Proposed Rule2024-13845
USDA Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
Primary source
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Published
July 1, 2024
Issuing agencies
Agriculture Department
Abstract
The U.S. Department of Agriculture (USDA) proposes to revise parts of the USDA Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. USDA proposes both policy changes and clarifications to existing requirements including plain language revisions. USDA is proposing revisions intended in many cases to reduce agency and recipient burden.
Full Text
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<title>Federal Register, Volume 89 Issue 126 (Monday, July 1, 2024)</title>
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[Federal Register Volume 89, Number 126 (Monday, July 1, 2024)]
[Proposed Rules]
[Pages 54372-54393]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13845]
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DEPARTMENT OF AGRICULTURE
2 CFR Chapter IV
[Docket No. USDA-2024-0002]
RIN 0505-AA18
USDA Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards
AGENCY: Office of the Chief Financial Officer, USDA.
ACTION: Proposed rule.
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SUMMARY: The U.S. Department of Agriculture (USDA) proposes to revise
parts of the USDA Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards. USDA proposes both policy
changes and clarifications to existing requirements including plain
language revisions. USDA is proposing revisions intended in many cases
to reduce agency and recipient burden.
DATES: We will consider comments that we receive by July 1, 2024.
ADDRESSES: We invite you to submit comments in response to this
proposed rule. You may submit your comments through the following
method below:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a> and search for Docket ID USDA-2024-0002. Follow the
instructions for submitting comments.
All comments received will be made publicly available on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Tyson P. Whitney, Office of the Chief
Financial Officer, Director, Transparency and Accountability Reporting
Division, U.S. Department of Agriculture, 1400 Independence Avenue SW,
Washington, DC 20250-9011, 202-720-8978, <a href="/cdn-cgi/l/email-protection#92e6ebe1fdfcbce5fafbe6fcf7ebd2e7e1f6f3bcf5fde4"><span class="__cf_email__" data-cfemail="06727f75696828716e6f7268637f467375626728616970">[email protected]</span></a>.
Individuals who require alternative means for communication should
contact the U.S. Department of Agriculture (USDA) Target Center at
(202) 720-2600 (voice).
SUPPLEMENTARY INFORMATION:
Background
The purpose of USDA's action is to provide conforming updates to
OMB's
[[Page 54373]]
April 22, 2024 updates to 2 CFR part 200, implement plain language use,
and to propose revisions intended in many cases to reduce agency and
recipient burden. USDA proposes both policy changes and clarifications
to existing requirements. Except for minor or technical corrections,
such as updates to citations, the proposed changes and the reasons for
them are explained in detail in the Proposed Regulations section of
this notice of proposed rulemaking (NPRM).
Regulatory History
USDA conducted a comprehensive review of the regulatory history of
2 CFR Chapter IV and has identified that much of the current language
is relatively unchanged from the time of each respective regulatory
implementation over the past several decades. Reviewing the regulatory
history of USDA's assistance regulations is valuable as it illustrates
historic administrative priorities active at the time of
implementation, both at USDA and across the Federal government. In
addition, a full review of the regulatory history demonstrates that
USDA has maintained an enduring commitment over more than forty years
to reducing burden on applicants across its financial assistance
landscape.
The regulatory history of USDA-wide financial assistance begins on
November 10, 1981, when USDA issued a final rule to establish at 7 CFR
part 3015 Department-wide policies and standards for administration of
grants and cooperative agreements, to provide uniformity in policy and
standardization of guidance for all of USDA. See 46 FR 55636. Prior to
the issuance of this final rule, USDA issued internal regulations on
the administration of grants and cooperative agreements which directed
the agencies to implement USDA, OMB and other guidance agencies'
policies and directives through issuance of their own individual agency
assistance regulations or directives. This action was intended to
reduce confusion, duplication and complexity in the administration and
management of Federal financial assistance provided by USDA.
USDA also issued rules in response to several laws, Executive
Orders, and OMB Circulars, which expanded the footprint of USDA
assistance regulations. For example, on June 24, 1983, USDA issued a
final rule to amend 7 CFR part 3015 to implement E.O. 12372,
``Intergovernmental Review of Federal Programs,'' section 401 of the
Intergovernmental Cooperation Act of 1968, as amended (31 U.S.C. 6506),
and section 204 of the Demonstration Cities and Metropolitan
Development Act, as amended (42 U.S.C. 3334), and thereby replace the
intergovernmental consultation system developed under OMB Circular A-
95. See 48 FR 29100. This language remains unchanged to date.
Other changes to the USDA assistance regulations originate from
past administrative priorities. For example, on May 9, 1986, USDA
issued a final rule to amend 7 CFR part 3015 to add a new section to
implement requirements found in Secretary's Memorandum (SM) 5000-2 to
all discretionary grants and cooperative agreements. See 51 FR 17169.
SM 5000-2 established USDA policy regarding competition in the awarding
of grants and cooperative agreements to further research, extension, or
teaching programs in the food and agricultural sciences. This action
expanded the application of the competition requirement to all
discretionary awards as the Department determined that there was no
logical reason to distinguish between awards made to further research,
extension, and teaching programs and other discretionary awards, as
competition was deemed beneficial in either instance.
Over the next several years, USDA joined in several government-wide
common rules, which demonstrates a commitment to the establishment of a
uniform applicant experience with compliance requirements. For example,
on March 11, 1988, USDA adopted a final common rule to establish at 7
CFR part 3016 administrative requirements applicable to assistance
relationships established by grants and cooperative agreements,
including subawards, to State and local governments. See 53 FR 8042.
Prior to that date, administrative requirements for awards and
subawards under all USDA programs were codified at 7 CFR part 3015. At
that time, note that the common rule applied to USDA's non-entitlement
programs, but did not apply to certain entitlement programs.
USDA joined several other common rules focused on government-wide
priorities, such as nonprocurement debarment and suspension, drug-free
workplace, and lobbying. On January 30, 1989, USDA adopted a final
common rule to establish at 7 CFR part 3017 the uniform system of
nonprocurement debarment and suspension as required under Executive
Order (E.O.) 12549. See 54 FR 4722. On January 31, 1989, USDA adopted
an interim final common rule requiring grantees to take steps to
provide a drug-free workplace as required by the Drug-Free Workplace
Act of 1988 (Pub. L. 100-690). See 54 FR 4947. This action established
a new Subpart F at 7 CFR part 3017. On December 18, 1989, OMB issued
interim final government-wide guidance on lobbying as required by the
Department of the Interior and Related Agencies Appropriations Act for
Fiscal Year 1990, Section 319 (Pub. L. 101-121). See 54 FR 52306. On
February 26, 1990, USDA adopted an interim final common rule to
establish at 7 CFR part 3018 the OMB government-wide guidance on
lobbying. See 55 FR 6736. On May 25, 1990, USDA adopted a final common
rule related to drug-free workplace requirements for financial
assistance. See 55 FR 21681. This action amended the earlier interim
final rule.
