Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50183 

■ 14. Section 522.1962 is amended by 

revising paragraphs (b) and (c) to read 

as follows: 

§ 522.1962 Promazine hydrochloride. 

* * * * * 

(b) Sponsors. See sponsors in 

§ 510.600(c) of this chapter for use as in 

paragraph (c) of this section: 

(1) No. 000856 for use as in 

paragraphs (c)(1)(i)(A), (c)(1)(ii)(A), 

(c)(1)(iii), and (c)(2) of this section. 

(2) No. 061623 for use as in 

paragraphs (c)(1)(i)(B), (c)(1)(ii)(B), and 

(c)(1)(iii) of this section. 

(c) Conditions of use—(1)Horses—(i) 

Amount—(A) 0.2 to 0.5 milligrams per 

pounds (mg/lb) body weight 

intramuscularly or intravenously every 

4 to 6 hours. 

(B) 0.2 to 0.5 mg/lb body weight 

intravenously as required. 

(ii) Indications for use—(A) For use as 

a tranquilizer, preanesthetic, or for 

minor operative procedures in 

conjunction with local anesthesia; and 

as adjunctive therapy for tetanus. 

(B) For use as a tranquilizer and 

preanesthetic. 

(iii) Limitations. Not for use in horses 

intended for food. Federal law restricts 

this drug to use by or on the order of 

a licensed veterinarian. 

(2) Dogs and cats—(i) Amount. 1 to 2 

mg/lb body weight intramuscularly or 

intravenously every 4 to 6 hours. 

(ii) Indications for use. For use as a 

tranquilizer, preanesthetic, for minor 

operative procedures in conjunction 

with local anesthesia, as adjunctive 

therapy for tetanus, and as an antiemetic 

prior to worming; or to prevent motion 

sickness in dogs. 

(iii) Limitations. Federal law restricts 

this drug to use by or on the order of 

a licensed veterinarian. 

PART 524—OPHTHALMIC AND 

TOPICAL DOSAGE FORM NEW 

ANIMAL DRUGS 

■ 15. The authority citation for 21 CFR 

part 524 continues to read as follows: 

Authority: 21 U.S.C. 360b. 

■ 16. Section 524.1580b is amended by 

redesignating paragraph (c) as paragraph 

(d); by reserving new paragraph (c); and 

by revising paragraph (b) and newly 

redesignated paragraph (d) to read as 

follows: 

§ 524.1580b Nitrofurazone ointment. 

* * * * * 

(b) Sponsors. See sponsors in 

§ 510.600(c) of this chapter. 

(1) See Nos. 000010, 000069, 050749, 

051259, 058005, and 061623 for use on 

dogs, cats, or horses. 

(2) See No. 017135 for use on dogs 

and horses. 

(c) [Reserved] 

(d) Conditions of use—(1) Amount. 

Apply directly on the lesion with a 

spatula or first place on a piece of gauze. 

The preparation should remain on the 

lesion for at least 24 hours. Use of a 

bandage is optional. 

(2) Indications for use. For prevention 

or treatment of surface bacterial 

infections of wounds, burns, and 

cutaneous ulcers of dogs, cats, or horses. 

(3) Limitations. For use only on dogs, 

cats, and horses (not for food use). In 

case of deep or puncture wounds or 

serious burns, use only as recommended 

by veterinarian. If redness, irritation, or 

swelling persists or increases, 

discontinue use; consult veterinarian. 

§ 524.1600a [Amended] 

■ 17. Section 524.1600a is amended in 

paragraph (b) by removing ‘‘, 000332’’. 

■ 18. Section 524.2101 is amended by 

revising paragraphs (b) and (c) to read 

as follows: 

§ 524.2101 Selenium disulfide suspension. 

* * * * * 

(b) Sponsors. See Nos. 000061, 

017135, and 050604 in § 510.600(c) of 

this chapter. 

(c) Conditions of use on dogs—(1) 

Indications for use. For use as a 

cleansing shampoo and as an agent for 

removing skin debris associated with 

dry eczema, seborrhea, and nonspecific 

dermatoses. 

(2) Amount. One to 2 ounces per 

application. 

(3) Limitations. Use carefully around 

scrotum and eyes, covering scrotum 

with petrolatum. Allow the shampoo to 

remain for 5 to 15 minutes before 

thorough rinsing. Repeat treatment once 

or twice a week. If conditions persist or 

if rash or irritation develops, 

discontinue use and consult a 

veterinarian. 

PART 529—OTHER DOSAGE FORM 

NEW ANIMAL DRUGS 

■ 19. The authority citation for 21 CFR 

part 529 continues to read as follows: 

Authority: 21 U.S.C. 360b. 

§ 529.1526 [Removed] 

■ 20. Section 529.1526 is removed. 

§ 529.2090 [Removed] 

■ 21. Section 529.2090 is removed. 

Dated: June 30, 2005. 

Stephen F. Sundlof, 

Director, Center for Veterinary Medicine. 

[FR Doc. 05–16995 Filed 8–25–05; 8:45 am] 

BILLING CODE 4160–01–S 

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: Agency for International 

Development (USAID). 

ACTION: Final rule. 

SUMMARY: This final rule implements 

the statutory requirement that all USAID 

programs be marked appropriately 

overseas as ‘‘American Aid.’’ It does so 

by adding a USAID regulation that 

requires recipients of USAID funded 

grants and cooperative agreements and 

other assistance awards—with certain 

Presumptive Exceptions and subject to a 

waiver if warranted by specific 

conditions in the cooperating country— 

to mark programs, projects, activities, 

public communications, and 

commodities with the USAID Standard 

Graphic Identity (USAID Identity, 

defined below. 

EFFECTIVE DATES: January 2, 2006. 

FOR FURTHER INFORMATION CONTACT: John 

Niemeyer (or designee), Assistant 

General Counsel, Office of the General 

Counsel, USAID, Rm. 6.06.95, 1300 

Pennsylvania Ave., NW., Washington, 

DC 20523; telephone: (202) 712–4776 

(this is not a toll-free number). 

SUPPLEMENTARY INFORMATION: On 

December 20, 2004, USAID published in 

the Federal Register (69 FR 75885– 

75887) a proposed rule to implement 

fully Section 641 of the Foreign 

Assistance Act of 1961, as amended. 

