USAID Assistance Regulation: Plain Language and Conforming Revisions, 63073-63079 [2024-16945]

Agencies

• Agency for International Development

[Federal Register Volume 89, Number 149 (Friday, August 2, 2024)]
[Rules and Regulations]
[Pages 63073-63079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16945]



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Rules and Regulations
                                                Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 89, No. 149 / Friday, August 2, 2024 / Rules 
and Regulations

[[Page 63073]]



AGENCY FOR INTERNATIONAL DEVELOPMENT

2 CFR Parts 700

RIN 0412-AB12


USAID Assistance Regulation: Plain Language and Conforming 
Revisions

AGENCY: U.S. Agency for International Development.

ACTION: Direct final rule.

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SUMMARY: The U.S. Agency for International Development (USAID) is 
issuing this final rule revising the Agency for International 
Development Assistance Regulation to maintain consistency with Federal 
and agency regulations and guidance, make editorial amendments to 
clarify the regulation, and implement the Office of Management and 
Budget's April 2024 revisions.

DATES: This rule is effective October 1, 2024, without further action, 
unless significant adverse comments are received by September 3, 2024. 
If significant adverse comment(s) are received, USAID will publish a 
timely withdrawal of those portion(s) of the rule in the Federal 
Register. Submit comments on or before September 3, 2024.

ADDRESSES: You may send comments, identified by your name, company name 
(if any), and the Regulatory Information Number (RIN) 0412-AB12 for 
this rulemaking via the following method:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for sending comments.
    Instructions: All submissions received must include the agency name 
and RIN for this rulemaking. All comments received will be posted 
without change to https://www.regulations.gov, including any personal 
information provided. We recommend that you do not submit information 
that you consider Confidential Business Information (CBI) or any 
information that is otherwise protected from disclosure by statute. If 
your comment cannot be submitted using https://www.regulations.gov, 
please email the point of contact in the FOR FURTHER INFORMATION 
CONTACT section of this document for alternate instructions.

FOR FURTHER INFORMATION CONTACT: Kelly Miskowski, 202-256-7378, 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    USAID is publishing this revision as a direct final rule as the 
changes are conforming and administrative amendments, and the agency 
does not anticipate any significant adverse comments. This rule will be 
effective on the date specified in the DATES section above without 
further notice unless significant adverse comment(s) are received by 
the date specified in the DATES section above.
    USAID will only address comments that explain why the rule would be 
inappropriate, ineffective, or unacceptable without a change. USAID may 
not consider comments that are insubstantial or outside the scope of 
the rule.
    If significant adverse comments are received on the direct final 
rule, USAID will publish a timely partial withdrawal in the Federal 
Register informing the public what sections of the rule will not take 
effect. Any portions of the final rule for which no significant adverse 
comments are received will become final after the designated period.
    Additionally, USAID is publishing a separate document in the 
``Proposed Rules'' section of this Federal Register that will serve as 
the proposal to approve revision for which significant adverse comments 
may be received. In this case, USAID will address all public comments 
in a subsequent final rule based on the proposed rule. USAID will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

