Commodity transactions financed by USAID; applicable rules and procedures; miscellaneous amendments,

[Federal Register: July 9, 2007 (Volume 72, Number 130)]

[Proposed Rules]

[Page 37139-37154]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr09jy07-14]

AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 201

[USAID Regulation 1]

RIN 0412-AA-51

Rules and Procedures Applicable to Commodity Transactions Financed by USAID: Miscellaneous Amendments

AGENCY: U.S. Agency for International Development.

ACTION: Notice of proposed rulemaking.

SUMMARY: The U.S. Agency for International Development (USAID) proposes to amend its regulation governing commodity transactions that are financed by USAID to:

1. Revise the criteria for noncompetitive procurement for private- sector programs to more closely reflect private-sector practices; 2. revise the commodity and package marking requirements to address the use of the new USAID Identity; 3. revise and add definitions to better specify the terminology used; 4. revise agency organizational names and acronyms to specify the current USAID usage; 5. reinstate Sec. 201.13 coverage on ocean transportation costs because it was inadvertently deleted from prior editions; 6. provide for advertising public-sector procurements over $25,000 in the USAID Procurement Bulletins as the primary means of advertising these procurements to U.S. suppliers (in lieu of advertising public-sector procurements over $100,000 in ``FedBizOpps,'' the successor to ``Commerce Business Daily'') to facilitate prompt public notification of procurement opportunities and minimize government expense in providing notice; 7. make numerous clarifications and editorial amendments to better specify the regulation; and 8. specify the current Paperwork Reduction Act approval expirations, as required by the Act.

   DATES: Submit comments on or before September 7, 2007.

   ADDRESSES: submit comments by any of the following means:

   Federal eRulemaking Portal: http://www.regulations.gov.

   Follow the instructions there for submitting comments.

   Fax: (202) 216-3395.

   Mail: USAID, Office of Acquisition and Assistance, Policy Division, Room 7.9-18, 1300 Pennsylvania Avenue, NW., Washington, DC 20523-0001.

   Instructions: All submissions must include the title of the proposed action, and Regulatory Information Number (RIN) for this rulemaking. Please include your name, title, organization, postal address, telephone number, and e-mail address in the text of the message.

   FOR FURTHER INFORMATION CONTACT: Kenneth Monsess, Telephone: (202) 712- 4913, E-mail: kmonsess@usaid.gov.

   SUPPLEMENTARY INFORMATION:

   Public Participation: Because security screening precautions have slowed the delivery and dependability of surface mail to USAID/ Washington, USAID recommends sending all comments to the Federal eRulemaking Portal listed above (all comments must be in writing to be reviewed).

   All comments will be made available for public review without change, including any personal information provided, from three days after receipt to finalization of rule at http://www.Regulations.gov.

   Order of Precedence: The procurement of commodities and commodity- related services by other parties that are financed by USAID pursuant to 22 CFR part 201, as opposed to those that are procured by USAID, are not normally subject to 48 CFR chapters 1 and 7 (the Federal Acquisition Regulation [FAR] and the USAID Acquisition Regulation

   [AIDAR] ). In exceptional circumstances where this part 201 is made applicable, pursuant to Sec. 201.02, to a transaction that is subject to 48 CFR chapters 1 and 7, the latter shall take precedence in areas of conflict except under authority of a FAR or AIDAR deviation pursuant to 48 CFR 1.4 or 48 CFR 701.4; and Sec. 201.02 has been clarified to so state.

   Executive Order 12866 determination: This rule is significant under Executive Order 12866 and has been reviewed by the Office of Management and Budget. The rule has been reviewed in accordance with the Regulatory Flexibility Act. USAID has determined that the rule will not have a significant economic impact on a substantial number of small entities, and therefore a Regulatory Flexibility Analysis is not required.

   Paperwork Reduction Act statement: OMB approvals for information collections under this regulation are addressed in Sec. 201.03 and Appendices A and B to part 201.

   List of Subjects in 22 CFR Part 201

   Administrative practice and procedure, Commodity procurement, Foreign relations.

   For the reasons set out in the preamble, USAID proposes to amend 22 CFR part 201 as follows:

   [[Page 37140]]

   PART 201--RULES AND PROCEDURES APPLICABLE TO COMMODITY TRANSACTIONS FINANCED BY USAID

1. The authority citation continues to read as follows:

   Authority: 22 U.S.C. 2381.

   Subpart A--Definitions and Scope of This Part

2. Revise Sec. 201.01 to read as follows:

   Sec. 201.01 Definitions.

   As used in this part, the following terms shall have the meanings:

   (The) Act means the Foreign Assistance Act of 1961, as amended from time to time.

   Approved applicant means the individual or organization designated by the borrower/grantee to establish credits with banks in favor of suppliers or to instruct banks to make payments to suppliers, and includes any agent acting on behalf of such approved applicant.

   Bank means a banking institution organized under the laws of the United States, or any State, commonwealth, territory, or possession thereof, or the District of Columbia.

   Borrower/grantee means the government of any cooperating country, or any agency, instrumentality or political subdivision thereof, or any private entity, to which USAID directly makes funds available by loan or grant.