The Agency provided a forty five (45)- 

day public comment period on the 

proposed rule, which ended on 

February 3, 2005. The Agency also 

offered the public the opportunity to 

submit comments by surface mail, email or fax. 

I. Background 

The marking of foreign aid as 

assistance from the U.S. Government 

was first required during the Marshall 

Plan when Congress became concerned 

about 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 under the Foreign Assistance 

Act, including assistance awards, be 

identified appropriately overseas as 

‘‘American Aid.’’ While USAID has 

required its contractors to mark U.S. 

50184 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 

1Changes to the proposed rule in the final rule 

demonstrate that USAID has taken the comments 

into account, and all changes are a logical 

outgrowth of the proposed rule and comments. 

Natural Resources Defense Council, Inc. v. EPA, 824 

F.2d 1258, 1283 (1st Cir. 1987) (Agency can make 

even substantial changes from proposed version as 

long as changes are ‘‘in character with’’ and a 

‘‘logical outgrowth of’’ proposed rule.). 

Government-funded foreign assistance, 

that requirement has applied to 

recipients of grants and cooperative 

agreements only to the limited extent of 

acknowledging USAID funding in 

publications and media releases. A 

Commission on Public Diplomacy 

report, ‘‘Changing Minds, 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.’’ 

Beneficiaries of U.S. aid receive 

billions of dollars of foreign assistance 

every year in the form of grants and 

cooperative agreements, often with little 

to no awareness that the assistance is 

provided by the American people 

through USAID. Clear evidence of the 

new visibility and value of foreign aid 

came in the aftermath of the recent U.S. 

tsunami relief effort, the first time 

USAID’s new ‘‘brand identity’’ was used 

publicly. According to a State 

Department study, in 2004, favorable 

opinions of the U.S. were at record lows 

in many Muslim countries. But, in early 

2005, favorability of the U.S. nearly 

doubled in Indonesia (from 37 to 66 

percent) thanks to the massive delivery 

of—for the first time ‘‘well branded’’— 

U.S. foreign assistance. A Pew Research 

study confirms this: ‘‘Positive opinions 

of the U.S. in Indonesia, which had 

plummeted to as low as 15 percent in 

2003, also have rebounded to 38 

percent. The U.S. tsunami aid effort has 

been widely hailed there; 79 percent of 

Indonesians say they have a more 

favorable view of the U.S. as a result of 

the relief efforts.’’ A senior U.S. 

diplomat summarized the impact of our 

campaign this way: ‘‘The people of 

Ache (Indonesia) saw the branding; they 

knew right away the U.S. Government 

was responding. That absolutely had a 

major impact on their perception of the 

U.S. I think our new global branding is 

a major foreign policy achievement.’’ 

Such awareness of the generosity of the 

American people is an important part of 

the U.S. Government’s public 

diplomacy strategy and a critical part of 

the post 9/11 war against terrorism. 

USAID takes the following action to 

ensure that the American people are 

visibly acknowledged for their 

generosity in providing foreign 

assistance. USAID has carefully 

considered comments to the proposed 

rule, and adjusted the final rule in 

response,1 as set out more fully below. 

II. This Rule 

A. Purpose of Rule 

The purpose of this rule is to bring 

USAID regulations into full alignment 

with Section 641 of the Foreign 

Assistance Act of 1961, as amended, 

which requires that all programs under 

the Foreign Assistance Act be marked 

appropriately overseas as ‘‘American 

Aid.’’ USAID also takes this action for 

the policy reasons noted above. 

B. USAID Regulations Amended by Rule 

This rule adds a new provision, 

(§ 226.91), to 22 CFR part 226, 

Administration of Assistance Awards to 

U.S. Non-Governmental Organizations, 

and amends § 226.2 by adding new 

definitions. 

The new § 226.91 applies to all 

Federal financial assistance awarded by 

USAID to U.S. Non-Governmental 

Organizations (NGOs). Award 

documentation for such Federal 

financial assistance will include 

standard clauses that incorporate the 

requirements of § 226.91, and USAID 

internal directives will highlight, 

explain, and incorporate § 226.91 by 

reference. 

1. Scope of the marking requirement. 

The rule is intended to require marking 

for all implementation activities 

overseas under USAID funded grants 

and cooperative agreements and other 

assistance awards to NGOs, and to 

require use of a marking provision in 

any NGO-issued subaward of USAID 

funding. 

2. Threshold for marking 

requirements. The rule applies to all 

USAID partially or fully funded grants 

and cooperative agreements and other 

assistance awards to U.S. NGOs, and to 

subawards of USAID funding issued by 

U.S. NGOs. 

3. Extent of the marking requirements. 

In most cases, marking of a size and 

prominence equivalent to that of the 

recipients and/or other donors is 

required. USAID reserves the right to 

require marking of a greater size or 

prominence on a per case basis, when 

it is the majority donor of a program, 

project, activity, public communication, 

or commodity. In the event the recipient 

or other donor does not chose to mark 

with its own graphic identity or logo, 

USAID reserves the right to require 

marking with the USAID Identity. 

USAID has greatly reduced the 

paperwork required to comply with this 

rule by limiting those who must submit 

it. The Agreement Officer will request a 

‘‘Branding Strategy,’’ defined in 22 CFR 

226.2, only from ‘‘Apparent Successful 

Applicants,’’ defined in 22 CFR 226.2 

for USAID funds which have been 

recommended for award after technical 

evaluation of their applications. The 

Branding Strategy will describe how the 

program will be named, promoted, and 

communicated to beneficiaries and 

cooperating country citizens and how 

donors will be acknowledged. The 

Branding Strategy will be a required 

submission but will not be 

competitively evaluated. The Branding 

Strategy will be reviewed for adequacy, 

negotiated, and included in the award 

by the Agreement Officer. The 

Agreement Officer also will request 

Apparent Successful Applicants to 

provide a ‘‘Marking Plan,’’ defined at 22 

CFR 226.2., detailing the type (for 

example, plaque or adhesive labels) and 

level of marking (for example, every 

computer or just one sign) for activities, 

commodities, public communications 

and other deliverable items that will 

visibly bear the USAID Identity. The 

Marking Plan also will be reviewed for 

adequacy, negotiated, and included in 

the award by the Agreement Officer. 

The approved Marking Plan will be 

used to monitor compliance with 

marking requirements. Further, specific 

marking instructions and examples will 

be provided to recipients in the USAID 

Partner Co-Branding Guide. USAID will 

consult with interested parties on 

development of the guide. 

