[Federal Register Volume 59, Number 72 (Thursday, April 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8977]
[[Page Unknown]]
[Federal Register: April 14, 1994]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 12
RIN 1090-AA37
Administrative and Audit Requirements and Cost Principles for
Assistance Programs
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
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SUMMARY: This action finalizes a rule implementing for grants and
cooperative agreements, the Secretarial Outreach Issue Paper Decision--
Issue 4--Endorsement of Commercial Products or Services. Former
Secretary Lujan determined that as a matter of Departmental policy,
there should be a provision in all contracts (exceeding $25,000),
assistance agreements, and Memoranda of Understanding/Agreement (MOAs)
which would prevent the nongovernmental party from using the
arrangement to imply Government endorsement of a product, service or
position which the recipient represents in its commercial advertising.
EFFECTIVE DATE: May 16. 1994.
FOR FURTHER INFORMATION CONTACT: Dean A. Titcomb, (Chief, Acquisition
and Assistance Division), (202) 208-6431.
SUPPLEMENTARY INFORMATION: The Department published a notice of
proposed rulemaking in the August 6, 1992, Federal Register (57 FR
34755-34756). Bureaus and offices within the Department are entering
into a variety of partnership agreements with profit and nonprofit
organizations, through which the bureaus receive support of various
kinds. This may include dissemination of information about programs,
promotion of activities of mutual interest which further those
programs, and generation of financial and other types of support, where
authorized. These types of agreements are consistent with a Department
emphasis on partnerships and cooperative efforts to accomplish public
purposes, and therefore are encouraged. However, under these
agreements, there is risk that certain promotional material produced
under the agreement, such as publications, advertisements in
newspapers, magazines, and on television, might improperly infer agency
endorsement of a product, service, or position which the recipient
represents. Following the consideration of several alternative policies
and procedures to ensure compliance with these provisions in various
types of contracts and agreements, the former Secretary decided to
adopt the policy of including a provision that prohibits the recipient/
contractor from using improper endorsements in promotional material in
all contracts (exceeding $25,000), assistance agreements, and Memoranda
of Understanding/Agreement.
Comments on the Proposed Rule
One public comment was received by the Department. The commenter
stated that, as a private nonprofit organization, it serves as an
adviser to the Federal Government and that their credibility is
maximized by the recognized impartiality of the institution. In order
to maintain this objectivity, it has been their long-standing policy
not to accept contractual provisions that would permit a sponsor to
control either the timing of the release or the information contained
in their final reports. Copies of the reports are provided to sponsors
up to fourteen days before release to the public, but there is no
obligation on their part to accept comments or to incorporate suggested
changes.
The commenter also stated that the proposed coverage in
Sec. 12.2(d)(2)(i) for non-research awards which would require prior
Government approval for public information releases, would not be
acceptable for work done by their organization and would require time
consuming waivers on each instrument awarded by the Department prior to
acceptance by them. The suggestion was made to include nonprofit
organizations, in addition to * * * ``a Sate or local government * *
*,'' as an exception to the coverage in Sec. 12.2(d)(2), or to
authorize the use of the wording in paragraph (d)(2)(ii) for research
awards in all of their agreements. The Department does not accept the
suggestion to exclude nonprofit organizations from coverage, because
this would be contrary to the basic intent of the policy to exclude
only governmental parties.
The commenter stated that the proposed coverage for research awards
was acceptable.
With the publication of the final rule, the Department is
clarifying the scope of covered awards under this policy. The policy is
limited to those grants/cooperative agreements that have as their
principal purpose a relationship wherein the recipient/partner will
contribute resources to promote agency programs, publicize agency
activities, assist in fundraising, or provide assistance to the agency.
Therefore, because of the unlikelihood of a research award meeting this
criteria, we are eliminating the separate distinction and policy for
research awards. In determining the applicability of the policy, the
focus should be on the purpose of the award. For such an award, the
Department's policy should apply whether the award is for research or
not.
Executive Order 12866, Paperwork Reduction Act, and Regulatory
Flexibility Act
This rule was not subject to Office of Management and Budget review
under Executive Order 12866.
