USAID Acquisition Regulation: Planning, Collection, and Submission of Digital Information; Submission of Activity Monitoring, Evaluation, and Learning Plan to USAID

<RULE> AGENCY FOR INTERNATIONAL DEVELOPMENT <CFR>48 CFR Parts 727, 742, and 752</CFR> <RIN>RIN 0412-AA90</RIN> <SUBJECT>USAID Acquisition Regulation: Planning, Collection, and Submission of Digital Information; Submission of Activity Monitoring, Evaluation, and Learning Plan to USAID</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Agency for International Development. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The United States Agency for International Development (USAID) issuing a final rule amending USAID Acquisition Regulation (AIDAR) that implements USAID requirements for managing digital information as a strategic asset to inform the planning, design, implementation, monitoring, and evaluation of the Agency's foreign assistance programs. This final rule incorporates a new policy on Digital Information Planning, Collection, and Submission Requirements and the corresponding clause as well as a new clause entitled “Activity Monitoring, Evaluation, and Learning Plan Requirements” into the (AIDAR). This final rule is intended to reduce the burden on contractors, increase efficiency, and improve the use of data and other forms of digital information across the Agency's programs and operations. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> Effective June 5, 2024. </DATES> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Kelly Miskowski, USAID M/OAA/P, at 202-256-7378 or <E T="03">policymailbox@usaid.gov</E> for clarification of content or information pertaining to status or publication schedules. All communications regarding this rule must cite AIDAR RIN No. 0412-AA90. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">A. Background</HD> USAID published a proposed rule in the <E T="04">Federal Register</E> at 86 FR 71216 on December 15, 2021, to implement USAID requirements for managing digital information as a strategic asset to inform the planning, design, implementation, monitoring, and evaluation of the Agency's foreign assistance programs as outlined in 48 CFR parts 727, 742, and 752. USAID also published a notice of availability of supplemental document containing data standards in the <E T="04">Federal Register</E> at 88 FR 22990 on April 14, 2023, and solicited comments. A response to comments received as well as a revised copy of the supplemental document is included with this rulemaking. On August 25, 2022, the Office of Science and Technology Policy (OSTP) published a Memorandum (viewable at this address: <E T="03">https://www.whitehouse.gov/wp-content/uploads/2022/08/08-2022-OSTP-Public-Access-Memo.pdf</E> ). In this memorandum, OSTP provided policy guidance to ensure that publications and their supporting data resulting from federally funded research are publicly accessible without an embargo on their free and public release. This memo was released after publication of the proposed rule. USAID's language around embargoes within this rule is intentionally flexible, granting embargoes on the release of digital objects only in limited circumstances, such as in the interest of international development and foreign policy objectives, consistent with both USAID and OSTP policy and guidance, and no changes have been made to the language of the rule as a result. In implementation, any approval of embargoes will be consistent with OSTP guidance. <HD SOURCE="HD1">B. Discussion and Analysis</HD> <HD SOURCE="HD2">Response to Comments on the Proposed Rule</HD> Seventeen respondents submitted public comments in response to the proposed rule. USAID assessed the public comments in the development of the final rule. The full text of the comments is available at the Federal Rulemaking Portal, <E T="03">www.regulations.gov.</E> A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows: <HD SOURCE="HD3">1. Summary of Significant Changes</HD> The following significant changes from the proposed rule are made in the final rule: a. Added definitions for data inventory, digital, and digital method. b. Revised applicability of 752.227-71 from the micro purchase threshold to the simplified acquisition threshold. Similarly, USAID has added an Alternate clause exempting certain contracts from the requirement to provide a data management plan. Specifically, contracts are exempted that: contain no data; are for emergency food assistance; are for disaster assistance, and transition-assistance activities managed by the Bureau for Humanitarian Assistance (BHA); or are for activities managed by the Bureau for Conflict Prevention and Stabilization's Office of Transition Initiatives (CPS/OTI). c. The burden and cost estimates have been updated to reflect the changes outlined in paragraph b above, and the comments received related to this estimate are addressed in the revised Regulatory Impact Analysis. Additionally, comments regarding