   Commission means any payment or allowance made or agreed to be made by a supplier to any person for the contribution which that person has made to securing the sale for the supplier or which the person makes to securing similar sales on a continuing basis for the supplier.

   Commodity means any material, article, supply, goods, or equipment.

   Commodity Approval Application means the Application for Approval of Commodity Eligibility (Form USAID 11) which appears as Appendix B to this part 201.

   Commodity-related services means delivery services and/or incidental services.

   Cooperating country means the country receiving the USAID assistance subject to provisions of this part 201.

   Dead freight means freight charges paid by the charterer of vessel for the contracted space, which is left partially unoccupied.

   Delivery means the transfer to, or for the account of, an importer of the right to possession of a commodity, or, with respect to a commodity-related service, the rendering to, or for the account of, an importer of any such service.

   Delivery service means any service customarily performed in a commercial export transaction which is necessary to effect a physical transfer of commodities to the cooperating country. Examples of such services are the following: export packing, local drayage in the source country (including waiting time at the dock), ocean and other freight, loading, heavy lift, wharfage, tollage, switching, dumping and trimming, lighterage, insurance, commodity inspection services, and services of a freight forwarder. Delivery services may also include work and materials necessary to meet USAID marking requirements.

   Demurrage means charge for the failure to remove cargo from equipment within the allowed time. Also, a charge for failure to load or unload a ship within the allowed time

   Despatch means an incentive payment paid to a carrier for loading and unloading the cargo faster than agreed. Usually negotiated only in charter parties.

   Detention means the penalty paid by the carrier for delay of equipment or a vessel.

   Implementing document means any document, including a letter of commitment, issued by USAID which authorizes the use of USAID funds for the procurement of commodities and/or commodity related services and which specifies conditions which will apply to such procurement.

   Importer means any person or organization, governmental or otherwise, in the cooperating country who is authorized by the borrower/grantee to use USAID funds under this Regulation for the procurement of commodities, and includes any borrower/grantee who undertakes such procurement.

   Incidental services means the installation or erection of USAID- financed equipment, or the training of personnel in the maintenance, operation and use of such equipment.

   Incoterms means the standard trade definitions that are most commonly used in international sales contracts. Devised and published by the International Chamber of Commerce, they are found on its Internet Web site: http://www.iccwbo.org/incoterms/preambles.asp.

   Mission means the USAID Mission or representative in a cooperating country.

   Non-vessel-operating common carrier (NVOCC) means a common carrier pursuant to Sec. Sec. 3(6) and 3(17) of the Shipping Act of 1984 that does not operate any of the vessels by which the ocean transportation is provided, and is a shipper in its relationship with an ocean carrier.

   Origin means the country where a commodity is mined, grown, or produced. A commodity is produced when, through manufacturing, processing, or substantial and major assembling of components, a commercially recognized new commodity results that is significantly different in basic characteristics or in purpose of utility from its components.

   Purchase contract means any contract or similar arrangement under which a supplier furnishes commodities and/or commodity-related services financed under this part.

   Responsible bidder means one who (one) has the technical expertise, management capability, workload capacity, and financial resources to perform the work successfully or the ability to obtain them, (two) has a satisfactory record of integrity and business ethics, and (three) is otherwise qualified and eligible to receive an award under applicable laws and regulations.

   Responsive bid means a bid that complies with all the terms and conditions of the invitation for bids without material modification. A material modification is a modification which affects the price, quantity, quality, delivery or installation date of the commodity or which limits in any way responsibilities, duties, or liabilities of the bidder or any rights of the importer or USAID as any of the foregoing have been specified or defined in the invitation for bids.

   Schedule B means the ``Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported from the United States'' issued and amended from time to time by the U.S. Bureau of the Census, Department of Commerce and available as stated in 15 CFR 30.92.

   Source means the country from which a commodity is shipped to the cooperating country, or the cooperating country if the commodity is located therein at the time of the purchase. Where, however, a commodity is shipped from a free port or bonded warehouse in the form in which received therein, source means the country from which the commodity was shipped to the free port or bonded warehouse.

   State means the District of Columbia or any State, commonwealth, territory or possession of the United States.

   Supplier means any person or organization, governmental or otherwise, who furnishes commodities and/or commodity-related services financed under this part 201.

   Supplier's Certificate means Form USAID 282 ``Supplier's Certificate and

   [[Page 37141]]

   Agreement with the U.S. Agency for International Development,'' including the ``Invoice and Contract Abstract'' on the reverse of such form (which appears as Appendix A to this part 201), or any substitute form which may be prescribed in the letter of commitment or other pertinent implementing document.

   Tariff means a publication setting forth the charges, rates, and rules of transportation companies.

   United States means the United States of America, any State(s) of the United States, the District of Columbia, and areas of U.S. associated sovereignty, including commonwealths, territories, and possessions.

   USAID means the U.S. Agency for International Development or any successor agency, including when applicable, each USAID Mission abroad.

   USAID Geo-Code Table means the official listing of current USAID geographic codes, a mandatory reference in USAID's Automated Directives System, Chapter 260, Geographic Codes, which may be found at: http://www.usaid.gov/policy/ads/200/260.pdf .

