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[Federal Register: June 24, 2004 (Volume 69, Number
119)]
[Notices]
[Page 34616-34625]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
Emerging Markets Program
AGENCY: Commodity Credit Corporation, USDA.
ACTION: Proposed Rule
Submit comments online via
Regulations.gov.
SUMMARY: This rule proposes to establish
regulations applicable to the Emerging Markets Program (EMP). The regulations
would provide details concerning program administration, including participant
eligibility, application requirements, review and allocation process,
reimbursement rules and procedures, financial reporting and project evaluation
requirements, appeal procedures, and program controls.
DATES: Written comments must be received by July 22, 2004 to be assured of
consideration.
ADDRESSES: Comments should be submitted to: Denise Huttenlocker, Director,
Marketing Operations Staff, Foreign Agricultural
Service, United States Department of Agriculture, 1400
Independence Avenue SW., Ag Box 1042, Room 4932-S, Washington, DC 20250-1042.
Fax: (202) 720-9361; e-mail:
mosadmin@fas.usda.gov.
FOR FURTHER INFORMATION CONTACT: Douglas Freeman by phone at (202) 720-4327, by
fax at (202) 720-9361, or by e-mail at
emo@fas.usda.gov.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This proposed rule is issued in conformance with Executive
Order 12866. It has been determined significant for the purposes of Executive
Order 12866 and, therefore, has been reviewed by the Office of Management and
Budget (OMB).
Executive Order 12988
This proposed rule has been reviewed in accordance with
Executive Order 12988, Civil Justice Reform. The rule would have preemptive
effect with respect to any State or local laws, regulations or policies which
conflict with such provisions or which otherwise impede their full
implementation; would not have retroactive effect; and would require
administrative proceedings before suit may be filed.
Executive Order 12372
This program is not subject to the provisions of Executive
Order 12372, which requires intergovernmental consultation with State and local
officials (see the Notice related to 7 CFR part 3015, subpart V, published at 48
FR 29115).
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is
not applicable to this proposed rule because the Commodity Credit Corporation (CCC)
is not required by any provision of law to publish a notice of proposed
rulemaking with respect to the subject matter of this proposed rule.
The Unfunded Mandates Reform Act of 1995
This rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) for
State, local, and tribal governments or the private sector. Thus, this rule is
not subject to the requirements of sections 202 and 204 of the UMRA.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), CCC requests approval of a new information collection in
support of the Emerging Markets Program.
Title: Emerging Markets Program.
OMB Control Number: Not yet assigned.
Type of Request: Approval of an information collection.
Abstract: This information is needed to administer CCC's
Emerging Markets Program. The information will be gathered from applicants
seeking assistance under the program to determine the viability of requests for
funds.
Information to be Collected:
A. For Proposals
--Date of proposal;
--Name of organization submitting proposal;
--Organization address, telephone and fax numbers, and tax ID and Dun &
Bradstreet federal D-U-N-S numbers (for private sector applicants);
--Primary contact person;
--Full title of proposal;
--Target market(s);
--Current conditions in the target market(s) affecting the intended commodity or
product;
--Description of problem(s), i.e., constraint(s), to be addressed by the
project--inadequate knowledge of the market, insufficient trade contacts, lack
of awareness by foreign officials of U.S. products and business
practices, impediments: infrastructure, financing, regulatory or other
non-tariff barriers, etc.;
--Project objectives;
--Performance measures: benchmarks for quantifying progress in meeting the
objectives;
--Rationale: explanation of the underlying reasons for the project proposal and
its approach, including especially the anticipated benefits, and any additional
pertinent analysis;
--Clear demonstration that successful implementation will benefit a particular
industry as a whole, not just the applicant(s);
--Explanation as to what specifically could not be accomplished without federal
funding assistance and why participating organization(s) are unlikely to carry
out the project without such assistance;
--Specific description of activity/activities to be undertaken;
--Time line(s) for implementation of activity, including start and end dates;
--Information on whether similar activities are or have previously been funded
with USDA sources in target country/countries (e.g., under MAP and/or FMD
programs);
--Detailed line item activity budget. Cost items should be allocated separately
to each participating organization. Expense items constituting a proposed
activity's overall budget (e.g., salaries, travel expenses, consultant fees,
administrative costs, etc.), with a line item cost for each, should be listed,
clearly indicating (a) which items are to be covered by EMP funding; (b) which
by the participating U.S. organization(s); and (c) which by third parties (if
applicable). Cost items for individual consultant fees should show calculation
of daily rate and number of days. Cost items for travel expenses should show
number of trips, destinations, cost, and objective for each trip.
B. For Performance Reports
Quarterly progress reports must contain the following
information:
--Benchmarks achieved, summary of activities accomplished, including commitments
on the part of other organizations, U.S. and/or foreign, which
may be participating in the project;
--Problems encountered in implementation, if any; and
--Activities projected for the following reporting period.
The final report must contain the following information:
--Introduction including an acknowledgement of the funding received from the
Emerging Markets Program;
--Concise executive summary;
--Objectives of the project and description of the activities
undertaken;--Specific accomplishments, e.g., research results, impact on markets
and/or exports, results of training, seminars, etc. and successes, failures, and
lessons learned.
Note: Successes are specific, measurable results that are a
direct outcome of a project or activity, e.g., increases in existing U.S.
agricultural exports (amounts of trade, actual and/or projected
sales in dollars or tonnage), entry of U.S. products into new markets,
elimination of specific market constraints/barriers, adoption of U.S.
regulations and standards, etc.
--Description of the difficulties encountered in implementing the project;
--Description of the cooperation received from participating parties (U.S.
organizations, foreign governments, or other entities);
principal persons and organizations involved in the project (U.S. and
foreign); and
--Recommendations for follow up (if appropriate).
Estimate of Burden: Public reporting burden for this
collection of information is estimated to average 177 hours per year per
respondent.
