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However, the results of any such re (b) Both the complainant and the review shall not constitute a basis for cipient shall participate in the mediNSF refusal to grant financial assist- ation process to the extent necessary ance to the applicant under that pro to reach an agreement or for a medigram or activity unless the procedural ator to make an informed judgement requirements of the Act (42 U.S.C. 6104) that an agreement is not possible. NSF and 88 617.12 and 617.13 of this part have will take no further administrative acbeen followed.
tion on any complaint if the complain
ant refuses to participate in the medi$617.9 Complaints.
ation process. (a) Any person, individually or as a (c) If the complainant and the recipimember of a class or on behalf of oth- ent reach an agreement, the mediator ers, may file a complaint with NSF, al- shall prepare a written statement of leging discrimination prohibited by the the agreement and have the complainAct. A complainant shall file a com ant and recipient sign it. The mediator plaint within 180 days from the date shall send a copy of the agreement to the complainant first had knowledge of NSF. NSF shall take no further action the alleged act of discrimination. How on the complaint unless the complainever, for good cause shown, NSF may ant or the recipient fails to comply extend this time limit.
with the agreement, in which case the (b) NSF will accept as a sufficient other party may request that the comcomplaint, any written statement plaint be reopened. which identifies the parties involved (d) The mediator shall protect the and the date the complainant first had confidentiality of all information obknowledge of the alleged violation, de tained in the course of the mediation scribes generally the action or practice process. No mediator shall testify in complained of, and is signed by the
any adjudicative proceeding, produce complainant. If an insufficient com
any document, or otherwise disclose plaint is amended within 10 working
any information obtained in the course days after notice by NSF to the com
of the mediation process without prior plainant of the deficiency, NSF will approval of the head of the Federal Meconsider the amended complaint as diation and Conciliation Service. filed on the date the original insuffi
(e) NSF will use the mediation proccient complaint was filed for purposes
ess for a maximum of 60 days after reof determining if it was timely filed.
ceiving a complaint. Mediation ends if: However, all other time requirements
(1) 60 days elapse from the time NSF established by the Act and this part
receives a sufficient complaint: of shall run from the date the amended
(2) Before the end of the 60 day pecomplaint was filed. (c) On receipt of any complaint NSF
riod, an agreement is reached; or shall promptly send written acknowl
(3) Before the end of the 60 day pe
riod, the mediator determines that an edgement to the complainant, and a copy of the complaint to the recipient.
agreement cannot be reached. In addition, NSF shall send either cop
(1) The mediator shall return unreies of this part or other pertinent infor
solved complaints to NSF. mation describing the rights and obli
8617.11 Investigation. gations of the parties.
(d) NSF will return to the complain (a) Informal investigation. (1) NSF will ant any complaint outside the coverage investigate complaints that are unreof this part, and will state why it is solved after mediation or are reopened outside the coverage of this part.
because of violation of a mediation
agreement. 8617.10 Mediation.
(2) As part of the initial investiga(a) NSF will refer to the Federal Me tion, NSF will use informal fact finding dation and Conciliation Service all methods, including joint or separate complaints that fall within the juris discussions with the complainant and diction of this part and contain all in recipient, to establish the facts, and, if formation necessary for further proc- possible, will settle the complaint on
terms that are agreeable to the parties.
NSF may seek the assistance of any involved State program agency.
(3) NSF will put any agreement in writing and have it signed by the parties and an authorized official of NSF.
(4) A settlement shall not affect other enforcement efforts of NSF, including compliance reviews, or individual complaints that involve the recipient.
(5) A settlement is not a finding of discrimination against the recipient.
(b) Formal investigation. If NSF cannot resolve the complaint through informal investigation, it will begin to develop formal findings through further investigation of the complaint. If the investigation indicates a violation of the Act, NSF will try to obtain voluntary compliance. If NSF cannot obtain voluntary compliance, it will begin enforcement as described in $617.12. If the investigation does not indicate a violation of the Act, NSF will issue a written determination in favor of the recipient.
