[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 253-261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-39]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1486

RIN 0551-AA62


Emerging Markets Program

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Final rule.

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SUMMARY: This final rule establishes regulations applicable to the 
Emerging Markets Program (EMP). The regulations provide details 
concerning program administration, including participant eligibility, 
application requirements, review and allocation process, reimbursement 
rules and procedures, financial reporting and project evaluation 
requirements, appeal procedures, and program controls.

DATES: Effective date: February 3, 2005.
    Applicability date: This rule does not apply to projects approved 
prior to the effective date.

ADDRESSES: Denise Huttenlocker, Director, Marketing Operations Staff, 
Foreign Agricultural Service, United States Department of Agriculture, 
1400 Independence Avenue SW., Ag Box 1042, Room 4932-S, Washington, DC 
20250-1042. Fax: (202) 720-9361; e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Douglas Freeman by phone at (202) 720-
4327, by fax at (202) 720-9361, or by e-mail at [email protected].

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SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule is issued in conformance with Executive Order 12866. It 
has been determined that this final rule will not have an annual 
economic effect in excess of $100 million; will not cause a major cost 
increase in costs to consumers, individual industries, Federal, State 
or local government agencies, or geographic regions; and will not have 
an adverse effect on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises in domestic or foreign markets.

Executive Order 12988

    This rule has been reviewed in accordance with Executive Order 
12988, Civil Justice Reform. The rule would have preemptive effect with 
respect to any State or local laws, regulations or policies which 
conflict with such provisions or which otherwise impede their full 
implementation; would not have retroactive effect; and would require 
administrative proceedings before suit may be filed.

Executive Order 12372

    This program is not subject to the provisions of Executive Order 
12372, which requires intergovernmental consultation with State and 
local officials (see the Notice related to 7 CFR part 3015, subpart V, 
published at 48 FR 29115).

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because the Commodity Credit Corporation (CCC) 
is not required by any provision of law to publish a notice of proposed 
rulemaking with respect to the subject matter of this rule.

The Unfunded Mandates Reform Act of 1995

    This rule contains no Federal mandates under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA) for State, local, and tribal governments or the private sector. 
Thus, this rule is not subject to the requirements of sections 202 and 
204 of the UMRA.

Executive Order 13132

    It has been determined that this rule does not have sufficient 
Federalism implications to warrant the preparation of a Federalism 
impact statement. The provisions contained in this rule will not have a 
substantial direct effect on States or their political subdivisions, or 
on the distribution of power and responsibilities among the various 
levels of government.

Paperwork Reduction Act of 1995

    In accordance with provisions of the Paperwork Reduction Act of 
1995, the Foreign Agricultural Service (FAS) submitted an information 
collection package to the Office of Management and Budget (OMB). OMB 
assigned control number 0551-0043 to the information collection and 
record keeping requirements. Copies of the information collection may 
be obtained from Kimberly Chisley, the Agency Information Collection 
Coordinator, on (202) 720-2568 or by e-mail to 
[email protected].

Government Paperwork Elimination Act

    The Foreign Agricultural Service is committed to compliance with 
the Government Paperwork Elimination Act (GPEA), which requires 
Government agencies, in general, to provide the public the option of 
submitting information or transacting business electronically to the 
maximum extent possible. Accordingly, applications for participation in 
the Emerging Markets Program may be submitted online. Payment 
transactions will be handled both electronically and in paper form.

Background

    The EMP is authorized by Section 1542(d) of the Food, Agriculture, 
Conservation, and Trade Act of 1990. The Act directs the Secretary to 
make available to emerging markets the expertise of the United States 
to ``identify and carry out specific opportunities and projects,'' 
including potential reductions in trade barriers, ``in order to 
develop, maintain, or expand markets for United States agricultural 
exports.'' The EMP provides funding for technical assistance activities 
that develop, maintain, or expand the export of U.S. agricultural 
commodities to overseas emerging markets, and which benefit primarily 
U.S. industry as a whole.
    The EMP is administered by personnel of the Foreign Agricultural 
Service. FAS implements this provision by providing CCC funds for 
specific projects to various entities, including government agencies 
and U.S. private entities, representing a wide range of agricultural 
commodities and products.

Summary and Analysis of Contents

    On June 22, 2004, CCC published a rule in the Federal Register (69 
FR 34616) proposing to establish regulations for the Emerging Markets 
Program. That rule also requested interested parties to submit comments 
by July 22, 2004. CCC received 10 comments on the proposed rule. 
Following is a summary of the comments that specifically address the 
proposed rule and CCC's responses to these comments. General comments 
relating to the value of the program, editorial suggestions, and non-
substantive comments have been omitted.

Discussion of Comments

General Information

    Comment: Does the Emerging Markets Program support both public and 
private applications equally?
    Response: While the EMP is available to assist both public and 
private entities, its primary purpose is to support the market 
development efforts of the U.S. private sector. CCC has clarified this 
point in section 1486.100.

Eligibility, Applications and Funding

    Comment: Under what conditions may ``profit-making'' entities 
(section 1486.200) apply for program funding? Section 1486.201 
references research and consulting firms, but does not discuss other 
for-profits.
    Response: CCC has revised section 1486.201 to include other for-
profit entities. CCC also clarified that such entities must justify the 
use and need for federal funding assistance and that the use of program 
funds to supplement the costs of normal day-to-day operations is 
prohibited.
    Comment: If the basic objective of the EMP is the expanded export 
of value-added foods, why does section 1468.100 refer to agricultural 
commodities which is more inclusive?
    Response: CCC assumes reference is to section 1486.100, not 
1468.100.
    The first sentence under section 1486.100 clearly states that the 
EMP is not limited to value-added products, but to assist in the export 
of all U.S. agricultural commodities and products except tobacco.
    Comment: No foreign involvement should be tolerated.
    Response: Foreign organizations, government or private, may 
participate as third parties in activities carried out by U.S. 
entities. Their participation is often critical to the success of a 
given project. Foreign entities are not, however, eligible for funding 
assistance from the program.