II. Background

    On December 13, 2021, the President issued Executive Order 14058 
entitled ``Transforming Federal Customer Experience and Service 
Delivery to Rebuild trust in Government''. Section 4(m) of this E.O. 
requires that USAID review and revise regulations to ensure that they 
are clear and intelligible, do not contain unjustified administrative 
burdens or excessive paperwork requirements, and do not place undue 
burdens on local organizations and underserved communities.
    On April 22, 2024, The Office of Management and Budget (OMB) issued 
a final rule revising the Uniform Guidance for Federal Financial 
Assistance (89 FR 30046). This was the result of a comprehensive 
process to revise and strengthen Title 2 of the Code of Federal 
Regulations (``2024 Revisions'') with multiple opportunities for the 
public to provide feedback. OMB then issued OMB Memo M-24-11, 
``Reducing Burden in the Administration of Federal Financial 
Assistance'' which provided implementation guidance to agencies. This 
memo directs agencies to implement the 2024 Revisions quickly and 
consistently but no later than October 1, 2024. The purpose of the 2024 
revisions was to: (1) incorporate statutory requirements and 
administration priorities; (2) reduce agency and recipient burden; (3) 
clarify sections that recipients or agencies have interpreted in 
different ways; and (4) rewrite applicable sections in plain language.
    In furtherance of both E.O. 14058 and the 2024 Revisions, USAID 
proposes to revise 2 CFR 700 in its entirety to clarify the regulation, 
make plain language revisions, align text to the 2024 revisions, and 
reduce agency and recipient burden. Given that USAID will be making 
mostly editorial revisions to the chapter in its entirety, a courtesy 
redline copy is located here for ease of reference: https://www.usaid.gov/document/track-changes-version-2-cfr-700-usaid-assistance-regulation.
    This rule incorporates updates to 2 CFR 700.
    The following changes are implemented by this final rule:
     Subpart A of 2 CFR 700 at 2 CFR 700.1 is revised to 
relocate definitions which are specific to Branding and Marking 2 CFR 
700.16 and provide plain language definitions. 2 CFR 700.0, Acronyms, 
is added and reserved.
     Subpart B of 2 CFR 700 at 2 CFR 700.2, 700.3, 700.4, and 
700.5 is revised to align language with the 2024 Revisions and clarify 
that Subparts A through D of 2 CFR part 200 apply to for-profit 
entities located in the United States or its territories. The Federal

[[Page 63074]]

Acquisition Regulation at 48 Part 30 and 31 takes precedence over the 
cost principles in Subpart E for both U.S. based and foreign for-profit 
entities. This is already USAID's policy; so, the language in the 
applicability section has been revised for clarity.
     Subpart C of 2 CFR 700 at 700.6 and 700.7 is revised for 
clarity.
     Subpart D of 2 CFR 700 at 700.8, 700.9, 700.10, 700.11, 
700.12, 700.13, 700.14, and 700.15 is revised to align language with 
the 2024 Revisions and for clarity.
     Subpart E of 2 CFR 700 is added and reserved to align with 
the structure of 2 CFR 200.
     Subpart F of 2 CFR 700 is added and reserved to align with 
the structure of 2 CFR 200.
     Subpart G is added, and 2 CFR 700.16 is moved to this 
section to outline USAID specific requirements that are not derived 
from 2 CFR 200. This section is revised for plain language revisions, 
to conform with changes to underlying laws, and to reduce agency and 
recipient burden. Specifically, this section is revised to allow for 
Agreement Officers to indicate in the Notice of Funding Opportunity 
that an apparently successful applicant may submit a Branding Strategy 
and Marking Plan after the award is made rather than requiring one 
before.

III. Impact Assessments

(1) Executive Order 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 14094 (Modernizing 
Regulatory Review)

    Executive Orders (E.O.s) 12866, Regulatory Planning and Review, and 
13563, Improving Regulation and Regulatory Review, direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    E.O. 14094 amends section 3(f)(1) of E.O. 12866 to define a 
``significant regulatory action'' as an action that is likely to result 
in a rule: (1) having an annual effect on the economy of $200 million 
or more in any 1 year (adjusted every 3 years by the Administrator of 
OIRA for changes in gross domestic product), or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, territorial, or tribal governments or communities; (2) creating 
a serious inconsistency or otherwise interfering with an action taken 
or planned by another agency; (3) materially altering the budgetary 
impacts of entitlement grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raising legal or 
policy issues for which centralized review would meaningfully further 
the President's priorities or the principles set forth in this 
Executive order, as specifically authorized in a timely manner by the 
Administrator of OIRA in each case. A regulatory impact analysis (RIA) 
must be prepared for regulatory actions with significant effects ($200 
million or more in any 1 year). This rule has been determined 
``nonsignificant'' under E.O. 12866.

(2) Congressional Review Act

    This final rule is not a major rule under the Congressional Review 
Act (5 U.S.C. 801 et seq.).

(3) Executive Order No. 13132

    This rule will not have a substantial direct effect on the states, 
on the relationships between the national government and the states, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, it is determined that this final rule 
does not contain policies that have federalism implications.

