diplomatic Post and will be determined on the basis of
equivalent value at the time and place of transfer or on some
other justifiable basis proposed by the cooperating
sponsor and acceptable to USAID or the Diplomatic Post;
(2) Packaged commodities which are borrowed shall be
appropriately identified insofar as practicable in the
language
of the country of distribution as having been provided
through
the friendship of the American people as food for peace; and
(3) Suitable publicity shall be given to the exchange of
commodities as provided in paragraph
(h) of this section and
containers for borrowed commodities shall be marked to the
extent
practicable in accordance with Sec. 211.6
(c).
(o) Commodity transfer between programs. After the date of
program approval by AID/W, but before distribution of the
commodities, USAID or the Diplomatic Post
(or the cooperating
sponsor with prior approval of USAID or the Diplomatic Post)
may
transfer commodities between approved title II programs to
meet
emergency disaster requirements or to improve efficiency of
operation, such as to meet temporary shortages due to
delays in ocean transportation or provide for rapid
distribution
of stocks in danger of deterioration. Transfers also may be
made
to disaster organizations for use in meeting exceptional
circumstances. Commodity transfers shall be made at no cost
to
the U.S. Government and with the concurrence of the
cooperating
sponsor and disaster relief organization concerned. A USAID
or
Diplomatic Post with funds available, however, may pay the
costs
of transfers to meet extraordinary relief requirements, and
AID/W
shall be advised promptly of the details of the transfer.
Commodities transferred between programs shall not be replaced
by
the U.S. Government unless AID/W authorizes such replacement.
(p) Disposal of excessive stock of commodities. If
commodities are on hand which cannot be utilized in
accordance
with the approved Operational Plan or the TA, the cooperating
sponsor shall promptly advise USAID or the Diplomatic Post of
the
quantities, location and condition of such commodities, and
where
possible, shall propose an alternate use of the excess
stocks;
USAID or the Diplomatic Post shall determine the most
appropriate
use of the excess stocks, and with prior AID/W concurrence,
shall
issue instructions for disposition. Transportation costs and
other charges attributable to transferring commodities from
one
program to another within the country shall be the
responsibility
of the cooperating sponsor, except that in case of disaster
or
emergency, AID/W may authorize the use of disaster or
emergency
funds to pay for the costs of such transfers.
(For discussion
of unfit commodity disposal, see Sec. 211.8.)
(q) Trilateral exchange programs. The restrictions in this
Regulation regarding the distribution, use or labeling of
commodities shall not apply to commodities furnished by CCC
in
exchange for other commodities obtained from third parties
(``exchanged commodities'') to be distributed in a recipient
country under a trilateral exchange program. Except as A.I.D.
and
the cooperating sponsor may otherwise agree in writing, title
to
the exchanged commodities will pass to the cooperating
sponsor
upon delivery to and acceptance by the cooperating sponsor at
the
point of delivery specified in the Operational Plan or TA.
After
title passes to the cooperating sponsor the exchanged
commodities
shall be deemed ``commodities'' covered by this Regulation
with
respect to all post-delivery obligations of the cooperating
sponsor contained in this Regulation, including obligations
regarding labeling to the extent practicable, distribution,
monitoring, reporting, accounting and use of commodities or
monetized proceeds resulting from their sale. In the event of
difficulty in satisfying the labeling requirement, the
cooperating sponsor will consult with USAID or the Diplomatic
Post for guidance.
(r) Landing. Governmental cooperating sponsors shall permit
donated commodities to be discharged notwithstanding any
dispute
or question concerning quality, quantity, or other matters
relating to the commodity itself. Any such dispute or
question
shall be resolved in accordance with procedures stated in
this
Regulation or in the relevant shipping or other contracts, as
applicable.
Sec. 211.6 Processing, repackaging, and labeling commodities.
(a) Commercial processing and repackaging. Cooperating
sponsors or their designees may arrange for processing
commodities into different end products and for packaging or
repackaging commodities prior to distribution. Commodities may
be
bartered, or monetized proceeds or program income may be used,
to
offset such costs if provided for in the Operational Plan or
TA
or approved by USAID or the Diplomatic Post. When commercial
facilities are used for processing, packaging or repackaging,
cooperating sponsors or their designees shall enter into written
agreements for such services and copies of the agreements must
be
provided to USAID or the Diplomatic Post. Except as AID/W
otherwise agrees, the executed agreements shall provide as a
minimum that the party providing such services shall:
(1) Fully account to the cooperating sponsor for all
commodities delivered to the processor's possession and shall
maintain adequate records and submit periodic reports
pertaining
to the performance of the agreement;
(2) Be liable for the value of all commodities not accounted
for as provided in Sec. 211.9
(e);
(3) Return or dispose of the containers in which the
commodity is received from the cooperating sponsor according
to
instructions from the cooperating sponsor; and
(4) Plainly label carton, sacks, or other containers
containing the end product in accordance with paragraph
(c)
of
this section.
(b) Use of cooperating sponsor facilities. When cooperating
sponsors utilize their own facilities to process, package, or
repackage commodities into different end products, and when
such
products are distributed for consumption off the premises of
the
cooperating sponsor, the cooperating sponsor shall plainly
label
the containers as provided in paragraph
(c) of this section,
and
banners, posters, or similar media which shall contain
information similar to that prescribed in paragraph
(c) of this section, shall be displayed at the distribution
center. Recipients' individual identification cards shall to
the
maximum extent practicable be imprinted to contain such
information.
(c) Labeling. If, prior to distribution, the cooperating
sponsor arranges for packaging or repackaging donated
commodities, the cartons, sacks, or other containers in which
the
commodities are packed shall be plainly labeled with the
A.I.D.
emblem, and insofar as practicable, with the following
information in the language of the country in which the
commodities are to be distributed:
(1) Name of commodity;
(2) Provided through the friendship of the American people as
food for peace; and
(3) Not to be sold or exchanged
(where applicable).
Emblems or other identification of nongovernmental
cooperating
sponsors also may be added.
(d) Where commodity containers are not used. When the usual
practice in a country is not to enclose the end product in a
container, wrapper, sack, etc., the cooperating sponsor shall,
to
the extent practicable, display banners, posters, or other
media,
and imprint on individual recipient identification cards
information similar to that prescribed in paragraph
(c) of
this
section.
Sec. 211.7 Arrangements for entry and handling in foreign country.