   USAID Geographic Code means a code in the USAID Geo-Code Table which designates a country, a group of countries, or an otherwise defined area. The principal USAID geographic codes used for identifying source, origin and nationality for commodities and services financed by USAID are described in Sec. 228.03 of this chapter.

   USAID Identity (Identity) means the official marking for the United States Agency for International Development (USAID) comprised of the USAID logo or seal and new brandmark with the tagline that clearly communicates our assistance is ``from the American people.'' The USAID Identity is available on the USAID Web site at http://www.usaid.gov/branding and is provided without royalty, license or other fee.

   USAID Regulation 28 means ``Rules on Source, Origin and Nationality for Commodities and Services Financed by USAID,'' published as 22 CFR Part 228.

   USAID/W means the USAID in Washington, DC 20523, including any office thereof.

   Vessel operating common carrier (VOCC) means an ocean common carrier pursuant to Sec. 3(18) of the Shipping Act of 1984 which operates the vessel by which ocean transportation is provided.

3. Amend Sec. 201.02 to republish paragraph (a) and add paragraph (d) to read as follows:

   Sec. 201.02 Scope and application.

   (a) The appropriate implementing documents will indicate whether and the extent to which this part 201 shall apply to the procurement of commodities or commodity-related services or both. Whenever this part 201 is applicable, those terms and conditions of this part will govern which are in effect on the date of issuance of the direct letter of commitment to the supplier; if a bank letter of commitment is applicable, the terms and conditions govern which are in effect on the date of issuance of an irrevocable letter of credit under which payment is made or is to be made from funds made available under the Act, or, if no such letter of credit has been issued, on the date payment instructions for payment from funds made available under the Act are received by the paying bank. * * * * *

   (d) When procurements of commodities and commodity-related services are subject to both this part 201 and to 48 CFR chapters 1 and 7, the latter shall take precedence in instances of conflict, except under authority of a deviation authorized under 48 CFR 1.4 or 48 CFR 701.4.

4. Revise Sec. 201.03 to read as follows:

   Sec. 201.03 Office of Management and Budget (OMB) approval under the Paperwork Reduction Act.

   (a) OMB has approved the following information collection and record-keeping requirements established by this part 201(OMB Control No. 0412-0514), expiring March 31, 2009:

   201.13(b)(1)(a) Ocean Transportation Waivers 201.15(c) Unavailability U.S. Flag Ocean Vessel 201.31(f) Shipping Documents 201.31(g) Notice of Adjustments 201.32(b) Notice of Adjustments 201.32(c) Notice of Loss Payments--Insurance 201.51(c) Bank Charges and Reports 201.52(a) Payment Documents 201.74 Additional Bank Recordkeeping

   (b) USAID will use the information requested in these sections to verify compliance with statutory and regulatory requirements and to assist in the administration of USAID-financed commodity programs. The information is required from suppliers in order to receive payment for commodities or commodity-related services. The public reporting burden for this collection of information is estimated to average a half hour per response, including the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to:

   (1) U.S. Agency for International Development, Office of Acquisition and Assistance, Policy Division (M/OAA/P), 1300 Pennsylvania Avenue, NW., Washington, DC 20523-7800; and

   (2) Office of Management and Budget,

   Paperwork Reduction Project (0412-0514), Washington, DC 20503.

   Subpart B--Conditions Governing the Eligibility of Procurement Transactions for USAID Financing

5. Amend Sec. 201.11 to revise paragraphs (a), (b), (d) introductory text, and (d)(2) to read as follows:

   Sec. 201.11 Eligibility of commodities.

   * * * * *

   (a) Description and condition of the commodity. The commodity shall conform to the description in the implementing document. Unless otherwise authorized by USAID in writing, the commodity shall be unused, and may not have been disposed of as surplus by any governmental agency.

   (b) Source, origin, and nationality. The authorized source for procurement shall be a country or countries authorized in the implementing document by name or by reference to a USAID geographic code. The source and origin of a commodity must be an authorized source country. The applicable rules on the source and origin for commodities and on the nationality of suppliers of commodities and commodity- related services are in subparts B, C, and F of part 228 of this chapter. * * * * *

   (d) Medium of transportation (See Sec. Sec. 228.21 and 228.22 of this chapter). Shipment shall not be effected:

   (1) * * *

   (2) Under any ocean or air charter which has not received prior approval by U.S. Agency for International Development, Office of Acquisition and Assistance, Transportation Division. * * * * *

6. Amend Sec. 201.13 to revise paragraphs (b), and (e) to read as follows:

   Sec. 201.13 Eligibility of delivery services.

   * * * * *

   (b) Transportation costs.--(1) Ocean transportation costs. (i) Unless

   [[Page 37142]]

   otherwise authorized, USAID will finance only those ocean transportation costs which meet the requirements of this paragraph (b)(1).

   (A) When Geographic Code 000 is the authorized source for procurement, USAID will finance only those costs incurred on vessels under U.S. flag registry.

