[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Rules and Regulations]
[Pages 50183-50192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16698]


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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.

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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, e-mail 
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.

[[Page 50184]]

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.
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    \1\ Changes 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.).
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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, (Sec.  226.91), to 22 CFR part 226, 
Administration of Assistance Awards to U.S. Non-Governmental 
Organizations, and amends Sec.  226.2 by adding new definitions.
    The new Sec.  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 Sec.  226.91, and 
USAID internal directives will highlight, explain, and incorporate 
Sec.  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 Sec.  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

[[Page 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 Sec.  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 Sec.  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

[[Page 50186]]

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 co-
branding 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,'' 
Sec.  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

[[Page 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 Sec.  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, Sec. Sec.  226.91(f) Exceptions and 226.91(g) 
Waivers in the proposed rule have been re-lettered 226.91(h) Exceptions 
and Sec.  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 
non-program deliverable, administrative items for recipient's internal 
use in the definition of `commodities', see definitions, Sec.  226.2, 
and also a `Presumptive Exceptions' provision for items too small or 
impracticable to mark, see section Sec.  226.91 (h)(5).
    Comment, Sec.  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, Sec.  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, Sec.  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, Sec.  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 Sec.  226.2. USAID has also included 
a `Presumptive Exceptions' section in the final rule, see Sec.  226.91 
(h), which addresses concerns about marking election or democracy 
materials, independent media products, and other politically sensitive 
programs, projects, or activities.
    Comments, Sec.  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

[[Page 50188]]

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. Sec.  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, Sec.  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, Sec.  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, Sec.  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, Sec.  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      500.
 respondents.
Frequency of responses.......  One time.
Total number of responses      500 annually.
 expected.
Average response time per      8 hours.
 respondent, including
 negotiation.
Total annual response time     500 * 8 hour = 4000 hours.
 for the collection.
------------------------------------------------------------------------

    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 `<a href="/cdn-cgi/l/email-protection#8fe2eefde4e6e1e8e1fffde2cffafceee6eba1e8e0f9"><span class="__cf_email__" data-cfemail="b1dcd0c3dad8dfd6dfc1c3dcf1c4c2d0d8d59fd6dec7">[email protected]</span></a>' 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).

[[Page 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.


0
For the reasons set forth above, 22 CFR part 226 is amended as follows:

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

0
1. The authority citation for part 226 is revised to read as follows:

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


0
2. Amend Sec.  226.2 by adding the following definitions:


Sec.  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.
* * * * *

[[Page 50190]]

    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 
non-presence 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 Sec.  226.91 to subpart F, to read as follows:


Sec.  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 USAID-approved 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 Sec.  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 Sec.  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 Sec.  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

[[Page 50191]]

documents to USAID's Development Experience Clearinghouse.
    (d) Subject to Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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

[[Page 50192]]

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


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