(a) Costs at discharge
ports. Except as otherwise agreed upon
by AID/W and provided in the applicable shipping contract or
in
paragraph
(d) and
(e) of this section, the cooperating
sponsor
shall be responsible for all costs, other than those assessed
by
the delivering carrier either in accordance with its
applicable
tariff for delivery to the discharge port or the applicable
charter or booking contract. The cooperating sponsor shall be
responsible for all costs related to:
(1) Distributing the commodity to end users, as provided in
the approved Operational Plan or TA;
(2) Demurrage, detention, and overtime;
(3) Obtaining independent discharge survey reports as
provided in Sec. 211.9 under which the cooperating sponsor
will
be reimbursed for the costs of obtaining independent survey
reports as provided in Sec. 211.9
(c)
(1)
(iv); and
(4) Wharfage, taxes, dues, and port charges assessed and
collected by local authorities from the consignee, lighterage
(when not a custom of the port), and lightening costs when
assessed as a charge separate from the freight rate.
(b) Duty, taxes, and consular invoices. Except for
commodities which are to be monetized
(sold) under an
approved
Operational Plan or TA, commodities shall be admitted duty
free
and exempt from all taxes. Consular or legalization invoices
shall not be required unless specific provision is made in
the
Operational Plan or TA. If required, they shall be issued
without
cost to the cooperating sponsor or to the Government of the
United States. The cooperating sponsor shall be responsible
for
ensuring prompt entry and transit in the foreign country
(ies)
and
for obtaining all necessary import permits, licenses or other
appropriate approvals for entry and transit, including
phytosanitary, health and inspection certificates.
(c) Storage facilities and transportation in foreign
countries. The cooperating sponsors shall provide assurance
to
USAID or the Diplomatic Post that all necessary arrangements
for
receiving the commodities have been made, and shall assume
full
responsibility for storage and maintenance of the commodities
from time of delivery at port of entry abroad or, when
authorized, at other designated points of entry abroad agreed
upon between the cooperating sponsor and A.I.D. Before
recommending approval of a program to AID/W, USAID or the
Diplomatic Post shall obtain, from the cooperating sponsor,
assurance that provision has been made for internal
transportation, and for storage and handling which are
adequate
by local commercial standards. The cooperating sponsor shall
be
responsible for the maintenance of the commodities in such
manner
as to assure distribution of the commodities in good condition
to
recipient agencies or eligible recipients.
(d) Inland transportation in intermediate countries. In the
case of landlocked countries, transportation in the
intermediate
country to a designated inland point of entry in the
recipient
country shall be arranged by the cooperating sponsor unless
otherwise provided in the Operational Plan or TA.
Nongovernmental
cooperating sponsors shall handle claims arising from loss or
damage in the intermediate country, in accordance with Sec.
211.9
(e). Governmental cooperating sponsors shall assign any
rights that they may have to any claims that arise in the
intermediate country to USAID or the Diplomatic Post which shall
pursue and retain the proceeds of such claims.
(e) Authorization for reimbursement of costs. If, because of
packaging damage, a cooperating sponsor determines that
commodities must be repackaged to ensure that the commodities
arrive at the distribution point in a wholesome condition,
the
cooperating sponsor may incur expenses for such repackaging up
to
$500 and such costs will be reimbursed by CCC. If costs will
exceed $500, the authority to repackage and incur the costs
must
be approved by USAID or the Diplomatic Post in advance of
repackaging unless such prior approval is specifically waived,
in
writing, by USAID or the Diplomatic Post. For losses in
transit,
the $500 limitation shall apply to all commodities which are
shipped on the same voyage of the same vessel to the same port
of
destination, irrespective of the kinds of commodities shipped
or
the number of different bills of lading issued by the
carrier.
For other losses, the $500 limitation shall apply to each
loss
situation, e.g., if 700 bags are damaged in a warehouse due to
an
earthquake, the $500 limitation applies to the total cost of
repackaging the 700 bags. Shipments may not be artificially
divided in order to avoid the limitation of $500 or for
obtaining
prior approval to incur repackaging costs.
(f) Method of reimbursement.
(1) Costs of repackaging
required because of damage occurring prior to or during
discharge
from the ocean carrier should be included, as a separate item,
in
claims filed against the ocean carrier.
(See Sec. 211.9
(c).)
Full
reimbursement of such costs up to $500 will be made by CCC
upon
receipt of invoices or other documents to support such costs.
For
amounts expended in excess of $500, reimbursement will be
made
upon receipt of supporting invoices or other documents
establishing the costs of repackaging and showing the prior
approval of USAID or the Diplomatic Post to incur the costs,
unless approval is waived under Sec. 211.7
(e).
(2) Costs of repackaging required because of damage caused
after discharge of the cargo from the ocean carrier will be
reimbursed to the cooperating sponsor by CCC
(USDA-ASCS
Fiscal
Division, 14th & Independence Avenue, Washington, DC 20250)
upon
receipt of supporting invoices or other documentation.
Sec. 211.8 Disposition of commodities unfit for authorized use.
(a) Prior to delivery to cooperating sponsor at discharge
port or point of entry. If the commodity is damaged prior to
delivery to a governmental cooperating sponsor at discharge
port
or point of entry overseas, USAID or the Diplomatic Post
shall
immediately arrange for inspection by a public health official
or
other competent authority. A nongovernmental cooperating
sponsor
shall arrange for such an inspection under these
circumstances.
Commodity that is determined to be unfit for authorized use
shall
be disposed of in accordance with the priority set forth in
paragraph
(b). Expenses incidental to the handling and
disposition of the damaged commodity shall be paid by USAID
or
the Diplomatic Post from the sales proceeds, from CCC Account
No.
20FT401 or from the special title II, Public Law 480
Agricultural
Commodity Account. The net proceeds of sales shall be
deposited
with the U.S. Disbursing Officer American Embassy, for the
credit
of CCC Account No. 20FT401.
(b) After delivery to cooperating sponsor.
(1) If after
arrival in a foreign country it appears that all or part of
the
commodities, may be unfit for the use authorized in the
Operational Plan or TA, the cooperating sponsor shall
immediately
arrange for inspection of the commodity by a public health
official or other competent authority approved by USAID or
the
Diplomatic Post. If no competent local authority is
available,
USAID or the Diplomatic Post may determine whether the
commodities are unfit, and if so, may direct disposal in
accordance with paragraphs
(b)
(1) through
(4) of this
section.