Contributions and Reimbursements

    Comment: Will the Emerging Markets Program pay for the cost of 
commodity

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samples for an Emerging Markets funded project?
    Response: The EMP will reimburse the cost of commodity samples for 
an approved project assuming that the expense is reasonable and it is 
included in the application budget. However, the shipping costs for 
commodity samples are not eligible for reimbursement, but can be 
included as a contribution to the project. CCC has revised section 
1486.403 by adding paragraph (b) (8) to clarify this point.
    Comment: There should never be advance payments.
    Response: The EMP is primarily intended to assist small- and 
medium-sized agricultural entities that may not have the available 
funds to implement a project without assistance from the EMP. 
Therefore, while the majority of the program's funds are disbursed on a 
reimbursement basis, the program allows advances on a limited basis and 
for short periods of time. CCC is adopting the rule as proposed.

Reporting, Evaluation and Compliance

    Comment: There is a need for a repository for the conclusions and 
outcome of these completed projects.
    Response: Reporting is required for each project, and final 
performance reports must contain a description of the findings and 
evaluations resulting from completed projects. Final reports are made 
available to the public on the program's Web site accessed through 
http://www.fas.usda.gov.
    Comment: Performance reports should be closely monitored. Reports 
last audited by Government Accountability Office (GAO) show severe 
fraud irregularities. GAO should audit this program every three (3) 
months for several years.
    Response: Approved projects are monitored regularly by EMP staff 
for the full duration. In addition, the Foreign Agricultural Service's 
Compliance Review Staff conducts regular reviews of EMP-funded projects 
to ensure compliance with all applicable federal regulations, 
requirements and terms of the agreements including financial integrity 
and accountability. CCC is not aware of any GAO report that cites 
findings related to fraud or other irregularities under the EMP. 
Therefore, CCC is adopting the rule as proposed.
    This rule includes other clarifying changes to accompany the 
substantive changes discussed herein.

List of Subjects in 7 CFR Part 1486

    Agricultural Commodities, Exports, Grant Programs--Agriculture, 
Technical Assistance.

0
Title 7 of the Code of Federal Regulations is amended by adding a new 
part 1486 to read as follows:

PART 1486--EMERGING MARKETS PROGRAM

Subpart A--General Information

Sec.
1486.100 What is the Emerging Markets Program?
1486.101 What special definitions apply to this program?
1486.102 Is there a list of eligible emerging market countries?
1486.103 Are regional projects possible under the program?
Subpart B--Eligibility, Applications, and Funding
1486.200 What entities are eligible to participate in the program?
1486.201 Under what conditions may research and consultant 
organizations, individuals, or any other for-profit entity apply to 
the program?
1486.202 Are there any ineligible entities?
1486.203 Which commodities/products are eligible for consideration 
under the program?
1486.204 Are multi-year proposals eligible for funding?
1486.205 What types of funding are available under the program?
1486.206 What is the Quick Response Marketing Fund?
1486.207 What is the Technical Issues Resolution Fund?
1486.208 How does an entity apply to the program?
1486.209 How are program applications evaluated and approved?
1486.210 Are there any limits on the funding of proposals?
Subpart C--Program Operations
1486.300 How are applicants notified of decisions on their 
applications?
1486.301 How is the working relationship established between CCC and 
the Recipient of program funding?
1486.302 Can changes be made to a project once it has been approved?
1486.303 What specific contracting procedures must be adhered to?
Subpart D--Contributions and Reimbursements
1486.400 What are the rules on cost sharing?
1486.401 What cost share contributions are eligible?
1486.402 What are ineligible contributions?
1486.403 What expenditures may CCC reimburse under the program?
1486.404 What expenditures are not eligible for program funding?
1486.405 How are Recipients reimbursed for project expenditures?
1486.406 Will CCC make advance payments to Recipients?
Subpart E--Reporting, Evaluation, and Compliance
1486.500 What are the reporting requirements of the program?
1486.501 What is the rule on notifying field offices of 
international travel?
1486.502 How is project effectiveness measured?
1486.503 How is program compliance monitored?
1486.504 How does a Recipient respond to a compliance report?
1486.505 Can a Recipient appeal the determinations of the Director, 
CRS?
1486.506 When will a project be reviewed?
1486.507 What is the effect of failing to make required 
contributions?
1486.508 How long must Recipients maintain original project records?
1486.509 Are Recipients allowed to charge fees for specific 
activities in approved projects?
1486.510 What is the policy regarding disclosure of program 
information?
1486.511 What is the general policy regarding ethical conduct?
1486.512 Has the Office of Management and Budget reviewed the 
paperwork and record keeping requirements contained in this part?

    Authority: 7 U.S.C. 5622 note.

Subpart A--General Information


Sec.  1486.100  What is the Emerging Markets Program?

    (a) The principal purpose of the EMP is to assist U.S. entities in 
developing, maintaining, or expanding the exports of U.S. agricultural 
commodities and products by providing partial funding for technical 
assistance activities that promote U.S. agricultural exports to 
emerging markets, a consistent with U.S. foreign policy interests. The 
Program is intended primarily to support export market development 
efforts of the private sector, but the Program's resources may also be 
used to assist public agricultural organizations as well. Technical 
assistance may include activities such as feasibility studies, market 
research, sector assessments, orientation visits, specialized training, 
business workshops, and similar undertakings.
    (b) The EMP may be used to support exports of U.S. agricultural 
commodities and products only through generic activities.
    (c) Only initiatives that support the export of U.S. agricultural 
commodities and products are eligible for assistance from the program. 
The program's resources may not be used to support the export of 
another country's products to the United States, or to promote the 
development of a foreign economy as a primary objective.
    (d) The program is administered by personnel of USDA's Foreign 
Agricultural Service.

