[Federal Register Volume 80, Number 180 (Thursday, September 17, 2015)]
[Rules and Regulations]
[Pages 55721-55726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-23419]
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Rules and Regulations
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Federal Register / Vol. 80, No. 180 / Thursday, September 17, 2015 /
Rules and Regulations
[[Page 55721]]
AGENCY FOR INTERNATIONAL DEVELOPMENT
2 CFR Part 700
RIN 0412-AA73
USAID Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards
AGENCY: Agency for International Development (USAID).
ACTION: Final rule.
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SUMMARY: USAID is issuing a final rule adopting with amendments the
``Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards,'' issued by the Office of Management
and Budget and published in Federal Register on December 26, 2013.
Consistent with the OMB rule, USAID's rule supersedes USAID's
``Administration of Assistance Awards to U.S. Non-Governmental
Organizations.'' Parts of this final rule apply to for-profit entities
in limited circumstances and to foreign organizations as described in
this guidance.
DATES: This final rule is effective October 19, 2015.
FOR FURTHER INFORMATION CONTACT: Michael Gushue, Telephone: 202-567-
4678, Email: [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
The Agency for International Development issued an interim final
rule with a request for comments adopting the Office of Management and
Budget's ``Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards, and published in the Federal
Register in Vol. 78, No. 248 (Dec. 26, 2013). This OMB rule is codified
at 2 CFR part 200 and superseded OMB Circulars A-21, A-87, A-110, A-
122, A-89, A-102, and A-133, and the guidance in Circular A-50 on
Single Audit Act follow-up. USAID's interim final rule and subsequent
final rule replace 22 CFR part 226, ``Administration of Assistance
Awards to U.S. Nongovernmental Organizations.'' Parts of this final
rule also apply to for-profit entities in limited circumstances and to
foreign organizations as described in this guidance.
Regulatory Authority: The authority for Part 700 reads as follows:
Authority: Sec. 621, Public L. 87-195, 75 Stat 445, (22 U.S.C.
2381) as amended, E.O. 12163, Sept 29, 1979, 44 FR 56673; 2 CFR 1979
Comp., p. 435
B. Discussion of Comments
The public comment period on the proposed rule closed on March 6,
2015. USAID received comments and suggestions from two organizations on
its interim final rule. The following responses address comments that
were specific to USAID's implementation of OMB's rule. Comments
regarding OMB's Administrative Requirements, Cost Principles, and Audit
Requirements at 2 CFR part 200 that did not affect USAID's
implementation at 2 CFR part 700 were not considered.
Applicability of Subparts D and E to Foreign Organizations
Comment: Two commenters addressed USAID's application of 2 CFR part
200 and 2 CFR part 700 to foreign organizations. Agencies were given
decision making authority on the applicability of 2 CFR part 200 to
non-US entities, which has resulted in a lack of consistency in
applicability to non-US entities across the various federal agencies.
Because the goal of this new regulation was to increase uniformity and
reduce administrative burden, Subparts A through E of 2 CFR part 200
should be made applicable to all non-US entities, which will simplify
and streamline sub-recipient monitoring, as well as implementation. The
U.S. Agency for International Development has applied Subpart E
inconsistently. Non-US entities will face different administrative
requirements when they receive federal awards directly from these
agencies. Pass-through entities that subaward funds to local indigenous
organizations in host countries as well as to U.S. based entities must
craft differing subaward agreements for each class of subrecipients and
monitor and enforce differing requirements. Those non-US based
subrecipients who receive funds that originate from USAID and from
other federal agencies are subject to policies that are not uniform. We
encourage USAID to use references to 2 CFR part 200, subpart D in its
policies affecting non-US entities and to use the provisions of 2 CFR
200.207 to differentiate on an individual basis whether differing
special conditions are warranted rather than continue to differentiate
as they have done.