During this time, Federal financial assistance continued to be
managed through OMB's issuance of Circulars which agencies subsequently
adopted. Accordingly, on August 24, 1995, USDA issued an interim final
rule to implement OMB's Circular A-110, ``Uniform Administrative
Requirements for Grants and Agreements With Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations.'' See 60 FR
44122. This action established 7 CFR part 3019 and consequently amended
7 CFR part 3015. Later, on March 16, 2000, USDA adopted an interim
final rule to amend the earlier codification of OMB Circular A-110 at 7
CFR part 3019. See 65 FR 14406. This action required data produced
under a financial assistance award to be made available to the public
through procedures established under the Freedom of Information Act and
provided for a reasonable fee to cover costs responding to such a
request.
Reviewing the regulatory history has revealed one area where OMB
issued guidance, but no common rule was subsequently issued or amended.
On January 19, 1996, OMB issued interim final amendments to the OMB
government-wide guidance on lobbying following the passage of the
``Lobbying Disclosure Act of 1995'' (Pub. L. 104-65). See 61 FR 1412.
This action removed the reporting requirements at Subpart F and made
technical corrections to the lobbying disclosure form. This NPRM
proposes conforming edits to 2 CFR part 418 which will align USDA with
the 1996 interim final amendments.
On August 14, 2000, USDA issued a final rule to revise its grants
management regulations at 7 CFR 3016 to include provisions specific to
USDA entitlement programs. See 65 FR 49474. This language serves as the
basis for the present-day 2 CFR part 416.
On December 6, 2000, the Office of Science and Technology Policy
issued
[[Page 54374]]
the Federal Policy on Research Misconduct which addresses research
misconduct in research conducted by Federal agencies, conducted or
managed for the Federal government by contractors, or supported by the
Federal government and performed at research institutions. USDA
initially implemented these requirements as interim policy through SM
2400-007. On August 13, 2010, USDA issued a final rule to establish at
7 CFR part 3022 the codification of the Office of Science and
Technology Policy's Federal Policy on Research Misconduct. See 75 FR
49357. This language remains unchanged to date.
Several regulatory changes concerned updates regarding
nonprocurement debarment and suspension and drug-free workplace. On
November 6, 2003, OMB issued a final government-wide common rule on
nonprocurement debarment and suspension and drug-free workplace
requirements for financial assistance. See 68 FR 66534. USDA adopted
this rule on an interim final basis, to request further comment on
sections related to appeals to an administrative law judge and
delegations of authority related to the Forest Service. This action
amended the existing 7 CFR part 3017 and established 7 CFR part 3021 to
separate nonprocurement debarment and suspension from drug-free
workplace requirements for financial assistance. On May 25, 2010, USDA
established a new part 417 on nonprocurement debarment and suspension
at 2 CFR Chapter IV that adopted and supplemented the Office of
Management and Budget (OMB) guidance at 2 CFR part 180 as USDA's
policies and procedures for nonprocurement debarment and suspension.
The introduction of part 417 of 2 CFR replaced and removed USDA's
previous implementation of the government-wide common rule on
nonprocurement debarment and suspension at 7 CFR part 3017. This
language serves as the basis for the present-day 2 CFR part 417. In
addition, on December 8, 2011, USDA issued a direct final rule to
remove its regulation implementing the government-wide common rule on
drug-free workplace requirements for financial assistance at 7 CFR part
4021 and issued a new regulation to adopt the Office of Management and
Budget guidance (2 CFR part 182) at 2 CFR part 421. See 76 FR 76609.
This action made no substantive changes in USDA's policy or procedures
for drug-free workplace. This language remains unchanged to date.
A major shift in the USDA's assistance regulations occurred on
December 26, 2013, when OMB issued the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards (commonly referred to as the ``Uniform Guidance'', codified at 2
CFR part 200) that ``set standard requirements for financial management
of Federal awards across the entire Federal government.'' See 78 FR
78590. On December 19, 2014, OMB and other Federal award-making
agencies, including USDA, issued an interim final rule to implement the
Uniform Guidance. See 79 FR 75867. As part of the December 2014
rulemaking, the Office of the Chief Financial Officer adopted 2 CFR
part 200, along with an agency-specific addendum in a new 2 CFR part
400. USDA added 2 CFR parts 415, 416, 418 and 422. The content found in
these parts represented the delta between the Uniform Guidance and the
USDA assistance regulations in 7 CFR. In the same rulemaking, the
Office of the Chief Financial Officer removed parts 3015, 3016, 3018,
3019, 3022 and 3052 from title 7 of the CFR, as they became obsolete
with the publication of the interim final rule. See 79 FR 75981. On
February 16, 2016, USDA issued a final rule to finalize certain
component agency portions of the Uniform Guidance and make conforming
changes. This rule confirmed that 2 CFR part 400, 415, 416, 418, and
422 as described in the interim final rule were adopted with no
changes. See 81 FR 7695.
Over the next couple of years, various sections of USDA assistance
regulations were updated. For example, on October 4, 2019, USDA issued
a final rule to adopt certain provisions of the Office of Management
and Budget (OMB) guidelines to agencies on governmentwide debarment and
suspension (nonprocurement) not previously adopted and to adopt changes
made to the OMB guidance after its initial publication in 2010. See 84
FR 52993. In addition, on November 16, 2020, USDA issued a final rule
to make technical corrections to the Department's grants and agreements
regulations. See 85 FR 72912.
Finally, on April 22, 2024, OMB issued a final rule and
notification of final guidance to revise the OMB Guidance for Grants
and Agreements. The action revises and updates the guidance,
incorporating certain statutory requirements and clarifying certain
sections including revisions to improve Federal financial assistance
management, transparency, and oversight. See 89 FR 30046. This NRPM
proposes several conforming edits which align USDA's assistance
regulations with OMB's recent final rule.
Proposed Regulations
2 CFR part 400--Uniform administrative requirements, cost principles,
and audit requirements for Federal awards
Current Regulation: Part 400 provides the USDA adoption of subparts
A through F of 2 CFR part 200, as supplemented by the same part.
Proposed Regulation: The proposed revision updates the authorities
under which this part is issued. It additionally creates a new
definition section applicable to 2 CFR Chapter IV which centralizes
existing definitions from current parts of 2 CFR Chapter IV and defines
for USDA certain terms present in 2 CFR Subtitle A but not defined in
that subtitle. USDA proposes to clarify conflict of interest
requirements applicable to each USDA awarding agency, which includes
the implementation of procedures to identify, disclose, and mitigate
identified conflicts of interest that may arise during the period of
performance of an award. The proposed revisions also include minor
updates to terminology to conform to the April 22, 2024, OMB updates to
2 CFR part 200.
Reasons: The reference USDA proposes to add clarifies the source of
the authority to adopt subparts A through F of 2 CFR part 200. The
centralization of definitions provides clarity and reduces recipient
and agency and recipient burden on the interpretation and application
of 2 CFR Chapter IV. The addition of new definitions enhances uniform
interpretation and application of 2 CFR Subtitle A and 2 CFR Chapter IV
which will improve the management, transparency, and oversight of USDA
Federal financial assistance awards.