   (B) When Geographic Code 941 is the authorized source for procurement, USAID will finance only those costs incurred on vessels under flag registry of countries in Code 941 and the cooperating country.

   (C) USAID will finance costs incurred on vessels under flag registry of any country not designated as foreign policy restricted if the costs are part of the total cost of a through bill of lading paid to a carrier for the initial carriage on a vessel which is authorized in accordance with paragraphs (b)(1)(i)(A) and (b)(1)(i)(B) of this section.

   (D) When a commodity is shipped out of a free port or bonded warehouse, ocean transportation costs for the shipment to the free port or bonded warehouse are eligible for USAID financing as follows:

   (1) The commodity was shipped on vessels under the flag registry of a country within the authorized geographic code, if the commodity was shipped in anticipation of USAID financing, or

   (2) The commodity was shipped on vessels under the flag registry of a country within Geographic Code 935, if the commodity was not shipped in anticipation of USAID financing.

   (ii) When an eligible flag vessel is not available for shipment, a supplier may request a waiver of the eligibility requirements, prior to shipment, from:

   USAID, Office of Acquisition and Assistance, Transportation Division, Washington, DC 20523-7900, (Telephone (202) 712-4283 or (202) 712-5060).

   (2) International air transportation costs. (i) USAID will finance only those international air transportation costs which meet the requirements of this paragraph (b)(2). For the purposes of this paragraph, U.S. flag air carrier means one of a class of air carriers holding a certificate under section 401 of the Federal Aviation Act of 1958 (49 U.S.C. 1371) authorizing operations between the United States and or its territories and one or more foreign countries.

   (ii)(A) Under USAID grants and under USAID loans, when the authorized source for procurement is Geographic Code 000, USAID will finance only those costs incurred on U.S. flag carriers unless such service is not available.

   (B) Under USAID loans, when the authorized source for procurement is Geographic Code 941, USAID will finance only those costs incurred on United States, cooperating country, or Geographic Code 941 flag air carriers unless such service is not available.

   (C) USAID will finance international air transportation costs incurred on aircraft under flag registry of any country not designated foreign policy restricted if the costs are part of the total cost on a through bill of lading paid to an eligible carrier for initial international carriage on an aircraft which is eligible in accordance with paragraph (b)(2)(ii)(A) or (b)(2)(ii)(B) of this section.

   (iii)(A) Expenditures for international air transportation furnished by air carriers which are not eligible under the provisions of paragraph (b)(2)(ii) will be financed by USAID only when service by eligible air carriers is unavailable. Criteria for determining when service by eligible air carriers is unavailable are the same as those published at 48 CFR 47.403-1 (Reference: http://acquisition.gov/far/index.html ) for determining when U.S. flag air carriers are

   unavailable. Additional guidance on determining when service is unavailable may be obtained from:

   USAID, Office of Acquisition and Assistance, Transportation Division, Washington, DC 20523-7900, (Telephone (202) 712-4283 or (202) 712-5060).

   (B) When service by eligible flag air carriers is unavailable, any Geographic Code 935 air carrier may be used.

   (C) In the event the supplier selects an air carrier other than an eligible flag carrier for international air transportation, it must include the following certification on invoices which include such transportation cost:

   Certification of unavailability of eligible flag air carriers:

   I hereby certify that transportation service by eligible flag air carriers was unavailable for the following reason(s): (state reason(s)).

   (3) Other conditions and limitations. Notwithstanding paragraphs (b)(1) and (b)(2) of this section, unless otherwise authorized, USAID will not finance transportation costs:

   (i) For shipment beyond the point of entry in the cooperating country except when intermodal transportation service covering the carriage of cargo from point of origin to destination is used, and the point of destination, as stated in the carrier's through bill of lading, is established in the carrier's tariff; or

   (ii) On a transportation medium owned, operated or under the control of any country not included in Geographic Code 935; or

   (iii) Under any ocean or air charter covering full or part cargo (whether for a single voyage, consecutive voyages, or a time period) which has not received prior approval by USAID, Office of Acquisition and Assistance, Transportation Division; or

   (iv) Which are attributable to brokerage commissions which exceed the limitations specified in Sec. 201.65(h) or to address commissions, dead freight, demurrage or detention. * * * * *

   (e) Suspension and debarment. In order to be eligible for USAID financing, the costs of any delivery services must be paid to carriers, insurers, or suppliers of inspection services who, prior to approval of the USAID Commodity Approval Application, have neither been suspended nor debarred under part 208 of this chapter, nor included on the ``Lists of Parties Excluded from Federal Procurement or Nonprocurement Programs'' published by the U.S. General Services Administration (Ref; http://www.epls.gov/).

7. Amend Sec. 201.14 to revise the last sentence to read as follows:

   Sec. 201.14 Eligibility of bid and performance bonds and guaranties.

   * * * Nationality requirements for sureties, insurance companies or banks that issue bonds or guaranties under USAID-financed transactions are set forth in Sec. 228.38(b) of this chapter.

8. Amend Sec. 201.15 to revise the first sentence of paragraph (c) to read as follows:

   Sec. 201.15 U.S. flag vessel shipping requirements.