Respondents: U.S. government agencies, State and local
government agencies, non-profit trade associations, universities,
agricultural cooperatives, and private companies.
Estimated Number of Respondents: 130.
Estimated Number of Responses per Respondent: 13.
Estimated Total Annual Burden on Respondents: 42,430 hours.
Proposed topics for comments are: (a) Whether the collection
of information is necessary for the proper performance of the functions of the
agency, including whether the information will have practical utility; (b) the
accuracy of the agency's estimate of burden including the validity of the
methodology and assumptions used; (c) ways to enhance the quality, utility, and
clarity of the information to be collected; or (d) ways to minimize the burden
of the collection of information on those who are to respond, including the use
of appropriate automated, electronic, mechanical or other technological
collection techniques or other forms of information technology. Comments should
be sent to the Desk Officer for Agriculture, Office of Information and
Regulatory Affairs, Office of Management and Budget at
david_rostker@omb.eop.gov and to:
Director, Marketing Operations
Staff, Foreign Agricultural Service,
Room 4932-S, Stop 1042, U.S. Department of Agriculture, 1400 Independence Ave.,
SW., Washington, DC 20250-1042.
Copies of this information collection may be obtained from
Kimberly Chisley, FAS' Information Collection Coordinator, at (202) 720-2568.
All responses to this notice will be summarized. All comments will also become a
matter of public record.
Executive Order 12612
It has been determined that this rule does not have
sufficient Federalism implications to warrant the preparation of a Federalism
Assessment. The provisions contained in this rule will not have a
substantial direct effect on States or their political subdivisions, or on the
distribution of power and responsibilities among the various levels of
government.
Government Paperwork Elimination Act
The Foreign Agricultural
Service is committed to compliance with the Government
Paperwork Elimination Act (GPEA), which requires Government agencies, in
general, to provide the public the option of submitting information or
transacting business electronically to the maximum extent possible. Accordingly,
applications for participation in the Emerging Markets Program may be submitted
online. Payment transactions will be handled both electronically and in paper
form.
Background
The CCC will periodically announce that proposals may be
submitted for participation in the EMP. The EMP provides funding for technical
assistance activities that develop, maintain, or expand the export of U.S.
agricultural commodities to overseas emerging markets, and
which
benefit primarily U.S. industry as a whole. The EMP is authorized by Section
1542(d) of the Food, Agriculture, Conservation, and Trade Act of 1990. The Act
directs the Secretary to make available to emerging markets the expertise of the
United States to ``identify and carry out
specific opportunities and projects,'' including potential reductions in trade
barriers, ``in order to develop, maintain, or expand markets for United States
agricultural exports.''
The EMP is administered by personnel of the Foreign
Agricultural Service (FAS). FAS implements
this provision by providing CCC funds for specific projects to various entities,
including government agencies and U.S. private organizations, representing a
wide range of
agricultural commodities and products. Proposals from research
organizations and consulting entities will be considered for funding assistance
with evidence of substantial participation in and financial support by U.S.
industry. This support would assure that the particular agricultural
industry perceives a market development benefit from the funded activity.
Individuals/consultants may not use program funds to conduct private business or
to promote private self-interests.
Funds for private organizations are made available on the
basis of a competitive application and review process. Approved projects and
activities address generic market development and market access issues in
emerging markets, focusing on such topics as:
--Technical assistance designed to improve food and rural business systems;
--Marketing and distribution of value-added products, including new products or
uses;
--Studies of food distribution channels in emerging markets;
--Constraints to U.S. exports, including food safety/sanitary and phytosanitary
issues and other non-tariff barriers;
--Collection and use of market information that benefit American exporters as
well as the target country or countries; and
--Training in agriculture and agribusiness trade, including assessments,
seminars, workshops, training, research studies, etc.
The definition of ``emerging market'' in 7 U.S.C. 5622(f)
note, includes the requirement that the country has the potential to be a viable
and significant market for U.S. agricultural commodities.
Therefore, this proposed rule would provide that, in order to best reflect that
requirement, an emerging market country or regional country grouping have a
population greater than 1 million and a per capita income level below the level
of upper-middle income countries as determined by the World Bank.
Under the EMP, CCC will enter into agreements with those
organizations whose proposals have been approved. After implementation of an EMP
project for which CCC has agreed to provide funding, Recipients may submit
claims for reimbursement of the costs associated with completing the project, to
the extent that CCC has agreed to pay such costs. A Recipient will be reimbursed
after CCC reviews its claim and determines that the claim is complete.
Reimbursement claims will be subject to verification by the FAS Compliance
Review Staff (CRS).
Advances may be authorized by CCC up to 40 percent of an approved project
budget.
Significant Provisions
The proposed rule describes the current program and
incorporates the majority of the guidelines and procedures currently in effect
under the EMP. The proposed regulation would, among other things:
1. Describe procedures for establishing project agreements;
2. List eligible and ineligible contributions and the
consequences of a Recipient failing to meet its required contribution level;
3. List reimbursable and non-reimbursable project
expenditures;
4. Explain the procedures followed in the submission and
payment of reimbursement claims;
5. Provide financial management guidelines for Recipients;
6. Identify the reports FAS requires of Recipients;
7. Explain FAS's position on program evaluations and the
associated requirements of Recipients;
8. Detail the steps a Recipient should follow to appeal
compliance findings;
9. List the standards of ethical conduct required of
Recipients;
10. Describe contracting procedures to be used by Recipients;
and
11. Outline the travel limitations placed on Recipients by
FAS, including the Federal Travel Regulations and the Fly America Act.
List of Subjects in 7 CFR Part 1486
Agricultural commodities, Exports, Grant
programs-agriculture, Technical assistance.
Accordingly, it is proposed that title 7 of the Code of
Federal
Regulations is amended by adding a new part 1486 to read as follows:
PART 1486--EMERGING MARKETS PROGRAM
Subpart A--General Information
Sec.