(C) NSF will limit any termination or refusal to grant further financial assistance to the particular recipient and the particular program found to be in violation of the Act. NSF will not base any part of a termination or refusal on a finding with respect to any program or activity of the recipient which does not receive Federal financial assistance for NSF.
(d) NSF will not begin any hearing under paragraph (a) until the Director has advised the recipient of its failure to comply with this part and has determined that voluntary compliance cannot be obtained.
(e) NSF will not terminate or refuse to grant Federal financial assistance until thirty days have elapsed after the Director has sent a written report of the circumstances and grounds of the action to the committees of the Congress having legislative jurisdiction over the Federal program or activity involved. The Director will file a report whenever any action is taken under paragraph (f) of this section.
(f) Alternate Funds Disbursal Procedures. (1) When NSF withholds funds from a recipient under these regulations, the Secretary may disburse the withheld funds directly to an alternate recipient: Any public or non-profit private organization or agency, or State or political subdivision of the State.
(2) The Director will require any alternate recipient to demonstrate:
(i) The ability to comply with these regulations; and
(ii) The ability to achieve the goals of the Federal statute authorizing the program or activity.
8617.12 Compliance procedure.
(a) NSF may enforce this part by either termination of a recipient's financial asistance from NSF under the program or activity involved where the recipient has violated the Act or this part or refusal to grant further financial assistance under the program or activity involved where the recipient has violated the Act or this part. The determination of the recipient's violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge. Therefore, cases settled in the mediation process or before a hearing will not involve termination of a recipient's Federal financial assist ance from NSF.
(b) NSF may also enforce this part by any other means authorized by law, including but not limited to:
(1) Referral to the Department of Justice for proceedings to enforce any rights of the United States or obligations by this part.
(2) Use of any requirement of or referral to any Federal, State, or local government agency that will have the effect of correcting a violation of the Act or this part.
8617.13 Hearings, decisions, post-ter
mination proceedings. Procedures prescribed in 45 CFR 611.9 and 611.10 for NSF enforcement of Title VI of the Civil Rights Act of 1964 shall apply also for NSF enforcement of this part. At the conclusion of any action taken under $617.12, NSF, shall remind both parties of the right to judicial review established by 42 U.S.C. 6105.
9617.14 Remedial action by recipiei
Where the Director finds that a recipient has discriminated on the basis of age, the recipient shall take any remedial action the Director may require to
overcome the effects of the discrimination. If another recipient exercises control over the recipient that has discriminated, the Director may require both recipients to take remedial action.
8617.16 Prohibition against intimida
tion or retaliation. A recipient may not engage in acts of intimidation or retaliation against & person who:
(a) Attempts to assert a right protected by the Act, or
(b) Cooperates in any mediation, investigation, hearing or other part of NSF's investigation, conciliation, and enforcement process. APPENDIX I TO PART 617–LIST OF AGE
DISTINCTIONS PROVIDED IN FEDERAL
I. Section 6 of Pub. L. 94 86, 42 U.S.C. 1881a:
This statute authorizes the Foundation to establish the Alan T. Waterman Award to recognize and encourage the work of "younger" scientists. Under NSF procedures awards have been limited to persons 35 years of age or under.
PART 620-GOVERNMENTWIDE DE
BARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
$617.15 Exhaustion of administrative
remedies. (a) A complainant may file a civil action after exhausting administrative remedies under the Act. Administrative remedies are exhausted if:
(1) 180 days have elapsed since the complainant filed a sufficient complaint and NSF has made no finding with regard to the complaint; or
(2) NSF issues any finding in favor of the recipient.
