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Private trade entity means the individual or other nongovernmental legal entity with which an agreement has been negotiated under the Act.
Selling agent means any person who operates as a bona fide representative for the supplier of the commodity and who is not employed by or otherwise connected with the importer or the importing country.
Shipping agent means any person engaged by a participant to arrange ocean transportation.
Ships broker means any person engaged by a supplier of ocean transportation to arrange employment of vessels.
Supplier means any person who sells a commodity to an importer under the terms of a purchase authorization, or who sells ocean transportation to an importer or supplier of the commodity under the terms of a purchase authorization.
(51 FR 47409, Dec 31, 1986; 52 FR 1623, Jan. 15, 1987, as amended at 54 FR 21931, May 22, 1989)
to occur as of the on-board date shown on the ocean bill of lading.
Destination country means the foreign country to which the commodity is exported.
Foreign currency and local currency are interchangeable terms and mean the currency of the importing country.
Foreign currency sale means a sale for the currency of the importing country.
Form CCC-329 means the signed original of Form CCC-329, “Supplier's Certificate."
Importer means the person which contracts with the supplier for the importation of the commodity. The importer may be the participant or any person to which a participant has issued a subauthorization.
Importing country means any nation with which an agreement has been signed under the Act.
Invitation for bids and IFB mean a publicly advertised request for offers.
Legal entity includes, but is not limited to, an individual (except that an individual and his or her spouse and their minor children are considered as one legal entity), partnership, association, company, corporation and trust.
Letter of credit means an irrevocable commercial letter of credit issued, confirmed, or advised by a banking institution on behalf of an approved applicant.
Long-term credit sale is the collective term used to denote either or both of the following: (i) Sales to an importing country or a private trade entity for dollars on credit terms or (ii) sales to an importing country for local currency on credit terms and on terms which permit conversion to dollars.
Participant is the collective term used to denote the importing country or the private trade entity with which an agreement has been negotiated under the Act.
Person means an individual or other legal entity.
Purchase authorization means Form FAS-480 (Commodity), “Authorization to Purchase Agricultural Commodities," issued to a participant under these regulations.
Purchasing agent means any person engaged by a participant to procure agricultural commodities.
§ 17.3 Eligible commodities.
(a) General. Commodities eligible for financing are those commodities determined by the Secretary to be available for disposition under the Act.
(b) Commodity description and specification. The commodity and quantity thereof to be financed shall be as described and specified in the relevant purchase authorization.
(c) Cotton textiles. (1) Except as provided in paragraph (c)(2) of this section, financing of textiles under these regulations is limited to cotton yarns and fabrics processed up to and including the dyed and printed state, and preshrinking. Any processing of such yarns and fabrics beyond this stage will be at the expense of the participant.
(2) Purchase authorizations may permit cotton textiles processed beyond the stage described in paragraph (c)(1) of this section to be purchased, but the maximum financing by CCC is limited to the equivalent value of the cotton yarns and fabrics described in paragraph (c)(1) of this section, contained in the textiles, plus eligible ocean transportation costs.
(3) Financing is available only for textiles manufactured entirely of U.S. cotton in the United States. The General Sales Manager will not issue a purchase authorization for a textile of a specification not produced in the United States, but may issue a purchase authorization for the financing of a textile produced in the United States which has a specification reasonably close to that requested by the participant.
§ 17.4 Purchase authorizations.
(a) Request. For each purchase authorization, the participant shall submit to the General Sales Manager a written request for issuance, specify. ing the commodity and including any other information required by the General Sales Manager.
(b) Issuance of purchase authorization. When the request has been approved by the General Sales Manager, the GSM shall issue a purchase authorization to the participant. The form used is Form FAS-480 (Commod. ity), “Authorization to Purchase Agricultural Commodities."
(c) Purchase authorizations. Each purchase authorization includes the following information:
(1) The commodity to be purchased, approximate quantity and maximum dollar value;
(2) Contracting requirements in addition to or in lieu of those in Appendix A of this subpart, if any;
(3) The contracting period, during which suppliers and importers must enter into contracts; and the delivery period, during which the commodity must be delivered;
(4) The terms of delivery to the importer;
(5) Documentation required in support of drafts presented to banks by suppliers in addition to or in lieu of the documentation specified in Appendix B of this subpart;
(6) Provisions relating to payment to CCC, if applicable;
(7) The ASCS office which administers the financing operation on behalf of CCC;
(8) The method of financing;
(9) Any limitation relating to financing by CCC in addition to or in lieu of those specified in these regulations;
(10) Authorization to procure ocean transportation, and provisions relating to the financing of ocean freight or ocean freight differential, as applicable;
(11) Any other provisions considered necessary by the General Sales Manager.
(d) Applicability of this subpart. In addition to the provisions of a particular purchase authorization, each purchase authorization, unless otherwise provided, is subject to the provisions of this subpart to the same extent as if the provisions were fully set forth in the purchase authorization.