1486.100 What is the Emerging Markets Program?
1486.101 What special definitions apply to this program?
1486.102 Is there a list of eligible emerging market countries?
1486.103 Are regional projects possible under the program?
Subpart B--Eligibility, Applications, and Funding
1486.200 What entities are eligible to participate in the program?
1486.201 Under what conditions may research and consultant groups
and individuals apply to the program?
1486.202 Are there any ineligible organizations?
1486.203 Which commodities/products are eligible for consideration under the
program?
1486.204 Are multi-year or multi-country proposals eligible for funding?
1486.205 What types of funding are available under the program?
1486.206 What is the Quick Response Marketing Fund?
1486.207 What is the Technical Issues Resolution Fund?
1486.208 How does an organization apply to the program?
1486.209 How are program applications evaluated and approved?
1486.210 Are there any limits on the scope of proposals?
Subpart C--Program Operations
1486.300 How are applicants notified of decisions on their applications?
1486.301 How is the working relationship established between CCC and the
Recipient of project funding?
1486.302 Can changes be made to a project once it has been approved?
1486.303 What specific contracting procedures must be adhered to?
Subpart D--Contributions and Reimbursements
1486.400 What are the rules on cost sharing?
1486.401 What cost share contributions are eligible?
1486.402 What are ineligible contributions?
1486.403 What expenditures may CCC reimburse under the program?
1486.404 What expenditures are not eligible for program funding?
1486.405 How are Recipients reimbursed for project expenditures?
1486.406 Will CCC make advance payments to Recipients?
Subpart E--Reporting, Evaluation, and Compliance
1486.500 What are the reporting requirements of the program?
1486.501 What is the rule on notifying field offices of international travel?
1486.502 How is project effectiveness measured?
1486.503 How is program compliance monitored?
1486.504 How does a Recipient respond to a compliance report?
1486.505 Can a Recipient appeal the determinations of the Deputy Administrator?
1486.506 When will a project be reviewed?
1486.507 What is the effect of failing to make required contributions?
1486.508 How long must Recipients maintain original project records?
1486.509 Are Recipients allowed to charge fees for specific activities in
approved projects?
1486.510 What is the policy regarding disclosure of program information?
1486.511 What is the general policy regarding ethical conduct?
Authority: 7 U.S.C. 5622 note.
Subpart A--General Information
Sec. 1486.100 What is the Emerging Markets Program?
(a) The principal purpose of the EMP is to assist U.S.
entities, including public and private agricultural
organizations, in developing, maintaining, or expanding the exports of U.S.
agricultural commodities and products by providing partial
funding for technical assistance
activities that promote U.S. agricultural exports to emerging
markets, consistent with U.S. foreign policy interests.
Technical assistance may include activities such as feasibility studies, market
research, sector assessments, orientation visits, specialized training, business
workshops, and similar undertakings.
(b) The EMP is a generic program; its resources may be used
to support exports of U.S. agricultural commodities and
products only through generic activities. Projects that endorse or promote
branded products are not eligible for the program.
(c) Only initiatives that support the export of U.S.
agricultural commodities and products are eligible for assistance from
the program. The program's resources may not be used to support the export of
another country's products to the United States, or to promote the development
of a foreign economy as a primary objective.
(d) The program is administered by personnel of USDA's
Foreign Agricultural Service.
Sec. 1486.101 What special definitions apply to this program?
For purposes of this subpart, the following definitions
apply:
Activities--components of a project which, when implemented
collectively, are intended to achieve a specific market development objective.
Administrator--the Administrator of FAS, or designee.
Advisory Committee--a group of representatives from the
private sector appointed by the Secretary of Agriculture whose primary mission
is to review proposals requesting funding under the EMP and make recommendations
on projects and programs that can enhance exports
through the use of program funds.
Agreement--a written assistance agreement under this part
1486.
Agricultural Commodity--an
agricultural commodity, food, feed, fiber, wood, livestock, or insect,
and any product thereof; and fish harvested from a U.S. aquaculture farm or
harvested by a vessel as defined in Title 46, United States Code, in waters that
are not waters (including the territorial sea) of a foreign
country.
Attache/Counselor--the Foreign
Agricultural Service employee representing United
States Department of Agriculture interests in the foreign
country in which promotional activities are conducted.
CCC--Commodity Credit Corporation.
Compliance Review Staff--the office within the
Foreign Agricultural Service
responsible for performing reviews of Recipients to ensure compliance under this
part.
Constraint--a condition in a particular country or region
which inhibits the development, expansion, or maintenance of exports of a
specific U.S. agricultural commodity or product.
Cost Share/Contribution--the amount of funding (cash and
in-kind) U.S. organizations are willing to commit from their own resources in
support of an approved project.
Deputy Administrator--the Deputy Administrator, Commodity and
Marketing Programs, Foreign Agricultural
Service, or designee.
Emerging Market--any country or regional grouping that is
taking steps toward a market-oriented economy through the food, agriculture, or
rural business sectors of the economy of the country; has the potential to
provide a viable and significant market for United States agricultural
commodities or products; a population greater than 1 million; and a per capita
income level below the level for upper middle-income countries as determined by
the World Bank.
EMP--Emerging Markets Program.
FAS--Foreign Agricultural
Service.
Generic Promotion--an activity that does not involve the
exclusive or predominant use of an individual company name or logo or brand
name.
Project--an approach or undertaking made up of one or more
activities which, taken together, are intended to achieve a specific market
development objective.
Project Funds--the funds made available to a Recipient by the
Commodity Credit Corporation under an agreement, and authorized for expenditure
in accordance with this part.
Proposal--an application for funding.
Recipient--an organization receiving financial assistance
directly from the Commodity Credit Corporation or Foreign
Agricultural Service to carry out a project.