The cooperating sponsor shall arrange for the recovery for
authorized use of that part designated during the inspection
as
suitable for program use. If, after inspection, the commodity
(or
any part thereof) is determined to be unfit for authorized
use
the cooperating sponsor shall notify USAID or the Diplomatic
Post
of the circumstances pertaining to the loss or damage as
prescribed in Sec. 211.9
(f).
(2) A cooperating sponsor shall dispose of commodities
determined to be unfit for authorized use in the order of
priority described in paragraphs
(b)
(2)
(i) through
(iv) of
this
section. The concurrence of USAID or the Diplomatic Post
should
be requested for disposition of commodities valued at $500 or
more. If the USAID or Diplomatic Post does not respond to the
cooperating sponsor's request for concurrence within 15 days,
the
cooperating sponsor may dispose of the commodities in the
manner
described in its request and inform the USAID or Diplomatic Post
of its action taken in accordance with this section.
(i) Sale for the most appropriate use, i.e., animal feed,
fertilizer, or industrial use, at the highest obtainable
price.
When the commodity is sold, all U.S. Government markings shall
be
obliterated, removed or crossed out.
(ii) Transfer to an approved Food for Peace program for use
as livestock feed. AID/W shall be advised promptly of any
such
transfer so that shipments from the United States to the
livestock feeding program can be reduced by an equivalent
amount.
(iii) Donation to a governmental or charitable organization
for use as animal feed or for other nonfood use.
(iv) If the commodity is unfit for any use or if disposal in
accordance with paragraphs
(b)
(2)
(i),
(ii) or
(iii) of this
section is not possible, the commodity shall be destroyed in
such
manner as to prevent its use for any purpose. Commodities
valued
at $500 or more shall be destroyed under the observation of a
representative of the USAID or Diplomatic Post if
practicable.
When the cooperating sponsor informs the USAID or Diplomatic
Post
of its intention to destroy commodities, the cooperating
sponsor
shall indicate the kind and amount of commodities that will
be
destroyed, the manner of destruction, the representative
(s)
of
local authorities who will witness the destruction, and the
date
when the commodities will be destroyed. The date shall be
established on the basis of programmatic need, but an effort
should be made to provide a reasonable opportunity for a
representative of the USAID or Diplomatic Post to attend. The
commodities may be destroyed on the date indicated even if
there
is no representative of the USAID or Diplomatic Post to
observe
this action.
(3) Expenses incidental to the handling and disposition of
the damaged commodity shall be paid by the cooperating
sponsor
unless it is determined by USAID or the Diplomatic Post that
the
damage could not have been prevented by the proper exercise
of
the cooperating sponsor's responsibility under the terms of
the
Operational Plan or TA. Actual expenses incurred, including
third
party costs, in selling the commodities may be deducted from
the
sales proceeds and, except for monetization programs, the net
proceeds shall be deposited with the U.S. Disbursing Officer,
American Embassy, with instructions to credit the deposit to
CCC
Account No. 20FT401. In monetization programs, net proceeds
shall
be deposited in the special account used for the approved
program.
(4) The cooperating sponsor shall furnish USAID or the
Diplomatic Post a written report in accordance with Sec.
211.9
(f), and the report shall enclose a certification by a
public health official or other competent authority of
(i) The exact quantity of the damaged commodity disposed of
because it was determined to be unfit for any use and
(ii) The manner in which the commodities were destroyed.
Sec. 211.9 Liability for loss damage or improper distribution of commodities.
(Where the instructions in this Sec. 211.9 state that the
cooperating sponsor should contact USDA or CCC, the contact
office is: Kansas City ASCS Commodity Office
(KCCO), P.O. Box
419205, Kansas City, Missouri 64141-6205. For Section 211.9
(a)
and
(b) contact: KCCO, Chief, Processed Commodities Division.
For
Sec. 211.9
(c) contact: KCCO, Chief, Claims and Collections
Division, Kansas City, Missouri 64141-6105.)
(a) Fault of cooperating sponsor prior to loading on ocean
vessel. A cooperating sponsor and A.I.D. shall agree on a
schedule for shipping commodities. A nongovernmental
cooperating
sponsor that books cargo for ocean transportation must notify
USDA immediately if the vessel does not arrive at the U.S.
port
of export in accordance with the agreed shipping schedule.
USDA
will determine whether the commodity shall be
(1) Moved to another available outlet;
(2) Stored at the port for delivery to the nongovernmental
cooperating sponsor when a vessel is available for loading;
or
(3) Disposed of as USDA may deem proper.
When CCC incurs additional expenses because the nongovernmental
cooperating sponsor, or its agent, fails to meet the agreed
shipping schedule or to make necessary arrangements to accept
commodities at the points of delivery designated by CCC, and
CCC
determines that the expenses were incurred because of the
fault
or negligence of the nongovernmental cooperating sponsor, the
cooperating sponsor shall reimburse CCC for such expenses or
take
such action as directed by CCC.
(b) Fault of others prior to loading on ocean vessel. A
nongovernmental cooperating sponsor shall immediately notify
CCC
if there is a loss of or damage to commodities, between the
time
title is transferred to the cooperating sponsor and the time
the
commodities are loaded on board the vessel, that is caused by
the
act or omission of a third party, such as a warehouseman or
carrier, who is or may be legally liable for the loss or
damage.
The cooperating sponsor also shall promptly assign to CCC any
claim it has against the third party and forward to CCC all
documents relating to the loss or damage and the claim. CCC
shall
have the right to initiate, prosecute, and retain the
proceeds
all claims for such loss or damage.
(c) Ocean carrier loss and damage--
(1) Survey and outturn
reports.
(i) Nongovernmental cooperating sponsors shall
arrange
for an independent cargo surveyor to attend the discharge of
the
cargo and to count or weigh the cargo and examine its
condition,
unless USAID or the Diplomatic Post determines that such
examination is not feasible, or if CCC has made other
provision
for such examinations and reports. The surveyor shall prepare
a
report of its findings showing the quantity and condition of
the
commodities discharged. The report also shall show the
probable
cause of any damage noted, and set forth the time and place
when
the examination was made. If practicable, the examination of
the
cargo shall be conducted jointly by the surveyor, the
consignee,
and the ocean carrier, and the survey report shall be signed
by
all parties. Customs receipts, port authority reports,
shortlanding certificates, cargo boat notes, stevedore's
tallies,
etc., where applicable, shall be obtained and furnished with
the
report of the surveyor. Whenever a damaged commodity appears
unfit for its intended use, the cooperating sponsor shall
obtain
(A) A certification by a public health official or similar
competent authority regarding the condition of the commodity;
and
(B) A certificate of disposition if the commodity is
determined to be unfit for its intended use. These
certificates
shall be obtained as soon as possible after discharge of the
cargo. If the cooperating sponsor can provide a narrative
chronology or other commentary to assist in the adjudication
of
ocean transportation claims, this information should be
forwarded
as follows: cooperating sponsors shall prepare such a
statement
in any case where the loss is estimated to be in excess of
$5,000; all documentation shall be in English or supported by
an
English translation and shall be forwarded as set forth in
paragraphs
(c)
(1)
(iii) and
(iv) of this section; and the cost
of
an English translation shall be incorporated into the survey
fee.