the number of respondents and whether the cost of design, testing, launch, and management of the Digital Front Door (DFD) website was subtracted are addressed as well. d. Clarified the timeline for submission as outlined in AIDAR 752.227-71(f)(3)(i). e. Various administrative amendments and clarifications have been added, such as revising references throughout the rule to indicate that the contracting officer, or contracting officer's representative if delegated, has authority to approve on behalf of USAID and renumbering of the AIDAR clause sections to conform with USAID numbering conventions. <HD SOURCE="HD3">2. Analysis of Public Comments</HD> Below are the Agency's responses to comments on the changes proposed to United States Agency for International Development (USAID) Acquisition Regulation (AIDAR): Planning, Collection, and Submission of Digital Information as Well as Submission of Activity Monitoring, Evaluation, and Learning Plan to USAID. The Agency did not address comments unrelated to, or outside the scope of, the revisions of the proposed rule from the existing rule: <HD SOURCE="HD3">a. General Support for the Rule</HD> 1. <E T="03">Comment:</E> Five respondents (7, 8, 9, 11, and 15) indicated general support for the rule. Some commenters noted that the rule will simplify reporting, reduce redundant data calls, and reduce the burden on contractors. <E T="03">Response:</E> USAID acknowledges the respondent's support for the rule. <HD SOURCE="HD3">b. Does Not Support the Rule</HD> 1. <E T="03">Comment:</E> One respondent (16) did not support the rule, indicating that it will make it harder for contractors to act responsibly with data management of affected populations. Other commenters (11, 15) did not indicate a lack of support for the rule as a whole but did note that complex submission requirements may negatively impact local partners, small business, and potential market entrants due to potential cost and needed technical expertise. <E T="03">Response:</E> USAID acknowledges this feedback to the rule. <HD SOURCE="HD3">c. Data Rights and Protection</HD> Several commenters (6, 7, 8, 11, 13, 14, 15, and 16) brought up issues around privacy, PII, publication, and informed consent, which are addressed in sub-categories as outlined below. <HD SOURCE="HD3">1. Access to Data and Data Rights—</HD> A <E T="03">. Comment:</E> Several commenters (6, 11, 13) inquired about whether the DFD will be public and available to other partners like the Development Experience Clearinghouse (DEC) and Development Data Library (DDL). <E T="03">Response:</E> The DFD is not its own system and is not intended to replace other systems. It is a public facing web page with centralized authentication that will direct users to the appropriate USAID systems for which they have authorized access. This includes but is not necessarily limited to the Development Information Solution (DIS), DEC, and DDL. B. <E T="03">Comment:</E> Commenter #8 specifically asked whether information that is exempt from the DFD (like PII) be submitted to USAID first as a restricted version before being scrubbed and sent to the DFD? <E T="03">Response:</E> The rule states that the contractor must not submit information to the DFD that contains personally identifiable information. And that to the maximum extent possible, the contractor must remove the association between the set of identifying data and the individual to which it applies unless retaining such information is essential to comply with the terms of the contract and upon written approval from the contracting officer or contracting officer's representative as delegated to submit this information. Otherwise, the “Submission Requirements” section states that contractors must “submit digital information created or obtained in performance of this contract to USAID at the finest level of granularity at which it was collected.” C. <E T="03">Comment:</E> Commenter #16 questioned whether the contractor would be able to effectively restrict access to sensitive data without fear of losing funding. <E T="03">Response:</E> Some data might be exempted from submission under subsection (f)(4) of the clause, including as determined by the contracting officer or contracting officer's representative as delegated in (f)(4)(ii). The rule provides for categories of information not to submit to USAID. It further states that if the Contractor believes there is a compelling reason not to submit specific digital information that does not fall under an exemption in this section, including circumstances where submission may jeopardize the personal safety of any individual or group, the Contractor must obtain written approval not to submit the digital information from the contracting officer. Further specifics under an individual award may be discussed with a contracting officer. D. <E T="03">Comment:</E> S ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 128k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━