4. Exceptions. USAID has established 

‘‘Presumptive Exceptions,’’ that may 

apply to obviate marking requirements 

where marking would interfere with 

USAID and recipient program goals, or 

marking would be inefficient or 

ineffective. Applicants may request the 

USAID Agreement Officer to approve 

one or more applicable Presumptive 

Exceptions as part of their Marking 

Plan. Any approved exceptions will 

apply for the life of the award, unless 

provided otherwise. The ‘‘Presumptive 

Exceptions’’ provision is described fully 

at 22 CFR § 226.91 (h). 

5. Waiver provisions. Because USAID 

intends that marking requirements be 

carried out reasonably, erring on the 

side of safety, USAID has provided in 

the rule an ‘‘emergency’’ waiver 

authority for USAID Principal Officers, 

defined at 22 CFR 226.2, who currently 

exercise similar waiver authority for 

marking requirements under contracts. 

By virtue of being posted in the 

cooperating country, Principal Officers 

have access to current and relevant 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50185 

information concerning political, safety 

and security concerns, including that 

provided by recipients, and can 

anticipate adverse impact in the 

cooperating country. No marking is 

required while a waiver request is 

pending determination by a USAID 

Principal Officer. The waiver provision 

is described fully below. 

In sum, Presumptive Exceptions will 

be approved by the Agreement Officers, 

waivers by the Principal Officers. 

Inclusion of the Presumptive Exceptions 

provision is intended to address the 

majority of common cases where USAID 

marking requirements may not apply; 

the waiver provision is intended to 

address cooperating country political, 

safety and security concerns, 

emergencies, or special cases. 

Please note, when marking with the 

USAID Identity is not required due to an 

exception or waiver, USAID may review 

how program materials will be marked 

if the USAID identity is removed. 

6. Compliance. USAID will monitor 

and enforce the approved Marking Plan 

in USAID awards, and USAID’s Office 

of the Inspector General will audit both 

USAID and recipient compliance with 

the approved Marking Plan. Recipients 

in non-compliance with the Marking 

Plan are subject to the suspension and 

termination provisions of 22 CFR 226.61 

and 226.62. 

7. Costs. Recipients are required to 

submit proposed costs for branding and 

marking as part of their total cost 

estimate, which may be revised and 

negotiated when Apparent Successful 

Applicants are required to submit a 

Marking Plan. All marking costs that are 

reasonable, allocable and allowable will 

be funded by USAID. 

III. Response to Comments Received on 

the Proposed Rule 

On December 20, 2004, USAID 

published in the Federal Register 

(Volume 69, Number 243, Page 75885– 

75887) a Proposed Rule for 

Administration of Assistance Awards to 

U.S. Non-Governmental Organizations, 

Marking Requirements. By February 3, 

2005, the closing date for comments, 

USAID received forty-seven (47) 

comments, including comments from 

NGOs that have received USAID 

funding, trade associations that 

represent them, and other interested 

parties. All of the comments were read, 

and most are discussed below and 

reflected in the final rule, on the 

following basis: While there is no legal 

requirement to respond to every 

comment or discuss every fact or 

opinion included, all have been 

considered that could potentially 

challenge a fundamental premise or are 

relevant and significant. 

The following is a summary of 

comments by issue, and the Agency’s 

responses to those comments. 

A. General Comments 

Comment: Several comments 

expressed concern that USAID restricted 

discussion of the proposed marking 

requirements by sending an Agency 

notice to employees, requesting that all 

comments on the proposed rule be made 

through the rulemaking process. 

Response: USAID engaged in 

rulemaking to ensure that the proposed 

rule would benefit from public 

comment; to provide transparency; and 

so all interested parties would have an 

equal opportunity to comment, not just 

those in the Washington area or with 

access to USAID staff. The Agency 

notice was intended to ensure that 

comments by NGOs and other interested 

parties would be taken into account 

during a formal process, rather than 

through informal conversations with 

USAID employees who could not 

directly affect its outcome. As part of 

this formal rulemaking process, USAID 

is bound by the ‘‘ex parte contact’’ rule 

to limit comments to the rulemaking 

process, to ensure the final rule was 

based on comments in the public 

record, as well as Agency expertise. 

Comment: While there was nearly 

uniform support for the purpose of the 

proposed rule, to ensure that aid 

recipients overseas understand that all 

USAID-funded assistance awards are 

from the American people, several 

comments challenged the authority of 

the Agency to issue a rule requiring 

NGOs to mark USAID funded assistance 

with the USAID Identity. 

Response: USAID’s framework 

legislation, the Foreign Assistance Act 

of 1961, as amended, Section 641, 

provides that ‘‘[p]rograms under this 

Act shall be identified appropriately 

overseas as ‘American Aid.’ ’’ Section 

621 of that same Act provides that the 

head of USAID ‘‘may from time to time 

promulgate such rules and regulations 

as may be necessary’’ to carry out 

Agency functions under the Act, 

including Section 641 marking 

requirements. This authority is not 

contradicted, as one commenter argues, 

because Congress did not say explicitly 

how the marking requirement was to be 

implemented. Under the above 

authority, implementation is left to 

Agency discretion. 

Comment: Several comments also 

questioned the timing and reason for the 

rule, pointing out that USAID has 

existing, less comprehensive marking 

requirements for media products and 

publications in its standard provisions 

for grants to NGOs. 

Response: In response to the 9/11 

tragedy, the U.S. national security 

strategy has been revised to include, for 

the first time, development along with 

diplomacy and defense. As the lead 

development assistance agency of the 

U.S. Government, USAID has the 

responsibility to ensure that 

international development plays a vital 

role in national security by ensuring 

beneficiaries are aware the aid— 

including the funding of grants and 

cooperative agreements—is from the 

American people. Recent surveys show 

that more comprehensive marking 

requirements result in a much more 

favorable impression of the U.S abroad. 

Comment: Several comments also 

questioned the approval of the proposed 

rule by the Office of Management and 

Budget (OMB) or argued that before 

engaging in rulemaking, USAID had to 

seek a deviation from OMB under 22 

CFR part 226.4. 

Response: Both the proposed rule and 

final rule have been reviewed by OMB’s 

Office of Information and Regulatory 

Affairs under Executive Order 12866. 