(4) Regulatory Flexibility Act

    The rule will not have an impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 
601, et seq. Further, the rule incorporates administrative changes to 2 
CFR 700 and does not add any new requirements on USAID recipients or 
subrecipients. Therefore, an Initial Regulatory Flexibility Analysis 
has not been performed.

(5) Paperwork Reduction Act

    This rule does not establish a new collection of information that 
requires the approval of the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 2 CFR Part 700

    Administration of Federal financial assistance, Administrative 
practice and procedure, Federal financial assistance programs.

0
For the reasons discussed in the preamble, USAID revises and 
republishes 2 CFR Part 700 as follows:

PART 700--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND 
AUDIT REQUIREMENTS FOR FEDERAL AWARDS

Subpart A--Acronyms and Definitions
Sec.
700.0 Acronyms.
700.1 Definitions.
Subpart B--General Provisions
700.2 Adoption of 2 CFR Part 200.
700.3 Applicability.
700.4 Exceptions.
700.5 Supersession.
Subpart C--Pre-Federal Award Requirements and Contents of Federal 
Awards
700.6 Metric system of measurement.
700.7 Advance payment.
Subpart D--Post Federal Award Requirements
700.8 Payment.
700.9 Property standards.
700.10 Cost sharing.
700.11 Contracting with small and minority businesses, women's 
business enterprises, and labor surplus area firms.
700.12 Contract provisions.
700.13 Additional provisions for awards to for-profit entities.
700.14 Award Suspension and Termination.
700.15 Disputes.
Subpart E--Cost Principles
[Reserved]
Subpart F--Audit Requirements
[Reserved]
Subpart G--USAID-Specific Requirements
700.16 Marking.

    Authority:  Sec. 621, Public L. 87-195, 75 Stat 445, (22 U.S.C. 
2381) as amended, E.O. 12163, Sept 29, 1979, 44 FR 56673; 2 CFR 1979 
Comp., p. 435.

Subpart A--Acronyms and Definitions


Sec.  700.0   Acronyms.

    [Reserved]


Sec.  700.1   Definitions.

    These are the definitions for terms used in this part. Different 
definitions may be found in Federal statutes or regulations that apply 
more specifically to particular programs or activities.
    Agreement Officer means a person with the authority to enter into, 
administer, terminate, and closeout assistance agreements subject to 
this part, and make related determinations and findings on behalf of 
USAID. An Agreement Officer can only act within the scope of a duly 
authorized warrant

[[Page 63075]]

or other valid delegation of authority. The term ``Agreement Officer'' 
includes persons warranted as ``Grant Officers'' and certain authorized 
representatives of the Agreement Officer acting within the limits of 
their authority as delegated by the Agreement Officer.
    An apparently successful applicant means the applicant for USAID 
funding that the Agreement Officer recommends for an award after merit 
review, but who has not yet been awarded a grant, cooperative agreement 
or other assistance award. Apparently successful applicant status 
confers no right and constitutes no USAID commitment to an award, which 
still must be executed by the Agreement Officer.
    Award has the same meaning as Federal award as defined in 2 CFR 
200.1.
    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 subaward.
    End date means the date on which the recipient or subrecipient 
completes all work under an award or the date on the award document, or 
any supplement or amendment, on which USAID sponsorship ends.
    Program means the organized set of activities directed toward a 
common purpose, objective, or goal that a recipient or subrecipient 
undertakes or proposes.
    Suspension means an action by USAID that temporarily withdraws 
Federal sponsorship under an award, pending corrective action by the 
recipient or pending a decision to resume or terminate the award. 
Suspension of an award is a separate action from suspension under USAID 
regulations implementing E.O.s 12549 and 12689, ``Debarment and 
Suspension.'' See 2 CFR part 780.
    USAID means the United States Agency for International Development.

Subpart B--General Provisions


Sec.  700.2   Adoption of 2 CFR Part 200.