Clarifying conflict of interest requirements for USDA awarding
agencies reduces agency burden and improves the management and
oversight of USDA Federal financial assistance awards. The proposed
language identifies timeframes for discovery of conflicts of interest
which enables uniformity in the approach of this process across USDA's
awarding agencies.
Adding conforming language to adhere to the April 22, 2024 OMB
updates to 2 CFR part 200 satisfies direction provided in OMB
Memorandum M-24-11 and mitigates any potential conflict between 2 CFR
part 200 and 2 CFR Chapter IV.
2 CFR part 401--[Reserved]
Current Regulation: Part 401 is currently reserved.
[[Page 54375]]
Proposed Regulation: USDA proposes to add a new part 401 that
identifies the USDA policy for the implementation of waivers to the
Build America, Buy America (BABA) Act domestic content procurement
preferences for Federal financial assistance programs and projects, as
required by 2 CFR 184.7b.
Reasons: The proposed language ensures USDA compliance with
regulatory requirements. It additionally, transparently identifies to
the public the processes by which USDA ensures full compliance with the
statutory requirements related to issuing waivers to the BABA domestic
content procurement preference for Federal financial assistance
programs and projects.
2 CFR part 415--General Program Administrative Regulations
Current Regulation: Part 415 establishes standards for competition
in the awarding of discretionary grants and cooperative agreements,
requires the acknowledgement of USDA support on publications and
audiovisuals, and establishes the regulatory framework for compliance
with intergovernmental review of USDA programs.
Proposed Regulation: USDA proposes to make several updates at this
section.
USDA proposed updates that clarify requirements related to the
competition of discretionary grants and cooperative agreements. This
includes the dissemination of notices of funding opportunities, the
selection of independent reviewers for the conduct of merit review,
conflict of interests related to the conduct of merit review, the
treatment of unsolicited applications and related materials, exceptions
to requirements for competition in discretionary grants and cooperative
agreements, and inherently governmental functions related to financial
assistance administration.
Additional proposed updates include modernizing the requirements
for acknowledgement of USDA support and intergovernmental review of
USDA programs and activities. Plain language updates and technical
corrections are additionally proposed at this part.
Reasons: The proposed updates related to the competition of
discretionary grants and agreements demonstrate USDA's commitment to
upholding the direction related to competition originally provided by
the Federal Grant and Cooperative Agreement Act of 1977 (31 U.S.C.
6301-6308). The establishment of direction related to the dissemination
of notices of funding opportunities are intended to foster an increase
in innovation, competition, and diversity in applicants to
discretionary grants and cooperative agreements funding opportunities.
Broad dissemination and a deliberate focus on identifying the greatest
number and diversity of potential applicants may additionally decrease
burden on prospective first-time applicants unfamiliar with USDA
programs. The proposed language related to merit review enhance the
conduct of that process at USDA by providing clarification and
additional direction on USDA awarding agency procedures.
Proposed language related to the treatment of unsolicited
applications and related materials reflect the modernization and
digitization of many grants administration processes. In addition,
these updates will decrease agency burden while retaining flexibility
and discretion to make awards following unsolicited applications.
Proposed changes to the noncompetitive justification statements
reflect modernization of these statements, which were first established
in 1986. These updates enhance the transparency of noncompetitive
awards, which are critical to the function of USDA programs and
activities, and identify agency flexibility in establishing alternative
exceptions to competition subject to approval by the Secretary of
Agriculture and OMB. In addition, the requirement that any additional
noncompetitive justification statements that may be established by USDA
awarding agencies be made publicly available will decrease burden on
prospective applicants who may be unfamiliar with USDA noncompetitive
discretionary grant and cooperative agreement programs.
In addition, proposed changes to this section incorporate direction
related to inherently governmental functions as established by the
Office of Federal Procurement Policy (OFPP) Policy Letter 11-01, which
includes considerations related to financial assistance. This change
will strengthen the overall administration of financial assistance
administration by providing clear direction to USDA awarding agencies.
Further proposed changes modernize the acknowledgement of USDA
support on information dissemination products, which ensures broad
coverage of materials produced with USDA Federal financial assistance
support. Expansion of the terminology used at this part, which was
established in 1981 and presently refers only to publications and
audiovisuals, provides coverage for digital products.
Finally, USDA proposed minor corrections and plain language updates
at Subpart C, related to intergovernmental review, which will ensure
the currency and accessibility of information available to the public.
2 CFR part 416--General Program Administrative Regulations for Grants
and Cooperative Agreements to State and Local Governments
Current Regulation: Part 416 provides special procurement
provisions applicable to certain USDA entitlement programs.
Proposed Regulation: USDA proposes a technical correction to the
citation to 2 CFR 200.101(f) in paragraphs (a) and (b); this citation
currently refers only to parts 4 through 6 of that section but is
proposed to refer to parts 4 through 7. In addition, USDA is proposing
to remove the citation to 2 CFR 200.319(c) in paragraph (b) as a
conforming update to adhere to the April 22, 2024 OMB updates to 2 CFR
part 200. Finally, USDA is proposing plain language updates to this
part.
Reasons: The proposed change to the citation to 2 CFR 200.101(f) in
paragraphs (a) and (b) is a technical correction because the programs
referred to at 2 CFR 200.101(f)(7) were previously covered by USDA's
former regulations at 7 CFR part 3016 at time of initial implementation
in 1988. When USDA initially adopted the Uniform Guidance in 2014 and
removed 7 CFR part 3016, the citation included in the new 2 CFR part
416 should have included the programs at 2 CFR 200.101(f)(7). The
change proposed in this NPRM simply corrects the citation and no change
in program delivery or operation is anticipated.
Next, the proposed change at paragraph (b), to remove the citation
to 2 CFR 200.319(c), is prompted by OMB's removal of that paragraph in
the April 22, 2024 OMB updates to 2 CFR part 200.
Finally, plain language updates proposed at this section ensure the
currency and accessibility of information available to the public.
2 CFR part 417--Nonprocurement Debarment and Suspension
Current Regulation: Part 417 adopts the OMB guidance in subparts A
through I of 2 CFR part 180, as supplemented by the same part.
Proposed Regulation: USDA proposes to remove language that is
duplicative of that found at 2 CFR part 180. USDA proposes to make
conforming updates to the sections which serve as the USDA supplement
to 2 CFR part 180. Plain language updates and technical corrections are
additionally proposed at this part.