Response: USAID has modified 2 CFR part 700 to clearly identify
what parts of 2 CFR part 200 apply to different entities. USAID will
continue its longstanding practice of not applying the uniform set of
administrative requirements consolidated in the new Uniform
Requirements to foreign organizations. The Uniform Requirements would
have significant negative implications for USAID's ongoing operations
and awards involving foreign organizations. Taken as a whole, adoption
by USAID of the Uniform Requirements to foreign organizations would
impose U.S. requirements on local organizations working in English as a
second language and unfamiliar with the technical wording and systems
logic of federal regulations primarily directed at U.S. recipients,
including U.S. and international non-governmental organizations,
universities, and research organizations. Application of these
requirements would result in an across-the-board increase of
administrative burden on local organizations and would seriously
undermine USAID's development and sustainability goals that have been
the subject of significant efforts to reduce such burdens and barriers
to local organization partnerships with USAID.
More broadly, these changes would have a significant impact on the
Agency's ongoing efforts to work directly with capable local
organizations to fulfill our overall mandate to support sustainable
development.
Applicability to Commercial Organizations
Comment: Two commenters addressed the application of cost
principles to for-profit entities. Section 2 CFR 200.101 indicates that
Federal
[[Page 55722]]
agencies may apply the Cost Principles, found in Subpart E, to
commercial entities. OMB's decision to permit Federal awarding agencies
to decide whether to apply the provisions of the Uniform Guidance to
commercial organizations and its discussion of the applicability of
Subpart E of 2 CFR part 200 has created confusion as to the continuing
role that the cost principles for commercial organizations contained in
48 CFR Subpart 31.2 have when the Federal award is made to a commercial
organization.
In particular, the statement in 2 CFR 200.101(a) (i.e., ``These
requirements are applicable to all costs related to Federal awards.''),
the chart that follows in 2 CFR 200.101(b), and particularly the
statement contained in 2 CFR 200.101(c) lead to the conclusion that
OMB's intent is for commercial organizations to follow Subpart E when
administering grants and cooperative agreements. However, Subpart E
only applies to non-commercial entities, while 48 CFR Subpart 31.2
applies to commercial entities. It is clear that when those
organizations are administering a Federal contract, they would be
directed to follow 48 CFR Subpart 31.2, leading to potential
inconsistency of costing. The Department of State has addressed this
subject by promulgating 2 CFR 600.101(b) to assure cost consistency
shows that this clarification should be made on a government-wide
basis.
Response: USAID has revised 2 CFR part 700 to clarify that Subpart
E does not apply to for-profit entities.
Regulatory Findings
For the regulatory findings regarding this rulemaking, please refer
to the analysis prepared by OIRA in the interim final rule, which is
incorporated herein. 79 FR at 75876.
List of Subjects in 22 CFR Part 700
Accounting, Administrative practice and procedure, Audit
requirements, Grant administration, Grant programs, Reporting and
recordkeeping requirements.
Regulatory Text
For the reasons stated in the preamble, The Agency for
International Development amends 2 CFR Chapter VII by revising part 700
to read as follows:
PART 700--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND
AUDIT REQUIREMENTS FOR FEDERAL AWARDS
Sec.
Subpart A--Acronyms and Definitions
700.1 Definitions.
Subpart B--General Provisions
700.2 Adoption of 2 CFR part 200.
700.3 Applicability.
700.4 Exceptions.
700.5 Supersession.
Subpart C--Pre-Federal Award Requirements and Contents of Federal
Awards
700.6 Metric system of measurement.
700.7 Advance payment.
Subpart D--Post Federal Award Requirements
700.8 Payment.
700.9 Property standards.
700.10 Cost sharing or matching.
700.11 Contracting with small and minority businesses, women's
business enterprises, and labor surplus area firms.
700.12 Contract provisions.
700.13 Additional provisions for awards to for-profit entities.
Termination and Disputes
700.14 Termination.
700.15 Disputes.
USAID--Specific Requirements
700.16 Marking.
Authority: Sec. 621, Public L. 87-195, 75 Stat 445, (22 U.S.C.
2381) as amended, E.O. 12163, Sept 29, 1979, 44 FR 56673; 2 CFR 1979
Comp., p. 435.
Subpart A--Acronyms and Definitions
Sec. 700.1 Definitions.
These are the definitions for terms used in this part. Different
definitions may be found in Federal statutes or regulations that apply
more specifically to particular programs or activities.