SRTG--State Regional Trade Group.
STRE--sales and trade relations expenses including meals,
receptions, refreshments, checkroom fees, tips, and dining decorations.
UES--Unified Export Strategy.
USDA--United States Department of Agriculture.
Sec. 1486.102 Is there a list of eligible emerging market countries?
The World Bank periodically redefines the income limits on
upper middle-income economies. Consequently, an absolute list of ``emerging
market'' countries has not been established. However, CCC will provide general
guidance on country eligibility in each program announcement.
Sec. 1486.103 Are regional projects possible under the program?
Projects that focus on regions, such as the Caribbean Basin,
rather than individual countries, are eligible for consideration provided such
projects target qualifying emerging markets in the specified region. In certain
circumstances, the CCC may consider activities which target
qualified emerging markets in a specific region, but are conducted in a
non-emerging market because of its importance as a central location and ease of
access to that region.
Subpart B--Eligibility, Applications, and Funding
Sec. 1486.200 What entities are eligible to participate in the
program?
To participate in the EMP, U.S. private or government
entities must demonstrate a role or interest in the exports of U.S.
agricultural commodities or products. Government organizations consist
of federal, state, and local agencies. Private organizations include non-profit
trade associations, universities, agricultural cooperatives,
state regional trade groups, and profit-making entities and consulting
businesses.
Sec. 1486.201 Under what conditions may research and consultant
groups and individuals apply to the program?
(a) Proposals from research and consulting organizations will
be considered for funding assistance only with evidence of substantial
participation in and financial support by U.S. industry to a proposed project.
Such support most credibly is provided in the form of actual monetary
contributions to the cost of a project.
(b) Consulting individuals or organizations shall not use
program funds to conduct private business or to promote private self-interests.
Sec. 1486.202 Are there any ineligible organizations?
Foreign organizations, whether government or
private, may participate as third parties in activities carried out by U.S.
organizations, but are not eligible for funding assistance from the
program.
Sec. 1486.203 Which commodities/products are eligible for
consideration under the program?
All U.S. agricultural commodities/products
except tobacco are eligible for consideration. Agricultural
product(s) should be comprised of at least 50 percent U.S. origin content by
weight, exclusive of added water, to be eligible for funding.
Sec. 1486.204 Are multi-year or multi-country proposals eligible for
funding?
Proposals for projects exceeding 1 year in duration may be
considered. If approved, funding for multi-year projects is normally provided 1
year at a time, with commitments beyond the first year subject to interim
evaluations intended to assess the progress of the project toward meeting its
intended objectives. Projects which seek support for multiple commodities are
also eligible.
Sec. 1486.205 What types of funding are available under the program?
CCC has established three pools of funding within the EMP ``
the Central Fund, the Quick Response Marketing Fund, and the Technical Issues
Resolution Fund. Each year CCC will inform the public of the process by which
interested eligible organizations may submit proposals for funding under the
Central Fund. Because of the time sensitive nature of issues intended to be
addressed, the Quick Response Marketing Fund and the Technical Issues Resolution
Fund will be available with no application deadline.
Sec. 1486.206 What is the Quick Response Marketing Fund?
(a) This fund is established to address priority constraints
to market access that arise because of unforeseen events; market conditions in
emerging markets are often less predictable than in more developed countries. It
allows responsiveness to time-sensitive marketing problems or opportunities,
such as a change in an import regime or the removal of a trade embargo; an
unexpected or unusual change in the political or financial situation in a
country; or a significant change in crop conditions--any of which may have an
immediate impact on the access of particular commodities or products to specific
markets. Timing concerns in and of themselves do not justify use of these funds.
(b) Proposals for the Quick Response Marketing Fund must
identify specific market access issues that also face time constraints.
Application content, evaluation, and reporting requirements are the same as for
the Central Fund.
Sec. 1486.207 What is the Technical Issues Resolution Fund?
(a) This fund was established to address technical barriers
to trade in emerging markets worldwide by providing technical assistance,
training, and exchange of expertise. These include plant quarantine, animal
health, food safety, and other technical barriers to U.S. exports based on
unsound or incomplete scientific information.
(b) Funding priorities are principally those issues that are
time sensitive and are strategic areas of longer term interest. Funding
decisions are determined primarily through a review process that
includes FAS and relevant regulatory agencies. The review is based upon the
following criteria:
(1) The activity occurs in an eligible country or region of
market priority;
(2) The trade constraint warrants intervention;
(3) The proposed activity is likely to achieve an impact in
the short- or long-term;
(4) The Recipient is qualified to undertake the proposed
activity;
(5) The budget requested is reasonable and includes leveraged
resources;
(6) If applicable, a U.S. domestic constraint or trade issue
can be resolved in support of a proposed activity; and
(7) The activity has support from USDA field offices.
(c) Because of the time sensitive nature of the issues
intended to be addressed by these funds, proposals, whether private or
government, may be submitted at any time during the year. Reviews of proposals
are scheduled on a monthly basis. An expedited review may be requested but must
be justified.
(d) Application content, evaluation, and reporting
requirements are the same as for the Central Fund.
Sec. 1486.208 How does an organization apply to the program?
General. CCC will periodically announce that it is accepting
proposals for participation in the EMP. All relevant information, including
application deadlines (for the Central Fund) and proposal
content, will be noted in the announcement, and proposals shall be submitted in
accordance with the terms and requirements specified in the announcement. CCC
may request any additional information it deems necessary from any applicant in
order to properly evaluate any proposal.
Sec. 1486.209 How are program applications evaluated and approved?
(a) General. Proposals received by the application deadline
stated in the announcement for the Central Fund undergo a multi-phase review by
FAS staff and the EMP Advisory Committee to determine qualifications, quality
and appropriateness of projects, and reasonableness of project budgets.