[[Page 54376]]
Reasons: The removal of language which simply duplicates that found
at 2 CFR part 180 streamlines USDA's regulations at this chapter
overall. This proposed update will decrease applicant burden in
understanding what nonprocurement debarment and suspension requirements
may apply. The proposed updates to the remainder of the language of
this part reflect required updates, including minor technical
corrections and the update of references to the former EPLS system
which was consolidated into <a href="http://SAM.gov">SAM.gov</a>. Technical corrections and plain
language updates proposed at this section ensure the currency and
accessibility of information available to the public.
2 CFR part 418--New Restrictions on Lobbying
Current Regulation: Part 418 provides the USDA adoption of the Byrd
Anti-Lobbying Amendment common rule.
Proposed Regulation: Proposed changes to this section rescind
Subpart F along with conforming updates to support its removal, as well
as the recission of Appendix B to Part 418. Plain language updates and
technical corrections are additionally proposed at this part.
Reasons: Subpart F was removed from the OMB government-wide
guidance on lobbying in 1996. Its removal clarifies expectations for
USDA awarding agencies and reduces administrative burden. In addition,
the removal of Appendix B to Part 418 ensures that USDA awarding
agencies and the public may access only the most updated version of the
form reproduced at that section (SF-LLL). The most current version of
that document is approved by OMB and may be found on <a href="http://Grants.gov">Grants.gov</a>.
Finally, technical corrections and plain language updates proposed at
this section ensure the currency and accessibility of information
available to the public.
2 CFR part 421--Requirements for Drug-Free Workplace (Financial
Assistance)
Current Regulation: Part 421 adopts the OMB guidance in subparts A
through F of 2 CFR part 182, as supplemented by the same part.
Proposed Regulation: USDA proposes technical corrections to
citations at this section.
Reasons: Technical corrections at this section ensure the currency
of information available to the public.
2 CFR part 422--Research Institutions Conducting USDA-Funded Extramural
Research; Research Misconducts
Current Regulation: Part 422 provides the USDA required
implementation of the Office of Science and Technology Policy (OSTP's)
Federal Policy on Research Misconduct, which provides the USDA
regulatory framework on research integrity, which includes provisions
for inquiry, investigation, adjudication, and appeal of research
misconduct.
Proposed Regulation: USDA proposes minor technical corrections,
including fixing spelling errors, improving plain language, and
updating citations. Information regarding the USDA OIG is proposed to
conform with organizational updates of that office, as well as related
contact information. In addition, USDA proposes to expand the
definition of ``research institution'' to provide clarity on the
application of the policy. Finally, USDA proposes to clarify that
agency implementation procedures, which identify the administrative
actions available to remedy a finding of research misconduct, will be
made available on a public USDA website.
Reasons: Technical corrections and plain language updates proposed
at this section ensure the currency and accessibility of information
available to the public. Clarification of the definition of ``research
institution'' will improve public understanding of the applicability of
the policy. Requiring agency implementation procedures to be posted on
a public website increases transparency of this policy to the public.
2 CFR part 423--[Reserved]
Current Regulation: Part 423 is currently reserved.
Proposed Regulation: USDA proposes to add a new part 423 that would
supplement the disclosure requirements found at 43 U.S.C. 2808(b)(3) to
require Federal financial instruments which involve the acquisition,
storage, or distribution of geospatial data to include terms and
conditions to require that recipients comply with law, regulation, and
USDA policy.
Reasons: Requiring USDA awarding agencies to include award terms
and conditions in each applicable financial instrument ensures a
uniform application of the disclosure requirements required at 43
U.S.C. 2808(b)(3) across the landscape of USDA Federal financial
assistance.
Executive Orders 12866 and 13563
Executive Order 12866, ``Regulatory Planning and Review'' and
Executive Order 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. The assessment should
include potential economic, environmental, public health and safety
effects, distributive impacts, and equity. Executive Order 13563
emphasized the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. The
Office of Management and Budget (OMB) designated this proposed rule as
not significant under Executive Order 12866, ``Regulatory Planning and
Review,'' and therefore, OMB has not reviewed it.
Executive Order 12988
This proposed rule has been reviewed under E.O. 12988 on ``Civil
Justice Reform.'' This proposed rule would not preempt state or local
laws, regulations, or policies unless they represent an irreconcilable
conflict with it.
The Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments, or the
private sector. Agencies generally must prepare a written statement,
including cost benefits analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year for State, local or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
proposed rule contains no Federal mandates, as defined in Title II of
UMRA, for State, local, and Tribal governments, or the private sector.
Therefore, it is not subject to the requirements of sections 202 and
205 of UMRA.
Paperwork Reduction Act
This proposed rule has been reviewed in compliance with the
Paperwork Reduction Act (44 U.S.C. 3501-3520). It does not have any
information collection requirements.
USDA Non-Discrimination Policy
In accordance with Federal civil rights law and USDA civil rights
regulations and policies, the USDA, its agencies, offices, and
employees, and institutions participating in or administering USDA
programs are prohibited from discriminating based on race, color,
national origin, religion, sex,
[[Page 54377]]
gender identity (including gender expression), sexual orientation,
disability, age, marital status, family or parental status, income
derived from a public assistance program, political beliefs, or
reprisal or retaliation for prior civil rights activity, in any program
or activity conducted or funded by USDA (not all bases apply to all
programs). Remedies and complaint filing deadlines vary by program or
incident.
Individuals who require alternative means of communication for
program information (for example, braille, large print, audiotape,
American Sign Language, etc.) should contact the responsible agency or
the USDA TARGET Center at (202) 720-2600 (voice and text telephone
(TTY)) or dial 711 for Telecommunications Relay Service (both voice and
text telephone users can initiate this call from any telephone).
Additionally, program information may be made available in languages
other than English.
To file a program discrimination complaint, complete the USDA
Program Discrimination Complaint Form, AD-3027, found online at <a href="https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint">https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint</a> and
at any USDA office or write a letter addressed to USDA and provide in
the letter all the information requested in the form. To request a copy
of the complaint form, call (866) 632-9992. Submit your completed form
or letter to USDA by: (1) mail to: U.S. Department of Agriculture,
Office of the Assistant Secretary for Civil Rights, 1400 Independence
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3)
email: <a href="/cdn-cgi/l/email-protection#d4a4a6bbb3a6b5b9fabdbaa0b5bfb194a1a7b0b5fab3bba2"><span class="__cf_email__" data-cfemail="0171736e6673606c2f686f75606a6441747265602f666e77">[email protected]</span></a>.
USDA is an equal opportunity provider, employer, and lender.
