[Federal Register Volume 69, Number 243 (Monday, December 20, 2004)]
[Proposed Rules]
[Pages 75885-75887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27791]


=======================================================================
-----------------------------------------------------------------------

AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 226

[AID Reg 226]
RIN 0412-AA55


Administration of Assistance Awards to U.S. Non-Governmental 
Organizations; Marking Requirements

AGENCY: United States Agency for International Development.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: USAID proposes to amend the primary regulation governing 
administration of USAID funded assistance awards, by adding a provision 
requiring marking with the USAID Standard Graphic Identity, of 
commodities, programs, projects, activities and public communications 
implemented under USAID funded assistance awards or subawards. While 
USAID currently requires its contractors to mark US-funded foreign 
assistance, that requirement does not apply to assistance awards. The 
purpose of this proposed regulatory addition is to extend USAID marking 
requirements to assistance awards in order to bring USAID regulations 
in line with section 641 of the Foreign Assistance Act of 1961, as 
amended, which requires that ``[p]rograms under this Act shall be 
identified appropriately overseas as `American Aid,' '' as well as to 
advance the Administration's efforts to ensure that aid recipients 
overseas understand that all aid, including assistance awards, is 
foreign assistance from the American taxpayer.

DATES: Submit comments on or before February 3, 2005.

ADDRESSES: Because security screening precautions have slowed the 
delivery and dependability of surface mail to USAID/Washington, USAID 
recommends sending all comments by electronic mail or by fax to the e-
mail address or fax number listed directly below (please note, all 
comments must be in writing to be reviewed).
    Electronic Access and Filing. You may submit written electronic 
comments by sending electronic mail [e-mail] to: [email protected]. 
Please submit comments as a Microsoft Word file avoiding the use of any 
special characters and any form of encryption.
    FAX. You may submit written comments by FAX to 202-216-3058, 
addressed to: ``C/O John Niemeyer, Attorney Advisor, Office of the 
General Counsel, USAID/Washington.''
    Surface Mail (again, not advisable due to security screening): John 
Niemeyer, Attorney Advisor, Office of the General Counsel, Room 6.6.34, 
USAID/Washington, 1300 Pennsylvania Avenue, NW., Washington, DC 20523.

FOR FURTHER INFORMATION CONTACT: John Niemeyer, telephone (202) 712-
4776; e-mail [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule has been reviewed by the 
Office of Management and Budget (OMB). The period for comments has been 
established at forty-five (45) days due to the urgency and high 
visibility of United States Government public diplomacy initiatives, 
and the shortness and lack of complexity of the proposed rule.

Background

    The marking of foreign aid as foreign assistance from the American 
taxpayer was first required during the Marshall Plan when Congress 
became concerned that the Soviet Union was taking credit for the poorly 
marked U.S. foreign aid donations to European countries. USAID's 
framework legislation, the Foreign Assistance Act of 1961, as amended, 
section 641 requires that all programs, including assistance awards, be 
identified appropriately overseas as ``American aid.'' While USAID has 
required its contractors to mark US-funded foreign assistance, that 
requirement has not been extended to assistance awards. A recent State 
Department report, ``Changing Minds,

[[Page 75886]]

Winning Peace: a New Strategic Direction for U.S. Public Diplomacy in 
the Arab World,'' both commends and encourages USAID to continue to 
``become more forthright about branding its activities, so recipients 
know that they are receiving contributions from the American People.'' 
The American People, through USAID, provide billions of dollars of 
foreign assistance every year in the form of grants and cooperative 
agreements for which marking has not been required and for which the 
United States Government and the American taxpayer generally receive no 
acknowledgement or credit. The proposed rule is intended to ensure that 
the United States Government and American taxpayer receive credit for 
funding assistance awards by requiring recipients of USAID-funded 
assistance awards to mark USAID funded commodities, programs, projects, 
activities and public communications with the USAID Standard Graphic 
Identity.
    As set forth below, marking is encouraged but not required when 
USAID is funding less than 10% of the total cost and the total cost is 
less than $3,000,000; marking of a size and prominence equal to that of 
other donors is required when USAID is funding more than $300,000 
dollars or 10% to 49% of the total cost; and marking requirements are 
fully applicable when USAID is funding 50% or more of the total cost. 
In order to ensure that marking is done in a safe manner, USAID mission 
directors in the field are authorized to waive marking requirements if 
USAID-required marking would pose compelling political, safety or 
security concerns. All mission director decisions concerning waivers 
will be made on the basis of the same political, safety or security 
information used in decisions about the safety and security of United 
States Government employees in the host country (the so-called ``no 
double standard'' policy). USAID contractors have been marking USAID 
funded commodities, programs, projects and activities for years without 
any safety issues to date.
    Also as set forth below, USAID also encourages, but does not 
require, recipients of assistance awards to permit use the USAID logo 
on employee business cards and other personally identifying material, 
so long as such employees do not identify themselves as employees of 
USAID, the United States Government, or the United States Government 
diplomatic mission, and do not claim any diplomatic privileges and 
immunities. USAID takes the following action as part of the effort to 
ensure that the American people are credited for their generosity in 
providing assistance, and to improve the United States Government's 
public diplomacy.