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Sec.  1486.101  What special definitions apply to this program?

    For purposes of this subpart, the following definitions apply:
    Activities--components of a project which, when implemented 
collectively, are intended to achieve a specific market development 
objective.
    Administrator--the Administrator of FAS, or designee.
    Advisory Committee--a group of representatives from the private 
sector appointed by the Secretary of Agriculture whose primary mission 
is to review proposals requesting funding under the EMP and make 
recommendations on projects and programs that can enhance exports 
through the use of program funds.
    Agreement--a written assistance agreement under this part.
    Agricultural Commodity--an agricultural commodity, food, feed, 
fiber, wood, livestock, or insect, and any product thereof; and fish 
harvested from a U.S. aquaculture farm or harvested by a vessel as 
defined in Title 46, United States Code, in waters that are not waters 
(including the territorial sea) of a foreign country.
    Attache/Counselor--the Foreign Agricultural Service employee 
representing United States Department of Agriculture interests in the 
foreign country in which promotional activities are conducted.
    CCC--Commodity Credit Corporation.
    Compliance Review Staff--the office within the Foreign Agricultural 
Service responsible for performing reviews of Recipients to ensure 
compliance under this part.
    Constraint--a condition in a particular country or region which 
inhibits the development, expansion, or maintenance of exports of a 
specific U.S. agricultural commodity or product.
    Cost Share/Contribution--the amount of funding (cash and in-kind) 
U.S. entities are willing to commit from their own resources in support 
of an approved project.
    Deputy Administrator--the Deputy Administrator, Commodity and 
Marketing Programs, Foreign Agricultural Service, or designee.
    Emerging Market--any country or regional grouping that is taking 
steps toward a market-oriented economy through the food, agriculture, 
or rural business sectors of the economy of the country; has the 
potential to provide a viable and significant market for United States 
agricultural commodities or products; a population greater than 1 
million; and a per capita income level below the level for upper 
middle-income countries as determined by the World Bank.
    EMP--Emerging Markets Program.
    FAS--Foreign Agricultural Service.
    Generic Promotion--an activity that does not involve or promote the 
exclusive or predominant use of an individual company name or logo or 
brand name.
    Project--an approach or undertaking made up of one or more 
activities which, taken together, are intended to achieve a specific 
market development objective.
    Project Funds--the funds made available to a Recipient by the 
Commodity Credit Corporation under an agreement, and authorized for 
expenditure in accordance with this part.
    Proposal--an application for funding.
    Recipient--a U.S. entity receiving financial assistance directly 
from the Commodity Credit Corporation or Foreign Agricultural Service 
to carry out a project.
    SRTG--State Regional Trade Group.
    STRE--sales and trade relations expenses including meals, 
receptions, refreshments, checkroom fees, tips, and dining decorations.
    UES--Unified Export Strategy.
    USDA--United States Department of Agriculture.


Sec.  1486.102  Is there a list of eligible emerging market countries?

    The World Bank periodically redefines the income limits on upper 
middle-income economies. Consequently, an absolute list of ``emerging 
market'' countries has not been established. However, CCC will provide 
general guidance on country eligibility in each program announcement.


Sec.  1486.103  Are regional projects possible under the program?

    Projects that focus on regions, such as the Caribbean Basin, rather 
than individual countries, are eligible for consideration provided such 
projects target qualifying emerging markets in the specified region. 
CCC may consider activities which target qualified emerging markets in 
a specific region, but are conducted in a non-emerging market because 
of its importance as a central location and ease of access to that 
region.

Subpart B--Eligibility, Applications, and Funding


Sec.  1486.200  What entities are eligible to participate in the 
program?

    To participate in the EMP, U.S. private or government entities must 
demonstrate a role or interest in the exports of U.S. agricultural 
commodities or products. Government organizations consist of federal, 
state, and local agencies. Private entities include non-profit trade 
associations, universities, agricultural cooperatives, state regional 
trade groups, and profit-making entities and consulting businesses.


Sec.  1486.201  Under what conditions may research and consultant 
organizations, individuals, or any other for-profit entity apply to the 
program?

    (a) Proposals from research and consulting entities will be 
considered for funding assistance only with evidence of substantial 
participation in and financial support by U.S. industry to a proposed 
project. Such support most credibly is provided in the form of actual 
monetary contributions to the cost of a project.
    (b) For-profit entities shall not use program funds to conduct 
private business or to promote private self-interests. For-profit 
entities may not use program funds to supplement the costs of normal 
day-to-day operations or to promote their own products or services 
beyond specific uses approved in a given project.


Sec.  1486.202  Are there any ineligible entities?

    Foreign organizations, whether government or private, may 
participate as third parties in activities carried out by U.S. 
entities, but are not eligible for funding assistance from the program.


Sec.  1486.203  Which commodities/products are eligible for 
consideration under the program?

    All U.S. agricultural commodities/products except tobacco are 
eligible for consideration. Agricultural product(s) should be comprised 
of at least 50 percent U.S. origin content by weight, exclusive of 
added water, to be eligible for funding. Projects which seek support 
for multiple commodities are also eligible.


Sec.  1486.204  Are multi-year proposals eligible for funding?

    Proposals for projects exceeding 1 year in duration may be 
considered. If approved, funding for multi-year projects is normally 
provided 1 year at a time, with commitments beyond the first year 
subject to interim evaluations intended to assess the progress of the 
project toward meeting its intended objectives.