List of Subjects in Chapter IV
2 CFR Part 400
<bullet> Administration of Federal financial assistance
<bullet> Administrative practice and procedure
<bullet> Federal financial assistance programs
2 CFR Part 401
<bullet> Federal financial assistance programs
<bullet> Construction Industry
2 CFR Part 415
<bullet> Agriculture programs
<bullet> Administration of Federal financial assistance
<bullet> Administrative practice and procedure
2 CFR Part 416
<bullet> Agriculture programs
<bullet> Administration of Federal financial assistance
<bullet> Administrative practice and procedure
<bullet> Government procurement procedure
2 CFR Part 417
<bullet> Administrative practice and procedure; Grant programs;
Loan programs; Reporting and recordkeeping requirements
2 CFR Part 418
<bullet> Lobbying procedures
<bullet> Administration of Federal financial assistance
<bullet> Government procurement procedure
2 CFR Part 421
<bullet> Administration of Federal financial assistance
<bullet> Administrative practice and procedure
<bullet> Drugs
2 CFR Part 422
<bullet> Agricultural research
<bullet> Administration of Federal financial assistance
<bullet> Administrative practice and procedure
2 CFR Part 423
<bullet> Reporting and recordkeeping requirements
<bullet> Administration of Federal financial assistance
For the reasons stated in the preamble, USDA proposes to amend 2
CFR Chapter IV to read as follows:
0
1. Revise part 400 to read as follows:
PART 400--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND
AUDIT REQUIREMENTS FOR FEDERAL AWARDS
Sec.
400.0 Definitions.
400.1 Applicability.
400.2 Conflict of interest.
Authority: 5 U.S.C. 301; 2 CFR part 200.
Sec. 400.0 Definitions.
The definitions in this part are for terms used in this chapter,
and to define for USDA terms present in 2 CFR Subtitle A but not
defined in that subtitle. Different definitions may be found in Federal
statutes, regulations, or other sources that apply more specifically to
particular programs or activities. Where parts of this chapter provide
alternate definitions than those in this part, those definitions take
precedence over any definition in this part. For terms used in this
chapter that are not defined in this part, the definitions in 2 CFR
part 200 apply. All terms not otherwise defined will use the dictionary
definition.
Audiovisual means a product containing visual imagery or sound or
both. Examples of audiovisuals are motion pictures, live or prerecorded
radio or television programs, slide shows, filmstrips, audio
recordings, and multimedia presentations.
Awarding official means a person with the authority to enter into,
administer, and/or terminate financial assistance awards and make
related determinations and findings.
Construction means construction, alteration, or repair (including
dredging, excavating, and painting) of buildings, structures, or other
real property. For purposes of this definition, the terms ``buildings,
structures, or other real property'' include, but are not limited to,
improvements of all types, such as bridges, dams, plants, highways,
parkways, streets, subways, tunnels, sewers, mains, power lines,
cemeteries, pumping stations, railways, airport facilities, terminals,
docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters,
levees, canals, and channels. For the purposes of 2 CFR part 184,
construction also encompasses structures, facilities, and equipment
incorporated into an infrastructure project regardless of whether they
constitute real property.
Department means the U.S. Department of Agriculture.
Discretionary award means an award in which the Federal awarding
agency, in keeping with specific statutory authority that enables the
agency to exercise judgment (``discretion''), selects the recipient
and/or the amount of Federal funding awarded through a competitive
process or based on merit of proposals. A discretionary award may be
selected by a USDA awarding agency on a non-competitive basis
exclusively under the conditions set forth at 2 CFR 415.1.
Eligible applications means those materials which have been
submitted by a recipient for consideration for an award of Federal
financial assistance and have been determined to comply with the
minimum documentation and other requirements, which may be identified
in respective notices of funding opportunities and applicable Federal
statutes or regulations that apply more specifically to particular
programs or activities.
Federal financial assistance support means the transfer of anything
of value by a USDA awarding agency through a Federal financial
assistance instrument as defined at 2 CFR part 200.1, inclusive
[[Page 54378]]
of Federally funded subawards and subcontracts under such instruments,
to a recipient. Such support may be provided as a cash or in-kind
contribution.
Geospatial data means information that is tied to a location on the
Earth, including by identifying the geographic location and
characteristics of natural or constructed features and boundaries on
the Earth, and that is generally represented in vector datasets by
points, lines, polygons, or other complex geographic features or
phenomena; may be derived from, among other things, remote sensing,
mapping, and surveying technologies; includes images and raster
datasets, aerial photographs, and other forms of geospatial data or
datasets in digitized or non-digitized form.
Information means any communication or representation of knowledge,
such as facts, data, or opinions in any medium or form, including
textual, numerical, graphic, cartographic, narrative, or audiovisual
forms.
Information dissemination product means any recorded information,
regardless of physical form or characteristics, disseminated to the
public.
Maintenance means those activities conducted for the repair or
upkeep of buildings, structures, facilities, and equipment which
neither add to the permanent value of the property nor appreciably
prolong its intended life, but keep it in an efficient operating
condition.
Production of an audiovisual means any steps that lead to a
finished audiovisual, including but not limited to design, layout,
script-writing, filming, editing, fabrication, sound recording or
taping. The term does not include the placing of captions to make
accessible films or videotapes not originally produced for use by
individuals who are Deaf or hard of hearing.
Secretary means the Secretary of the U.S. Department of
Agriculture.
USDA means the U.S. Department of Agriculture.
USDA awarding agency means any component agency or staff office of
the U.S. Department of Agriculture which provides any Federal financial
assistance to or executes a Federal financial assistance instrument
with a recipient.
Sec. 400.1 Applicability.
This part adopts the OMB guidance in subparts A through F of 2 CFR
part 200, as supplemented by this chapter, as USDA policies and
procedures for uniform administrative requirements, cost principles,
and audit requirements for Federal awards. It thereby gives regulatory
effect for the USDA to the OMB guidance, as supplemented by this
chapter.
Sec. 400.2 Conflict of interest.
(a) Each USDA awarding agency must establish conflict of interest
policies for its Federal financial assistance actions. Each USDA
awarding agency employee must comply with the requirements set forth at
5 CFR part 2635, as well as 5 CFR part 8301 where applicable, when the
USDA employee takes any action related to Federal financial assistance.
(b) Recipients must disclose in writing any potential conflicts of
interest to the USDA awarding agency or pass-through entity.
(1) Recipients must maintain written standards of conduct covering
conflicts of interest and governing the performance of their employees
in the selection, award and administration of Federal awards. No
employee, officer or agent may participate in the selection, award, or
administration of a Federal award if he or she has a real or apparent
conflict of interest. Such a conflict of interest would arise when the
employee, officer, or agent, 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 or a tangible personal benefit from an entity considered
for a Federal award. The recipient 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 must
provide for disciplinary actions to be applied for violations of such
standards by officers, employees, or agents of the recipient.
(2) If the recipient has a parent, affiliate, or subsidiary
organization that is not a state, local government, or Indian tribe,
the non-Federal entity must also maintain written standards of conduct
covering organizational conflicts of interest. Organizational conflicts
of interest means that because of the relationships with a parent
company, affiliate, or subsidiary organization, the recipient is unable
or appears to be unable to be impartial in conducting a Federal award
action involving a related organization.