    Under the authority listed above, the United States Agency for 
International Development (USAID) adopts the Office of Management and 
Budget (OMB) guidance for Federal Financial Assistance (subparts A 
through F of 2 CFR part 200), as supplemented by this part, as the 
USAID policies and procedures for Federal financial assistance 
administration. This part satisfies the requirements of 2 CFR 
200.110(a) and gives regulatory effect to the OMB guidance as 
supplemented by this part.


Sec.  700.3   Applicability.

    (a) Subparts A through D of 2 CFR part 200 apply to for-profit 
entities located in the United States or its territories. The Federal 
Acquisition Regulation (FAR) at 48 CFR part 30, Cost Accounting 
Standards, and Part 31, Contract Cost Principles and Procedures, takes 
precedence over the cost principles in Subpart E for Federal awards to 
U.S. for-profit entities.
    (b) Subpart E applies to foreign organizations and foreign public 
entities, except where the Federal agency determines that the 
application of these subparts would be inconsistent with the 
international responsibilities of the United States or the laws of a 
foreign government. The Federal Acquisition Regulation (FAR) at 48 CFR 
part 30, Cost Accounting Standards, and Part 31, Contract Cost 
Principles and Procedures, takes precedence over the cost principles in 
Subpart E for Federal awards to foreign for-profit entities.


Sec.  700.4   Exceptions.

    Consistent with 2 CFR 200.102:
    (a) USAID's Assistant Administrator, Bureau for Management, or 
designee as delegated in Agency policy, may authorize exceptions on a 
case-by-case basis for individual federal awards, recipients, or 
subrecipients except where otherwise required by law or where OMB or 
other approval is expressly required by this Part. No case-by-case 
exceptions may be granted to the provisions of Subpart F--Audit 
Requirements of this Part.
    (b) USAID's Assistant Administrator, Bureau for Management, or 
designee as delegated in Agency policy, may authorize exceptions, on a 
class or an individual case basis, to USAID program specific assistance 
regulations other than those which implement statutory and executive 
order requirements.
    (c) The Federal agency may apply more restrictive requirements to a 
class of Federal awards or non-Federal entities when approved by OMB, 
required by Federal statutes, or regulations except for the 
requirements in Subpart F--Audit Requirements of this part. The Federal 
agency may apply less restrictive requirements when making awards at or 
below the simplified acquisition threshold, or when making fixed amount 
awards as defined in Subpart A--Acronyms and Definitions of 2 CFR part 
200, except for those requirements imposed by statute or in Subpart F--
Audit Requirements of this part.


Sec.  700.5   Supersession.

    Effective December 26, 2014, this part supersedes the following 
regulations under Title 22 of the Code of Federal Regulations: 22 CFR 
part 226, ``Administration of Assistance Awards To U.S. Non-
Governmental Organizations.''

Subpart C--Pre-Federal Award Requirements and Contents of Federal 
Awards


Sec.  700.6   Metric system of measurement.

    (a) The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205) declares that the metric system is 
the preferred measurement system for U.S. trade and commerce.
    (b) Wherever measurements are required or authorized, the recipient 
must make, compute, and record in metric system units of measurement, 
unless the Agreement Officer authorizes in writing that such usage is 
impractical or is likely to cause U.S. firms to experience significant 
inefficiencies or the loss of markets. Where the metric system is not 
the predominant standard for a particular application, the recipient 
may express the measurements in both the metric and the traditional 
equivalent units, provided the metric units are listed first.


Sec.  700.7   Advance payment.

    Advance payment mechanisms include, but are not limited to, Letter 
of Credit, Treasury check and electronic funds transfer and must comply 
with applicable guidance in 31 CFR part 205.

Subpart D--Post Federal Award Requirements


Sec.  700.8   Payment.

    (a) Use of resources before requesting advance payments. To the 
extent available, the non-Federal entity must disburse funds available 
from program income (including repayments to a revolving fund), 
rebates, refunds, contract settlements, audit recoveries, and interest 
earned on such funds before requesting additional cash payments. This 
paragraph is not applicable to such earnings which are generated as 
foreign currencies.
    (b) Standards governing the use of banks and other institutions as 
depositories of advance payments under Federal awards are as follows:
    (1) Except for situations described in paragraph (b)(2) of this 
section, USAID does not require separate depository accounts for funds 
provided to a non-Federal entity or establish any eligibility 
requirements for depositories for funds provided to the non-Federal 
entity.