   * * * * *

   (c) Non-availability of U.S. flag vessels. Upon application of the borrower/grantee or the supplier, USAID, Office of Acquisition and Assistance, Transportation Division, shall determine and advise the applicant whether privately owned U.S. flag vessels are available for any specific shipment of commodities at fair and reasonable rates. * * * * * * * *

   Subpart C--Procurement Procedures; Responsibilities of Importers

9. Amend Sec. 201.22 to revise paragraph (h)(1) to read as follows:

   Sec. 201.22 Procurement under public sector procedures.

   * * * * *

   (h) Advertising.--(1) Requirements. For each procurement estimated to exceed $25,000, or equivalent (exclusive

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   of ocean and air transportation costs), notice of the availability of the invitations for bids, requests for quotations, or specific information about procurements shall be published by the USAID Office of Acquisition and Assistance, Transportation Division, in a Procurement Information Bulletin that is posted on USAID's Internet Web site at: http://www.usaid.gov/business/ocean/solicitation.logon.html.

   The purchaser shall submit three copies of each invitation for bids or request for quotations (if any) to the USAID Mission with its request for advertising. The Mission will forward the request for advertising and the procurement documents to USAID, Office of Acquisition and Assistance, Transportation Division. The request for advertising should be transmitted to arrive at least 45 days prior to the final date for receiving bids or quotations in: USAID, Office of Acquisition and Assistance, Transportation Division, Washington, DC 20523-7900 (Telephone (202) 712-4283 or (202) 712-5060). The purchaser may, in addition, advertise in appropriate local, regional, and international journals, newspapers, etc., and otherwise, in accordance with local practice. * * * * *

10. Amend Sec. 201.23 to revise paragraphs (a), (b), (c), and (e) to read as follows:

    Sec. 201.23 Procurement under private sector procedures.

    (a) General requirements. Procurements under private sector procedures will normally be carried out by importers using negotiated procurement procedures, unless the importer chooses to follow the procedures in Sec. 201.22. Procurement on a negotiated basis shall be in accordance with good commercial practice. Unless solicitations by the importer for quotations or offers fall within the criteria of paragraph (e) of this section, they shall be made uniformly to a reasonable number of prospective suppliers, including, where feasible, producers of a commodity, and all quotations or offers received, whether or not specifically solicited, shall be given consideration before making an award.

    (b) Publicizing. To provide suppliers in the United States with an opportunity to participate in furnishing commodities which may be purchased on a negotiated basis under USAID financing, USAID will advertise on its Internet Web site at: http://www.usaid.gov/business/ocean/solicitation.logon.html the existence of the program, the

    commodities traditionally being solicited, and the underlying procedures used in each cooperating country. USAID will not publicize specific proposed purchases which are to be undertaken by private sector importers on a negotiated basis unless specifically requested to do so by the importer in accordance with the provisions of paragraph (c) of this section.

    (c) Notification. If the importer elects to solicit quotations and offers for specific proposed purchases through publication by USAID, USAID will notify prospective suppliers of the export opportunity through Procurement Information Bulletins. Requests for such notification shall be submitted to: USAID, Office of Acquisition and Assistance, Transportation Division, Washington, DC 20523-7900 (Telephone (202) 712-4283 or (202) 712-5060). These requests shall contain the name and contact information for the importer, a full description of the commodities and any commodity-related services required, applicable price and delivery terms and other relevant procurement data, in the English language. The metric system of measurements shall be used for specifications unless USAID determines in writing that such use is impractical or is likely to cause significant inefficiencies or the loss of markets to U.S. firms. * * * * *

    (e) Procurement under special supplier-importer relationships and special situations. (1) Solicitation of offers from more than one supplier is not required if:

    (i) The importer is the supplier's regularly authorized distributor or dealer;

    (ii) The importer is purchasing a registered brand-name commodity from a supplier who is the exclusive distributor of that commodity to the area of the importer;

    (iii) The importer has standardized on a particular brand product in order to benefit from compatibility with on-hand equipment through economies in maintenance of spare parts inventories and/or greater familiarity by operating personnel;

    (iv) The importer has standardized on a particular brand product in order to benefit from a stronger local dealer organization, better repair facilities, and/or the requirement for a special design or operational characteristics;

    (v) A manufacturing importer has standardized on one brand name intermediate good used in production, in order to ensure a standard end-product; or

    (vi) The necessary equipment, materials, or spare parts are available from only one source.

    (2) USAID may require the importer to furnish, or cause to be furnished, to USAID documentary evidence of the existence of the criteria described in paragraph (e)(1) of this section. * * * * *

11. The heading for Sec. 201.24 is revised to read as follows:

    Sec. 201.24 Progress and advance payments [applicable only to public sector programs].

    * * * * *

12. The heading for Sec. 201.25 is revised to read as follows:

    Sec. 201.25 Bid and performance bonds and guaranties [applicable only to public sector programs].

    * * * * *

13. The heading for Sec. 201.26 is revised to read as follows:

    201.26 Expenditure of marine insurance loss payments [applicable only to public sector programs].

    * * * * *

    Subpart D--Responsibilities of Suppliers

14. Amend Sec. 201.31 to revise paragraphs (b)(2), (d) (f), (g), and (i) to read as follows:

    Sec. 201.31 Suppliers of commodities.

