[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]
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