Sec.  1486.205  What types of funding are available under the program?

    CCC has established three pools of funding within the EMP--the 
Central Fund, the Quick Response Marketing Fund, and the Technical 
Issues Resolution Fund. Each year CCC will

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inform the public of the process by which interested eligible entities 
may submit proposals for funding under the Central Fund. Because of the 
time sensitive nature of issues intended to be addressed, the Quick 
Response Marketing Fund and the Technical Issues Resolution Fund will 
be available continuously with no application deadline.


Sec.  1486.206  What is the Quick Response Marketing Fund?

    (a) This fund was established to address priority constraints to 
market access that arise because of unforeseen events; market 
conditions in emerging markets are often less predictable than in more 
developed countries. It allows responsiveness to time-sensitive 
marketing problems or opportunities, such as a change in an import 
regime or the removal of a trade embargo; an unexpected or unusual 
change in the political or financial situation in a country; or a 
significant change in crop conditions--any of which may have an 
immediate impact on the access of particular commodities or products to 
specific markets.
    (b) Proposals for the Quick Response Marketing Fund must identify 
specific market access issues that also face time constraints. 
Application content, evaluation, and reporting requirements are the 
same as for the Central Fund.


Sec.  1486.207  What is the Technical Issues Resolution Fund?

    (a) This fund was established to address technical barriers to 
trade in emerging markets worldwide by providing technical assistance, 
training, and exchange of expertise. These include plant quarantine, 
animal health, food safety, and other technical barriers to U.S. 
exports based on unsound or incomplete scientific information.
    (b) Funding priorities are principally those issues that are time 
sensitive and are strategic areas of longer term interest. Funding 
decisions are determined primarily through a review process that 
includes FAS and relevant regulatory agencies. The review is based upon 
the following criteria:
    (1) The activity occurs in an eligible country or region of market 
priority;
    (2) The trade constraint warrants intervention;
    (3) The proposed activity is likely to achieve an impact in the 
short-or long-term;
    (4) The Recipient is qualified to undertake the proposed activity;
    (5) The budget requested is reasonable and includes leveraged 
resources;
    (6) If applicable, a U.S. domestic constraint or trade issue can be 
resolved in support of a proposed activity; and
    (7) The activity has support from USDA field offices.
    (c) Because of the time sensitive nature of the issues intended to 
be addressed by these funds, proposals, whether private or government, 
may be submitted at any time during the year. Reviews of proposals are 
scheduled on a monthly basis. An expedited review may be requested but 
must be justified.
    (d) Application content, evaluation, and reporting requirements are 
the same as for the Central Fund.


Sec.  1486.208  How does an entity apply to the program?

    CCC will periodically announce that it is accepting proposals for 
participation in the EMP. All relevant information, including 
application deadlines (for the Central Fund) and proposal content, will 
be noted in the announcement, and proposals must be submitted in 
accordance with the terms and requirements specified in the 
announcement. CCC may request any additional information it deems 
necessary from any applicant in order to evaluate properly any 
proposal.


Sec.  1486.209  How are program applications evaluated and approved?

    (a) General. Proposals received by the application deadline stated 
in the announcement for the Central Fund undergo a multi-phase review 
by FAS staff and the EMP Advisory Committee to determine 
qualifications, quality and appropriateness of projects, and 
reasonableness of project budgets.
    (b) Evaluation criteria. FAS will consider a number of factors when 
reviewing proposals, including:
    (1) The ability of the entity to provide an experienced U.S.-based 
staff with knowledge and expertise to ensure adequate development, 
supervision, and execution of the proposed project;
    (2) The entity's willingness to contribute resources, including 
cash and goods and services of the U.S. industry, with greater weight 
given to cash contributions (for private sector proposals only);
    (3) The conditions or constraints affecting the level of U.S. 
exports and market share for the agricultural commodity/product;
    (4) The degree to which the proposed project is likely to 
contribute to the development, maintenance, or expansion of U.S. 
agricultural exports to emerging markets;
    (5) Demonstration of how a proposed project will benefit a 
particular industry as a whole; and
    (6) Past program results and evaluations, if applicable.
    (7) The following priority technical assistance activities:
    (i) Projects and activities which use technical assistance designed 
specifically to improve market access in emerging markets such as 
activities intended to mitigate the impact of sudden political events 
or economic and currency crises in order to maintain U.S. market share;
    (ii) Marketing and distribution of value-added products, including 
new products or new uses. Examples include food service development, 
market research on potential for consumer-ready foods or new uses of a 
product, and export feasibility studies.
    (iii) Studies of food distribution channels in emerging markets, 
including infrastructural impediments to U.S. exports; such studies may 
include cross-commodity activities which focus on problems which affect 
more than one industry, e.g., grain storage handling and inventory 
systems development;
    (iv) Projects that specifically address various constraints to U.S. 
exports, including sanitary and phytosanitary issues and other non-
tariff barriers;
    (v) Assessments and follow-up activities designed to improve 
country-wide food and business systems, to reduce trade barriers, to 
increase prospects for U.S. trade and investment in emerging markets, 
or to determine the potential use for general export credit guarantees;
    (vi) Projects that help foreign governments collect and use market 
information and develop free trade policies that benefit American 
exporters as well as the target country or countries; and
    (vii) Short-term training in agriculture and agribusiness trade 
that will benefit U.S. exporters, including seminars and training at 
trade shows designed to expand the potential for U.S. agricultural 
exports by focusing on the trading system.
    (c) Approval decision. CCC will approve those applications that it 
determines best satisfy the criteria and factors specified in paragraph 
(b) of this section. All decisions regarding the disposition of an 
application are final.


Sec.  1486.210  Are there any limits on the funding of proposals?