    * * * * *

    (b) * * *

    (1) * * *

    (2) The source and origin of the commodity complies with the provisions of Sec. 201.11(b) relating to source as required by its contract, letter of credit or direct letter of commitment; * * * * *

    (d) Marking of shipping containers and commodities.--(1) Affixing the USAID Identity and identification numbers. The supplier of commodities shall be responsible for assuring that all export packaging, whether shipped from the United States or from any other source country, carries the official USAID Identity. Additionally, except as USAID may otherwise prescribe, when the supplier is given notice by the importer that the importer is the government of the cooperating country or any of its subdivisions or instrumentalities, the supplier shall also be responsible for assuring that, in addition to the shipping cartons or other export packaging, all commodities carry the USAID Identity. The USAID financing document number shall be marked on each export shipping carton and box in characters at least equal in height to the shipper's marks. When

    [[Page 37144]]

    commodities are shipped as containerized freight in a reusable shipping container, the container is not considered export packaging within the meaning of this paragraph and the outside of the container need not be marked; however, the cartons, boxes, etc., inside the container must be marked.

    (i) Durability of the USAID Identity. The USAID Identity shall be affixed by metal plate, decalcomania, stencil, label, tag or other means, depending upon the type of commodity or export packaging and the nature of the surface to be marked. The USAID Identity placed on commodities shall be as durable as the trademark, commodity or brand name affixed by the producer; the USAID Identity on each export packaging unit shall be affixed in a manner which assures that the USAID Identity will remain legible until the units reaches the consignee.

    (ii) Size of the USAID Identity. The size of the USAID Identity may vary depending upon the size of the commodity and the size of the export packaging, but it shall be at least as large as the trademark, commodity or brand name affixed by the producer and in every case large enough to be clearly legible at a normal viewing distance.

    (iii) Design, color, and other standards for the USAID Identity. The USAID Identity, including the appropriate Country Sub-Brandmark, shall conform in design and color to the appropriate template provided at http://www.usaid.gov/branding/templates.html and affixed in

    accordance with the USAID Graphic Standards Manual that is provided at http://www.usaid.gov/branding/gsm.html.

    (2) Exceptions to requirement for affixing the USAID Identity. (i) Affixing the USAID Identity is not required on commodities purchased by the private sector; however, suppliers shall affix the USAID Identity and the required identification numbers on the export packaging in compliance with paragraph (d)(1) of this section.

    (ii) To the extent the supplier determines that compliance is impracticable, the USAID Identity shall not be required for:

    (A) Raw materials shipped in bulk (including grain, coal, petroleum, oil, and lubricants);

    (B) Vegetable fibers packaged in bales; and

    (C) Semi-finished products which are not packaged in any way.

    (3) Waiver. If compliance with the marking requirement is found to be impracticable with respect to other commodities not excepted by paragraph (d)(2) of this section, the supplier (or, when appropriate, the borrower/grantee) may request a waiver from USAID (the Regional Assistant Administrator or his/her designee).

    (4) Marking at the port of discharge. If the supplier is unable to meet the marking requirements before shipment, the supplier may, with USAID concurrence, comply with them at the port of discharge.

    (5) Recourse for noncompliance with marking requirements. If the supplier fails to comply with the above marking requirements repeatedly or if there are major lapses in compliance, USAID may withdraw approval of the commodity transaction and require refund of any advances. * * * * *

    (f) Distribution of shipping documents. The supplier shall make the customary commercial document distribution, as well as any special distribution (e.g., to the USAID Mission in the importing country) which may be specified in the letter of credit, direct letter of commitment or other payment instruction covering the transaction. Prior to presenting the documents specified in Sec. 201.52 for payment, the supplier shall mail not later than 30 days from the date of shipment a legible copy of all rated ocean bill(s) of lading described in Sec. 201.52(a)(4)(i) to:

    (1) U.S. Department of Transportation, Maritime Administration, Office of Cargo Preference, 400 Seventh Street, SW., Washington, DC 20590-0001; and

    (2) U.S. Agency for International Development, Office of Acquisition and Assistance, Transportation Division (M/OAA/T), 1300 Pennsylvania Avenue, NW., Washington, DC 20523-7900.

    (g) Adjustment refunds, credits, and allowances. All adjustments in the purchase price in an USAID-financed transaction in favor of the importer arising out of the terms of the contract or the customs of the trade shall be made by the supplier in the form of a dollar payment to USAID. Any such payment shall be transmitted to: USAID, Office of the Chief Financial Officer, M/CFO/CMP, Washington, DC 20523-7700, or to the respective USAID overseas Mission's Office of Financial Management. It shall be accompanied by a statement explaining the adjustment and shall specify the name and address of the importer, the date and amount of the original invoice, and the identification number of the implementing document, if known, under which the original transaction was financed. USAID will advise the borrower/grantee of such adjustment refunds received. Despatch earned by the supplier, other than despatch earned at the port of loading on CIF and CFR shipments, shall be refunded to USAID in accordance with Sec. 201.67(a)(5). * * * * *

    (i) Termination or modification of USAID financing.