(b) Evaluation criteria. FAS will consider a number of
factors when reviewing proposals, including:
(1) The ability of the organization to provide an experienced
U.S.-based staff with knowledge and expertise to ensure adequate development,
supervision, and execution of the proposed project;
(2) The organization's willingness to contribute resources,
including cash and goods and services of the U.S. industry, with greater weight
given to cash contributions (for private sector
proposals only);
(3) The conditions or constraints affecting the level of U.S.
exports andmarket share for the agricultural commodity/product;
(4) The degree to which the proposed project is likely to
contribute to the development, maintenance, or expansion of U.S.
agricultural exports to emerging markets;
(5) Demonstration of how a proposed project will benefit a
particular industry as a whole; and
(6) Past program results and evaluations, if applicable.
Priority consideration will be given to the following types of technical
assistance activities:
(i) Projects and activities which use technical assistance
designed specifically to improve market access in emerging markets such as
activities intended to mitigate the impact of sudden political events or
economic and currency crises in order to maintain U.S. market share;
(ii) Marketing and distribution of value-added products,
including new products or new uses. Examples include food service
development, market research on potential for consumer-ready foods or new uses
of a product, and export feasibility studies.
(iii) Studies of food distribution channels in emerging
markets, including infrastructural impediments to U.S. exports; such studies may
include cross-commodity activities which focus on problems which affect more
than one industry, e.g., grain storage handling and inventory systems
development;
(iv) Projects that specifically address various constraints
to U.S. exports, including sanitary and phytosanitary issues and other
non-tariff barriers;
(v) Assessments and follow-up activities designed to improve
country-wide food and business systems, to reduce trade barriers, to increase
prospects for U.S. trade and investment in emerging markets, or to determine the
potential use for general export credit guarantees;
(vi) Projects that help foreign governments
collect and use market information and develop free trade policies that benefit
American exporters as well as the target country or countries; and
(vii) Short-term training in agriculture and agribusiness
trade that will benefit U.S. exporters, including seminars and training at trade
shows designed to expand the potential for U.S. agricultural
exports by focusing on the trading system.
(c) Approval decision. CCC will approve those applications
that it determines best satisfy the criteria and factors specified in paragraph
(b) of this section. All decisions regarding the disposition of an application
are final.
Sec. 1486.210 Are there any limits on the scope of proposals?
(a) CCC will not reimburse 100 percent of any project's cost.
The program is intended to provide appropriate assistance to projects which also
have a significant amount of financial contributions from other sources,
especially U.S. private industry.
(b) Funding for continuing and substantially similar projects
is generally limited to 3 years. After that time, the project is assumed to have
proven its viability and, if necessary, should be continued by the Recipient
with its own or alternative sources of funding.
Subpart C--Program Operations
Sec. 1486.300 How are applicants notified of decisions on their
applications?
FAS will notify each applicant in writing of the final
decision on its application. For approvals, letters will contain the notice of
approval and any required qualifications or adjustments to the original
proposal. For rejections, letters will contain details explaining the reasons
why the proposals were not approved for funding.
Sec. 1486.301 How is the working relationship established between
CCC and the Recipient of project funding?
(a) FAS will notify all applicants in writing of the final
disposition of its application. FAS will send an approval letter followed by a
project agreement to each approved applicant. The approval letter and agreement
will specify the terms and conditions applicable to the project, including the
levels of EMP funding and cost-share contribution requirements. The applicant is
authorized to begin implementation of the project as of the date of the approval
letter.
(b) The agreement will specify the terms and conditions
applicable to the project, including the levels of EMP funding and cost-share
contribution requirements. An applicant who accepts the terms and conditions
contained in the agreement should so indicate by having the appropriate
authorizing official sign the agreement and submit it to the Director, Marketing
Operations Staff, FAS, USDA. The agreement will become effective when the
Recipient's authorizing official has signed on behalf of the organization and
the Deputy Administrator has countersigned the agreement on behalf of CCC.
Sec. 1486.302 Can changes be made to a project once it has been
approved?
(a) Approved projects may be modified if circumstances change
in such a way that they would likely affect the progress and ultimate success of
a project. All requests for project modifications must be made in writing to FAS
and must include:
(1) A justification as to why changes to the project as
originally designed are needed;
(2) An explanation of the necessary adjustments in approach
or strategy;
(3) A description of necessary changes in the project's time
line(s); and
(4) Necessary changes to the project's budget (e.g., shifting
of budgetary resources from one line item to another in order to accommodate the
changes).
(b) Extensions of project time lines must be approved and
made by
FAS.
Sec. 1486.303 What specific contracting procedures must be adhered
to?
(a) The Recipient has full and sole responsibility for the
legal sufficiency of all contracts it may enter into with one or more third
parties in order to carry out an approved project and shall assume financial
liability for any costs or claims resulting from suits, challenges, or other
disputes based on contracts entered into by the Recipient. Neither CCC nor any
other agency of the United States Government or any official or employee of CCC
or the United States Government has any obligation or responsibility with
respect to Recipient contracts with third parties.
(b) Recipients are responsible for ensuring to the extent
possible that the terms, conditions, and costs of contracts constitute the most
economical and effective use of project funds.
(c) All fees for professional and consulting services paid to
third parties in any part with project funds must be covered by written
contracts.
(d) A Recipient shall:
(1) Ensure that all expenditures for goods and services in
excess of $25 reimbursed by CCC are documented by a purchase order, invoice, or
contract;
(2) Ensure that no employee or officer participates in the
selection or award of a contract in which such employee or officer, or the
employee's or officer's family or partners has a financial
interest;
(3) Conduct all contracting in an open manner. Individuals
who develop or draft specifications, requirements, statements of work,
invitations for bids, or requests for proposals for procurement of any goods or
services shall be excluded from competition for such procurement;
(4) Base each solicitation for professional or consulting
services on a clear and accurate description of the requirements for the
services to be procured;
(5) Perform some form of fee, price, or cost analysis, such
as a comparison of price quotations to market prices or other price indicia, to
determine the reasonableness of the offered fees or prices; and
(6) Document the decision-making process.