    (a) The EMP is a relatively small program intended primarily to 
promote access to qualified emerging markets. Its funds are intended 
for focused projects with specific activities, rather than expansive 
concept papers which contain only broad ideas. Large, overly expensive 
projects (e.g., in excess of approximately $500,000) are rarely 
appropriate for the program.

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    (b) CCC will not reimburse 100 percent of the cost of any project 
undertaken by the private sector. The program is intended to provide 
appropriate assistance to projects which also have a significant amount 
of financial contributions from other sources, especially U.S. private 
industry.
    (c) Funding for continuing and substantially similar projects is 
generally limited to 3 years. After that time, the project is assumed 
to have proven its viability and, if necessary, should be continued by 
the Recipient with its own or with alternative sources of funding.

Subpart C--Program Operations


Sec.  1486.300  How are applicants notified of decisions on their 
applications?

    FAS will notify each applicant in writing of the final decision on 
its application. For approvals, letters will contain the notice of 
approval and any required qualifications or adjustments to the original 
proposal. For rejections, letters will explain reasons why the 
proposals were not approved for funding.


Sec.  1486.301  How is the working relationship established between CCC 
and the Recipient of program funding?

    (a) FAS will send an approval letter followed by a project 
agreement to each approved applicant. The approval letter and agreement 
will specify the terms and conditions applicable to the project, 
including the levels of EMP funding and cost-share contribution 
requirements. The applicant is authorized to begin implementation of 
the project as of the date of the approval letter, unless otherwise 
indicated.
    (b) An applicant who accepts the terms and conditions contained in 
the agreement should so indicate by having the appropriate authorizing 
official sign the agreement and submit it to the Director, Marketing 
Operations Staff, FAS, USDA. The applicant may not be reimbursed for 
approved project expenses until the Recipient's authorizing official 
and CCC have signed the agreement.


Sec.  1486.302  Can changes be made to a project once it has been 
approved?

    (a) Approved projects may be modified if circumstances change in 
such a way that they would likely affect the progress and ultimate 
success of a project. All requests for project modifications must be 
made in writing to FAS and must include:
    (1) A justification as to why changes to the project as originally 
designed are needed;
    (2) An explanation of the necessary adjustments in approach or 
strategy;
    (3) A description of necessary changes in the project's time 
line(s); and
    (4) Necessary changes to the project's budget (e.g., shifting of 
budgetary resources from one line item to another in order to 
accommodate the changes).
    (b) Extensions of project time lines must be approved and made by 
FAS.


Sec.  1486.303  What specific contracting procedures must be adhered 
to?

    (a) The Recipient has full and sole responsibility for the legal 
sufficiency of all contracts it may enter into with one or more third 
parties in order to carry out an approved project and shall assume 
financial liability for any costs or claims resulting from suits, 
challenges, or other disputes based on contracts entered into by the 
Recipient. Neither CCC nor any other agency of the United States 
Government or any official or employee of CCC or the United States 
Government has any obligation or responsibility with respect to 
Recipient contracts with third parties.
    (b) Recipients are responsible for ensuring to the extent possible 
that the terms, conditions, and costs of contracts constitute the most 
economical and effective use of project funds.
    (c) All fees for professional and consulting services paid to third 
parties in any part with project funds must be covered by written 
contracts.
    (d) A Recipient shall:
    (1) Ensure that all expenditures for goods and services in excess 
of $25 reimbursed by CCC are documented by a purchase order, invoice, 
or contract;
    (2) Ensure that no employee or officer participates in the 
selection or award of a contract in which such employee or officer, or 
the employee's or officer's family or partners has a financial interest 
or gains a financial benefit;
    (3) Conduct all contracting in an open manner. Individuals who 
develop or draft specifications, requirements, statements of work, 
invitations for bids, or requests for proposals for procurement of any 
goods or services shall be excluded from competition for such 
procurement;
    (4) Base each solicitation for professional or consulting services 
on a clear and accurate description of the requirements for the 
services to be procured;
    (5) Perform some form of fee, price, or cost analysis, such as a 
comparison of price quotations to market prices or other price indicia, 
to determine the reasonableness of the offered fees or prices; and
    (6) Document the decision-making process.

Subpart D--Contributions and Reimbursements


Sec.  1486.400  What are the rules on cost sharing?

    (a) The EMP is intended to complement, not supplant, the efforts of 
the U.S. private sector. Therefore, no private sector proposal will be 
considered without the element of cost-share from the participant and/
or U.S. partners.
    (b) There is no minimum or maximum amount of cost share. The degree 
of commitment to a proposed project represented by the amount and type 
of private funding are both used in determining which proposals will be 
approved. The type of cost share is also not specified, though some 
contributions are ineligible (Sec.  1486.402 below). Cost-share may be 
actual cash invested or professional time of staff assigned to the 
project. Proposals in which the private sector is willing to commit 
funds, rather than in-kind items such as staff resources, and those 
with higher amounts of cost-share, will be given priority 
consideration.
    (c) Cost-sharing is not required for proposals from federal, state, 
or local government agencies. It is mandatory from all other eligible 
entities, even when they are party to a joint proposal with a 
government agency.
    (d) Contributions from federal, state, or local government agencies 
or programs may not be counted toward the cost share requirement. 
Similarly, contributions from foreign (non-U.S.) organizations may not 
be counted toward the cost share requirement, but may be included in 
the total cost of the project.
    (e) An activity that is initiated by FAS, and undertaken by an 
entity at the request of FAS, may be exempted from the contribution 
requirement. This determination is made at the discretion of FAS.


Sec.  1486.401  What cost share contributions are eligible?