The Department has determined that this rule will not have a
significant economic impact on a substantial number of small entities,
since this rule merely implements a former Secretarial decision
concerning the prohibition of recipients to use the Department's use of
services and products provided as an endorsement. This revision to the
rule does not contain a collection of information subject to the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Environmental Effects
The Department has determined that this rule does not constitute a
major Federal action having significant impact on the human environment
under the National Environmental Policy Act of 1969.
Executive Order 12778
The Department has certified to the Office of Management and Budget
that these proposed regulations meet the applicable standards provided
in Sections 2 (a) and 2 (b) of Executive Order No. 12778.
List of Subjects in 43 CFR Part 12
Accounting, Administrative practice and procedure, Drug abuse,
Grant programs, Indians, Intergovernmental relations, Loan programs,
Reporting and recordkeeping requirements.
Dated: April 6, 1994.
B.R. Cohen,
Assistant Secretary-Policy, Management and Budget.
Title 43, part 12 of the Code of Federal Regulations is amended as
set forth below:
PART 12--ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES
FOR ASSISTANCE PROGRAMS
1. The authority citation for part 12 is revised to read as
follows:
Authority: 5 U.S.C. 301; 31 U.S.C. 7501; 41 U.S.C. 701 et seq.;
E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12674, 3 CFR, 1989
Comp., p. 215; E.O. 12731, 3 CFR, 1990 Comp., p. 306; OMB Circular
A-102; OMB Circular A-110; OMB Circular A-128; and OMB Circular A-
133.
Subpart A--Administrative and Audit Requirements and Cost
Principles for Assistance Programs
2. Section 12.2 is amended by adding paragraph (d) to read as
follows:
Sec. 12.2 Policy.
* * * * *
(d)(1) Federal ethics and conduct regulations contained in 5 CFR
part 2635 implement Executive Order 12674, 3 CFR, 1989 Comp., p. 215
(as modified by Executive Order 12731, 3 CFR, 1990 Comp., p. 306),
``Principles of Ethical Conduct for Government Officers and
Employees,'' by prohibiting employees from endorsing in an official
capacity the proprietary products or processes of manufacturers or the
services of commercial firms for advertising, publicity, or sales
purposes. The Department's use of materials, products, or services does
not constitute official endorsement.
(2) The policy in paragraph (d)(1) of this section applies to a
grant/cooperative agreement whose principal purpose is a partnership
where the recipient/partner contributes resources to promote agency
programs, publicize agency activities, assists in fundraising, or
provides assistance to the agency. In the event that such a grant/
cooperative agreement is awarded to a recipient, other than a State
government, a local government, or a federally-recognized Indian tribal
government, and authorizes joint dissemination of information and
promotion of activities being supported, the following provision shall
be made a term and condition of the award:
Grant/Cooperative Agreement Provision
Recipient shall not publicize or otherwise circulate,
promotional material (such as advertisements, sales brochures, press
releases, speeches, still and motion pictures, articles, manuscripts
or other publications) which states or implies governmental,
Departmental, bureau, or government employee endorsement of a
product, service, or position which the recipient represents. No
release of information relating to this award may state or imply
that the Government approves of the recipient's work products, or
considers the recipient's work product to be superior to other
products or services.
All information submitted for publication or other public
releases of information regarding this project shall carry the
following disclaimer:
The views and conclusions contained in this document are those
of the authors and should not be interpreted as representing the
opinions or policies of the U.S. Government. Mention of trade names
or commercial products does not constitute their endorsement by the
U.S. Government.
Recipient must obtain prior Government approval for any public
information releases concerning this award which refer to the
Department of the Interior or any bureau or employee (by name or
title). The specific text, layout photographs, etc. of the proposed
release must be submitted with the request for approval.
A recipient further agrees to include this provision in a
subaward to any subrecipient, except for a subaward to a State
government, a local government, or to a federally-recognized Indian
tribal government.
[End of Provision]
(3) Recipient requests for clearance of public releases will be
reviewed using existing public information mechanisms through the
appropriate Public Affairs Office and with consultation with the
cognizant Ethics Officer.
[FR Doc. 94-8977 Filed 4-13-94; 8:45 am]
BILLING CODE 4310-10-M