Activity means a set of actions through which inputs--such as
commodities, technical assistance, training, or resource transfers--are
mobilized to produce specific outputs, such as vaccinations given,
schools built, microenterprise loans issued, or policies changed.
Activities are undertaken to achieve objectives that have been formally
approved and notified to Congress.
Agreement Officer means a person with the authority to enter into,
administer, terminate and/or closeout assistance agreements subject to
this part, and make related determinations and findings on behalf of
USAID. An Agreement Officer can only act within the scope of a duly
authorized warrant or other valid delegation of authority. The term
``Agreement Officer'' includes persons warranted as ``Grant Officers.''
It also includes certain authorized representatives of the Agreement
Officer acting within the limits of their authority as delegated by the
Agreement Officer.
Apparently successful applicant(s) means the applicant(s) for USAID
funding recommended for an award after merit review, but who has not
yet been awarded a grant, cooperative agreement or other assistance
award by the Agreement Officer. Apparently successful applicant status
confers no right and constitutes no USAID commitment to an award, which
still must be executed by the Agreement Officer.
Award means financial assistance that provides support or
stimulation to accomplish a public purpose. Awards include grants,
cooperative agreements, and other agreements in the form of money or
property in lieu of money, by the Federal Government to an eligible
recipient. The term does not include: Technical assistance, which
provides services instead of money; other assistance in the form of
loans, loan guarantees, interest subsidies, or insurance; direct
payments of any kind to individuals; contracts which are required to be
entered into and administered under procurement laws and regulations.
Branding strategy means a strategy the apparently successful
applicant submits at the specific request of an USAID Agreement Officer
after merit review of an application for USAID funding, describing how
the program, project, or activity is named and positioned, as well as
how it is promoted and communicated to beneficiaries and cooperating
country citizens. It identifies all donors and explains how they will
be acknowledged. A Branding Strategy is required even if a Presumptive
Exception is approved in the Marking Plan.
Commodities mean any material, article, supply, goods or equipment,
excluding recipient offices, vehicles, and non-deliverable items for
recipient's internal use in administration of the USAID-funded grant,
cooperative agreement, or other agreement or subagreement.
Date of completion means the date on which all work under an award
is completed or the date on the award document, or any supplement or
amendment, on which USAID sponsorship ends.
Marking plan means a plan that the apparently successful applicant
submits at the specific request of a USAID Agreement Officer after
merit review of an application for USAID funding, detailing the public
communications, commodities, and program materials and other items that
will visibly bear the USAID Identity. Recipients may request approval
of Presumptive Exceptions to
[[Page 55723]]
marking requirements in the Marking Plan.
Principal officer means the most senior officer in an USAID
Operating Unit in the field, e.g., USAID Mission Director or USAID
Representative. For global programs managed from Washington but
executed across many countries such as disaster relief and assistance
to internally displaced persons, humanitarian emergencies or immediate
post conflict and political crisis response, the cognizant Principal
Officer may be an Office Director, for example, the Directors of USAID/
W/Office of Foreign Disaster Assistance and Office of Transition
Initiatives. For non-presence countries, the cognizant Principal
Officer is the Senior USAID officer in a regional USAID Operating Unit
responsible for the non-presence country, or in the absence of such a
responsible operating unit, the Principle U.S Diplomatic Officer in the
non-presence country exercising delegated authority from USAID.
Program means an organized set of activities and allocation of
resources directed toward a common purpose, objective, or goal
undertaken or proposed by an organization to carry out the
responsibilities assigned to it. Projects include all the marginal
costs of inputs (including the proposed investment) technically
required to produce a discrete marketable output or a desired result
(for example, services from a fully functional water/sewage treatment
facility).
Public communications are documents and messages intended for
distribution to audiences external to the recipient's organization.
They include, but are not limited to, correspondence, publications,
studies, reports, audio visual productions, and other informational
products; applications, forms, press and promotional materials used in
connection with USAID funded programs, projects or activities,
including signage and plaques; Web sites/Internet activities; and
events such as training courses, conferences, seminars, press
conferences and the like.