    (a) Eligible contributions are those expenses that:
    (1) Have not been or will not be reimbursed by any other source 
outside of the Recipient or other participating U.S. entity;
    (2) Are incurred during the period covered by the project 
agreement;
    (3) Are directly related to activities necessary to implement an 
approved project; and
    (4) Are not proscribed under Sec.  1486.402.
    (b) Contributions must be included in a project's line item budget.

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Sec.  1486.402  What are ineligible contributions?

    (a) The following are not eligible as contributions:
    (1) Normal operating expenses and other costs not directly related 
to the project;
    (2) Any portion of salary or compensation of an individual who is 
the focus of a promotional activity;
    (3) Depreciation, e.g., office equipment;
    (4) The cost of insuring articles owned by private individuals;
    (5) The cost of product development or product modifications;
    (6) Slotting fees or similar sales expenditures;
    (7) Funds, services, capital goods, or personnel provided by any 
U.S. government agency;
    (8) Capital investments made by a third party, such as permanent 
structures, real estate, and the purchase of office equipment and 
furniture;
    (9) The value of any services generated by a third party which 
involve no expenditure by the Recipient or third party, e.g., free 
publicity;
    (10) The cost of developing any application/proposal for EMP 
funding;
    (11) Costs included as contributions for any other federally-
assisted project or program;
    (12) Membership fees in clubs and social or professional 
organizations; and
    (13) Any expenditure made prior to approval of an EMP-funded 
project.
    (b) The Deputy Administrator shall determine, at his or her 
discretion, whether any cost not expressly listed in this section may 
be included as an eligible contribution.


Sec.  1486.403  What expenditures may CCC reimburse under the program?

    (a) A Recipient may seek reimbursement for an expenditure if:
    (1) The expenditure is reasonable and is specified in the project 
budget in furtherance of an approved activity; and
    (2) The Recipient has not been or will not be reimbursed for such 
expenditure by any other source.
    (b) Subject to paragraph (a) of this section, CCC will reimburse, 
in whole or in part, the cost of:
    (1) Salaries and benefits of the Recipient's existing personnel or 
any other participating entity that are assigned to EMP-funded 
projects; however, reimbursement is limited to:
    (i) The actual daily rate paid by the Recipient for the employee's 
salary or the daily rate of a General Schedule U.S. Government 
employee, GS-15/Step 10 in effect during the calendar year in which the 
project or activity is approved for funding, whichever is less;
    (ii) The actual assigned time of the employee to the project; and
    (iii) Benefits at a maximum rate of 30 percent of the existing 
salary of the employee, prorated to the time assigned to the project. 
In addition, reimbursement for an employee's time spent on an EMP-
funded project must be in lieu of compensation from the Recipient or 
any other participating entity.
    (2) Consulting fees for professional services; however, 
reimbursement for consulting fees is limited to the daily rate of a 
General Schedule U.S. Government employee, GS-15/Step 10 in effect 
during the calendar year in which the project or activity is approved 
for funding. Reimbursement is authorized only for actual days worked 
and is not authorized for travel and rest days. Benefits are not 
reimbursable.
    (3) STRE, including breakfast, lunch, dinner, and refreshments when 
part of an approved overseas trade activity; miscellaneous courtesies 
such as checkroom fees, taxi fares, and tips; and representation 
expenses such as the costs of social events or receptions that are 
primarily attended by foreign officials, and which are held at foreign 
venues. Such expenses must conform to the American Embassy 
representational funding guidelines as the standard for judging the 
appropriateness of STRE event costs. STRE incurred in the United States 
is not authorized for reimbursement, but may be counted as a cost-share 
contribution to the project.
    (4) Travel expenses, subject to the following:
    (i) Air travel, limited to the full-fare economy class rate and 
must comply with the Fly America Act, 49 U.S.C. App. 1517. The CCC will 
not reimburse any portion of air travel in excess of the full fare 
economy rate or when the participant fails to notify the Counselor/
Attache in the destination country in advance of the travel unless the 
Deputy Administrator determines it was impractical to provide such 
notification.
    (ii) Per diem, limited to the allowable rate for each domestic or 
foreign locale (41 CFR Chapter 301). Expenses in excess of the 
authorized per diem rates may be allowed in special or unusual 
circumstances (41 CFR Chapter 301, subpart D), and must be approved in 
advance.
    (iii) All other expenses while in travel status must conform to 
U.S. Federal Travel Regulations (41 CFR Chapters 301 and 304).
    (5) Direct administrative costs.
    (6) Indirect costs not identified as direct costs but which are 
necessary to the implementation of a project. Indirect costs must be 
specified to be eligible for reimbursement. Indirect costs incurred by 
private entities (other than those identified below) may be reimbursed 
up to a maximum of 10 percent of the EMP funded portion of the project 
budget, excluding indirect costs. Market development cooperators, state 
regional trade groups, for-profit entities, and government Recipients 
(excluding FAS) may not be reimbursed for indirect costs. Indirect 
costs are not reimbursable for any project funded under the Technical 
Issues Resolution Fund or the Quick Response Marketing Fund.
    (7) Rental costs for equipment necessary to carry out approved 
projects. Equipment rentals must be returned by the Recipient to the 
supplier in accordance with the lease agreements, but in no case later 
than 90 calendar days from the completion date of the project.
    (8) Procuring samples of specific commodities or agricultural 
products, which are appropriate and necessary to the success of a 
technical assistance activity.


Sec.  1486.404  What expenditures are not eligible for program funding?