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However, the non-Federal entity must be able to account for receipt, 
obligation and expenditure of funds.
    (2) Recipients must deposit and maintain advance payments of 
Federal funds in insured accounts whenever possible.


Sec.  700.9   Property standards.

    (a) Real property. Unless the agreement provides otherwise, title 
to real property will vest in accordance with 2 CFR 200.311.
    (b) Equipment. Unless the agreement provides otherwise, title to 
equipment will vest in accordance with 2 CFR 200.313.


Sec.  700.10   Cost sharing.

    (a) ``Unrecovered indirect costs'' has the same meaning as in 2 CFR 
200.306(c).
    (b) Unrecovered indirect costs, including indirect costs on cost 
sharing, may be included as part of cost sharing.


Sec.  700.11   Contracting with small and minority businesses, women's 
business enterprises, and labor surplus area firms.

    (a) To permit USAID, in accordance with the small business 
provisions of the Foreign Assistance Act of 1961, as amended, to give 
United States small business firms an opportunity to participate in 
supplying commodities and services procured under the award, the 
recipient should provide the following information to the Office of 
Small Disadvantaged Business Utilization (OSDBU), USAID, Washington, DC 
20523, at least 45 days prior to placing any order or contract in 
excess of the simplified acquisition threshold:
    (1) Brief general description and quantity of goods or services;
    (2) Closing date for receiving quotations, proposals or bids; and
    (3) Address where solicitations or specifications can be obtained.
    (b) [Reserved]


Sec.  700.12   Contract provisions.

    (a) The recipient or subrecipient's contracts must contain the 
applicable provisions described in Appendix II to Part 200.
    (b) All negotiated contracts (except those for less than the 
simplified acquisition threshold) awarded by the recipient or 
subrecipient must include a provision to the effect that the recipient 
or subrecipient, USAID, the Comptroller General of the United States, 
or any of their duly authorized representatives, must have access to 
any books, documents, papers and records of the contractor which are 
directly pertinent to a specific program for the purpose of making 
audits, examinations, excerpts and transcriptions.


Sec.  700.13   Additional provisions for awards to for-profit entities.

    (a) This paragraph contains additional provisions that apply to 
awards to for-profit entities. These provisions supplement and make 
exceptions for awards to for-profit entities from other provisions of 
this part.
    (1) Prohibition against profit. The agency or pass-through entity 
will not provide funds as profit to any for-profit entity receiving or 
administering Federal financial assistance as a recipient or 
subrecipient. Federal financial assistance does not include contracts 
as defined at 2 CFR 200.1, other contracts a Federal agency uses to buy 
goods or services from a contractor, or contracts to operate Federal 
government owned, contractor operated facilities (GOCOs). Profit is any 
amount in excess of allowable direct and indirect costs.
    (2) [Reserved]
    (b) [Reserved]


Sec.  700.14   Award Suspension and Termination.

    If at any time USAID determines that continuation of all or part of 
the funding for a program should be suspended or terminated because 
such assistance would not be in the national interest of the United 
States or would be in violation of an applicable law, then USAID may, 
following notice to the recipient, suspend or terminate the award in 
whole or in part and prohibit the recipient from incurring additional 
obligations chargeable to the award other than those costs specified in 
the notice of suspension. If a suspension is put into effect and the 
situation causing the suspension continues for 60 calendar days or 
more, then USAID may terminate the award in whole or in part on written 
notice to the recipient and cancel any portion of the award which has 
not been disbursed or irrevocably committed to third parties.


Sec.  700.15   Disputes.