(b) If NSF fails to make a finding within 180 days or issues a finding in favor of the recipient, NSF will:
(1) Promptly advise the complainant of this fact; and
(2) Advise the complainant of his or her right to bring a civil action for injunctive relief under 42 U.S.C. 6104; and
(3) Inform the complainant that under 42 U.S.C. 6104:
(i) The complainant may bring a civil action only in a United States District court for the district in which the recipient is located or transacts business;
(ii) A complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but that the complainant must demand these costs in the complaint;
(iii) Before commencing the action the complainant shall give 30 days notice by registered mail to the Director, the Attorney General of the United States, and the recipient;
(iv) The notice must state the alleged violation of the Act; the relief requested; the court in which the complainant is bringing the action; and whether or not attorney's fees are demanded in the event the complainant prevails; and
(v) The complainant may not bring an action if the same alleged violation of the Act by the same recipient is the subject of a pending action in any court of the United States.
Sec. 620.100 Purpose. 620.105 Definitions. 620.110 Coverage. 620.115 Policy.
Subpart B-Effect of Action 620.200 Debarment or suspension. 620.205 Ineligible persons. 620.210 Voluntary exclusion. 620.215 Exception provision. 620.220 Continuation of covered trans
actions. 620.225 Failure to adhere to restrictions.
620.300 General. 620.305 Causes for debarment. 620.310 Procedures. 620.311 Investigation and referral. 620.312 Notice of proposed debarment. 620.313 Opportunity to contest proposed de
barment. 620.314 Debarring official's decision. 620.315 Settlement and voluntary exclusion. 620.320 Period of debarment. 620.325 Scope of debarment.
Subpart D-Suspension 620.400 General. 620.405 Causes for suspension. 620.410 Procedures. 620.411 Notice of suspension. 620.412 Opportunity to contest suspension. 620.413 Suspending official's decision. 620.415 Period of suspension. 620.420 Scope of suspension.
Subpart E-Responsibilities of GSA, NSF
620.500 GSA responsibilities. 620.505 NSF responsibilities. 620.510 Participants' responsibilities.
Subpart F-Drug-Free Workplace
620.600 Purpose. 620.605 Definitions. 620.610 Coverage. 620.615 Grounds for suspension of payments,
suspension or termination of grants, or
suspension or debarment. 620.620 Effect of violation. 620.625 Exception provision. 620.630 Certification requirements and pro
cedures. 620.635 Reporting of and employee sanctions
for convictions of criminal drug offenses. APPENDIX A TO PART 620_CERTIFICATION RE
GARDING DEBARMENT, SUSPENSION, AND
MARY COVERED TRANSACTIONS
GARDING DEBARMENT, SUSPENSION, INELI-
LOWER TIER COVERED TRANSACTIONS APPENDIX CTO PART 620_CERTIFICATION RE
GARDING DRUG-FREE WORKPLACE RE
QUIREMENTS AUTHORITY: E.O. 12549; sec. 5151-5160 of the Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seg.); sec. 11(a) of the National Science Foundation Act of 1950, as amended (42 U.S.C. 1870(a)).
SOURCE: 53 FR 19201 and 19204, May 26, 1988, unless otherwise noted.
CROSS REFERENCE: See also Office of Management and Budget notice published at 55 FR 21679, May 25, 1990. EDITORIAL NOTE:
(1) For nomenclature change to part 620, see 53 FR 19201, May 26, 1988.
(2) For additional information, see related documents published at 52 FR 20360, May 29, 1987, 53 FR 19160, May 26, 1988, and 53 FR 34474, September 6, 1988.
Subpart A-General 8620.100 Purpose.
(a) Executive Order 12549 provides that, to the extent permitted by law, Executive departments and agencies shall participate in a governmentwide system for nonprocurement debarment and suspension. A person who is debarred or suspended shall be excluded from Federal financial and nonfinancial assistance and benefits under Federal programs and activities. Debarment or suspension of a participant in a program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of Executive Order 12549 and the guidelines promulgated by the Office of Management and Budget under section 6 of the Executive order by:
(1) Prescribing the programs and activities that are covered by the governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended participants, participants declared ineligible (see definition of "ineligible" in 8620.105(i)), and participants who have voluntarily excluded themselves from participation in covered transactions
(4) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective implementation and administration of the governmentwide system.