The deviation procedure set forth at 22 

CFR 226.4 is not pertinent. As noted 

above, section 621 of the Foreign 

Assistance Act of 1961, as amended, 

provides USAID with statutory 

rulemaking authority. USAID used this 

rulemaking authority to issue 22 CFR 

part 226, Administration of Assistance 

Awards to U.S. Non-Governmental 

Organizations, including section 226.1, 

which provides that ‘‘[e]xcept as 

otherwise authorized by statute, this 

part establishes uniform administrative 

requirements * * *’ As noted in the 

proposed rule and above, marking is 

expressly required by statute, and so 

comes within the ‘otherwise authorized 

by statute’ exception of § 226.1. Section 

226.4, ‘‘Deviations,’’ is not related to the 

purpose and applicability of the 

regulations, but rather deviations from 

their general applicability as authorized 

by OMB and if not prohibited by statute. 

The comments calling for USAID to 

obtain an OMB deviation to engage in 

rulemaking have the purpose of such a 

deviation backwards: A deviation is not 

required to permit rulemaking, 

particularly when rulemaking is 

expressly required by a statute—but to 

deviate from rules already promulgated 

by rulemaking and included in any part 

226 of 22 CFR. Any reading of § 226.4 

to the contrary contradicts with its plain 

language, and would frustrate its 

purpose by locking the current version 

of 22 CFR part 226 in stone, a result 

contrary to USAID’s express and 

ongoing rulemaking authority, section 

50186 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 

621 of the Foreign Assistance Act of 

1961, as amended. 

Comment: No similar policy 

concerning marking is apparently being 

pursued by the Department of State, 

which has overall responsibility for 

conduct of foreign relations. Thus the 

marking requirement is simply ‘a 

USAID attempt to raise its visibility.’ 

Response: The USAID marking 

initiative, including the extension of full 

marking requirements to NGOs, has 

been coordinated with the U.S. 

Department of State. Programs 

implemented by the State Department, 

such as the Middle East Partnership 

Initiative (MEPI) and the President’s 

Emergency Plan For AIDS Relief 

(PEPFAR) under the authority of the 

Global AIDS Coordinator, have their 

own marking requirements. USAID is 

the lead foreign assistance agency of the 

U.S. Government, and it is appropriate 

for USAID to exercise leadership in the 

marking of foreign assistance. Because 

USAID often plays a role in 

implementing programs funded in part 

or in whole by sister agencies such as 

the Department of State, recipients may 

be required to include the logo of other 

U.S. Government agencies on USAID 

funded programs, projects, activities, 

public communications, and 

commodities. In such circumstances, 

guidance will be provided on a case by 

case basis. 

The characterization of the initiative 

as simply a ‘USAID attempt to raise its 

visibility overseas’ misinterprets the 

intention of the message and the design 

of the USAID Identity with its emphasis 

not on USAID as the acronym for the 

Agency but ‘US-AID’ (differentiated by 

colors) as a ‘‘brand’’ of foreign 

assistance, like Japanese or British aid, 

as well as the emphasis of the tagline 

‘‘From the American People.’’ 

Comment: USAID also received many 

comments to the effect that the 

proposed rule undercuts the 

independence of grantees, oversteps the 

Federal Grant and Cooperative 

Agreement Act, makes grantees an arm 

of the U. S. Government and, by 

extending marking requirements, is 

treating grantees like contractors. 

Response: Marking is required by the 

Foreign Assistance Act, as noted above. 

Nothing in the marking requirement is 

inconsistent with the definition of a 

grant—to accomplish a public purpose 

of support or stimulation authorized by 

a federal statute—in this case the 

Foreign Assistance Act. Marking does 

not change the funding or purpose of a 

grant or cooperative agreement. All the 

marking requirement does is raise the 

level of visibility of the American 

people’s donation. Other donors to 

NGOs require similar acknowledgement. 

See EU Visibility Guidelines for 

External Actions, November 2002. The 

co-branding requirements established by 

this rule are much less comprehensive 

than USAID’s branding requirements for 

contractors, which do not permit cobranding or marking with a contractor 

logo, and establish rigorous design 

standards similar to those used for 

USAID’s own external communications. 

Comment: Several comments 

expressed concern that markings with 

high visibility would block host-country 

national ‘ownership’ of the program or 

project, cause local citizens to view 

projects adversely, compromise NGOs’ 

apolitical position in a cooperating 

country or otherwise harm the 

acceptance and effectiveness of 

programs and projects in some 

situations. 

Response: The Branding Strategy and 

Marking Plan submitted by the 

Apparent Successful Applicant provides 

the opportunity to propose a program or 

project name, outline the promotional 

and communication activities, and to 

recommend which items are to be 

marked. Such participation by 

recipients ‘up front’ should ensure that 

their concerns about marking 

requirements are addressed in program 

implementation. USAID also has 

included a ‘‘Presumptive Exceptions’’ 

provision that may apply to obviate 

marking requirements, see section 

226.91(h) below. Also, USAID has 

amended the ‘waiver provision’ of the 

final rule to include waivers in case of 

adverse reaction in the cooperating 

country, see section 226.91(j), below. 

USAID employees are dedicated 

development professionals who share 

NGO partners’ focus on designing and 

implementing successful programs. 

They are responsible for reporting 

results and ultimately accountable to 

the Executive Branch, Congress, and the 

American people for return on their 

investment. For these reasons, USAID 

will ensure that use of markings does 

not cause the program or project to fail. 

Comment: Several comments 

suggested including marking 

requirements in the initial Request for 

Proposals (RFPs) or Annual Program 

Statements (APS) for implementation of 

a program or project. The comments 

also included many suggestions for 

more flexibility in application of the 

marking requirements. 

Response: USAID has drafted the rule 

to minimize the burden on applicants, 

and to maximize flexibility. Only those 

Apparent Successful Applicants who 

have been recommended for award after 

technical evaluation will be requested to 

submit a Branding Strategy and Marking 

Plan by the Agreement Officer. Both the 

Strategy and Plan enable implementing 

partners to recommend how to 

customize global marking requirements 

to individual activities, subject to the 

approval of the Agreement Officer. 

Comment: The comments also 

expressed concern over, and requested 

clarification about, the breadth—for 

example, ‘all’ commodities—of the 

marking requirements. 