    (a) The USAID Agreement Officer will decide any dispute under or 
relating to Federal financial assistance. The Agreement Officer must 
furnish the recipient a written copy of the decision.
    (b) Decisions of the USAID Agreement Officer will be final unless, 
within 30 calendar days of receipt of the decision, the recipient 
appeals the decision to USAID's Assistant Administrator, Bureau for 
Management, or designee as delegated in Agency policy. Appeals must be 
in writing with a copy concurrently furnished to the Agreement Officer.
    (c) In order to facilitate review of the record by the USAID's 
Assistant Administrator, Bureau for Management, or designee as 
delegated in Agency policy, the recipient will be given an opportunity 
to submit written evidence in support of its appeal. No hearing will be 
provided.
    (d) Decisions by the Assistant Administrator, Bureau for 
Management, or designee as delegated in Agency policy, will be final.

Subpart E--Cost Principles

    [Reserved]

Subpart F--Audit Requirements

    [Reserved]

Subpart G--USAID-Specific Requirements


Sec.  700.16   Marking.

    (a) Definitions. For the purposes of this section, the following 
definitions apply:
    (1) Activity means a set of a recipient or subrecipient's actions 
using resources--such as commodities, technical assistance, or training 
to produce specific results, such as vaccinations given, schools built, 
microenterprise loans issued, or policies changed. The recipient or 
subrecipient undertakes activities to achieve the formally approved 
objectives of the award.
    (2) Branding strategy means a strategy the apparently successful 
applicant or recipient submits describing how they will name and 
position the program, project, or activity and how they will promote 
and communicate it to beneficiaries and cooperating country citizens. 
In the branding strategy, the apparently successful applicant or 
recipient identifies all donors and explains how they will be 
acknowledged.
    (3) Marking plan means a plan that the apparently successful 
applicant or recipient submits after merit review of an application for 
USAID funding, detailing the public communications, commodities, and 
program materials and other items that will visibly bear the USAID 
Identity.
    (4) Public communications are documents and messages the recipient 
or subrecipient intends to distribute to external audiences. 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,

[[Page 63077]]

including signage and plaques; websites/internet activities; and events 
such as training courses, conferences, seminars, and press conferences.
    (5) 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.'' Upon a 
written determination by the USAID Administrator, or delegate, the 
definition of the USAID Identity may be amended to include additional 
or substitute use of a logo or seal and tagline representing a 
presidential initiative or other high level interagency Federal 
initiative that requires consistent and uniform branding and marking by 
all participating agencies. The USAID Identity (including any required 
additional insignia or related identity) is available on the USAID 
website at https://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.
    (6) Principal officer means the most senior officer in an USAID 
Operating Unit in the field, for example, a USAID Mission Director or 
USAID Representative. For global programs managed from Washington but 
executed across many countries, such as disaster relief programs and 
assistance to internally displaced persons, humanitarian emergencies or 
immediate post conflict and political crisis responses, 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 Principal U.S 
Diplomatic Officer in the non-presence country exercising delegated 
authority from USAID.
    (b) USAID policy is that a recipient or subrecipient must mark all 
programs, projects, activities, public communications, and commodities, 
specified further at paragraphs (d) through (g) of this section, 
partially or fully funded by a USAID grant or cooperative agreement or 
other assistance award or subaward 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) Recipients of USAID funded grants and cooperative agreements or 
other assistance awards must include a USAID-approved marking provision 
in any USAID funded subaward, to read 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.
    (c) Subject to Sec.  700.16(b), (i), and (k), the recipient or 
subrecipient must mark 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), with the USAID Identity. The recipient or subrecipient 
should erect temporary signs or plaques early in the construction or 
implementation phase. When construction or implementation is complete, 
the recipient or subrecipient must install a permanent, durable sign, 
plaque or other marking.
    (d) Subject to Sec.  700.16(b), (i), and (k), the recipient or 
subrecipient must mark technical assistance, studies, reports, papers, 
publications, audio-visual productions, public service announcements, 
websites/internet activities and other promotional, informational, 
media, or communications products funded by USAID with the USAID 
Identity.
    (1) Any ``public communications'' as defined in Sec.  700.1, 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 must provide the Agreement Officer's 
Representative (AOR) 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 must submit one electronic and/or one hard copy of all final 
documents to USAID's Development Experience Clearinghouse.
    (e) Subject to Sec.  700.16(b), (i), and (k), the recipient or 
subrecipient must mark events financed by USAID such as training 
courses, conferences, seminars, exhibitions, fairs, workshops, press 
conferences and other public activities, 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 should otherwise 
acknowledge USAID and the American people's support.
    (f) Subject to Sec.  700.16(b), (i), and (k), the recipient or 
subrecipient must mark 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, with the USAID 
Identity.
    (g) After merit review of applications for USAID funding, USAID 
Agreement Officers will request apparently successful applicants to 
submit a Branding Strategy, defined in Sec.  700.1. The proposed 
Branding Strategy will not be evaluated competitively. The Agreement 
Officer will review the proposed Branding Strategy for adequacy, and 
will negotiate, approve and include the Branding Strategy in the award. 
The Agreement Officer will specify the timeline for submission in the 
Notice of Funding Opportunity. If the Notice of Funding Opportunity 
indicates that the apparently successful applicant may submit a 
Branding Strategy after the award is made, the Agreement Officer must 
include a special award condition to indicate the required submission 
date. If the Agreement Officer requires submission before award, 
failure to submit or