The cooperating sponsor may, at its option, also engage the
independent surveyor to supervise clearance and delivery of
the
cargo from customs or port areas to the cooperating sponsor
or
its agent and to issue delivery survey reports thereon.
(ii) In the event of cargo loss or damage, a nongovernmental
cooperating sponsor shall provide the names and addresses of
individuals who were present at the time of discharge and
during
survey and who can verify the quantity lost or damaged. In
the
case of bulk grain shipments, the cooperating sponsor shall
obtain the services of an independent surveyor to:
(A) Observe discharge of the cargo;
(B) Report on discharging method
(including whether a scale
was used, its type and calibration and other factors
affecting
its accuracy, or an explanation of why a scale was not used
and
how weight was determined);
(C) Furnish information as to whether cargo was discharged in
accordance with port customs;
(D) Provide actual or estimated
(if scales not used) quantity
of cargo lost during discharge and specify how such losses
occurred;
(E) Obtain copies of port and/or ship records including scale
weights, where applicable, to show quantity discharged;
(F) Verify that upon conclusion of discharge, cargo holds are
empty;
(G) Provide to USDA information as to quantity, type and
cause of lost or damaged cargo;
(H) Furnish daily tally totals and any other pertinent
information about the bagging of the bulk cargo when cargo is
bagged or stacked by vessel interests; and
(I) Notify the cooperating sponsor immediately if additional
services are necessary to protect cargo interests or if the
surveyor has reason to believe that the correct quantity was
not
discharged.
The cooperating sponsor, in the case of damage to bulk grain
shipments, shall obtain and provide the same documentation
regarding quality of cargo as set forth in Sec. 211.8
(a) and
paragraph
(c)
(1)
(i) of this section. In the case of shipments
arriving in container vans, cooperating sponsors shall
require
the independent surveyor to list the container van numbers
and
seal numbers shown on the container vans, and indicate
whether
the seals were intact at the time the container vans were
opened,
and whether the container vans were in any way damaged. To
the extent possible, the independent surveyor should observe
discharge of container vans from the vessel to ascertain
whether
any damage to the container van occurred and arrange for
surveying the contents of any damaged container vans as they
are
opened.
(iii) Cooperating sponsors shall send to USDA copies of all
reports and documents pertaining to the discharge of
commodities.
For those surveys arranged by CCC, the cooperating sponsors
may
obtain a copy of the report from the local USAID Food for
Peace
Officer.
(iv) CCC will reimburse a nongovernmental cooperating sponsor
for the costs incurred by it in obtaining the services of an
independent surveyor to conduct examinations of the cargo and
render the report set forth above. Reimbursement by CCC will
be
made upon receipt by CCC of the survey report and the
surveyor's
invoice or other documents that establish the survey cost.
However, CCC will not reimburse a nongovernmental cooperating
sponsor for the costs of only a delivery survey, in the
absence
of a discharge survey, or for any other survey not taken
contemporaneously with the discharge of the vessel, unless
such deviation from the documentation requirements of
paragraph
(c)
(1) of this section is justified to the satisfaction of
CCC.
(v) CCC normally will contract for the survey of cargo on
shipments furnished under Transfer Authorizations, including
shipments for which A.I.D. contracts for the ocean
transportation
services. Survey contracts normally will be let on a
competitive
bid basis. However, if a USAID or Diplomatic Post desires
that
CCC limit its consideration to only certain selected
surveyors,
USAID or the Diplomatic Post shall furnish AID/W a list of
eligible surveyors for forwarding to CCC. Surveyors may be
omitted from the list, for instance, based on foreign relations
considerations, conflicts of interest, and/or lack of
demonstrated capability to carry out surveying
responsibilities
properly as set forth in the requirements of CCC. Upon receipt
of
written justification for removal of a particular survey
firm,
CCC will consider removal of such firm and advise the USAID
via
AID/W of the final determination. AID/W will furnish CCC's
surveying requirements to a USAID or Diplomatic Post upon
request. If CCC is unable to find a surveyor at a port to which
a
shipment has been consigned, CCC may request AID/W to contact
USAID or the Diplomatic Post to arrange for a survey. The
surveyor's bill for such services shall be submitted to USAID
or
the Diplomatic Post for review. After the billing has been
approved, USAID or the Diplomatic Post either may pay the
bill
using funds in CCC account 20FT401, if available, or forward
the
bill to AID/W for transmittal to CCC for payment. If USAID or
the
Diplomatic Post pays the bill, AID/W shall be advised of the
amount paid, and CCC will reimburse USAID or the Diplomatic
Post.
(2) Claims against ocean carriers.
(i) Whether or not title
to commodities has transferred from CCC to the cooperating
sponsor, if A.I.D. contracted for the ocean transportation,
CCC
shall have the right
to initiate, prosecute, and retain the proceeds of all claims
against
ocean carriers for cargo loss and/or damage arising out of
shipments of
commodities transferred or delivered by CCC hereunder.
(ii)
(A) Unless otherwise provided in the Operational Plan or
TA, nongovernmental cooperating sponsors shall file notice of
any
cargo loss and/or damage with the ocean carrier immediately
upon
discovery of any such loss and/or damage, promptly initiate
claims against
the ocean carrier for cargo loss and/or damage, take all
necessary
action to obtain restitution for losses within any applicable
periods of
limitations, and transmit to CCC copies of all such claims.
However, the nongovernmental cooperating sponsor need not file
a
claim when the cargo loss and/or damage is not in excess of $100,
or in any case when the loss and/or damage is between $100 and
$300 and it is determined by the nongovernmental cooperating
sponsor that the cost of filing and collecting the claim will
exceed the amount of the claim. The nongovernmental cooperating
sponsor shall transmit to CCC copies
of all claims filed with the ocean carriers for cargo loss
and/or
damage, as well as information and/or documentation on
shipments
when no claim is to be filed. When General Average has been
declared, no action will be taken by the nongovernmental
cooperating sponsor to file or collect claims for loss or damage
to commodities.