Subpart D--Contributions and Reimbursements
Sec. 1486.400 What are the rules on cost sharing?
(a) The EMP is intended to complement, not supplant, the
efforts of the U.S. private sector. Therefore, no private sector proposal will
be considered without the element of cost-share from the participant and/or U.S.
partners.
(b) There is no minimum or maximum amount of cost share. The
degree of commitment to a proposed project represented by the amount and type of
private funding are both used in determining which proposals will be approved
for funding. The type of cost share is also not specified, though some
contributions are ineligible (Sec. 1486.402). Cost-share may be actual
cash invested or professional time of staff assigned to the project. Proposals
in which private industry is willing to commit funds, rather than in-kind items
such as staff resources, will be given
priority consideration.
(c) Cost-sharing is not required for proposals from U.S.
Government agencies, but is mandatory from all other eligible organizations,
even when they may be party to a joint proposal with a U.S. Government agency.
(d) Contributions from USDA or other U.S. Government agencies
or programs may not be counted toward the stated cost share requirement.
Similarly, contributions from foreign (non-U.S.) organizations
may not be counted toward the cost share requirement, but may be counted in the
total cost of the project.
(e) An activity that is initiated by FAS, and undertaken by
an organization at the request of FAS, may be exempted from the contribution
requirement. This determination is made at the discretion of FAS.
Sec. 1486.401 What cost share contributions are eligible?
(a) Eligible contributions are those cost items that:
(1) Have not been or will not be reimbursed by any source
outside of the Recipient organization;
(2) Are made during the period covered by the project
agreement;
(3) Are directly related to activities necessary to implement
an approved project; and
(4) Are not proscribed under Sec. 1486.402.
(b) Contributions must be included in a project's line item
budget.
Sec. 1486.402 What are ineligible contributions?
(a) The following are not eligible as contributions:
(1) Normal operating expenses and other costs not directly
related to the project;
(2) Any portion of salary or compensation of an individual
who is the focus of a promotional activity;
(3) Depreciation, e.g., office equipment;
(4) The cost of insuring articles owned by private
individuals;
(5) The cost of product development or product modifications;
(6) Slotting fees or similar sales expenditures;
(7) Funds, services, capital goods, or personnel provided by
any U.S. government agency;
(8) Capital investments made by a third party, such as
permanent structures, real estate, and the purchase of office equipment and
furniture;
(9) The value of any services generated by a third party
which involve no expenditure by the Recipient or third party, e.g., free
publicity;
(10) The cost of developing any application/proposal for EMP
funding;
(11) Costs included as contributions for any other
federally-assisted project or program;
(12) Membership fees in clubs and social or professional
organizations; and
(13) Any expenditure made prior to approval of an EMP-funded
project.
(b) The Deputy Administrator shall determine, at his or her
discretion, whether any cost not expressly listed in this section may be
included as an eligible contribution.
Sec. 1486.403 What expenditures may CCC reimburse under the program?
(a) A Recipient may seek reimbursement for an expenditure if:
(1) The expenditure is reasonable and has been made in
furtherance of an approved activity or project; and
(2) The Recipient has not been or will not be reimbursed for
such expenditure by any other source.
(b) Subject to paragraph (a) of this section, CCC will
reimburse, in whole or in part, the cost of:
(1) Salaries and benefits of the Recipient's existing
personnel or any other participating organization that are assigned to EMP-funded
projects; however, reimbursement is limited to:
(i) The actual daily rate paid by the Recipient for the
employee's salary or the daily rate of a General Schedule U.S. Government
employee, GS-15/Step 10 in effect during the calendar year in which the project
or activity is approved for funding, whichever is less;
(ii) The actual assigned time of the employee to the project;
and
(iii) For benefits, a maximum rate of 30 percent of the
existing salary paid to each assigned employee. In addition, reimbursement for
an employee's time spent on an EMP-funded project must be in lieu of
compensation from the Recipient or any other participating organization.
(2) Consulting fees for professional services; however,
reimbursement for consulting fees is limited to the daily rate of a General
Schedule U.S. Government employee, GS-15/Step 10 in effect during the calendar
year in which the project or activity is approved for funding. Reimbursement is
authorized only for actual days worked. Benefits are not reimbursable.
(3) STRE, including breakfast, lunch, dinner, and
refreshments when part of an approved overseas trade activity; miscellaneous
courtesies such as checkroom fees, taxi fares, and tips; and representation
expenses such as the costs of social events or receptions that are primarily
attended by foreign officials, and which are held at
foreign venues. STRE incurred in the United States is not authorized
for reimbursement, but may be counted as a cost-share contribution to the
project.
(4) Travel expenses, subject to the following:
(i) Air travel is limited to the full-fare economy class
rate;
(ii) Per diem is limited to the allowable rate for each
domestic or foreign locale (41 CFR Chapter 301);
(iii) All other expenses while in travel status must conform
to U.S. Federal Travel Regulations (41 CFR Chapters 301 and 304); and
(iv) Air travel must comply with the Fly America Act, 49
U.S.C. App. 1517. Expenses in excess of the authorized per diem rates may be
allowed in special or unusual circumstances (41 CFR part 301, subpart D), and
must be approved in advance. The CCC will not reimburse any
portion of air travel in excess of the full fare economy rate or when the
participant fails to notify the Counselor/Attache in the destination country in
advance of the travel unless the Deputy
Administrator determines it was impractical to provide such notification.
(5) Direct administrative expenses other than those included
in overhead costs.