Suspension means an action by USAID that temporarily withdraws
Federal sponsorship under an award, pending corrective action by the
recipient or pending a decision to terminate the award. Suspension of
an award is a separate action from suspension under USAID regulations
implementing E.O.'s 12549 and 12689, ``Debarment and Suspension.'' See
2 CFR part 780.
Unrecovered indirect cost means the difference between the amount
awarded and the amount which could have been awarded under the
recipient's approved negotiated indirect cost rate.
USAID means the United States Agency for International Development.
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.'' In
exceptional circumstances, upon a written determination by the USAID
Administrator, the definition of the USAID Identity may be amended to
include additional or substitute use of a logo or seal and tagline
representing a presidential initiative or other high level interagency
Federal initiative that requires consistent and uniform branding and
marking by all participating agencies. The USAID Identity (including
any required presidential initiative or related identity) is available
on the USAID Web site at http://www.usaid.gov/branding and is provided
without royalty, license or other fee to recipients of USAID funded
grants or cooperative agreements or other assistance awards.
Subpart B--General Provisions
Sec. 700.2 Adoption of 2 CFR Part 200.
Under the authority listed above the Agency for International
Development adopts the Office of Management and Budget (OMB) guidance
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards to Non-Federal Entities (subparts A
through F of 2 CFR part 200), as supplemented by this part, as the
Agency for International Development (USAID) policies and procedures
for financial assistance administration. This part satisfies the
requirements of 2 CFR 200.110(a) and gives regulatory effect to the OMB
guidance as supplemented by this part.
Sec. 700.3 Applicability.
(a) Subparts A through D of 2 CFR part 200 apply to for-profit
entities. The Federal Acquisition Regulation (FAR) at 48 CFR part 30,
Cost Accounting Standards, and Part 31, Contract Cost Principles and
Procedures, takes precedence over the cost principles in Subpart E for
Federal awards to for-profit entities.
(b) Subpart E applies to foreign organizations and foreign public
entities, except where the Federal awarding agency determines that the
application of these subparts would be inconsistent with the
international obligations of the United States or the statute or
regulations of a foreign government.
Sec. 700.4 Exceptions.
Consistent with 2 CFR 200.102(b):
(a) Exceptions on a case-by-case basis for individual non-Federal
entities may be authorized by USAID's Assistant Administrator, Bureau
for Management, or designee as delegated in Agency policy, except where
otherwise required by law or where OMB or other approval is expressly
required by this Part. No case-by-case exceptions may be granted to the
provisions of Subpart F--Audit Requirements of this Part.
(b) USAID's Assistant Administrator, Bureau for Management, or
designee as delegated in Agency policy, is also authorized to approve
exceptions, on a class or an individual case basis, to USAID program
specific assistance regulations other than those which implement
statutory and executive order requirements.
(c) The Federal awarding agency may apply more restrictive
requirements to a class of Federal awards or non-Federal entities when
approved by OMB, required by Federal statutes or regulations except for
the requirements in Subpart F--Audit Requirements of this part. A
Federal awarding agency may apply less restrictive requirements when
making awards at or below the simplified acquisition threshold, or when
making fixed amount awards as defined in Subpart A--Acronyms and
Definitions of 2 CFR part 200, except for those requirements imposed by
statute or in Subpart F--Audit Requirements of this part.
Sec. 700.5 Supersession.
Effective December 26, 2014, this part supersedes the following
regulations under Title 22 of the Code of Federal Regulations: 22 CFR
part 226, ``Administration of Assistance Awards To U.S. Non-
Governmental Organizations.''
Subpart C--Pre-Federal Award Requirements and Contents of Federal
Awards
Sec. 700.6 Metric system of measurement.
(a) The Metric Conversion Act, as amended by the Omnibus Trade and
Competitiveness Act (15 U.S.C. 205) declares that the metric system is
the preferred measurement system for U.S. trade and commerce.
(b) Wherever measurements are required or authorized, they must be
made, computed, and recorded in metric system units of measurement,
unless otherwise authorized by the Agreement Officer in writing when it
[[Page 55724]]
has been found that such usage is impractical or is likely to cause
U.S. firms to experience significant inefficiencies or the loss of
markets. Where the metric system is not the predominant standard for a
particular application, measurements may be expressed in both the
metric and the traditional equivalent units, provided the metric units
are listed first.