(See paragraph
(c)
(2)
(iii) of this section.)
(B) The value of commodities misused, lost or damaged shall be
determined on the basis of the domestic market price at the time
and place the misuse, loss or damage occurred, or, in case it is
not feasible to obtain or determine such market price, the f.o.b.
or f.a.s. commercial export price of the commodity at the time
and place of export, plus ocean freight charges and other costs
incurred by the U.S. Government in making delivery to the
cooperating sponsor. When value is determined on a cost basis,
nongovernmental cooperating sponsors may add to the value any
provable costs they have incurred prior to delivery by the ocean
carrier. In preparing the claim statement, these costs shall be
clearly segregated from costs incurred by the U.S. Government.
With respect to claims other than ocean carrier loss or damage
claims, at the request of the cooperating sponsor or upon the
recommendation of USAID or the Diplomatic Post, AID/W may
determine that such value may be established on some other
justifiable basis. When replacement is made, the value of
commodities misused, lost or damaged shall be their value at the
time and place the misuse, loss, or damage occurred and the value
of the replacement commodities shall be their value at the time
and place replacement is made.
(C) Amounts collected by nongovernmental cooperating sponsors
on claims against ocean carriers not in excess of $200 may be
retained by the nongovernmental cooperating sponsor. On
claims
involving loss and/or damage having a value in excess of $200,
nongovernmental cooperating sponsors may retain from collections
received by
them, the larger of:
(1) The amount of $200 plus 10 percent of the difference
between $200 and the total amount collected on the claim, up to
a
maximum of $500, or
(2) Actual administrative expenses incurred in collection of
the claim if approved by CCC. Collection costs shall not be
deemed to include attorneys fees,
fees of collection agencies, and the like. In no event will
collectioncosts in excess of the amount collected on the claim be
paid by CCC. The nongovernmental cooperating sponsors may also
retain from claim recoveries remaining after allowable deductions
for
administrative expenses of collection, the amount of any special
charges, such as handling, packing, and insurance costs, which
the
nongovernmental cooperating sponsor has incurred on the lost
and/or damagedcommodity and which are included in the claims and
paid by the
liable party.
(D) A nongovernmental cooperating sponsor may redetermine
claims on the basis of additional documentation or
information,
not considered when the claims were originally filed when
such
documentation or information clearly changes the ocean carrier's
liability. Approval of such changes by CCC is not required
regardless of amount.However, copies of redetermined claims and
supporting
documentation or information shall be furnished to CCC.
(E) A nongovernmental cooperating sponsor may negotiate
compromise settlements of claims regardless of the amount
thereof, except that proposed compromise settlements of claims
having a value in excess of $5,000 shall not be accepted until
such action has been approved in writing by CCC. When a claim is
compromised, the
nongovernmental cooperating sponsor may retain from the amount
collected, the amounts authorized in paragraph
(c)
(2)
(ii)
(C) and
in addition, an amount representing such percentage of the
special charges described in paragraph
(c)
(2)
(ii)
(C) as the
compromised amount is to the full amount of the claim. When a
claim is not in excess of $600, the nongovernmental cooperating
sponsor may terminate collection
activity on the claim according to the standards set forth in the
Federal Claims Collection Standards, 4 CFR 104.3. Approval of
such termination by CCC is not required, but the nongovernmental
cooperating sponsor shall notify CCC when collection activity on
a claim is terminated.
(F) All amounts collected in excess of the amounts authorized
herein to be retained shall be remitted to CCC. For the
purpose
of determining the amount to be retained by the
nongovernmental
cooperating sponsor from the proceeds of claims filed against
ocean carriers, the word ``claim'' shall refer to the loss and/or
damage to
commodities which are shipped on the same voyage of the same
vessel to the same port destination, irrespective of the kinds of
commodities shipped or the number of different bills of lading
issued by the carrier. If a nongovernmental cooperating sponsor
is unable to collect a claim or negotiate an acceptable
compromise settlement within the
applicable period of limitation or any extension thereof
granted
in writing by the liable party or parties, the rights of the
nongovernmental cooperating sponsor to the claim shall be
assigned to CCC in sufficient time to permit the filing of legal
action prior to the expiration of the period of limitation or any
extension thereof. Nongovernmental cooperating sponsors shall
promptly assign their claim rights to CCC upon request. In the
event CCC collects or settles the claim after the rights of the
nongovernmental cooperating sponsor to the claim have been
assigned CCC, CCC shall, except as shown below, pay to the
nongovernmental cooperating sponsor the amount the agency or
organization would have been entitled to retain had they
collected the same amount. However, the additional 10 percent on
amounts collected in excess of $200 will be payable only if CCC
determines that reasonable efforts were made to collect the claim
prior to the assignment, or if payment is deemed to be
commensurate with the extra efforts exerted in further
documenting claims. In addition, if CCC determines that the
documentation requirements of paragraph
(c)
(1) have not been fulfilled and the lack of such
documentation
has not been justified to the satisfaction of CCC, CCC reserves
the
right to deny payment of all allowances to the nongovernmental
cooperating sponsor.
(G) When nongovernmental cooperating sponsors fail to file
claims, or permit claims to become time-barred, or fail to
provide for the right of CCC to assert such claims, as provided
in this Sec. 211.9, and it is determined by CCC that such failure
was due to the fault or negligence of the nongovernmental
cooperating sponsor, the agency or organization shall be liable
to the United States for the cost and freight
(C&F) value of
the commodities lost to the program.
(iii) If a cargo loss has been incurred on a nongovernmental
cooperating sponsor shipment, and general average has been
declared, the nongovernmental cooperating sponsor shall
furnish
to CCC with a duplicate copy to AID/W--
(A) Copies of booking confirmations and the applicable
on-board bill
(s) of lading,
(B) The related outturn or survey report
(s),
(C) Evidence showing the amount of ocean transportation
charges paid to the carrier
(s), and
(D) An assignment to CCC of the cooperating sponsor's right
to the claim
(s) for such loss.
CCC assumes responsibility for general average and marine
salvage.