(6) Indirect costs (overhead expenses) include those
administrative expenses not identified elsewhere in a project's budget but which
are necessary to the implementation and completion of the project. Such expenses
may include the cost of rent, utilities, telephone and fax, postage, express
couriers, photocopying, office supplies, etc., on a pro-rated basis. Any
indirect cost not identified will not be eligible for reimbursement. Indirect
costs for overhead and administrative
expenses incurred by both private (excluding market development cooperators,
state regional trade groups, and for-profit organizations) and government
Recipients (excluding FAS) may be reimbursed up to a maximum of 10 percent of
the portion of the project budget funded by
the EMP. Indirect costs shall be calculated on the basis of project costs before
adding the indirect charges. These expenses may be charged only for those items
not covered elsewhere in the project budget, and must be specified. Overhead
costs are not reimbursable for any project
funded under the Technical Issues Resolution Fund or the Quick Response
Marketing Fund.
(7) Rental costs for equipment necessary to carry out
approved projects. Equipment rentals must be returned by the Recipient to the
supplier in accordance with the lease agreements, but in no case later than 90
calendar days from the completion date of the project.
Sec. 1486.404 What expenditures are not eligible for program
funding?
(a) CCC will not reimburse expenditures made prior to
approval of a Recipient's proposal, unreasonable expenditures, or any cost of:
(1) Branded product promotions--in-store, restaurant,
advertising, etc.; this includes labeling and supplementing normal company sales
activities designed to increase awareness and stimulate sales of branded
products;
(2) Administrative and operational expenses for trade shows;
(3) Advertising;
(4) Preparation and printing of magazines, brochures, flyers,
posters, etc., except in connection with specific technical assistance
activities such as training seminars;
(5) Design and development of Internet web sites;
(6) Purchase and depreciation of equipment, e.g. office
equipment or other fixed assets;
(7) Subsidizing or otherwise providing funds for graduate
programs at colleges and/or universities (salaries or fees for individual
students who are directly assigned to specific project activities appropriate to
their backgrounds may be covered on a pro-rated basis);
(8) Subsidizing normal, day-to-day operating costs of an
organization;
(9) Honoraria for speakers;
(10) The costs of new product development;
(11) Costs of developing technical assistance proposals
submitted to the program;
(12) Refundable deposits or advances;
(13) STRE expenses within the United States;
(14) Expenses, fines, settlements, or claims resulting from
suits, challenges or disputes emanating from employment terms, conditions,
contract provisions, and related formalities;
(15) Legal fees, including fees and costs associated with
trade disputes;
(16) Real estate costs other than allowable costs for office
space whose use is assigned specifically to a project funded by the EMP; and
(17) Any expenditure which has been or will be reimbursed by
any other source.
(b)The Deputy Administrator may determine whether any cost
not expressly listed in this section will be reimbursed.
Sec. 1486.405 How are Recipients reimbursed for project
expenditures?
(a) After implementation of an EMP project for which CCC has
agreed to provide funding, Recipients may submit claims for reimbursement of the
expenses incurred to the extent CCC has agreed to pay for such costs.
Reimbursement for approved project expenses is limited to 85
percent of the amount specified in the project agreement. The Recipient may be
reimbursed for the remaining 15 percent of the funds after the final performance
report containing the information required by the agreement is submitted to and
approved by FAS.
(b) A format for reimbursement claims is available from the
Marketing Operations Staff, FAS, USDA.
(c) Final reimbursement claims must be made no later than 90
days after the completion date of the project, and are subject to a complete
final performance report acceptable to FAS.
(d) Any duplicate payment or overpayment made by CCC shall be
returned by the Recipient promptly after discovery of the overpayment by the
Recipient or within 30 days after notification by FAS, either by submitting a
check made payable to the Commodity Credit Corporation and
referencing the applicable project, or by offsetting as a credit on the ext
reimbursement claim. All checks shall be mailed to the Director, Marketing
Operations Staff, FAS, USDA.
Sec. 1486.406 Will CCC make advance payments to Recipients?
(a) Policy. In general, CCC operates the EMP on a cost
reimbursable basis.
(b) Exception. Upon request, CCC may make advance payments to
a Recipient against an approved project budget. Up to 40 percent of the approved
project budget may be provided as an advance, either at one time or in
incremental payments. Advances should be limited to the
minimum amounts needed and requested as close as is administratively feasible to
the actual time of disbursement by the Recipient. Reimbursement claims will be
used to offset advances. Recipients shall deposit and maintain advances in
insured, interest-bearing accounts.
(c) Refunds due CCC. A Recipient shall expend all advances
within 90 calendar days after the date of disbursement by CCC. A Recipient shall
return all interest earned by advances plus any unexpended portion of the
advance within 90 calendar days after the date of disbursement by CCC by
submitting a check payable to CCC. All checks shall be mailed to the Director,
Marketing Operations Staff, FAS, USDA.
Subpart E--Reporting, Evaluation, and Compliance
Sec. 1486.500 What are the reporting requirements of the program?
(a) Performance reports. (1) Recipients are required to
submit regular progress reports in accordance with the project agreement.
Quarterly progress reports are required for all projects with a duration of 6
months or longer. Projects of less than 6 months in duration generally require a
mid-term report.
(2) Final performance reports must be submitted no later than
90 days after completion of the project, both electronically (preferably in PDF
format) and in hard copy.
(3) Reporting requirements and formats for both quarterly
progress reports and final performance reports are specified in the project
agreement between CCC and the Recipient organization.
(4) All final performance reports will be made available to
the public.
(b) Financial reports. Final financial reports must be
submitted no later than 90 days after completion of the project. Such reports
must provide a final accounting of all project expenditures by cost category,
and include the accounting of actual contributions made to the project by the
Recipient and participating organization(s).
Sec. 1486.501 What is the rule on notifying field offices of
international travel?
The Recipient must advise the Agricultural
Counselor(s) or Attache(s) in the country or countries of any planned visits by
the Recipient or its consultants or other participants to such country or
countries under terms of its agreement. Failure to notify the Counselor/Attache
may result in disallowance of the travel expenditures.