Sec. 700.7 Advance payment.
Advance payment mechanisms include, but are not limited to, Letter
of Credit, Treasury check and electronic funds transfer and must comply
with applicable guidance in 31 CFR part 205.
Subpart D--Post Federal Award Requirements
Sec. 700.8 Payment.
(a) Use of resources before requesting advance payments. To the
extent available, the non-Federal entity must disburse funds available
from program income (including repayments to a revolving fund),
rebates, refunds, contract settlements, audit recoveries, and interest
earned on such funds before requesting additional cash payments. This
paragraph is not applicable to such earnings which are generated as
foreign currencies.
(b) Standards governing the use of banks and other institutions as
depositories of advance payments under Federal awards are as follows:
(1) Except for situations described in paragraph (b)(2) of this
section, USAID does not require separate depository accounts for funds
provided to a non-Federal entity or establish any eligibility
requirements for depositories for funds provided to the non-Federal
entity. However, the non-Federal entity must be able to account for
receipt, obligation and expenditure of funds.
(2) Advance payments of Federal funds must be deposited and
maintained in insured accounts whenever possible.
Sec. 700.9 Property standards.
(a) Real property. Unless the agreement provides otherwise, title
to real property will vest in accordance with 2 CFR 200.311.
(b) Equipment. Unless the agreement provides otherwise, title to
equipment will vest in accordance with 2 CFR 200.313.
Sec. 700.10 Cost sharing or matching.
Unrecovered indirect costs, including indirect costs on cost
sharing or matching may be included as part of cost sharing or
matching. Unrecovered indirect cost means the difference between the
amount charged to the Federal award and the amount which would have
been charged to the Federal award under the non-Federal entity's
approved negotiated indirect cost rate.
Sec. 700.11 Contracting with small and minority businesses, women's
business enterprises, and labor surplus area firms.
(a) Make information on forthcoming opportunities available and
arrange time frames for purchases and contracts to encourage and
facilitate participation by small businesses, minority-owned firms, and
women's business enterprises. To permit USAID, in accordance with the
small business provisions of the Foreign Assistance Act of 1961, as
amended, to give United States small business firms an opportunity to
participate in supplying commodities and services procured under the
award, the recipient must to the maximum extent possible provide the
following information to the Office of Small Disadvantaged Business
Utilization (OSDBU), USAID, Washington, DC 20523, at least 45 days
prior to placing any order or contract in excess of the simplified
acquisition threshold:
(1) Brief general description and quantity of goods or services;
(2) Closing date for receiving quotations, proposals or bids; and
(3) Address where solicitations or specifications can be obtained.
(b) [Reserved]
Sec. 700.12 Contract provisions.
(a) The non-Federal entity's contracts must contain the applicable
provisions described in Appendix II to Part 200--Contract Provisions
for non-Federal Entity Contracts Under Federal Awards.
(b) All negotiated contracts (except those for less than the
simplified acquisition threshold) awarded by the non-Federal entity
must include a provision to the effect that the non-Federal Entity,
USAID, the Comptroller General of the United States, or any of their
duly authorized representatives, must have access to any books,
documents, papers and records of the contractor which are directly
pertinent to a specific program for the purpose of making audits,
examinations, excerpts and transcriptions.
Sec. 700.13 Additional provisions for awards to for-profit entities.
(a) This paragraph contains additional provisions that apply to
awards to for-profit entities. These provisions supplement and make
exceptions for awards to for-profit entities from other provisions of
this part.
(1) Prohibition against profit. No funds will be paid as profit to
any for-profit entity receiving or administering Federal financial
assistance as a recipient or subrecipient. Federal financial assistance
does not include contracts as defined at 2 CFR 200.22, other contracts
a Federal agency uses to buy goods or services from a contractor, or
contracts to operate Federal government owned, contractor operated
facilities (GOCOs). Profit is any amount in excess of allowable direct
and indirect costs.