(e) Modification or revocation. The General Sales Manager reserves the right at any time for any reason or cause whatsoever to supplement, modify, or revoke any purchase authorization, including the termination of deliveries, if it is determined to be in the interest of the U.S. Govern. ment. CCC shall reimburse suppliers who would otherwise be entitled to be financed by CCC for costs which were incurred as a result of such action by the General Sales Manager in connection with firm sales or shipping contracts, and which were not otherwise recovered by the supplier after a reasonable effort to minimize such costs: Provided, however, That such reimbursement shall not be made to a supplier if the General Sales Manager determines that the GSM's action was taken because the supplier failed to comply with the requirements of the regulations in this subpart or the applicable purchase authorization; Provided further, That reimbursement to suppliers of ocean transportation shall not exceed the ocean freight differential when the purchase authorization provides only for financing the differential.
(f) Extension of delivery period in a purchase authorization. The General Sales Manager will consider a request for extension of the delivery period in a purchase authorization only if the participant submits the request. The request should be submitted as soon as the participant knows that delivery may not be completed, or was not completed, within the period specified in the purchase authorization. The request for extension must establish to
the satisfaction of the GSM that failure to complete delivery was due to a cause other than the fault or negligence of the importer or the supplier. The GSM may also approve the request for extension if the GSM determines that an extension would be in the interest of the U.S. Government.
(g) Subauthorizations. (1) The participant may issue subauthorizations to importers consistent with the terms of the applicable purchase authorization. The participant, in subauthorizing, shall instruct importers to use the applicable purchase authorization number in placing orders, and shall specify to importers all the provisions of the applicable purchase authorization which apply to the subauthorization.
(2) Each importer granted a SUbauthorization shall inform the sup. plier that the transaction is to be financed under the provisions of the regulations in this subpart. The importer shall also provide the supplier with the applicable purchase authorization number. The importer shall inform the supplier of any special provisions which affect the supplier in carrying out the transaction.
(h) Letter of conditional reimbursement. The General Sales Manager may choose to issue a letter of conditional reimbursement to an importing country or private trade entity with which an Agricultural Commodities Agreement is being considered. This letter authorizes the importing country or private trade entity to apply for a purchase authorization under which it may obtain reimbursement for certain costs it incurs in the procurement of the commodity and ocean freight before the Agricultural Commodities Agreement is signed. The reimbursement is conditioned on the signing of an Agricultural Commodities Agreement with the participant, providing for the financing of the commodity and ocean freight, and on the participant's complying with the terms and conditions set forth in the agreement, the letter of conditional reimbursement, and the purchase authorization.
8 17.5 Approval of purchasing and ship
ping agents. (a) General. A participant is not required to use a purchasing agent or shipping agent; however, if a purchasing or shipping agent is to be used, the participant shall submit the nomination(s) of the purchasing agent or shipping agent to the GSM in writing along with a copy of the proposed agency agreement. The participant shall also specify in the nomination the period of time for which such approval is requested. A person may not act as purchasing or shipping agent, or as both, if disapproved in writing by the Assistant General Sales Manager in accordance with the provisions of this section.
(b) "Affiliate" defined. For purposes of this section, the term “affiliate” has the meaning provided in § 17.2(c) and, in addition, persons will also be considered to be affiliates if any of the following conditions are met:
(1) There are any common officers or directors.
(2) There is any investment by ships brokers, ocean transportation suppliers, approved commodity suppliers, or selling agents, or their officers or directors, in the purchasing agent or shipping agent.
(3) There is any investment by the purchasing agent or shipping agent, or its officers or directors, in ships brokers, ocean transportation suppliers, approved commodity suppliers, or selling agents. These conditions include those cases in which investment has been concealed by the utilization of any scheme or device to circumvent the purposes of this section but does not include investment in any mutual fund.
(c) Information to be furnished. A person whose nomination has been submitted to act as a purchasing agent or shipping agent, or both, shall furnish to the Assistant General Sales Manager the following information or documentation as may be applicable:
(1) The names of all incorporators;
(2) The names and titles of all officers and directors;
(3) The names and proportionate share interest of all stockholders;
(4) If beneficial interest in stock is held by persons other than the named shareholders, the names of the holders of the beneficial interest and the proportionate share of each;
(5) The amount of the subscribed capital;
(6) A written undertaking signed by such person agreeing that, if approved, neither the person nor any affiliates, as defined in this section, will act as ships broker, ocean transportation supplier, commodity supplier, or selling agent in any Title I transaction with the participant during the term of the agency agreement;
(7) A certification that the person has not arranged to give or receive any payment or other benefit in connection with the person's selection as agent.
(d) Approval. Consideration will be given to approval of a person to act as a shipping or purchasing agent, or both, when the documents required to be submitted by this section are received by the Assistant General Sales Manager. Approval of a nomination for purchasing agent or shipping agent may be withheld for a period not to exceed 30 calendar days pending completion of any investigation considered appropriate.
(e) Duration of approval. The approval of a purchasing agent or shipping agent to act for a participant shall remain in effect for the period of time requested by the participant or such shorter period as the Assistant General Sales Manager may determine. Generally, the Assistant General Sales Manager will not issue approvals extending beyond the supply period of the current Title I agreement. Such approval will be automatically terminated if the shipping or purchasing agent or any of the affiliates of such agent, acts as ships broker, ocean transportation supplier, commodity supplier or selling agent in connection with any Title I transaction for such participant during the term of the agency agreement.