(iv) A.I.D. will initiate and prosecute claims against ocean
carriers and defend claims by such carriers, arising from or
relating to affreightment contracts booked by A.I.D. where
the
claims involve
entitlement to freight and related costs from the U.S.
Government. Proceeds of such claims received by A.I.D. shall
be
returned to
CCC pursuant to agreed procedures.
(d) Fault of cooperating sponsor in country of distribution.
If a commodity, monetized proceeds or program income is used
for
a
Purpose not permitted under the Operational Plan or TA or
this
Regulation, or if a cooperating sponsor causes loss or damage
to
a commodity,
monetized proceeds or program income through any act or
omission
or failure
to provide proper storage, care and handling, the cooperating
sponsor shall pay to the United States the value of the
commodities, monetized
proceeds or program income, lost, damaged, or misused, unless
A.I.D.
determines that such improper distribution or use, or such
loss
or
damage, could not have been prevented by proper exercise of
the
cooperating sponsor's responsibility under the Operational
Plan
or TA
and this Regulation. In determining whether there was a
proper
exercise
of the cooperating sponsor's responsibility, A.I.D. shall
consider
normal commercial practices in the country of distribution
and
the
problems associated with carrying out programs in developing
countries.
Payment by the cooperating sponsor shall be made in
accordance
with
paragraph
(g) of this section, except that the USAID or
Diplomatic Post
may agree to permit a cooperating sponsor to replace
commodities
lost,
damaged, or misused with similar commodities of equal value.
(e)
Fault of others in country of distribution and in
intermediate
country.
(1) In addition to survey and/or outturn reports to
determine ocean carrier loss and damage, the cooperating
sponsor
shall, in the case of landlocked countries, arrange for an
independent survey at the point of entry into the recipient
country and to make a report as set forth in paragraph
(c)
(1)
of
this section. CCC will reimburse the cooperating sponsor for
the
costs of a survey as set forth in
paragraph
(c)
(1)
(iv).
(2) If a cooperating sponsor acquires any right against a
person or governmental or nongovernmental organization based
on
an event
for which the person or organization is responsible that
resulted
in the
damage, loss or misuse of any commodity, monetized proceeds
or
program
income, the cooperating sponsor shall file a claim against
the
liable
party or parties for the value of the commodities, monetized
proceeds or program income lost damaged or misused and shall make
every
reasonable effort to collect the claim. A copy of the claim and
related
documents shall be provided to USAID or the Diplomatic Post.
Cooperating sponsors who fail to file or pursue such claims shall
be liable to A.I.D. for the value of the commodities or monetized
proceeds or program income lost, damaged, or misused: Provided,
however, that the cooperating sponsor may elect not to file a
claim if the loss is less than $500 and such action is not
detrimental to the program. Cooperating sponsors may retain $150
of any amount collected on an individual claim. In addition,
cooperating sponsors may, with the written approval of USAID or
the Diplomatic Post, retain either special costs such as
reasonable legal fees that they have incurred in the collection
of a claim, or pay such legal fees with monetized proceeds or
program income. Any proposed settlement for less than the full
amount of the claim must be approved by USAID or the
Diplomatic Post prior to acceptance. When the cooperating
sponsor
has exhausted all reasonable attempts to collect a claim, it
shall
request USAID or the Diplomatic Post to provide further
instructions in
accordance with paragraph
(e)
(4).
(3) Calculation of the amount of a claim against others. A
claim is the right a cooperating sponsor has against a third
party as a
result of an event for which the third party is responsible
that
caused the
loss, damage or misuse of commodities, monetized proceeds or
program
income. The amount of the claim is based on the value of the
commodities,
monetized proceeds or program income lost, damaged or misused
as
a result of the event. An individual claim may not be broken
down
artificially to enlarge the amount the cooperating sponsor
may
retain as
an administrative allowance on collection of the claim. For
example, if
a cooperating sponsor has a contract with a carrier to
transport
commodities, and losses occur during a single shipment of
commodities from points A to B, the cooperating sponsor has
one
claim against the carrier, and the amount of the claim will
be
based on the total value of the commodities lost during the
shipment from A to B even though some of the loss might have
occurred on each of several trucks or by subcontractors used
by
the carrier to satisfy its contract
responsibility to transport the commodities.
(4) Reasonable attempts to collect the claim shall not be
less than
the follow-up of initial billings with three progressively
stronger
demands at not more than 30-day intervals. If these efforts
fail
to elicit a satisfactory response, legal action in the
judicial
system of the cooperating country should be pursued unless:
(i) Liability of the third party is not provable,
(ii) The cost of pursuing the claim would exceed the amount
of the claim,
(iii) The third party would not have enough assets to satisfy
the claim after a judicial decision favorable to the
cooperating
sponsor,
(iv) Maintaining legal action in the country's judicial
system would seriously impair the cooperating sponsor's ability
to conduct an effective program in the country, or
(v) It is inappropriate for reasons relating to the judiciary
or judicial system of the country. A cooperating sponsor's
decision not to take legal action, and reasons therefore, must be
submitted in writing to USAID or the Diplomatic Post for review
and approval, and USAID or the Diplomatic Post may require the
cooperating sponsor to obtain and submit the opinion of competent
legal counsel to support its
decision. A cooperating sponsor also may request approval to
terminate legal action after it has commenced if it is
apparent
that any of the exceptions described above becomes applicable or
if it is otherwise appropriate to terminate legal action prior to
judgment. In each instance, USAID or the Diplomatic Post must
provide the cooperating sponsor a
written explanation of its decision within 45 days from the
date
the request is received or inform the cooperating sponsor in
writing regarding the reason
(s) the USAID or Diplomatic Post
needs more time to make a decision. If USAID or the
Diplomatic
Post approves a cooperating sponsor's decision not to take
further action on the claim for reasons described in
paragraphs
(e)
(4)
(iv) or
(v) of this section, the cooperating sponsor
shall
assign the claim to A.I.D. and shall
provide to A.I.D. all documentation relating to the claim.
When
USAID or
the Diplomatic Post takes an assignment of a claim or claims
from
a cooperating sponsor, the USAID or Diplomatic Post shall
consult
AID/W regarding the appropriate action to take on the
assigned
claim
(s), unless standing guidance is in effect.