(2) Program income. As described in Sec. 200.307(e)(2), program
income earned by a for-profit entity may not be added to the Federal
award.
(b) [Reserved]
Termination and Disputes
Sec. 700.14 Termination.
If at any time USAID determines that continuation of all or part of
the funding for a program should be suspended or terminated because
such assistance would not be in the national interest of the United
States or would be in violation of an applicable law, then USAID may,
following notice to the recipient, suspend or terminate the award in
whole or in part and prohibit the recipient from incurring additional
obligations chargeable to the award other than those costs specified in
the notice of suspension. If a suspension is put into effect and the
situation causing the suspension continues for 60 calendar days or
more, then USAID may terminate the award in whole or in part on written
notice to the recipient and cancel any portion of the award which has
not been disbursed or irrevocably committed to third parties.
Sec. 700.15 Disputes.
(a) Any dispute under or relating to a grant or agreement will be
decided by the USAID Agreement Officer. The Agreement Officer must
furnish the recipient a written copy of the decision.
(b) Decisions of the USAID Agreement Officer will be final unless,
within 30 calendar days of receipt of the decision, the recipient
appeals the decision to USAID's Assistant Administrator, Bureau for
Management, or designee as delegated in Agency policy. Appeals must be
in writing with a copy concurrently furnished to the Agreement Officer.
(c) In order to facilitate review of the record by the USAID's
Assistant Administrator, Bureau for Management, or designee as
delegated in Agency policy, the recipient will be given an opportunity
to submit written evidence in support of its appeal. No hearing will be
provided.
(d) Decisions by the Assistant Administrator, Bureau for
Management, or designee as delegated in Agency policy, will be final.
[[Page 55725]]
USAID--Specific Requirements
Sec. 700.16 Marking.
(a) USAID policy is that all programs, projects, activities, public
communications, and commodities, specified further at paragraphs (c)
through (f) of this section, partially or fully funded by a USAID grant
or cooperative agreement or other assistance award or subaward must be
marked appropriately overseas with the USAID Identity, of a size and
prominence equivalent to or greater than the recipient's, other donor's
or any other third party's identity or logo.
(1) USAID reserves the right to require the USAID Identity to be
larger and more prominent if it is the majority donor, or to require
that a cooperating country government's identity be larger and more
prominent if circumstances warrant; any such requirement will be on a
case-by-case basis depending on the audience, program goals and
materials produced.
(2) USAID reserves the right to request pre-production review of
USAID funded public communications and program materials for compliance
with the approved Marking Plan.
(3) USAID reserves the right to require marking with the USAID
Identity in the event the recipient does not choose to mark with its
own identity or logo.
(4) To ensure that the marking requirements ``flow down'' to
subrecipients of subawards, recipients of USAID funded grants and
cooperative agreements or other assistance awards are required to
include a USAID-approved marking provision in any USAID funded
subaward, to read as follows:
As a condition of receipt of this subaward, marking with the
USAID Identity of a size and prominence equivalent to or greater
than the recipient's, subrecipient's, other donor's or third party's
is required. In the event the recipient chooses not to require
marking with its own identity or logo by the subrecipient, USAID
may, at its discretion, require marking by the subrecipient with the
USAID Identity.
(b) Subject to Sec. 700.16(a), (h), and (j), program, project, or
activity sites funded by USAID, including visible infrastructure
projects (for example, roads, bridges, buildings) or other programs,
projects, or activities that are physical in nature (for example,
agriculture, forestry, water management), must be marked with the USAID
Identity. Temporary signs or plaques should be erected early in the
construction or implementation phase. When construction or
implementation is complete, a permanent, durable sign, plaque or other
marking must be installed.
(c) Subject to Sec. 700.16(a), (h), and (j), technical assistance,
studies, reports, papers, publications, audio-visual productions,
public service announcements, Web sites/Internet activities and other
promotional, informational, media, or communications products funded by
USAID must be marked with the USAID Identity.
(1) Any ``public communications'' as defined in Sec. 700.1, funded
by USAID, in which the content has not been approved by USAID, must
contain the following disclaimer:
This study/report/audio/visual/other information/media product
(specify) is made possible by the generous support of the American
people through the United States Agency for International
Development (USAID). The contents are the responsibility of [insert
recipient name] and do not necessarily reflect the views of USAID or
the United States Government.