    The supplier shall be responsible for compliance with the provisions of Sec. 201.45 applicable to it.

15. Amend Sec. 201.32 to revise the first sentence of paragraph (b) and paragraph (c) to read as follows:

    Sec. 201.32 Suppliers of delivery services.

    * * * * *

    (b) Adjustment in the price of delivery services. The supplier of delivery services shall pay to: USAID, Office of the Chief Financial Officer, M/CFO/CMP, Washington, DC 20523-7700, or to the respective USAID overseas Mission's Office of Financial Management, all adjustments in the purchase price in favor of the importer (or person purchasing the ocean transportation services) arising out of the terms of the contract or the customs of the trade. * * *

    (c) Marine insurance reporting requirement. With respect to any loss payment exceeding $10,000 in value which a supplier of marine insurance makes under a marine insurance policy financed pursuant to this part, the supplier of marine insurance shall, within 15 days of making such payment, report to: USAID, Office of Acquisition and Assistance, Transportation Division, Washington, DC 20523-7900, the amount and date of the payment, a description of the commodity, the USAID identification number, name of the carrier, vessel, and voyage number (alternatively, flight or inland carrier run number), date of the bill(s) of lading, the identity and address of the assured, and the identity and address of the assignee of the assured to whom payment has actually been made.

    Subpart E--General Provisions Relating to USAID Financing of Commodities and Commodity-Related Services.

16. Amend Sec. 201.42 to revise the section heading to read as follows:

    Sec. 201.42 Re-export of USAID-financed commodities.

    * * * * *

    Subpart F--Payment and Reimbursement

17. Amend Sec. 201.51 to revise paragraphs (b)(1) introductory text, (b)(1)(vi), (c)(2)(i) introductory text, and (c)(4) to read as follows:

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    Sec. 201.51 Methods of financing.

    * * * * *

    (b) * * *

    (1) Requests for bank letters of commitment. All requests for bank letters of commitment shall be in the English language and shall be submitted to USAID by the borrower/grantee. They shall contain the following: * * * * *

    (vi) Identification of the items to be financed under the letter of commitment. * * * * *

    (c) * * *

    (2) * * *

    (i) The monthly statement of advance account established under the letter of commitment showing: * * * * *

    (4) Report. The bank shall submit a report showing the financial status of each letter of commitment issued to it by USAID. The content, format and frequency of the report shall be prescribed in the letter of commitment. The report shall be prepared and distributed according to instructions contained in the letter of commitment. The report shall be certified by an authorized signatory of the bank. * * * * *

18. Amend Sec. 201.52 to revise paragraphs (a)(1), (a)(2)(i)(F), (a)(2)(iii)(A), (a)(2)(iii)(C), (a)(3) introductory text, (a)(3)(i), first sentence of (a)(4) (i), (a)(4) (iii) introductory text, (a)(4) (iii)(B), and first sentence of (a)(8), and add the phrase ``Note to paragraph (a)(3):'' to the undesignated paragraph following (a)(3)(ii) and revise it to read as follows:

    Sec. 201.52 Required documents.

    (a) * * *

    (1) Voucher. Voucher SF 1034 to be prepared by the borrower/ grantee, by the approved applicant, by the bank as assignee or agent for the approved applicant, or, in the case of a direct letter of commitment, by the supplier.

    (2) * * *

    (i) * * *

    (F) The delivery terms (e.g., FOB, FAS, CIF or CFR, as specified in the latest edition of Incoterms); * * * * *

    (iii) * * *

    (A) The USAID marking requirements set forth in Sec. 201.31(d) have been met or will, with USAID's concurrence, be met at the port of discharge;

    (B) * * *

    (C) If shipment is effected by ocean vessel, one copy of all bill(s) of lading described in Sec. 201.52(a)(4) has been mailed to:

    (1) U.S. Department of Transportation, Maritime Administration, Division of National Cargo, 400 Seventh Street, SW., Washington, DC 20590-0001; and

    (2) U.S. Agency for International Development, Office of Acquisition and Assistance, Transportation Division (M/OP/TC), 1300 Pennsylvania Avenue, NW., Washington, DC 20523-7900.

    (3) Charter party. A copy of any approved charter party under which shipment is made, submitted:

    (i) By the commodity supplier whenever USAID finances any portion of the dollar price of a commodity sale under CFR or CIF delivery terms, or

    (ii) * * *

    Note to paragraph (a)(3): If shipment is made under a consecutive voyage or time charter and the person or organization seeking reimbursement or payment has previously submitted to USAID a copy of said charter party in support of a prior claim for reimbursement or payment, such person or organization may, in lieu of further submission of the charter party, certify to the fact of prior submission.