Sec. 1486.502 How is project effectiveness measured?
Project evaluations may be carried out by FAS at its option
with or without Recipients. FAS may also seek outside expertise to conduct or
participate in evaluations.
Sec. 1486.503 How is program compliance monitored?
(a) The CRS, FAS, performs periodic on-site reviews of
Recipients to ensure compliance with this part, applicable federal regulations
and the terms of the project agreements. Program funds spent inappropriately or
on unapproved activities must be returned to CCC. The CRS will review
contributions from Recipients for compliance with project budgets as approved
and specified in the agreements.
(b) The Director, CRS, will notify a Recipient through a
compliance
report when it appears that CCC may be entitled to recover funds from
that Recipient. The report will state the basis for this action.
Sec. 1486.504 How does a Recipient respond to a compliance report?
(a) A Recipient shall, within 60 days of the date of the
compliance report, submit a written response to the Director, CRS. The Director,
CRS, at his or her discretion, may extend the period for response up to an
additional 30 days. If the Recipient does not respond to the
compliance report within the required time period or, if after review of the
Recipient's response, the Director, CRS, determines that CCC may be entitled to
recover funds from the Recipient, the Director, CRS, will refer the compliance
report to the Deputy Administrator.
(b) If after review of the compliance report and response,
the Deputy Administrator determines that the Recipient owes money to CCC, the
Deputy Administrator will so inform the Recipient. The Deputy Administrator may
initiate action to collect such amount pursuant to 7 CFR part 1403, Debt
Settlement Policies. Determinations of the Deputy Administrator will be in
writing and in sufficient detail to inform the Recipient of the basis for the
determination. The Recipient has 30 days from the date of the Deputy
Administrator's determination to submit any money owed to CCC or to request
reconsideration.
Sec. 1486.505 Can a Recipient appeal the determinations of the
Deputy
Administrator?
(a) A Recipient may appeal the determinations of the Deputy
Administrator to the Administrator. An appeal must be in writing and be
submitted to the Office of the Administrator within 30 days following the date
of the determination by the Deputy Administrator. The Recipient may request a
hearing.
(b) If the Recipient submits its appeal and requests a
hearing, the Administrator, or the Administrator's designee, will set a date and
time, generally within 60 days. The hearing will be an informal proceeding. A
transcript will not ordinarily be prepared unless the Recipient bears the cost
of the transcript; however, the Administrator may have a transcript prepared at
FAS's expense.
(c) The Administrator will base the determination on appeal
upon information contained in the administrative record and will endeavor to
make a determination within 60 days after submission of the appeal, hearing, or
receipt of any transcript, whichever is later. The determination of the
Administrator will be the final determination of FAS. The Recipient must exhaust
all administrative remedies contained in this section before pursuing judicial
review of a determination by the Administrator.
Sec. 1486.506 When will a project be reviewed?
Any project or activity funded under the program is subject
to review or audit at any time during the course of implementation or after the
completion of the project.
Sec. 1486.507 What is the effect of failing to make required
contributions?
A Recipient's contribution requirement is specified in the
project agreement. If a Recipient fails to contribute the total specified in the
agreement, the difference between the amount contributed and the total must be
repaid to the CCC in U.S. dollars. If a Recipient is reimbursed by CCC for less
than the amount of funds approved in the agreement, then the final cost share
shall equal, on a percentage basis, the original ratio of private contributions
to the authorized EMP funding level.
Sec. 1486.508 How long must Recipients maintain original project
records?
Each Recipient shall maintain all original records and
documents relating to the project for 3 calendar years following the end of the
project's completion. All documents and records related to the project,
including records pertaining to contractors, shall be made available upon
request.
Sec. 1486.509 Are Recipients allowed to charge fees for specific
activities in approved projects?
Reasonable activity fees or registration fees, if identified
as such in a project budget, may be charged for projects approved for program
funding. Income or refunds generated from an activity, however, for which the
expenditures have been wholly or partially reimbursed, shall be repaid by
submitting a check payable to CCC or offsetting the Recipient's reimbursement
claim. Any activity fees charged must be used to offset activity expenses. Such
fees may not be used as profit or counted as cost-share. The intent to charge a
fee must be part of the original proposal, along with an explanation of how such
fees are to be used.
Sec. 1486.510 What is the policy regarding disclosure of program
information?
(a) Documents submitted to CCC by Recipients are subject to
the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, 7 CFR
Part 1, Subpart A--Official Records, and specifically 7 CFR 1.11, Handling
Information from a Private Business.
(b) Progress reports, final performance reports, and the
results of any research or other activity conducted by a Recipient under an
agreement, shall be the property of the U.S. Government.
Sec. 1486.511 What is the general policy regarding ethical conduct?
(a) The Recipient shall maintain written standards of conduct
governing the performance of its employees engaged in the award and
administration of contracts. No employee, officer, or agent shall participate in
the selection, award, or administration of a contract supported by Federal funds
if a real or apparent conflict of interest would be involved. Such a conflict
would arise when the employee, officer, or agent and any member of his or her
immediate family, his or her partner, or an organization which employs or is
about to employ any of the parties indicated herein, has a financial or other
interest in the firm selected for an award. The officers, employees, and agents
of the Recipient shall neither solicit nor accept gratuities, favors, or
anything of monetary value from
contractors, or parties to sub-agreements. However, Recipients may set standards
for situations in which the financial interest is not substantial or the gift is
an unsolicited item of nominal value. The standards of conduct shall provide for
disciplinary actions to be applied for violations of such standards by officers,
employees, or agents of the Recipient.
(b) A Recipient shall conduct its business in accordance with
the laws and regulations of the country in which an activity is carried out.
Dated: June 14, 2004.
A. Ellen Terpstra,
Administrator, Foreign
Agricultural
Service.
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