(2) The recipient must provide the Agreement Officer's
Representative (AOR) or other USAID personnel designated in the grant
or cooperative agreement with at least two copies of all program and
communications materials produced under the award. In addition, the
recipient must submit one electronic and/or one hard copy of all final
documents to USAID's Development Experience Clearinghouse.
(d) Subject to Sec. 700.16(a), (h), and (j), events financed by
USAID such as training courses, conferences, seminars, exhibitions,
fairs, workshops, press conferences and other public activities, must
be marked appropriately with the USAID Identity. Unless directly
prohibited and as appropriate to the surroundings, recipients should
display additional materials such as signs and banners with the USAID
Identity. In circumstances in which the USAID Identity cannot be
displayed visually, recipients are encouraged otherwise to acknowledge
USAID and the American people's support.
(e) Subject to Sec. 700.16(a), (h), and (j), all commodities
financed by USAID, including commodities or equipment provided under
humanitarian assistance or disaster relief programs, and all other
equipment, supplies and other materials funded by USAID, and their
export packaging, must be marked with the USAID Identity.
(f) After merit review of applications for USAID funding, USAID
Agreement Officers will request apparently successful applicants to
submit a Branding Strategy, defined in Sec. 700.1. The proposed
Branding Strategy will not be evaluated competitively. The Agreement
Officer will review for adequacy the proposed Branding Strategy, and
will negotiate, approve and include the Branding Strategy in the award.
Failure to submit or negotiate a Branding Strategy within the time
specified by the Agreement Officer will make the apparently successful
applicant ineligible for award.
(g) After merit review of applications for USAID funding, USAID
Agreement Officers will request apparently successful applicants to
submit a Marking Plan, defined in Sec. 700.1. The Marking Plan may
include requests for approval of Presumptive Exceptions, paragraph (h)
of this section. All estimated costs associated with branding and
marking USAID programs, such as plaques, labels, banners, press events,
promotional materials, and the like, must be included in the total cost
estimate of the grant or cooperative agreement or other assistance
award, and are subject to revision and negotiation with the Agreement
Officer upon submission of the Marking Plan. The Marking Plan will not
be evaluated competitively. The Agreement Officer will review for
adequacy the proposed Marking Plan, and will negotiate, approve and
include the Marking Plan in the award. Failure to submit or negotiate a
Marking Plan within the time specified by the Agreement Officer will
make the apparently successful applicant ineligible for award.
Agreement Officers have the discretion to suspend the implementation
requirements of the Marking Plan if circumstances warrant. Recipients
of USAID funded grant or cooperative agreement or other assistance
award or subaward should retain copies of any specific marking
instructions or waivers in their project, program or activity files.
Agreement Officer's Representatives will be assigned responsibility to
monitor marking requirements on the basis of the approved Marking Plan.
(h) Presumptive exceptions:
(1) The above marking requirements in Sec. 700.16(a) through (e)
may not apply if marking would:
(i) Compromise the intrinsic independence or neutrality of a
program or materials where independence or neutrality is an inherent
aspect of the program and materials, such as election monitoring or
ballots, and voter information literature; political party support or
public policy advocacy or reform; independent media, such as television
and radio broadcasts, newspaper articles and editorials; public service
announcements or public opinion polls and surveys.
(ii) Diminish the credibility of audits, reports, analyses,
studies, or policy recommendations whose data or findings must be seen
as independent.
[[Page 55726]]
(iii) Undercut host-country government ``ownership'' of
constitutions, laws, regulations, policies, studies, assessments,
reports, publications, surveys or audits, public service announcements,
or other communications better positioned as ``by'' or ``from'' a
cooperating country ministry or government official.
(iv) Impair the functionality of an item, such as sterilized
equipment or spare parts.
(v) Incur substantial costs or be impractical, such as items too
small or other otherwise unsuited for individual marking, such as food
in bulk.