(5) As an alternative to legal action in the judicial system
of the country with regard to claims against a public entity
of
the government of the cooperating country, the cooperating
sponsor
and the cooperating country may agree to settle disputed claims
by an
appropriate administrative procedure and/or arbitration. This
alternative maybe established in the Host Country Food for Peace
Program Agreement required under Sec. 211.3
(b), or by a separate
formal
understanding, and must be submitted to USAID or the Diplomatic
Post for review and approval. Resolution of disputed claims by
any administrative procedure or arbitration agreed to by the
cooperating sponsor and the cooperating country should be final
and binding on the
parties.
(f) Reporting losses to USAID or the Diplomatic Post.
(1) The
cooperating sponsor shall provide the USAID or Diplomatic Post a
quarterly report regarding any loss, damage or misuse of
commodities, monetized proceeds or program income. The report
must be provided within 30 days after the close of the calendar
quarter and shall contain the following information except for
commodity losses less than $500: who had possession of the
commodities, monetized proceeds or program income; who, if
anyone, might be responsible for the loss, damage or misuse; the
kind and quantity of commodities; the size and type of
containers; the time and place of loss, damage or misuse; the
current location of the commodities; the program number; CCC
contract number, if known, and if not known, other identifying
numbers printed on the commodity containers; the action taken by
the cooperating sponsor with respect to recovery or disposal; and
the estimated value of
the loss, damage or misuse. If any of this information is not
available, the cooperating sponsor shall explain why it is
not.
The report simply may identify separately commodity losses
valued
at less than $500 and indicate the estimated value of the
commodities lost damaged or misused and the action taken by
the
cooperating sponsor with respect to recovery
or disposal, except that the cooperating sponsor shall inform
the
USAID or Diplomatic Post if it has reason to believe there is a
pattern or trend in the loss, damage or misuse of such
commodities and provide the information described above for
losses of $500 or more together
with such other information available to it. USAID or the
Diplomatic Post may require additional information about any
commodities lost, damaged or misused. Information in the
quarterly report may be provided in tabular form to the
extent
possible, and the report shall enclose a copy of any claim
made
by the cooperating sponsor during the reporting period.
(2) If any commodity, monetized proceeds or program income is
lost or misused under circumstances which give a cooperating
sponsor
reason to believe that the loss or misuse has occurred as a
result of
criminal activity, the cooperating sponsor shall promptly
report
these
circumstances to the A.I.D. Inspector General through AID/W,
USAID or the Diplomatic Post, and subsequently to the
appropriate
authorities of the cooperating country unless instructed not
to
do so by A.I.D. The cooperating sponsor also shall cooperate
fully with any subsequent investigation by the
Inspector General and/or authorities of the cooperating
country.
(g) Handling claims proceeds. Claims against ocean carriers
shall be collected in U.S. dollars
(or in the currency in
which
freight is
paid, or a pro rata share of each) and shall be remitted
(less
amounts
authorized to be retained) by nongovernmental cooperating
sponsors to
CCC. With respect to commodities, claims against
nongovernmental
cooperating sponsors shall be paid to CCC or AID/W in U.S.
dollars; amounts paid by other cooperating sponsors and third
parties in the country of distribution shall be deposited
with
the U.S. Disbursing Officer, American Embassy, preferably in
U.S.
dollars with instructions to credit the deposit to CCC
Account
No. 12X4336, or in local currency with instructions to credit
the
deposit to Treasury sales account 20FT401. Any conversion
required for these deposits shall be at
the highest rate of exchange legally obtainable on the date
of
deposit unless A.I.D. agrees otherwise in writing. With
respect
to monetized proceeds and program income, amounts recovered
should be deposited into the special interest-bearing account
established for the monetized proceeds and may be used for
purposes of the approved program.
(h) General average. CCC shall--
(1) Be responsible for settling general average and marine
salvage claims;
(2) Retain the authority to make or authorize any disposition
of commodities which have not commenced ocean transit or of
which
the ocean transit is interrupted, and receive and retain any
monetary
proceeds resulting from such disposition;
(3) In the event of a declaration of general average,
initiate, prosecute, and retain all proceeds of cargo loss
and
damage
claims against ocean carriers; and
(4) Receive and retain any allowance in general average. CCC
will pay any general average or marine salvage claims
determined
to be
due.
Sec. 211.10 Records and reporting requirements.
Sec. 211.11 Suspension, termination, and expiration of program.
Sec. 211.12 Waiver and amendment authority.
The Assistant Administrator for Food and Humanitarian Assistance, A.I.D., may waive, withdraw, or amend, at any time, any or all of the provisions of this Regulation 11 if such provision is not statutory and it is determined to be in the best interest of the U.S. Government to do so. Any cooperating sponsor which has failed to comply with the provisions of this Regulation or any instructions or procedures issued in connection herewith, or any agreements entered into pursuant hereto may at the discretion of A.I.D. be suspended or disqualified from further participation in any distribution program. Reinstatement may be made at the option of A.I.D. Disqualification shall not prevent A.I.D. from taking other action through other available means when considered necessary.
Appendix I to Part 211--Operational Plan
A. General Outline of Operational Plans for Title II Activities
In addition to any other requirement of law or regulation,
the Operational Plan will include information outlined below
to
the extent it is applicable to the specific activity.
1. Program Goals.
Describe program goals and criteria for measuring progress
toward reaching the goals. Each program should be designed to
achieve measurable objectives within a specified period of
time.
2. Program Description.
a. Describe the characteristics, extent and severity of
problems that the program will address.
b. Provide a clear concise statement of specific objectives
for each program and of criteria for measuring progress
towards
reaching the objectives. If there are several objectives,
indicate
priorities.
c. Describe the target population by program, including
economic/nutrition-related characteristics, sufficiently to
permit a determination of recipient eligibility for title II
commodities. Describe the educational and employment
characteristics of the target group, if relevant to program
objectives; the rationale
for selection of the target group, the rationale for the
selection of
the geographical areas where programs will be carried out;
the
calculation of coverage and the percent of total target
population reached.
d. Describe the intervention including:
(1) Ration composition. A description of rations, rationale
for size and composition, assessment of effectiveness
(dilution,
sharing, acceptance).
(2) Complementary program components and inputs. Identify
existing or potential complementary program components, i.e.,
education, growth monitoring, training, etc., that are necessary
to achieve program impact, including determination of financial
costs and sources of funding.
(3) Monetization. Describe to whom the commodities will be
sold; the sales price
(which shall not be less than the value
of
the food commodities f.a.s. or f.o.b.); arrangements for deposit
of the
monetization proceeds in a special
(segregated), interest
bearing
account, pending use of the proceeds plus interest for the
program; and the capability of the cooperating sponsor and
recipient agencies to use and account for monetized proceeds
properly as well as technical assistance the cooperating sponsor
intends to obtain or provide if necessary in order to ensure that
there are adequate financial and other management systems for the
program proposed.