(3) Recipients must establish internal controls that include, at a
minimum, procedures to identify, disclose, and mitigate or eliminate
identified conflicts of interest. Recipients are responsible for
notifying the respective USDA awarding agency in writing of any
conflicts of interest that may arise during the period of performance
of an award, including those which have been reported by subrecipients,
no later than 5 calendar days following discovery. Upon receipt of such
a disclosure, the respective USDA awarding agency must review and make
a determination in writing if a potential or real conflict of interest
exists and develop a plan for addressing or mitigating the issue, which
may include remedies found at 2 CFR 200.339. USDA awarding agencies
must make a determination within 30 calendar days of disclosure unless
a longer period of time is necessary due to the complexity of the
situation.
0
2. Add part 401 to read as follows:
PART 401--BUY AMERICA PREFERENCES FOR INFRASTRUCTURE PROJECTS
Sec.
401.1 What does this part do?
401.2 Waivers.
Authority: 5 U.S.C. 301; Pub. L. 117-58, 135 Stat. 1294; 2 CFR
part 184; 2 CFR part 200.
Sec. 401.1 What does this part do?
This part identifies the USDA policy for the implementation of
waivers to the domestic content procurement preferences as required by
2 CFR 184.7(b).
Sec. 401.2 Waivers.
On its public website, USDA must maintain waiver request submission
instructions and guidance on the format, contents, and supporting
materials required for waiver requests by which:
(a) USDA awarding agencies may request waivers to the application
of the Buy America Preference; and,
(b) Prime recipients and subrecipients may request project-specific
waivers from the respective USDA awarding agencies to the application
of the Buy America Preference.
0
3. Revise part 415 to read as follows:
PART 415--GENERAL PROGRAM ADMINISTRATIVE REGULATIONS
Subpart A--Application for Federal Assistance
Sec.
415.1 Administrative standards for discretionary grants and
cooperative agreements.
Subpart B--Miscellaneous
Sec.
415.2 Acknowledgement of USDA Support on Information Dissemination
Products.
Subpart C--Intergovernmental Review of Department of Agriculture
Programs and Activities
Sec.
415.3 Purpose.
[[Page 54379]]
415.4 Definitions.
415.5 Applicability.
415.6 Secretary's general responsibilities.
415.7 Federal interagency coordination.
415.8 State selection of programs and activities.
415.9 Communication with State and local elected officials.
415.10 State comments on proposed Federal financial assistance and
direct Federal development.
415.11 Processing comments.
415.12 Accommodation of intergovernmental concerns.
415.13 Interstate situations.
415.14 Simplification, consolidation, or substitution of State
plans.
415.15 Waivers.
Authority: 5 U.S.C. 301; 31 U.S.C. 901-903; 2 CFR part 200; 7
CFR 2.28.
Subpart A--Application for Federal Assistance
Sec. 415.1 Administrative standards for discretionary grants and
cooperative agreements.
(a) All USDA awarding agencies must demonstrate a commitment to
encouraging free and open competition in all discretionary grant and
cooperative agreement funding opportunities. USDA awarding agencies
must ensure that all eligible applications for discretionary grants and
cooperative agreements receive fair and impartial review, be evaluated
only on criteria as stated in the respective notice of funding
opportunity, and that no applicant receive an unfair advantage.
(b) USDA awarding agencies must enter into discretionary grants and
cooperative agreements only after competition. Exceptions to this
requirement may only be made by USDA awarding agencies where expressly
provided by statute, when directed by Congress, where the requirement
is determined to be inconsistent with international assistance
objectives of USDA, or as specified in paragraph (d) or as approved by
the Secretary and OMB under paragraph (e). A USDA awarding agency's
competitive award process must adhere to the following standards:
(1) All notices of funding opportunities for discretionary grants
and cooperative agreements must be published on <a href="http://Grants.gov">Grants.gov</a> as described
in 2 CFR 200.204(a). When notices of funding opportunities contain an
information collection requirement subject to the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.) or its implementing regulations at 5 CFR
part 1320, USDA awarding agencies must seek and obtain OMB approval
before collecting information from the public.
(i) Supplementary to the requirements at paragraph (b)(1), USDA
awarding agencies may make use of other methods of disseminating public
information concerning notices of funding opportunities. In doing so,
USDA awarding agencies must:
(A) Pursue the broadest dissemination of information concerning
notices of funding opportunities in order to reach the greatest number
and diversity of potential applicants.
(B) Avoid any appearance that an unfair advantage has been provided
to any entity, inclusive of the memberships or networks of such
entities, which may arise from the use of any dissemination method.
(C) Provide only public information concerning notices of funding
opportunities.
(D) Seek the greatest cost savings to the Government, whenever
possible.
(ii) Nothing in this part will be interpreted as to limit, impede,
or otherwise prevent the attendance of any USDA awarding agency's
staff, acting in their official capacity, at a conference, event, or
similar activity, for the purposes of disseminating public information
concerning notices of funding opportunities.
(2) Applications must be evaluated objectively by independent
reviewers in accordance with evaluation criteria set forth in writing
by the USDA awarding agency. USDA awarding agencies must establish
written procedures to gain reasonable assurance that individuals
selected to serve as independent reviewers are qualified to conduct any
assigned review activity and that applications are scored by
independent reviewers solely on the basis of criteria announced in the
respective published notice of funding opportunity. Independent
reviewers must make written comments or make a written determination of
scoring, as appropriate, concerning each application to which they are
assigned.
(i) Independent reviewers may be from the private or public sector,
including another Federal agency, or within the awarding agency.
Independent reviewers must not be any individual who holds or has been
delegated approval or award authority for the applications being
reviewed or components thereof.
(ii) Anyone who has or might appear to have a conflict of interest
with any element of an application considered for selection or funding
will be ineligible to serve as an independent reviewer. A conflict of
interest might arise when the prospective independent reviewer, the
reviewer's immediate family members, or the reviewer's partner, have
been associated with the applicant or applicant organization within the
past two years as an owner, partner, officer, director, employee, or
consultant; has any financial or other interest in or tangible personal
benefit from the applicant or applicant organizations; or is
negotiating for, or has any arrangement, concerning prospective
employment.
(3) Notwithstanding paragraph (b), unless directed by Congress or
authorized by statute, USDA awarding agencies may, but are not required
to, review, evaluate for eligibility, or otherwise consider for funding
any unsolicited application, proposal materials, ideas, pitches, or any
other request for Federal funds provided by any entity for the purpose
of obtaining Federal financial assistance.