(vi) Offend local cultural or social norms, or be considered
inappropriate on such items as condoms, toilets, bed pans, or similar
commodities.
(vii) Conflict with international law.
(2) These exceptions are presumptive, not automatic and must be
approved by the Agreement Officer. Apparently successful applicants may
request approval of one or more of the presumptive exceptions,
depending on the circumstances, in their Marking Plan. The Agreement
Officer will review requests for presumptive exceptions for adequacy,
along with the rest of the Marking Plan. When reviewing a request for
approval of a presumptive exception, the Agreement Officer may review
how program materials will be marked (if at all) if the USAID identity
is removed. Exceptions approved will apply to subrecipients unless
otherwise provided by USAID.
(i) In cases where the Marking Plan has not been complied with, the
Agreement Officer will initiate corrective action. Such action may
involve informing the recipient of a USAID grant or cooperative
agreement or other assistance award or subaward of instances of
noncompliance and requesting that the recipient carry out its
responsibilities as set forth in the Marking Plan and award. Major or
repeated non-compliance with the Marking Plan will be governed by the
uniform suspension and termination procedures set forth at 2 CFR
200.338 through 2 CFR 200.342, and 2 CFR 700.14.
(j)(1) Waivers. USAID Principal Officers, defined for purposes of
this provision at Sec. 700.1, may at any time after award waive in
whole or in part the USAID approved Marking Plan, including USAID
marking requirements for each USAID funded program, project, activity,
public communication or commodity, or in exceptional circumstances may
make a waiver by region or country, if the Principal Officer determines
that otherwise USAID required marking would pose compelling political,
safety, or security concerns, or marking would have an adverse impact
in the cooperating country. USAID recipients may request waivers of the
Marking Plan in whole or in part, through the AOR. No marking is
required while a waiver determination is pending. The waiver
determination on safety or security grounds must be made in
consultation with U.S. Government security personnel if available, and
must consider the same information that applies to determinations of
the safety and security of U.S. Government employees in the cooperating
country, as well as any information supplied by the AOR or the
recipient for whom the waiver is sought. When reviewing a request for
approval of a waiver, the Principal Officer may review how program
materials will be marked (if at all) if the USAID Identity is removed.
Approved waivers are not limited in duration but are subject to
Principal Officer review at any time due to changed circumstances.
Approved waivers ``flow down'' to recipients of subawards unless
specified otherwise. Principal Officers may also authorize the removal
of USAID markings already affixed if circumstances warrant. Principal
Officers' determinations regarding waiver requests are subject to
appeal to the Principal Officer's cognizant Assistant Administrator.
Recipients may appeal by submitting a written request to reconsider the
Principal Officer's waiver determination to the cognizant Assistant
Administrator.
(2) Non-retroactivity. Marking requirements apply to any obligation
of USAID funds for new awards as of January 2, 2006. Marking
requirements also will apply to new obligations under existing awards,
such as incremental funding actions, as of January 2, 2006, when the
total estimated cost of the existing award has been increased by USAID
or the scope of effort is changed to accommodate any costs associated
with marking. In the event a waiver is rescinded, the marking
requirements will apply from the date forward that the waiver is
rescinded. In the event a waiver is rescinded after the period of
performance as defined in 2 CFR 200.77 but before closeout as defined
in 2 CFR 200.16., the USAID mission or operating unit with initial
responsibility to administer the marking requirements must make a cost
benefit analysis as to requiring USAID marking requirements after the
date of completion of the affected programs, projects, activities,
public communications or commodities.
(k) The USAID Identity and other guidance will be provided at no
cost or fee to recipients of USAID grants, cooperative agreements or
other assistance awards or subawards. Additional costs associated with
marking requirements will be met by USAID if reasonable, allowable, and
allocable under 2 CFR part 200, subpart E. The standard cost
reimbursement provisions of the grant, cooperative agreement, other
assistance award or subaward must be followed when applying for
reimbursement of additional marking costs.
(End of award term)
Angelique M. Crumbly,
Agency Regulatory Official, U.S. Agency for International Development.
[FR Doc. 2015-23419 Filed 9-16-15; 8:45 am]
BILLING CODE 6116-01-P