(f) Notification. The Assistant General Sales Manager shall promptly notify persons seeking approval as purchasing or shipping agents of the determination or of the need for further investigation. If such person is
disapproved, the notification shall state the reasons therefor. The determination of the Assistant General Sales Manager is effective immediately and continues in effect pending the result of any appeal to the General Sales Manager.
(g) Disapproval or termination of approval. Any person whose nomination has been disapproved or whose approval has been terminated pursuant to the provisions of this section may, within 30 calendar days, present to the General Sales Manager, orally or in writing, any reasons as to why such action should not stand. Nothing herein shall be construed as to prohibit a shipping agent or purchasing agent, whose application has been disapproved or whose approval has been terminated, from being nominated at a later time.
(h) Unapproved purchasing agent. If, in the procurement of commodities made available under Title I, Pub. L. 480, a participant uses a purchasing agent which has not been approved in writing by the Assistant General Sales Manager, USDA may withhold sales approval.
(i) Unapproved shipping agent. If, in the shipping of commodities made available under Title I, Pub. L. 480, a participant
a shipping agent which has not been approved in writing by the Assistant General Sales Manager, USDA may withhold vessel approval or may deduct from the ocean freight differential to be paid, the amount of the shipping agent's commission in connection with the shipment. (Approved by the Office of Management and Budget under control number 05510005)
& 17.6 Contracts between commodity sup
pliers and importers. (a) Contracts-eligibility for financing. To be eligible for financing, commodity contracts must comply with the following requirements unless otherwise specified in the purchase authorization.
(1) Commodity contracts between suppliers and importers are considered to be conditioned on the approval by USDA of the supplier; the selling
agent, if any; the contract price; conformance of the sale to the provisions of the purchase authorization; and, whenever purchases are made on the basis of an IFB, responsiveness of the offer to IFB terms.
(2) Importers and suppliers must enter into contracts within the contracting period specified in the purchase authorization. The contracts must provide for deliveries to the importer in accordance with the delivery terms and during the delivery period specified in the purchase authorization, or any amendment or modification thereto. (See $ 17.4(f).)
(3) Contracts for commodity, under a purchase authorization which limits contracting to f.o.b. or f.a.s. terms, must be separate and apart from the contracts for ocean transportation of the commodity. (4) The contracted price may not be
a cost plus a percentage-of-cost basis.
(b) Contracting procedures—(1) Pur. chasing-general. (i) Importers may purchase through negotiation with commodity suppliers of the importer's choice unless the regulations or the purchase authorization requires that purchases be made on the basis of Invitations for Bids (IFB's).
(ii) The participant shall maintain a record of all offers received from suppliers, either as a result of IFB's or negotiation, until the expiration of three years after final payment under contracts awarded under the purchase authorization. The GSM may examine these records or request specific information in connection with the offers.
(2) Purchasing-food commodities. The importer shall purchase food commodities on the basis of IFB's.
(3) Invitations for bids. The following conditions shall apply on all purchases of commodities on the basis of IFB's:
(i) The General Sales Manager must approve the terms of the IFB before it is issued by the importer.
(ii) The importer shall issue the IFB in the United States and shall open all offers in public in the United States at the time and place specified in the IFB.
(iii) The IFB must permit submission of offers from all suppliers who
meet the requirements of the regulations.
(iv) The IFB may not preclude offers for shipment from any United States port(s) unless the purchase authorization provides for exportation only from certain ports.
(v) The IFB may not establish minimum quantities to be offered or which will be considered.
(vi) The IFB must be in compliance with the regulations, the purchase authorization, and sound commercial standards.
(4) Contract awards. (i) Whenever purchases are made on the basis of an IFB, the importer shall consider only offers which are responsive to the IFB and shall make awards either on the basis of the lowest commodity price(s) offered or on the basis of lowest landed cost, except as provided in paragraph (b)(4)(ii) of this section:
(ii) For purposes of this section, 'lowest commodity price(s)' means the lowest commodity price(s) offered for loading onto the type of vessel (dry bulk carrier, tanker, tween-deck, etc.) to be utilized to carry the commodity purchased. When vessels offered under the flag of the participant or importing country vessels trolled by the participant or importing country are to be used, the participant must purchase commodities for shipment on such vessels only on the basis of the lowest commodity price(s) offered. This limitation may, however, be waived by the GSM:
(A) When the lowest commodity price(s) offered are in locations where vessels cannot reasonably be made available without a substantial increase in freight costs to the participant;
(B) For small quantities offered at additional loading points (in aggregate not more than 15 percent of the total tonnage offered by a vessel); or
(C) Where this limitation would conflict with the purposes of the program.
(iii) For purposes of this section, 'lowest landed cost' means the combination of commodity price and ocean freight rate resulting in the lowest total cost to deliver the commodity to the importing country. Lowest landed cost may be defined on either a foreign flag or U.S. flag basis. Awards