Response: The Marking Plan enables 

implementing partners to propose the 

appropriate level of marking by 

detailing program commodities that will 

visibly bear the USAID Identity (for 

example, mark all computers but not all 

desks and chairs in a school room). The 

new ‘Presumptive Exceptions’ provision 

narrows the breadth of the marking 

requirement on a case-by-case basis, as 

set forth in the final rule. It also 

includes a de minimis’ rule for items too 

small or otherwise impracticable to 

mark. 

Comment: The comments also raised 

calls for consultation by USAID on the 

creation of the referenced ‘USAID 

Partner Co-Branding Guide.’ 

Response: While the specific 

implementation of statutory marking 

requirements is well within USAID’s 

sole discretion, USAID will actively 

consult with interested parties on the 

USAID Partner Co-Branding Guide. 

Comment: Several comments 

requested clarification that the marking 

requirement does not apply to recipient 

organization offices or vehicles. 

Response: Because the intent of the 

USAID marking requirements is to mark 

programs and projects, not people, the 

final rule does not require marking of 

vehicles, offices, and other 

administrative items for internal use by 

the recipient. See Definitions, 

‘‘Commodities,’’ § 226.2, below. 

Comment: Many of the comments 

raised security concerns and, while 

praising the concept, additional 

questions about the waiver procedure. 

There was also considerable confusion 

about application of the ‘no double 

standard’ policy and requests to delete 

the provision directing Mission 

Directors to recommend removal of a 

recipient organization’s own marking 

when granting a waiver. Finally, there 

were calls for waivers of longer than six 

months duration without review and for 

blanket waivers under certain 

circumstances, such as when a recipient 

was implementing a USAID funded 

program in a country in which U.S. 

Government employees received danger 

pay or where there were active U.S. 

Government military operations. 

Response: USAID is determined to 

implement these marking requirements 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50187 

by erring on the side of safety. 

Recipients in good faith may request a 

waiver through the Cognizant Technical 

Officer (CTO) at any time after award. 

No marking is required while a waiver 

determination is pending. The waiver 

provision has been changed to clarify 

that the ‘no double standard’ provision 

requires the USAID Principal Officer 

making the waiver determination to 

consider at a minimum, information 

provided by the recipient in its request 

for the waiver (NGOs) and U.S 

Government security information, 

where available. The provision 

concerning Principal Officers’ 

recommendations to recipients about 

removal of their own markings has been 

deleted. Decisions of the Principal 

Officer can be appealed to that Principal 

Officer’s cognizant Assistant 

Administrator in USAID. 

Comment: Several comments 

expressed concern or confusion about 

the provisions in the proposed rule at 

§ 226.91(j) and (k), providing for 

disclaimers of a U.S. Government 

employment status for recipient 

employees engaging in public speaking, 

writing or promotional efforts 

concerning the USAID funded program 

or project, and disclaimers of U.S. 

Government employment status for use 

of the USAID Identity on employee 

business cards or other personally 

identifying materials. 

Response: Sections 226.91(j) and (k) 

in the proposed rule have been deleted 

from the final rule. Recipients must seek 

guidance from the Cognizant Technical 

Officer (CTO) concerning any employee 

use of the USAID Identity on employee 

business cards or other personally 

identifying materials. 

Miscellaneous changes to the final 

rule based on general comments or 

Agency review: The non-retroactivity 

provision has been clarified in the final 

rule, and an additional presumptive 

exception has been added to address 

International Committee of the Red 

Cross concerns that any required 

marking not violate international 

neutrality standards. The final rule also 

is clarified to state expressly that 

marking applies to commodities 

provided under Title II Food Aid; the 

Food Aid regulations at 22 CFR 211 will 

be subsequently amended to take into 

account this final rule. Finally, 

§§ 226.91(f) Exceptions and 226.91(g) 

Waivers in the proposed rule have been 

re-lettered 226.91(h) Exceptions and 

§ 226.91(j) Waivers in the final rule. 

B. Comments on Specific Provisions 

Comment, 226.2., Definitions: several 

comments called for USAID to define 

further terms such as activity, 

equipment, programs, projects, and 

supplies. 

Response: USAID has amended the 

definitions section to include 

definitions of ‘‘Activity,’’ ‘‘Programs,’’ 

‘‘Projects,’’ ‘‘Principal Officers,’’ 

‘‘Subrecipient’’ and ‘‘Technical 

Assistance’’ from USAID’s Automated 

Directive System Glossary. In addition, 

definitions of ‘‘Apparent Successful 

Applicant,’’ ‘‘Branding Strategy’’ and 

‘‘Marking Plan’’ have been added. 

‘‘Equipment’’ and ‘‘Supplies’’ are 

already defined at 22 CFR 226.2. 

Comment, 226.90, Appeals: several 

comments called for USAID to explicitly 

provide an appeals process for a USAID 

Principal Officer’s determination 

regarding a waiver request. 

Response: Agreed. Decisions of the 

Principal Officer can be appealed to that 

Principal Officer’s cognizant Assistant 

Administrator in USAID. 

Comment, 226.91(a), ‘‘all programs, 

projects, activities, public 

communications and commodities 

funded by USAID’’: several comments 

were concerned about the breadth of the 

marking requirement, and requested a 

‘de minimis’ exception to marking 

requirements or further definition of the 

terms commodities, supplies and the 

like. 

Response: USAID provides an 

exclusion for vehicles, offices and nonprogram deliverable, administrative 

items for recipient’s internal use in the 

definition of ‘commodities’, see 

definitions, § 226.2, and also a 

‘Presumptive Exceptions’ provision for 

items too small or impracticable to 

mark, see section § 226.91 (h)(5). 

Comment, § 226.91(a), applicability to 

subawards: Several comments asked for 

clarification or recommended that 

marking requirements not ‘flow down’ 

to subawards. 

Response: A ‘flow down’ required 

clause is included in the final rule. 

Because subrecipients are the final 

implementing partner for many USAID 

funded grants and cooperative 

agreements, the marking requirements 

would have only limited effect on 

cooperating country recipients unless 

the marking requirements flow down to 

subawards and subrecipients. 

Comment, § 226.91(a)(1)–(3): There 

were many comments questioning the 

application of the three-tiered 

‘percentage of funding’ trigger for 

marking requirements. 

Response: the three-tiered system has 

been deleted and replaced with a much 

simpler provision requiring marking 

with the USAID Identity of a size and 

prominence equivalent to that of the 

recipient or other donors for all grants 

or cooperative agreements or other 

awards or subawards which USAID is 

partially or fully funding. USAID 

reserves the right to require marking of 

a greater size on a per case basis, when 

it is the majority donor. 