(c) The final decision to award is at the discretion of the
awarding official in each USDA awarding agency. The awarding official
must consider the ranking, comments, and recommendations from the
respective independent reviewers, and any other pertinent information
before deciding which applications to approve and their order of
approval. Any appeals by applicants regarding the awarding decision
must be handled by the awarding agency using existing, written agency
appeal procedures.
(d) The awarding official may make a determination that competition
is not deemed appropriate for a particular transaction. Such
determination must be made in writing on a case-by-case basis and be
limited to transactions where it can be adequately justified that a
noncompetitive award is in the best interest of the Government and
necessary to the accomplishment of the goals of USDA. Reasons for
considering noncompetitive awards are:
(1) Nonmonetary awards of property or services.
(2) Awards of less than $100,000.
(3) Awards to fund continuing work already started under a previous
award for which competition for continued support would have a
significant adverse effect on continuity or completion of the activity.
(4) Time constraints associated with a public health, safety,
welfare, or national security requirement preclude competition.
(e) USDA awarding agencies may establish alternate exceptions from
competition for discretionary awards. All such alternative exceptions
will be subject to review and approval both by the Secretary and by
OMB, pursuant to pursuant to 2 CFR 200.102, and 2 CFR 200.107 when
applicable, and publicly set forth in writing by the USDA awarding
agency.
[[Page 54380]]
(f) All actions taken USDA awarding agencies for the purpose of
accomplishing any element of Federal financial assistance programs,
awards, and any related or subsequent transactions, must comply with
the direction set forth in Office of Federal Procurement Policy (OFPP)
Policy Letter 11-01 and successor policy regarding the performance of
inherently governmental and critical functions.
Subpart B--Miscellaneous
Sec. 415.2 Acknowledgement of USDA Support on Information
Dissemination Products.
Recipients must have an acknowledgement of USDA awarding agency
support placed on any information dissemination products produced with
any Federal financial assistance support, including those which report
the results or, or describe, a Federal financial assistance-supported
activity.
(a) Unless the provisions of the Federal financial assistance award
make it apply, this requirement does not apply to:
(1) Audiovisuals produced as research instruments or for
documenting experimentation or findings and not intended for
presentation or distribution to the public.
(2) [Reserved]
(b) USDA awarding agencies must require award terms and conditions
imposed for the specific purpose of complying with law, regulation, or
USDA policy, related to the acknowledgement of USDA awarding agency
Federal financial assistance support.
Subpart C--Intergovernmental Review of Department of Agriculture
Programs and Activities
Sec. 415.3 Purpose.
(a) The regulations in this part implement Executive Order 12372,
``Intergovernmental Review of Federal Programs'', issued July 14, 1982,
and amended on April 8, 1983. These regulations also implement
applicable provisions of section 401 of the Intergovernmental
Cooperation Act of 1968 and section 204 of the Demonstration Cities and
Metropolitan Development Act of 1966.
(b) These regulations are intended to foster an intergovernmental
partnership and a strengthened Federalism by relying on State processes
and on State, areawide, regional and local coordination for review of
proposed Federal financial assistance and direct Federal development.
(c) The regulations are intended to aid the internal management of
the Department, and are not intended to create any right or benefit
enforceable at law by a party against the Department or its officers.
Sec. 415.4 Definitions.
As used in this part, the following definitions apply:
Order means Executive Order 12372, issued July 14, 1982, and
amended April 8, 1983, and titled Intergovernmental Review of Federal
Programs.
State means any of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
Sec. 415.5 Applicability.
The Secretary must publish, no less than annually, a list of the
Department's programs and activities that are subject to these
regulations and identifies which of these are subject to the
requirements of section 204 of the Demonstration Cities and
Metropolitan Development Act. This list must be available on the USDA's
public website.
Sec. 415.6 Secretary's general responsibilities.
(a) The Secretary provides opportunities for consultation by
elected officials of those State and local governments that would
provide the non-Federal funds for, or that would be directly affected
by, proposed Federal financial assistance from, or direct Federal
development by, the Department.
(b) If a State adopts a process under the Order to review and
coordinate proposed Federal financial assistance and direct Federal
development, the Secretary, to the extent permitted by law:
(1) Uses the State process to determine official views of State and
local elected officials;
(2) Communicates with State and local elected officials as early in
a program planning cycle as is reasonably feasible to explain specific
plans and actions;
(3) Makes efforts to accommodate State and local elected officials'
concerns with proposed Federal financial assistance and direct Federal
development that are communicated through the State process;
(4) Allows the States to simplify and consolidate existing
Federally required State plan submissions;
(5) Where State planning and budgeting systems are sufficient and
where permitted by law, encourages the substitution of State plans for
Federally required State plans;
(6) Seeks the coordination of views of affected State and local
elected officials in one State with those of another State when
proposed Federal financial assistance or direct Federal development has
an impact on interstate metropolitan urban centers or other interstate
areas; and
(7) Supports State and local governments by discouraging the
reauthorization or creation of any planning organization which is
Federally funded, which has a limited purpose, and which is not
adequately representative of, or accountable to, State or local elected
officials.
Sec. 415.7 Federal interagency coordination.
The Secretary, to the extent practicable, consults with and seeks
advice from all other substantially affected Federal departments and
agencies in an effort to assure full coordination between such agencies
and the Department regarding programs and activities covered under
these regulations.
Sec. 415.8 State selection of programs and activities.
(a) A State may select any program or activity published in the
Federal Register or on <a href="http://Grants.gov">Grants.gov</a>, in accordance with Sec. 415.5 for
intergovernmental review under these regulations. Each State, before
selecting programs and activities, must consult with local elected
officials.
(b) Each State that adopts a process must notify the Secretary of
the Department's programs and activities selected for that process.
(c) A State may notify the Secretary of changes in its selections
at any time. For each change, the State must submit to the Secretary an
assurance that the State has consulted with elected local officials
regarding the change. The Department may establish deadlines by which
States are required to inform the Secretary of changes in their program
selections.
(d) The Secretary uses a State's process as soon as feasible,
depending on individual programs and activities, after the Secretary is
notified of its selections.
Sec. 415.9 Communication with State and local elected officials.
(a) The Secretary provides notice to directly affected State,
areawide, regional, and local entities in a State of proposed Federal
financial assistance or direct Federal development if:
(1) The State has not adopted a process under the Order; or
[[Page 54381]]
(2) The assistance or development involves a program or an activity
that is not covered under the State process.
(b) This notice may be made by publication in the Federal Register
or other appropriate means, which the Department in its discretion
deems appropriate.
(c) In order to facilitate communication with State and local
officials the Secretary has established an office within the Department
to receive all communications pertinent to this Order. Communications
should be sent to:
(1) The Office of the Chief Financial Officer, Room 143-W, 1400
Independence Avenue SW, Washington, DC 20250, Attention: E.O. 12372;
or,
(2) As identified on the USDA's public website, an email address
for electronic communications.
Sec. 415.10 State comments on proposed Federal financial assistance
and direct Federal development.