    (a) CCC will not reimburse expenditures made prior to approval of a 
Recipient's proposal, unreasonable expenditures, or any cost of:
    (1) Branded product promotions--in-store, restaurant advertising, 
labeling, etc.;
    (2) Administrative and operational expenses for trade shows;
    (3) Advertising;
    (4) Preparation and printing of magazines, brochures, flyers, 
posters, etc., except in connection with specific approved activities 
such as training;
    (5) Design, development, and maintenance of Internet Web sites;
    (6) Purchase and depreciation of equipment, e.g. office equipment 
or other fixed assets;
    (7) Subsidizing or otherwise providing funds for graduate programs 
at colleges and/or universities (salaries or fees for individual 
students who are directly assigned to specific project activities 
appropriate to their backgrounds may be covered on a pro-rated basis);
    (8) Subsidizing normal, day-to-day operating costs of an entity; 
exception: indirect costs incurred during implementation of an approved 
project;
    (9) Honoraria for speakers;
    (10) Costs of product research or new product development;
    (11) Costs of developing technical assistance proposals submitted 
to the program;
    (12) Refundable deposits or advances;

[[Page 260]]

    (13) STRE expenses within the United States;
    (14) All costs related to the shipping, over land and sea, of 
commodity samples;
    (15) Expenses, fees, fines, settlements, or claims resulting from 
suits, challenges, or disputes emanating from contractual terms, 
conditions, provisions, and related formalities;
    (16) Legal fees, including fees and costs associated with trade 
disputes;
    (17) Real estate costs other than allowable costs for office space 
whose use is assigned specifically to a project funded by the EMP; and
    (18) Any expenditure that has been or will be reimbursed by any 
other source.
    (b) The Deputy Administrator may determine whether any cost not 
expressly listed in this section will be reimbursed.


Sec.  1486.405  How are Recipients reimbursed for project expenditures?

    (a) After implementation of an EMP project for which CCC has agreed 
to provide funding, Recipients may submit claims for reimbursement of 
the expenses incurred to the extent CCC has agreed to pay for such 
costs. Reimbursement for approved project expenses is limited to 85 
percent of the amount specified in the project agreement. The Recipient 
may be reimbursed for the remaining 15 percent of the funds after the 
final performance report containing the information required by the 
agreement is submitted to and approved by FAS.
    (b) A format for reimbursement claims is available from the 
Marketing Operations Staff, FAS, USDA.
    (c) Final reimbursement claims must be made no later than 90 days 
after the completion date of the project, and are subject to a complete 
final performance report acceptable to FAS.
    (d) Any duplicate payment or overpayment made by CCC shall be 
returned by the Recipient promptly after discovery of the overpayment 
by the Recipient or within 30 days after notification by FAS, either by 
submitting a check made payable to the Commodity Credit Corporation and 
referencing the applicable project, or by offsetting as a credit on the 
next reimbursement claim. All checks shall be mailed to the Director, 
Marketing Operations Staff, FAS, USDA.


Sec.  1486.406  Will CCC make advance payments to Recipients?

    (a) Policy. In general, CCC operates the EMP on a cost reimbursable 
basis.
    (b) Exception. Upon request, CCC may make advance payments to a 
Recipient against an approved project budget. Up to 40 percent of the 
approved project budget may be provided as an advance, either at one 
time or in incremental payments. Advances should be limited to the 
minimum amounts needed and requested as close as is administratively 
feasible to the actual time of disbursement by the Recipient. 
Reimbursement claims will be used to offset advances. Recipients shall 
deposit and maintain advances in insured, interest-bearing accounts.
    (c) Refunds due CCC. A Recipient shall expend all advances within 
90 calendar days after the date of disbursement by CCC. A Recipient 
shall return all interest earned by advances plus any unexpended 
portion of the advance within 90 calendar days after the date of 
disbursement by CCC by submitting a check payable to CCC. All checks 
shall be mailed to the Director, Marketing Operations Staff, FAS, USDA.

Subpart E--Reporting, Evaluation, and Compliance


Sec.  1486.500  What are the reporting requirements of the program?

    (a) Performance Reports. (1) Recipients are required to submit 
regular progress reports in accordance with the project agreement. 
Quarterly progress reports are required for all projects with a 
duration of 1 year or longer. Projects of less than 1 year in duration 
generally require a mid-term report.
    (2) Final performance reports must be submitted no later than 90 
days after completion of the project, both electronically (preferably 
in PDF format) and in hard copy.
    (3) Reporting requirements and formats for both quarterly progress 
reports and final performance reports are specified in the project 
agreement between CCC and the Recipient entity.
    (4) All final performance reports will be made available to the 
public.
    (b) Financial Reports. Final financial reports must be submitted no 
later than 90 days after completion of the project. Such reports must 
provide a final accounting of all project expenditures by cost 
category, and include the accounting of actual contributions made to 
the project by the Recipient and all other participating entity or 
entities.


Sec.  1486.501  What is the rule on notifying field offices of 
international travel?

    The Recipient must advise the Agricultural Counselor(s) or 
Attache(s) in the country or countries of any planned visits by the 
Recipient or its consultants or other participants to such country or 
countries under terms of its agreement. Failure to notify the 
Counselor/Attache may result in disallowance of the travel 
expenditures.


Sec.  1486.502  How is project effectiveness measured?

    Project evaluations may be carried out by FAS at its option with or 
without Recipients. FAS may also seek outside expertise to conduct or 
participate in evaluations.


Sec.  1486.503  How is program compliance monitored?

    (a) The CRS, FAS, performs periodic on-site reviews of Recipients 
to ensure compliance with this part, applicable federal regulations, 
and the terms of the project agreements. Program funds spent 
inappropriately or on unapproved activities must be returned to CCC. 
The CRS will review contributions from Recipients for compliance with 
project budgets as approved and specified in the agreements.
    (b) The Director, CRS, will notify a Recipient through a compliance 
report when, in the opinion of the Director, CRS, it appears that CCC 
is entitled to recover funds from that Recipient. The report will state 
the basis for this action.


Sec.  1486.504  How does a Recipient respond to a compliance report?