[[Page 63078]]

negotiate a Branding Strategy within the time specified by the 
Agreement Officer will make the apparently successful applicant 
ineligible for award.
    (h) After merit review of applications for USAID funding, USAID 
Agreement Officers will request apparently successful applicants to 
submit a Marking Plan, defined in Sec.  700.1. The Marking Plan may 
include requests for approval of Presumptive Exceptions, paragraph (i) 
of this section. The apparently successful applicant must include all 
estimated costs associated with branding and marking USAID programs, 
such as plaques, labels, banners, press events, promotional materials, 
and the like, in the total cost estimate of the grant or cooperative 
agreement or other assistance award. These costs 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 will review the proposed Marking Plan for 
adequacy, and will negotiate, approve and include the Marking Plan in 
the award. The Agreement Officer will specify the timeline for 
submission in the Notice of Funding Opportunity. If the Notice of 
Funding Opportunity indicates that the apparently successful applicant 
may submit a Marking Plan after the award is made, the Agreement 
Officer must include a special award condition to indicate the required 
submission date. If the Agreement Officer requires submission before 
award, failure to submit or negotiate a Marking Plan within the time 
specified by the Agreement Officer will make the apparently successful 
applicant ineligible for award. Agreement Officers have the discretion 
to suspend the implementation requirements of the Marking Plan if 
circumstances warrant. Recipients of a 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.
    (i) Presumptive exceptions:
    (1) The above marking requirements in Sec.  700.16(b) through (f) 
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) The Agreement Officer must approve these exceptions. Apparently 
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.
    (j) In cases where the recipient does not comply with the Marking 
Plan, 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 
its 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 2 CFR 
200.340 through 2 CFR 200.343, and 2 CFR 700.14.
    (k) (1) Waivers. USAID Principal Officers 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 
AOR. No marking is required while a waiver determination is pending. 
The Principal Officer must make the waiver determination on safety or 
security grounds 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 AOR 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 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.
    (2) 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 effort is changed to accommodate any costs associated 
with marking. In the event a waiver is rescinded, the marking 
requirements will apply from the date forward that the waiver is 
rescinded. In the event a waiver is rescinded after the period of 
performance but before closeout as defined in 2 CFR 200.1, the USAID 
mission or operating unit with initial responsibility to administer the 
marking requirements must make a cost benefit analysis as to requiring 
USAID marking requirements after the end date of the

[[Page 63079]]

affected programs, projects, activities, public communications or 
commodities.
    (l) USAID will provide the USAID Identity and other guidance at no 
cost or fee to recipients of USAID grants, cooperative agreements or 
other assistance awards or subawards. USAID will fund additional costs 
associated with marking requirements if reasonable, allowable, and 
allocable under 2 CFR part 200, subpart E. Recipients must follow the 
standard cost reimbursement provisions of the grant, cooperative 
agreement, other assistance award or subaward when applying for 
reimbursement of additional marking costs.

Jami J. Rodgers,
Chief Acquisition Officer.
[FR Doc. 2024-16945 Filed 8-1-24; 8:45 am]
BILLING CODE 6116-01-P