Comment, § 226.91(c): Several 

comments raised concerns that 

overzealous USAID marking 

requirements might compromise or 

undercut program or project goals or 

conflict with local practices or laws. 

Response: USAID has added a 

‘Presumptive Exceptions’ provision that 

will apply, at the Agreement Officer’s 

discretion, to obviate marking 

requirements where marking would 

interfere with USAID and recipient 

goals, or marking would be inefficient, 

ineffective, or in conflict with local 

norms. There is also an exception if 

marking would be contrary to 

international law. Recipients will have 

a chance to request approval of these or 

any other applicable Presumptive 

Exceptions in their Marking Plan. All 

applicable exceptions will be approved 

and included in the Marking Plan by the 

USAID Agreement Officer. 

Comment, § 226.91(d): There were 

several requests to define further 

‘technical assistance’ and state exactly 

what must be marked. In addition, 

specific concern was expressed that the 

application of marking requirements to 

election materials and monitoring, 

independent media programs, public 

service announcements and other 

independent radio or television 

broadcasts, and civil and human rights 

work might undercut the goals of those 

programs in fostering a civil society 

independent from identification with 

the cooperating country government or 

other state actors. 

Response: USAID has included a 

definition of ‘‘technical assistance’’ in 

the final rule at § 226.2. USAID has also 

included a ‘Presumptive Exceptions’ 

section in the final rule, see § 226.91 (h), 

which addresses concerns about 

marking election or democracy 

materials, independent media products, 

and other politically sensitive programs, 

projects, or activities. 

Comments, § 226.91(f), waivers: There 

were many comments and questions 

about application of the waiver 

provisions. While there was widespread 

support of the waiver concept, 

comments differed on its proposed 

application. USAID was advised to 

consider waivers of an indeterminate 

duration; to vest waiver authority in, 

variously, the Agreement Officer, the 

CTO, an official whose performance was 

not tied to desired Agency outcomes in 

a particular country; or to create a 

‘marking’ ombudsman. Several 

comments expressed concern that 

50188 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 

Mission Directors or other Principle 

Officers have not readily exercised other 

waiver authorities, or would be 

restrained in their exercise of waiver 

authority by Ambassadors or other State 

Department officials. 

Response: As noted above in General 

Comments, changes have been made to 

the waiver provision based on 

comments received in the rulemaking 

process. Specifically, USAID accepts the 

comment that the waivers be of longer 

than six months duration; the waiver 

term has been changed to provide for a 

waiver of unlimited duration but one 

that is subject to Principal Officer 

review at any time due to changed 

circumstances. USAID also accepts the 

suggestion that an appeal process be 

provided, and allows the Principal 

Officer’s waiver decision to be appealed 

to the cognizant Assistant Administrator 

in USAID. 

Despite these changes, the waiver 

authority remains in the first instance 

with the USAID Principal Officers at an 

overseas post. USAID has confidence in 

its senior officials on the ground, who 

as a class have been making waiver 

determinations on marking 

requirements for contractors and 

waivers in other sensitive areas, for 

years. The appeals process provides for 

reconsideration of Principal Officer 

determinations. 

Comment. § 226.91(g), role of CTOs in 

monitoring: Several comments 

expressed concern that the CTO was 

required to ‘police’ marking 

requirements. 

Response: USAID intends that the 

marking requirements, like other 

requirements of the USAID grant or 

cooperative agreement or other 

assistance award, be monitored and, if 

need be, enforced. USAID has 

simplified and clarified the process: the 

Marking Plan, once it is approved and 

incorporated in the award, becomes the 

basis for CTO monitoring. USAID will 

be amending its internal ‘CTO 

Designation Letter’ and providing 

specific training to CTOs to cover these 

new responsibilities. 

Comment, § 226.91(h), materiality of 

marking requirement: Several comments 

expressed concern or even intimidation 

about the designation of the marking 

requirement as a ‘material’ provision of 

the grant or cooperative agreement. 

Response: The term ‘material’ has 

been deleted, and the enforcement 

provisions are the same uniform 

suspension and termination provisions 

that apply to all other provisions of the 

award, see 22 CFR 226.61 and 226.62. 

Comment, § 226.91(j): There were 

several comments that pointed out the 

incorrect reference to the cost principles 

OMB Circular A–110 in the proposed 

rule. 

Response: The reference has been 

corrected to the cost principles of OMB 

Circular A–122. 

Comment, § 226.91(k): One comment 

objected to the proposed requirement 

that recipients of USAID funded grants 

and cooperative agreements must have 

an organization policy in turn requiring 

recipient employees to state they are not 

representing USAID and their comments 

do not necessarily reflect the views of 

USAID, when speaking, writing, 

teaching or engaging in promotional 

efforts regarding USAID funded 

programs or projects. 

Response: This proposed provision 

has been deleted from the final rule, 

along with the proposed provision 

concerning the recipient’s employee’s 

use of the USAID Identity on employee 

business cards and other personally 

identifying material, § 226.91 (j). As 

stated above, recipients should consult 

with their CTOs concerning any use of 

the USAID Identity by recipient’s 

employees on personally identifying 

materials such as business cards. 

Findings and Certifications 

Paperwork Reduction Act of 1995 

OMB has determined that the 

requirements for Apparent Successful 

Applicants to submit a Branding 

Strategy and Marking Plan are by virtue 

of inclusion in this regulation 

information collections affecting the 

public within the meaning of the 

Paperwork Reduction Act. The 

requirement to submit a Branding 

Strategy and Marking Plan will not take 

effect until publication of OMB 

approval of the collection of information 

by separate notice in the Federal 

Register. 

This notice initiates the public 

comment period on the collection of 

information required by the requirement 

to submit a Branding Strategy and 

Marking Plan. The proposed 

information collection consists of the 

requirement for Apparent Successful 

Applicants to Submit a Branding 

Strategy and Marking Plan, defined in 

this regulation. No record keeping 

burden is known to result from the 

proposed collection of information. 

Estimated total annual reporting 

burden for the period January 2006– 

January 2009 that will result from the 

collections of information is presented 

below: 

PROJECTED ANNUAL BURDEN DATA

Question Estimated value 

Annual number of expected respondents ............................................................................................................. 500. 