(4) Intervention strategy. Describe how the commodities,
monetization proceeds, program income and other program
components will address the problems. Indicate the recipient
agencies to which commodities, monetized proceeds or program
income will be transferred, and identify those recipient agencies
which will not be required to execute Recipient Agency
Agreements, and provide a brief explanation of the reasons.
(5) Linkages with other development activities, such as
health or agricultural extension services. Describe specific
areas of collaboration relative to program purposes.
(6) Monitoring and evaluation. Include a description of the
evaluation plan, including information to be collected for
purposes of assessing program operations and impact. Describe
the
monitoring system for collection, analysis and utilization of
information. Include a schedule for carrying out the evaluation
as well as a plan for conducting audits
(Regulation 11, section
211.5
(c)).
(7) Program period. The Operational Plan should cover enough
time for a program to become fully operational and to permit
evaluation of its effectiveness, including specific
measurement
of progress in achieving the stated program goals. Normally this
will be a multi-year time frame, such as three to five years.
Plans for and considerations involved in phasing-out U.S.G.
support, and any phasing-over to non-U.S.G. support, should be
discussed.
3. Program funding. Provide details of host government,
cooperating sponsor and other non-USG support for the
proposed
program, with specific budgetary information on how these funds
are to be used
(e.g. complementary inputs, transport,
administration). Where
relevant, discussion of arrangements which will be made covering
voluntary contributions.
4. Publicity. Describe how the requirements for public
recognition, container marking, and use of funds set forth in
Regulation 11, Secs. 211.5i
(h),
(i) and
(k) and in 211.6
(a) and
(b), will be met.
5. Logistics. Provide a logistics plan that demonstrates the
adequacy and availability in recipient country of port
facilities, transportation and storage facilities to handle
the
flow of commodities to recipients to prevent spoilage or waste. A
further affirmation must be made at the time of exportation of
the commodity from the United States.
6. Disincentives. Furnish sufficient information concerning
the plan of distribution and the target group of recipients
so
that a determination can be made as to whether the proposed
food
distribution would result in substantial disincentive to
domestic
food production. It is not necessary to provide a disincentive
analysis if A.I.D. or USDA has completed such an analysis for
another program that is relevant to the program proposed by the
cooperating sponsor.
7. Accountability. Describe the method to be used to
supervise, monitor, and account for the distribution or sale
of
commodities and the use of monetized proceeds and program
income.
8. Import duty. Provide information to show approval of
foreign government to import the donated commodities duty
free.
9. Voluntary agency regular programs. An Operational Plan is
required for all regular, i.e., non-emergency, title II
nongovernmental cooperating sponsor programs as part of their
program submission, along with the Annual Estimate of
Requirements
(AER), to USAID or the Diplomatic Post and AID/W.
When new multi-year Operational Plans are required, they should
be prepared and submitted in advance of the year in which they
are to begin, in order to permit adequate time for substantive
review and approval. In any event, nongovernmental cooperating
sponsor Operational Plans should be submitted to AID/W no later
than the Mission Action Plan covering the
following fiscal year's program. Once an Operational Plan has
been approved, only an updating will be required on an annual
basis, unless there has been a significant change from the
approved plan's program directives, methodology, design or
magnitudes. Updates should be submitted each year for review with
the AERs.
B. Operational Plans for Emergency Programs
The response to emergency situations using title II resources
does not usually permit the same degree of detail and
certainty
of
analysis that is expected in planning title II non-emergency
programs.
However, Operational Plans are required for all
nongovernmental
cooperating sponsors' emergency programs, along with the AER.
An
Operational
Plan for an emergency program must cover the same basic
elements,
set
forth above, as for a nonemergency program. Thus, all of the
above
basic issues set forth in the Operational Plan format must be
addressed
when proposing title II emergency programs as well as regular
nonemergency
programs.
C. USAID/Diplomatic Post Responsibilities
A USAID or Diplomatic Post is expected to comment on the
substance and adequacy of a nongovernmental cooperating
sponsor's
Operational Plan when submitted to AID/W along with a program
request, and to
address the plan's relationship to and consistency with the
Mission's Country
Development Strategy Statement.
D. Required Approval for Program Change
Cooperating sponsors agree not to deviate from the program as
described in the Operational Plan and other program documents
approved by A.I.D., without the prior written approval of
A.I.D.
E. Emergency Assistance Program Requests
Any cooperating sponsor
(governmental or nongovernmental) may
initiate an emergency assistance proposal under Public Law
480,
title II. Requests are received by a USAID or Diplomatic Post
and
reviewed and approved before forwarding to AID/W with
appropriate
recommendations.
a. Nongovernmental emergency program requests can be cabled
by USAID or the Diplomatic Post for AID/W review based on
information
provided and using procedures established for regular programs
as
described in Regulation 11, Sec. 211.5
(a): AER and
Operational
Plan.
b. A foreign government or international organization
(other
than World Food Program) emergency request normally requires
more
Mission involvement in program design and management. However,
as
in the
case of nongovernmental programs, the approval will be based on
a
cabled
program summary based on the program plan outlined in
(2)
above.
On
approval, AID/W will prepare a Transfer Authorization
(TA) to
be
signed by
the recipient government specifying terms of the program and
reporting requirements. Additional guidance in preparing
government-
to-government or international organizations emergency
requests
is in chapter 9 and Exhibit A of A.I.D. Handbook 9. The TA
serves
as
(1) the Food for Peace Agreement between the U.S. Government
and
the
cooperating sponsor,
(2) the project authorization document,
and
(3) the
authority for the CCC to ship commodities.
(Under Pub. L.
480,
section
207
(a), not later than 15 days after receipt of a call
forward
from a field
mission for commodities, the order shall be transmitted to
the
CCC.)
F. Local Currency Programs
(Public Law 480, Title II
Section
203)
Detailed guidance for preparing, approving, implementing and
administering these programs is provided in chapters 6, 7, and
11
of A.I.D. Handbook 9.
G. Problems Conducting Programs In Developing Countries Describe the problems that can be anticipated in implementing the program in the recipient country as a result of its being a developing country.
H. Waivers A cooperating sponsor should provide a justification for the waiver of any specific section or sections of Regulation 11 that it believes necessary for the program.