(c) Although these regulations cover the listing of ineligible participants and the effect of such listing, they do not prescribe policies and procedures governing declarations of ineligibility. 8620.105 Definitions.
(a) Adequate evidence. Information sufficient to support the reasonable belief that a particular act or omission has occurred.
(b) Affiliate. Persons are affiliates of each another if, directly or indirectly, either one controls or has the power to control the other, or, a third person controls or has the power to control
both. Indicia of control include, but are portunity acts and executive orders, or not limited to: interlocking manage the environmental protection acts and ment or ownership, identity of inter- executive orders. A person is ineligible ests among family members, shared fa where the determination of ineligibilcilities and equipment, common use of ity affects such person's eligibility to employees, or a business entity orga- participate in more than one covered nized following the suspension or de transaction. barment of a person which has the (j) Legal proceedings. Any criminal same or similar management, owner- proceeding or any civil judicial proship, or principal employees as the sus ceeding to which the Federal Governpended, debarred, ineligible, or volun- ment or a State of local government or tarily excluded person.
quasi-governmental authority is a (c) Agency. Any executive depart
party. The term includes appeals from ment, military department or defense such proceedings. agency or other agency of the execu
(k) Nonprocurement List. The portion tive branch, excluding the independent
of the List of Parties Excluded from Fedregulatory agencies.
eral Procurement or Nonprocurement Pro(d) Civil judgment. The disposition of
grams complied, maintained and disa civil action by any court of com
tributed by the General Services Adpetent jurisdiction, whether entered by
ministration (GSA) containing the verdict, decision, settlement, stipula
names and other information about tion, or otherwise creating a civil li
persons who have been debarred, susability for the wrongful acts com
pended, or voluntarily excluded under plained of; or a final determination of
Executive Order 12549 and these regulaliability under the Program Fraud
tions, and those who have been deterCivil Remedies Act of 1988 (31 U.S.C.
mined to be ineligible. 3801-12).
(1) Notice. A written communication (e) Conviction. A judgment of convic
served in person or sent by certified tion of a criminal offense by any court
mail, return receipt requested, or its of competent jurisdiction, whether en
equivalent, to the last known address tered upon a verdict or a plea, including a plea of nolo contendere.
of a party, its identified counsel, its (1) Debarment. An action taken by a
agent for service of process, or any debarring official in accordance with
partner, officer, director, owner, or
joint venturer of the party. Notice, if these regulations to exclude a person from participating in covered trans
undeliverable, shall be considered to actions. A person so excluded is
have been received by the addressee "debarred.”
five days after being properly sent to (8) Debarring official. An official au
the last address known by the agency. thorized to impose debarment. The de
(m) Participant. Any person who subbarring official is either:
mits a proposal for, enters into, or rea(1) The agency head, or
sonably may be expected to enter into (2) An official designated by the
a covered transaction. This term also agency head.
includes any person who acts on behalf (h) Indictment. Indictment for a of or is authorized to commit a particicriminal offense. An information or pant in a covered transaction as an other filing by competent authority agent or representative of another parcharging a criminal offense shall be ticipant. given the same effect as an indictment. (n) Person. Any individual, corpora
(i) Ineligible. Excluded from participa- tion, partnership, association, unit of tion in Federal nonprocurement pro- government or legal entity, however grams pursuant to a determination of organized, except: foreign governments ineligibility under statutory, executive or foreign governmental entities, puborder, or regulatory authority, other lic international organizations, foreign than Executive Order 12549 and its government owned (in whole or in part) agency implementing regulations; for or controlled entities, and entities conexemple, excluded pursuant to the sisting wholly or partially of foreign Davis-Bacon Act and its implementing governments or foreign governmental regulations, the equal employment op entities.