The award term in appendix A to this part will be incorporated, as applicable, into awards for foreign assistance administered by the Department of State.

(a) The following definitions apply for purposes of the award term in appendix A to this part:

(1) Abortion means the use or prescription of any instrument, medicine, drug, or any other substance or device:

(i) To kill intentionally the unborn child of a woman known to be pregnant; or,

(ii) To terminate intentionally the pregnancy of a woman known to be pregnant, with an intention other than—

(A) After viability to produce a live birth and preserve the life and health of the child born alive; or,

(B) To remove an ectopic pregnancy or a dead unborn child. Excluded from this paragraph (a)(1) is the treatment of injuries or illnesses caused by legal or illegal abortions.

(2) Abortion as a method of family planning is any abortion, except, provided that the abortion is lawful under local law—

(i) If the pregnancy is the result of an act of rape or incest; or

(ii) In the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.

(iii) The exceptions in this paragraph (a)(2) only apply for purposes of this paragraph (a).

(3) To provide abortions as a method of family planning means any of the following activities:

(i) Any act of performing or inducing an abortion as a method of family planning;

(ii) Any act of prescribing, dispensing, utilizing, selling, manufacturing, or distributing drugs, devices, or equipment for the purpose of performing or inducing abortion as a method of family planning; or

(iii) Any act of paying for, assisting in carrying out, or operating a facility that carries out, any of the activities described in paragraphs (a)(3)(i) and (ii) of this section.

(4)(i) To promote abortion as a method of family planning includes any of the following activities:

(A) Committing resources, financial or otherwise, to increase the availability, or use, of abortion as a method of family planning;

(B) Operating a service-delivery site that provides counseling, including advice and information, regarding the benefits and/or availability of abortion as a method of family planning (unless, in the case of a United States nongovernmental organization, the physical and financial separation requirements under this paragraph (a) with respect to foreign assistance are satisfied);

(C) Providing advice that abortion as a method of family planning is an available option, or referring for, or encouraging women to consider, abortion as a method of family planning;

(D) Lobbying, pressuring, or encouraging a foreign government to legalize or make available abortion as a method of family planning, or lobbying, pressuring, or encouraging such a government to continue the legality of abortion as a method of family planning;

(E) Conducting a public-information campaign in a foreign country regarding the benefits and/or availability of abortion as a method of family planning; and,

(F) Using or teaching sex education materials (including books, curricula, media, etc.) that promote abortion as a method of family planning.

(ii) Action by an individual who is acting in his or her personal capacity shall not be attributed to an organization with which the individual is associated, provided that the individual is neither on duty nor acting on the organization's premises, and provided that the organization neither endorses, nor provides financial support for, the action and takes reasonable steps to ensure the individual does not improperly represent that he or she is acting on behalf of the organization.

(5) Foreign assistance is Federal funding administered by the Department of State appropriated under title III of, or under the “International Narcotics Control and Law Enforcement,” “Nonproliferation, Anti-Terrorism, Demining and Related Programs,” “Peacekeeping Operations,” and “International Organizations and Programs” headings of, the annual Department of State, Foreign Operations, and Related Programs Appropriations Act.

(6) To furnish foreign assistance means transferring foreign assistance funds provided under the award or goods financed with such funds to another entity. This does not include providing technical assistance or training (including costs directly related to such assistance or training for individuals), unless the entity receives a sub-award of foreign assistance funds under the award. Additionally, furnishing foreign assistance does not include purchasing goods or services from the entity.

(7) To control an organization means to possess the power to direct, or cause the direction of, its management, personnel, and policies.

(8) A foreign non-governmental organization (NGO) is any non-governmental organization or entity, whether non-profit or profit-making (including any commercial firm and educational institution), not organized or existing under the laws of the United States, any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

(9) A United States non-governmental organization (NGO) is any non-governmental organization or entity, whether non-profit or profit-making (including any commercial firm and educational institution), organized or existing under the laws of the United States, any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

(10) An international organization (IO) is—

(i) Any organization designated as being entitled to enjoy the privileges, exemptions, and immunities under the International Organizations Immunities Act;

(ii) Any organization treated as a public international organization pursuant to the regulations or policies of the Department of State;

(iii) Any organization established by international agreement and whose governing body is composed principally of representatives of national governments; or

(iv) Any other multilateral entity in which sovereign nations participate.

(11) To provide financial support means to provide funds from any source and for any purpose to a foreign NGO or IO through an award, sub-award, contract, sub-contract, grant under contract, or other written agreement or donation of funds.

(12) A foreign government is any department, agency, independent establishment, or other entity of the government of a foreign country.

(13) A parastatal is a foreign-government-owned organization operated as a commercial company or other organization, including non-profits, or enterprises in which foreign governments or foreign government agencies have a controlling interest.

(b) See appendix A to this part for the requirements and eligibility criteria for recipients of foreign assistance.

(c) With respect to United States non-governmental organizations, the award term shall be construed consistent with the First Amendment to the United States Constitution and shall not be construed to restrict the freedoms of speech or association of such organizations when using non-Federal funds outside the scope of a program, project or activity for which foreign assistance is made available.

(d) The Secretary of State or Under Secretary of State for Foreign Assistance, Humanitarian Affairs, and Religious Freedom may waive the application of this part or any of its elements if a waiver is deemed necessary for national security or foreign policy purposes.

(e) In the event of a conflict between a term of the award term and local law, an exemption may be sought from such term from the Department of State to avoid a violation of the award term.

(f) In determining whether an entity is eligible to be a recipient or sub-recipient of foreign assistance under the award, the action of separate entities shall not be imputed to the recipient or sub-recipient, unless, in the judgment of the Department of State, a separate entity is being used purposefully to avoid the provisions of this part. Separate entities are those that have distinct legal existence in accordance with the laws of the countries in which they are organized. Entities that are separately organized shall not be considered separate, however, if one is controlled by the other. The recipient may request the approval of its Agreement Officer to treat as separate the activities of two or more entities, which would not be considered separate under the preceding sentence. The recipient must provide a written justification to the Department of State that the activities of the organizations are sufficiently distinct to warrant not imputing the activity of one to the other.

(g) If anything in the award term, or the application of this part to any person or circumstance, is held to be unconstitutional, the remainder of this part and the application of such to any person or circumstance shall not be affected thereby.

(h) The award term in appendix A to this part shall be inserted verbatim in sub-awards in accordance with the terms of paragraphs (a) and (b) of this section and subject to § 602.10.