    (a) A Recipient shall, within 60 days of the date of the compliance 
report, submit a written response to the Director, CRS. The Director, 
CRS, at his or her discretion, may extend the period for response up to 
an additional 30 days. The response shall include:
    (1) Repayment of any funds determined to be due to CCC;
    (2) Submission of documentation or evidence of any other required 
action; or
    (3) A request for reconsideration of any finding and the supporting 
justification.
    (b) If after review of the compliance report and response, the 
Director, CRS determines that the Recipient owes money to CCC, the 
Director, CRS, will so inform the Recipient and provide a detailed 
basis for the decision. The Recipient has 30 days from the date of the 
Director's, CRS, determination to submit any money owed to CCC or to 
request reconsideration.
    (c) If the Recipient does not respond to the compliance report 
within the required time period, the Director, CRS, may initiate action 
to collect any amount owed to CCC pursuant to 7 CFR Part 1403, Debt 
Settlement Policies.


Sec.  1486.505  Can a Recipient appeal the determinations of the 
Director, CRS?

    (a) A Recipient may appeal the determinations of the Director, CRS, 
to the Deputy Administrator, CMP. The request must be in writing and be

[[Page 261]]

submitted to the Office of the Deputy Administrator, CMP, within 30 
days following the date of the original determination. The Recipient 
may request a hearing.
    (b) If the Recipient submits its appeal and requests a hearing, the 
Deputy Administrator, or the Deputy Administrator's designee, will set 
a date and time, generally within 60 days. The hearing will be an 
informal proceeding. A transcript will not ordinarily be prepared 
unless the Recipient bears the cost of the transcript; however, the 
Deputy Administrator or designee may have a transcript prepared at 
FAS's expense.
    (c) The Deputy Administrator or the Deputy Administrator's designee 
will base the determination on appeal upon information contained in the 
administrative record and will endeavor to make a determination within 
60 days after submission of the appeal, hearing, or receipt of any 
transcript, whichever is later. The determination of the Deputy 
Administrator will be the final determination of FAS. The Recipient 
must exhaust all administrative remedies contained in this section 
before pursuing judicial review of a determination by the Deputy 
Administrator.


Sec.  1486.506  When will a project be reviewed?

    Any project or activity funded under the program is subject to 
review or audit at any time during the course of implementation or 
after the completion of the project.


Sec.  1486.507  What is the effect of failing to make required 
contributions?

    A Recipient's contribution requirement is specified in the project 
agreement. If a Recipient fails to contribute the total specified in 
the agreement, the difference between the amount contributed and the 
total must be repaid to the CCC in U.S. dollars. If a Recipient is 
reimbursed by CCC for less than the amount of funds approved in the 
agreement, then the final cost share shall equal, on a percentage 
basis, the original ratio of private contributions to the authorized 
EMP funding level.


Sec.  1486.508  How long must Recipients maintain original project 
records?

    Each Recipient shall maintain all original records and documents 
relating to the project for 3 calendar years following the end of the 
project's completion. All documents and records related to the project, 
including records pertaining to contractors, shall be made available 
upon request.


Sec.  1486.509  Are Recipients allowed to charge fees for specific 
activities in approved projects?

    Reasonable activity fees or registration fees, if identified as 
such in a project budget, may be charged for projects approved for 
program funding. Income or refunds generated from an activity, however, 
for which the expenditures have been wholly or partially reimbursed, 
shall be repaid by submitting a check payable to CCC or offsetting the 
Recipient's reimbursement claim. Any activity fees charged must be used 
to offset activity expenses. Such fees may not be used as profit or 
counted as cost-share. The intent to charge a fee must be part of the 
original proposal, along with an explanation of how such fees are to be 
used.


Sec.  1486.510  What is the policy regarding disclosure of program 
information?

    (a) Documents submitted to CCC by Recipients are subject to the 
provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, 7 
CFR Part 1, Subpart A--Official Records, and specifically 7 CFR 1.11, 
Handling Information from a Private Business.
    (b) Progress reports, final performance reports, and the results of 
any research or other activity conducted by a Recipient under an 
agreement, shall be the property of the U.S. Government.


Sec.  1486.511  What is the general policy regarding ethical conduct?

    (a) The Recipient shall maintain written standards of conduct 
governing the performance of its employees engaged in the award and 
administration of contracts. No employee, officer, or agent shall 
participate in the selection, award, or administration of a contract 
supported by Federal funds if a real or apparent conflict of interest 
would be involved. Such a conflict would arise when the employee, 
officer, or agent and any member of his or her immediate family, his or 
her partner, or an entity which employs or is about to employ any of 
the parties indicated herein, has a financial or other interest in the 
firm selected for an award. The officers, employees, and agents of the 
Recipient shall neither solicit nor accept gratuities, favors, or 
anything of monetary value from contractors, or parties to sub-
agreements. However, Recipients may set standards for situations in 
which the financial interest is not substantial or the gift is an 
unsolicited item of nominal value. The standards of conduct shall 
provide for disciplinary actions to be applied for violations of such 
standards by officers, employees, or agents of the Recipient.
    (b) A Recipient shall conduct its business in accordance with the 
laws and regulations of the country in which an activity is carried 
out.


Sec.  1486.512  Has the Office of Management and Budget reviewed the 
paperwork and record keeping requirements contained in this part?

    The paperwork and record keeping requirements imposed by this part 
have been submitted to the Office of Management and Budget (OMB) for 
review and under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). OMB has assigned control number 0551-0043 for this information 
collection.

    Dated: December 1, 2004.
A. Ellen Terpstra,
Administrator, Foreign Agricultural Service and Vice President, 
Commodity Credit Corporation.
[FR Doc. 05-39 Filed 1-3-05; 8:45 am]
BILLING CODE 3410-10-P