Frequency of responses ........................................................................................................................................ One time. 

Total number of responses expected .................................................................................................................... 500 annually. 

Average response time per respondent, including negotiation ............................................................................. 8 hours. 

Total annual response time for the collection ....................................................................................................... 500 * 8 hour = 4000 hours. 

Pursuant to 5 CFR 1320.8. (d)(1), 

USAID is seeking comment on the above 

requirement to submit a Branding 

Strategy and Marking Plan. Specifically, 

the public is invite to 

(1) Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; (2) Evaluate the 

accuracy of the agency’s estimate of the 

burden of the proposed collection of 

information, including the validity of 

the methodology and assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and (4) Minimize the burden 

of the collection of information on those 

who are to respond, including through 

the use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. Written comments should be 

sent within 60 days of the date of this 

notice by email to 

‘markingnprm@usaid.gov’ or by surface 

mail to John Niemeyer, Assistant 

General Counsel, Office of the General 

Counsel, USAID, Rm. 6.06.95, 1300 

Pennsylvania Ave., NW., Washington, 

DC 20523; telephone: (202) 712–4776 

(this is not a toll-free number). 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50189 

Executive Order 12866—Regulatory 

Planning and Review 

Executive Order 12866, Regulatory 

Planning and Review, requires that 

regulations be reviewed to ensure that 

they are consistent with the priorities 

and principles set forth in the EO 12866. 

As discussed above, the Office of 

Management and Budget (OMB) 

reviewed this rule at USAID’s request. 

This rulemaking implements statutory 

authority and reflects USAID’s response 

to comments received on the proposed 

rule published on December 20, 2004 in 

the Federal Register (69 FR 75885–87). 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 605(b)) requires the Federal 

government to anticipate and reduce the 

impact of rules and paperwork 

requirements on small businesses and 

other small entities. In accordance with 

that Act, the USAID Deputy 

Administrator has reviewed and 

approved this rule, and in so doing 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1531– 

1538) establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments, and on the 

private sector. This rule does not 

impose any Federal mandates on any 

state, local, or tribal governments, or the 

private sector, within the meaning of the 

Unfunded Mandates Reform Act of 

1995. 

Assessment of Federal Regulation and 

Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 requires Federal agencies to 

determine whether a proposed policy or 

regulation may affect family well-being. 

If the agency’s determination is 

affirmative, then the agency must 

prepare an impact assessment 

addressing seven criteria specified in 

the law. The Agency has determined 

that these regulations will not have an 

impact on family well-being as defined 

in the legislation. 

Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

requires that Federal agencies consult 

with state and local government officials 

in the development of regulatory 

policies with federalism implications. 

The Agency has determined that this 

rule does not have federalism 

implications that require special 

consultations with state and local 

government officials. 

Intergovernmental Review 

This Final Rule affects direct grant 

programs that are subject to Executive 

Order 12372 and the regulations in 34 

CFR part 79. The objective of the 

Executive Order is to foster an 

intergovernmental partnership and to 

promote federalism by relying on 

processes developed by state and local 

governments for coordination and 

review of proposed Federal financial 

assistance. 

The Agency has concluded that this 

rule will not create or affect any Federal 

financial assistance to states. However, 

to the extent this rule falls under the 

Order, we intend this document to 

provide early notification of the 

Agency’s specific plans and actions for 

the affected programs. 

Congressional Review 

This regulation is not a major rule as 

defined in 5 U.S.C. Chapter 8. 

Electronic Access to This Document 

You may view this document, as well 

as other U.S. Agency for International 

Development documents published in 

the Federal Register, in text or Adobe 

Portable Document Format (PDF) on the 

Internet at the following site: 

To use PDF you must have Adobe 

Acrobat Reader, [which is available free 

at this site]. If you have questions about 

using PDF, call the U.S. Government 

Printing Office (GPO), toll free, at 1– 

888–293–6498; or in the Washington, 

DC area at (202) 512–1530. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

List of Subjects in 22 CFR Part 226 

Foreign aid, Grant programs, 

Nonprofit organizations. 

■ For the reasons set forth above, 22 

CFR part 226 is amended as follows: 

PART 226—ADMINISTRATION OF 

ASSISTANCE AWARDS TO U.S. NONGOVERNMENTAL 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 § 226.2 by adding the 

following definitions: 

§ 226.2 Definitions 

* * * * * 

Activity mean 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. 

* * * * * 

Apparent successful applicant(s) 

means the applicant(s) for USAID 

funding recommended for an award 

after technical evaluation, but who has 

not yet been awarded a grant, 

cooperative agreement or other 

assistance award by the Agreement 

Officer. Apparent Successful Applicants 

will be requested by the Agreement 

Officer to submit a Branding Strategy 

and Marking Plan. Apparent Successful 

Applicant status confers no right and 

constitutes no USAID commitment to an 

award, which still must be obligated by 

the Agreement Officer. 

* * * * * 

Branding strategy means a strategy the 

Apparent Successful Applicant submits 

at the specific request of a USAID 

Agreement Officer after technical 

evaluation 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. 

* * * * * 

Marking plan means a plan that the 

Apparent Successful Applicant submits 

at the specific request of a USAID 

Agreement Officer after technical 

evaluation 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 marking 

requirements in the Marking Plan. 

* * * * * 

50190 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 

Principal officers means the most 

senior officer in a 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 nonpresence country exercising delegated 

authority from USAID. 

* * * * * 

Programs mean 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. 

* * * * * 

Subrecipient means any person or 

government (including cooperating 

country government) department, 

agency, establishment, or for profit or 

nonprofit organization that receives a 

USAID subaward, as defined in 22 CFR 

226.2. 

* * * * * 

Technical Assistance means the 

provision of funds, goods, services or 

other foreign assistance such as loan 

guarantees or food for work, to 

developing countries and other USAID 

recipients, and through such recipients 

to subrecipients, in direct support of a 

development objective—as opposed to 

the internal management of the foreign 

assistance program. This definition is 

applicable only to 22 CFR 226.91. 

* * * * * 

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.’’ The USAID 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. 

* * * * * 

USAID Partner Co-Branding Guide is 

a USAID produced publication that is 

provided free of charge to recipients of 

USAID funded grants or cooperative 

agreements or other assistance awards 

or subawards, that details recommended 

marking practices and provides 

examples of USAID funded programs, 

projects, activities, public 

communications, and commodities 

marked with the USAID Identity. 