List of Subjects in 22 CFR Part 226

    Foreign aid, Non-profit organizations.

    For the reasons set forth above, USAID proposes to amend 22 CFR 
part 226 as follows:

PART 226--ADMINISTRATION OF ASSISTANCE AWARDS TO U.S. NON-
GOVERNMENTAL ORGANIZATIONS

    1. The authority citation for part 226 is revised to read as 
follows:

    Authority: 22 U.S.C. 2381(a) and 2401.

    2. Amend Sec.  226.2 by adding the following definitions:


Sec.  226.2  Definitions

* * * * *
    Commodities means any material, article, supply, goods or 
equipment.
* * * * *
    Public communications include, but are not limited to, 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.
* * * * *
    Standard graphic identity (Identity) means the USAID logo and 
brandmark, which will be provided free of charge to recipients of USAID 
funded grants or cooperative agreements or other assistance awards or 
subawards.
* * * * *
    USAID Partner Branding Guide means a separate, USAID produced 
publication that will be provided free of charge to recipients of USAID 
funded grants or cooperative agreements or other assistance awards or 
subawards, and which details branding guidelines for USAID funded 
commodities, programs, projects, activities and public communications.
    3. Add Sec.  226.91 to subpart F, to read as follows:


Sec.  226.91  Marking.

    (a) USAID policy is that all commodities, programs, projects, 
activities and public communications funded by a USAID funded grant or 
cooperative agreement or other assistance award or subaward must be 
marked appropriately with the USAID Identity as follows:
    (1) If USAID is funding less than 10% of the total cost of the 
program, project, activity or public communication and the total cost 
is less than $3,000,000 as determined by USAID, marking is recommended 
but not required;
    (2) If USAID is funding more than $300,000 dollars or 10% to 49% of 
the total cost of the program, project, activity or public 
communication as determined by USAID, that program, project, activity 
or public communication must be marked appropriately with the USAID 
Identity of a size and prominence at least equivalent to that of any 
marking of any other donor or implementing partner of the USAID 
partially funded program, project, activity or public communication, as 
set forth in the USAID Partner Branding Guide to be provided free of 
charge to the recipient of a USAID funded grant or cooperative 
agreement or other assistance award or subaward; and
    (3) If USAID is funding 50% or more of the total cost of the 
program, project, activity or public communication as determined by 
USAID, USAID marking requirements apply to their full extent, as set 
forth in the USAID Partner Branding Guide to be provided free of charge 
to the recipient of a USAID grant or cooperative agreement or other 
assistance award or subaward. These requirements ``flow down'' to 
recipients of subawards.
    (b) 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 appropriately with 
the USAID Identity.
    (c) Program, project or activity sites funded by USAID, including 
visible infrastructure projects (roads, bridges, buildings, houses) or 
other programs, projects, activities which are physical in nature 
(agriculture, forestry, water management), must be marked appropriately 
with the USAID Identity. Temporary signs or plaques should be erected 
early in the construction or implementation phase. When appropriate, a 
permanent sign, plaque or other marking must be installed.
    (d) Technical assistance, studies, reports, audio visual 
productions and other promotional or informational products, and Web 
sites/Internet activities funded by USAID must be marked appropriately 
with the USAID Identity and must contain the following disclaimer:

    This study/report/audio/visual product has been produced, and/or 
its

[[Page 75887]]

contents created, with the financial assistance of USAID. The 
contents of this study/report/audio/visual product are the 
responsibility of  and do not necessarily 
reflect the views of USAID or the United States Government.