    (4) Evidence of shipment. (i) A copy of the bill(s) of lading (ocean, charter party, air, rail, barge, or truck) or parcel post receipt evidencing shipment from the point of export in the source country or free port or bonded warehouse.* * * * * * * *

    (iii) When the supplier is not responsible under the terms of its agreement with the importer for assuring that the commodities are loaded on board the vessel, such as when delivery terms are FAS port of shipment, the importer may request and USAID, Office of Acquisition and Assistance, Transportation Division, Washington, DC 20523-7900, may authorize the following documents, instead of a bill of lading, to be submitted with a claim for reimbursement or payment for the commodities: * * * * *

    (B) A letter from the consignee addressed to USAID undertaking to arrange for shipment of the goods to the cooperating country and to deliver to: USAID, Office of the Chief Financial Officer, M/CFO/CMP, Washington, DC 20523-7700, or to the respective USAID overseas Mission's Office of Financial Management, within 15 days from the date of shipment, a copy of the bill of lading evidencing shipment to the cooperating country. The bill of lading shall indicate the carrier's complete statement of charges, as in paragraph (a)(4)(i) of this section. * * * * *

    (8) Commodity approval application (Form AID 11). One signed original (unless photocopies are authorized in the letter of commitment) of the Commodity Approval Application executed by the commodity supplier and countersigned by USAID. * * * * * * * *

    Subpart G--Price Provisions

19. Amend Sec. 201.62 to revise paragraph (a) to read as follows:

    Sec. 201.62 Responsibilities of borrower/grantee and of supplier.

    (a) Responsibilities of borrower/grantee. The borrower/grantee shall insure that the importer:

    (1) Procures in accordance with the conditions set forth in subpart C as applicable, and

    (2) Except as provided otherwise in Sec. 201.22, pays no more than the lowest available competitive price, including transportation cost, for the commodity. * * * * *

20. Amend Sec. 201.63 to revise paragraphs (f)(1)(i) and (f)(2) to read as follows:

    Sec. 201.63 Maximum prices for commodities.

    * * * * *

    (f) * * *

    (1) * * *

    (i) The maximum price FOB or FAS source country eligible for USAID financing under the foregoing provisions of this Sec. 201.63: plus * * * * *

    (2) The purchase price of a commodity FOB or FAS a free port or bonded warehouse shall not exceed the maximum price established in paragraph (f)(1) of this section, minus transportation costs from the free port or bonded warehouse to the cooperating country, calculated on the basis of the prevailing ocean freight rate from the free port or bonded warehouse to the cooperating country for the type and flag of vessel on which the commodity actually moved between those points. * * * * *

21. Amend Sec. 201.64 to revise first sentence of paragraph (b)(1) and paragraph (c)(2) introductory text to read as follows:

    Sec. 201.64 Application of the price rules to commodities.

    * * * * *

    (b) Calculation of commodity prices which involve transportation costs. (1) In testing the purchase price which includes transportation cost (customarily known as CFR or CIF price) for compliance with the requirements of Sec. 201.63 (a), (c), (d) and (e), USAID will subtract transportation cost as calculated by reference to the freight rate, for the type and flag of vessel on which the commodity was

    [[Page 37146]]

    shipped, prevailing on the date the purchase price is fixed. * * * * * * * *

    (2) When a shipment is FOB or FAS a free port or bonded warehouse, USAID will finance no more than the lower of the following: * * * * *

22. Amend Sec. 201.67 to revise paragraph (a)(2)(i) introductory text, (a)(5)(i)(A), (a)(5)(i)(B), (a)(5)(ii) and to read as follows:

    Sec. 201.67 Maximum freight charges.

    (a) Ocean freight rates. * * * * *

    (2) Maximum charter rates.

    (i) USAID will not finance ocean freight under any charter which has not been submitted to and received prior approval by USAID, Office of Acquisition and Assistance, Transportation Division. USAID will not approve a charter if the freight rate exceeds: * * * * * * * *

    (5) Despatch. * * * * *

    (A) At the port of unloading on CIF or CFR shipments, or

    (B) At the port of loading or unloading on FOB or FAS shipments, to the extent that despatch exceeds demurrage incurred on the same voyage. * * * * *

    (ii) Refunds of despatch, supported by the vessel's signed laytime statement(s), must be transmitted to: USAID, Office of the Chief Financial Officer, M/CFO/CMP, Washington, DC 20523-7700, or to the respective USAID overseas Mission's Office of Financial Management, within 90 days after date of discharge of cargo on which the despatch was earned. * * * * *

    Subpart H--Rights and Responsibilities of Banks

23. Amend Sec. 201.72 to revise paragraph (b)(2) to read as follows:

    Sec. 201.72 Making payments.

    * * * * *

    (b) * * *

    (2) Source and origin of commodities. The documents submitted in connection with the claim for reimbursement on commodities may not indicate that the source and origin of the commodities is inconsistent with the USAID geographic code designation contained in the letter of commitment. * * * * *

25. Revise Appendix A to Part 201 to read as follows:

    Invoice and Contract Abstract/Supplier's Certificate and Agreement With the U.S. Agency for International Development (AID 282) BILLING CODE 6116-01-P

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    Dated: June 22, 2007. Michael F. Walsh, Procurement Executive.

    [FR Doc. 07-3309 Filed 7-6-07; 8:45 am]

    BILLING CODE 6116-01-C