* * * * * 

3. Add § 226.91 to subpart F, to read 

as follows: 

§ 226.91 Marking. 

(a) USAID policy is that all programs, 

projects, activities, public 

communications, and commodities, 

specified further at paragraph (b)–(e) 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 USAIDapproved marking provision in any 

USAID funded subaward, 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 § 226.91 (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 § 226.91 (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 § 226.2, 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 shall provide the 

Cognizant Technical Officer (CTO) 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 shall submit one electronic 

and/or one hard copy of all final 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 50191 

documents to USAID’s Development 

Experience Clearinghouse. 

(d) Subject to § 226.91 (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 § 226.91 (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 technical evaluation of 

applications for USAID funding, USAID 

Agreement Officers will request 

Apparent Successful Applicants to 

submit a Branding Strategy, defined in 

§ 226.2. The proposed Branding Strategy 

will not be evaluated competitively. The 

Agreement Officer shall 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 Apparent Successful 

Applicant ineligible for award. 

(g) After technical evaluation of 

applications for USAID funding, USAID 

Agreement Officers will request 

Apparent Successful Applicants to 

submit a Marking Plan, defined in 

§ 226.2. 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 shall 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 

Apparent 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. Cognizant 

Technical Officers 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 § 226.91 

(a)–(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. 

(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. Apparent 

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 

it’s 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 22 CFR 226.61 

and 226.62. 

(j) USAID Principal Officers, defined 

for purposes of this provision at § 226.2, 

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 

Cognizant Technical Officer. 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 Cognizant Technical Officer 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 

50192 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Rules and Regulations 

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. 

(k) 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 work is changed 

to accommodate any costs associated 

with marking. In the event a waiver is 

rescinded, 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 date 

of completion as defined in 22 CFR 

226.2 but before closeout as defined in 

22 CFR 226.2., 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 date of completion of the 

affected programs, projects, activities, 

public communications or commodities. 

(l) The USAID Identity, USAID 

Partner Co-Branding Guide, 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 the cost principles of 

OMB Cost Circular A–122. 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. 

(m) This section shall become 

effective on January 2, 2006. 

Dated: August 17, 2005. 

Frederick W. Schieck, 

Deputy USAID Administrator. 

[FR Doc. 05–16698 Filed 8–23–05; 1:48 pm] 

BILLING CODE 6116–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[TN–200524–FRL–7952–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Chattanooga, TN; Revised Format for 

Materials Being Incorporated by 

Reference 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; Notice of 

administrative change. 

SUMMARY: EPA is revising the format of 

part 52 of Title 40 of the Code of Federal 

Regulations (40 CFR part 52) for 

materials submitted by Chattanooga, 

Tennessee that are incorporated by 

reference (IBR) into the State 

Implementation Plan (SIP). The 

regulations affected by this format 

change have all been previously 

submitted by the local agency and 

approved by EPA. 

This format revision will affect the 

‘‘Identification of Plan’’ sections of 40 

CFR part 52, by adding a table for the 

Chattanooga portion of the Tennessee 

SIP. This revision will also affect the 

format of the SIP materials that will be 

available for public inspection at the 

Office of the Federal Register (OFR), the 

Air and Radiation Docket and 

Information Center, and the Regional 

Office. 

DATES: This action is effective August 

26, 2005. 

ADDRESSES: SIP materials which are 

incorporated by reference into 40 CFR 

part 52 are available for inspection at 

the following locations: Environmental 

Protection Agency, Region 4, 61 Forsyth 

Street, SW., Atlanta, GA 30303; the 

EPA, Air and Radiation Docket and 

Information Center, Air Docket (Mail 

Code 6102T), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460, 

and the National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Stacy DiFrank at the above Region 4 

address or at (404) 562–9042. 

SUPPLEMENTARY INFORMATION: Each state 

has a SIP containing the control 

measures and strategies used to attain 

and maintain the national ambient air 

quality standards (NAAQS). The SIP is 

extensive, containing such elements as 

air pollution control regulations, 

emission inventories, monitoring 

networks, attainment demonstrations, 

and enforcement mechanisms. 

Each state must formally adopt the 

control measures and strategies in the 

SIP after the public has had an 

opportunity to comment on them and 

then submit the SIP to EPA. Once these 

control measures and strategies are 

approved by EPA, after notice and 

comment, they are incorporated into the 

federally approved SIP and are 

identified in part 52 ‘‘Approval and 

Promulgation of Implementation Plans.’’ 

The full text of the state regulation 

approved by EPA is not reproduced in 

its entirety in 40 CFR part 52, but is 

‘‘incorporated by reference.’’ This 

means that EPA has approved a given 

state regulation with a specific effective 

date. The public is referred to the 

location of the full text version should 

they want to know which measures are 

contained in a given SIP. The 

information provided allows EPA and 

the public to monitor the extent to 

which a state implements a SIP to attain 

and maintain the NAAQS and to take 

enforcement action if necessary. 

The SIP is a living document which 

the state can revise as necessary to 

address the unique air pollution 

problems in the state. Therefore, EPA 

from time to time must take action on 

SIP revisions containing new and/or 

revised regulations as being part of the 

SIP. On May 22, 1997, (62 FR 27968), 

EPA revised the procedures for 

incorporating by reference (IBR), into 

the Code of Federal Regulations, 

materials submitted by states in their 

EPA-approved SIP revisions. These 

changes revised the format for the 

identification of the SIP in 40 CFR part 

52, streamlined the mechanisms for 

announcing EPA approval of revisions 

to a SIP, and streamlined the 

mechanisms for EPA’s updating of the 

IBR information contained for each SIP 

in 40 CFR part 52. Pursuant to these 

revised procedures, EPA is revising the 

format for identification of the 

Chattanooga portion of the Tennessee 

SIP, appearing in 40 CFR part 52. EPA 

has previously revised the format for the 

identification of the Tennessee SIP and 

the Memphis-Shelby County and Knox 

County portions of the SIP. 

EPA has determined that today’s 

action falls under the ‘‘good cause’’ 

exemption in section 553(b)(3)(B) of the 

Administrative Procedure Act (APA) 

which, upon finding ‘‘good cause,’’ 

authorizes agencies to dispense with 

public participation, and APA section 

553(d)(3) which allows an agency to 

make an action effective immediately