    (e) Events financed by USAID such as training courses, conferences, 
seminars, exhibitions, fairs, workshops, press conferences and other 
public communications, 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 plaques with USAID and United States Government symbols. In 
circumstances in which the USAID identity cannot be displayed visually, 
recipients are encouraged to otherwise acknowledge USAID funding and 
support.
    (f) USAID Mission Directors may waive USAID marking requirements 
for each USAID funded commodity, program, project, activity or public 
communication, or in exceptional circumstances may make a blanket 
waiver by sector, region or country, for up to six months from the date 
of the waiver, if the Mission Director determines that otherwise USAID-
required marking would pose compelling political, safety or security 
concerns. The waiver determination must be made in a manner 
commensurate with the United States Government's ``no double standard'' 
policy, i.e., on the basis of the same information that applies to 
determinations of the safety and security of U.S. Government employees 
in the host country. When making a waiver determination, Mission 
Directors should consider whether or not to recommend to USAID 
contractors, grantees and other partners that in addition, they remove 
their organization's own logos or markings, as part of the 
determination of the existence of compelling political, safety, or 
security concerns. Waiver determinations may be extended beyond the 
initial six months after mission director consultation with the 
responsible USAID Assistant Administrator.
    (g) The USAID Partner Branding Guide, specific marking 
instructions, and information about Mission Director approved waivers 
(if any) may be obtained from the Cognizant Technical Officer or the 
Agreements Officer, who will consult with award recipients on USAID 
marking requirements after the making of an award. 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. Cognizant 
Technical Officers will be assigned responsibility to monitor marking 
requirements.
    (h) The marking provision is a material provision of USAID grants 
or cooperative agreements or other assistance awards or subawards. In 
cases where the marking requirements have not been complied with, the 
Agreements 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 it carry out its responsibilities as 
set forth in this provision. Major or repeated non-compliance with the 
marking requirements will trigger a notice of non-compliance with a 
material provision of the USAID grant or cooperative agreement or other 
assistance award or subaward and an opportunity to cure promptly, with 
possible termination if the recipient does not address the material 
noncompliance with marking requirements.
    (i) Non-retroactivity: These marking requirements apply to any 
obligation of USAID funds, including incremental funding, as of [USAID 
will insert the effective date of this provision in the final rule]. In 
the event of a waiver of marking requirements, the marking requirements 
shall apply from the date forward that the waiver is rescinded. In the 
event of the rescinding of a waiver after the completion of USAID 
funded programs, projects, activities or public communications, the 
USAID mission or operating unit with initial responsibility to 
administer the marking requirements shall make a cost benefit analysis 
as to requiring USAID marking requirements after the completion of the 
affected programs, projects, activities or public communications.
    (j) The USAID Identity, the USAID Partner Branding Guide, and other 
marking materials and guidance will be provided at no cost 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 the cost principles of OMB Cost Circular A-110. The 
standard cost reimbursement provisions of the grant, cooperative 
agreement, other assistance award or subaward should be followed when 
applying for reimbursement of additional marking costs.
    (k) If recipients of USAID grants or cooperative agreements or 
other assistance awards or subawards permit their employees to engage 
in public speaking, writing, teaching or promotion efforts such as 
press conferences concerning the USAID funded program, project, 
activity or public communication, such recipients must have an 
organizational policy that requires the organization and all its 
employees to state that they are not representing USAID or the United 
States Government and that their public speaking, writing, teaching or 
promotional efforts do not necessarily reflect the views of USAID or of 
the United States Government.
    (l) If recipients of USAID funded grants and cooperative agreements 
or other assistance awards or subawards have an organizational policy 
permitting employee use of the USAID Standard Graphic Identity on 
business cards or other personally identifying material, such a policy 
must require employee business cards or other personally identifying 
material to bear the USAID Identity along with the legend ``USAID 
grantee,'' while prohibiting employees from claiming status as a USAID 
employee, United States Government employee, or member of the United 
States diplomatic mission.

    Dated: December 15, 2004.
Fred W. Schieck,
Deputy USAID Administrator.
[FR Doc. 04-27791 Filed 12-17-04; 8:45 am]
BILLING CODE 6116-01-P