(a) Except in unusual circumstances, the Secretary gives State
processes or directly affected State, areawide, regional, and local
officials and entities:
(1) At least 30 days from the date established by the Secretary to
comment on proposed Federal financial assistance in the form of
noncompetitive continuation awards; and
(2) At least 60 days from the date established by the Secretary to
comment on proposed direct Federal development or Federal financial
assistance other than noncompetitive continuation awards.
(b) This section also applies to comments in cases in which the
review, coordination and communication with the Department have been
delegated.
(c) Applicants for programs and activities subject to section 204
of the Demonstration Cities and Metropolitan Development Act must allow
areawide agencies a 60-day opportunity for review and comment.
Sec. 415.11 Processing comments.
(a) The Secretary follows the procedures in Sec. 415.12 if:
(1) A State office or official is designated to act as a single
point of contact between a State process and all Federal agencies; and
(2) That office or official transmits a State process
recommendation for a program selected under Sec. 415.8.
(b)(1) The single point of contact is not obligated to transmit
comments from State, areawide, regional or local officials and entities
where there is no State process recommendation.
(2) If a State process recommendation is transmitted by a single
point of contact, all comments from State, areawide, regional and local
officials and entities that differ from it must also be transmitted.
(c) If a State has not established a process, or is unable to
submit a State process recommendation, State, areawide, regional and
local officials and entities may submit comments either to the
applicant or to the Department.
(d) If a program or activity is not selected by a State process,
State, areawide, regional and local officials and entities may submit
comments either to the applicant or to the Department. In addition, if
a State process recommendation for a non-selected program or activity
is transmitted to the Department by the single point of contact, the
Secretary follows the procedures of Sec. 415.12.
(e) The Secretary considers comments which do not constitute a
State process recommendation submitted under these regulations and for
which the Secretary is not required to apply the procedures of Sec.
415.12, when such comments are provided by a single point of contact by
the applicant, or directly to the Department by a commenting party.
Sec. 415.12 Accommodation of intergovernmental concerns.
(a) If a State process provides a State process recommendation to
the Department through its single point of contact, the Secretary
either--
(1) Accepts the recommendations;
(2) Reaches a mutually agreeable solution with the State process;
or
(3) Provides the single point of contact with a written explanation
of the decision, as determined by the Secretary. The Secretary may also
supplement the written explanation by also providing the explanation to
the single point of contact by telephone, other telecommunication, or
other means.
(b) In any explanation under paragraph (a)(3) of this section, the
Secretary informs the single point of contact that:
(1) The Department will not implement its decision for at least ten
days after the single point of contact receives the explanation; or
(2) The Secretary has reviewed the decision and determined that,
because of unusual circumstances, the waiting period of at least ten
days is not feasible.
(c) For purposes of computing the waiting period under paragraph
(b)(1) of this section, a single point of contact is presumed to have
received written notification five days after the date of mailing of
such notification.
Sec. 415.13 Interstate situations.
(a) The Secretary is responsible for:
(1) Identifying proposed Federal financial assistance and direct
Federal development that have an impact on interstate areas;
(2) Notifying appropriate officials in States which have adopted a
process and which selected the Department's program or activity;
(3) Making efforts to identify and notify the affected State,
areawide, regional and local officials and entities in those States
that have not adopted a process under the Order or do not select the
Department's program or activity; and
(4) Responding, pursuant to Sec. 415.12, if the Secretary receives
a recommendation from a designated areawide agency transmitted by a
single point of contact, in cases in which the review, coordination,
and communication with the Department have been delegated.
(b) The Secretary uses the procedures in Sec. 415.12 if a State
process provides a State process recommendation to the Department
through a single point of contact.
Sec. 415.14 Simplification, consolidation, or substitution of State
plans.
(a) As used in this section:
(1) Simplify means that a State may develop its own format, choose
its own submission date, and select the planning period for a State
plan.
(2) Consolidate means that a State may meet statutory and
regulatory requirements by combining two or more plans into one
document and that the State can select the format, submission date, and
the planning period for the consolidated plan.
(3) Substitute means that a State may use a plan or other document
that it has developed for its own purposes to meet Federal
requirements.
(b) If not inconsistent with law, a State may decide to try to
simplify, consolidate, or substitute Federally required State plans
without prior approval by the Secretary.
(c) The Secretary reviews each State plan a State has simplified,
consolidated or substituted and accepts the plan only if its contents
meet Federal requirements.
Sec. 415.15 Waivers.
In an emergency, the Secretary may waive any provision in Subpart
C--Intergovernmental Review of Department of Agriculture Programs and
Activities, 2 CFR 415.3 to 415.14.
0
4. Revise part 416 to read as follows:
[[Page 54382]]
PART 416--GENERAL PROGRAM ADMINISTRATIVE REGULATIONS FOR GRANTS AND
COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS
Sec.
416.1 Special procurement provisions.
Authority: 5 U.S.C. 301; 31 U.S.C. 901-903; 7 CFR 2.28.
Sec. 416.1 Special procurement provisions.
(a) In order to ensure objective contractor performance and
eliminate unfair competitive advantage, a prospective contractor that
develops or drafts specifications, requirements, statements of work,
invitations for bids, request for proposals, contract term and
conditions or other documents for use by a State in conducting a
procurement under the USDA entitlement programs specified in 2 CFR
200.101(f)(4) through (7) must be excluded from competing for such
procurements. Such prospective contractors are ineligible for contract
awards resulting from such procurements regardless of the procurement
method used. However, prospective contractors may provide States with
specification information related to a State procurement under the USDA
entitlement programs specified in 2 CFR 200.101(f)(4) through (7) and
still compete for the procurement if the State, and not the prospective
contractor, develops or drafts the specifications, requirements,
statements of work, invitations for bid, and/or requests for proposals
used to conduct the procurement.
(b) Procurements by States under USDA entitlement programs
specified in 2 CFR 200.101(f)(4) through (7) must be conducted in a
manner that prohibits the use of statutorily or administratively
imposed in-State or local geographic preferences.
0
5. Revise part 417 to read as follows:
PART 417--NONPROCUREMENT DEBARMENT AND SUSPENSION
Sec.
417.10 What does this part do?
417.20 Does this part apply to me?
417.30 What policies and procedures must I follow?
Subpart A--General
417.137 Who in the USDA may grant an exception to let an excluded
person participate in a covered transaction?
Subpart B--Covered Transactions
417.210 Which nonprocurement transactions are covered transactions?
417.215 Which nonprocurement transactions, in addition to those
listed in 2 CFR 180.215, are not covered transactions?
417.220 Are any procurement contracts included as covered
transactions?
417.221 How would the exclusions from coverage for the USDA's
foreign assistance programs apply?
417.222 How would the exclusions from coverage for the USDA's export
credit guarantee and direct credit programs apply?
Subpart C--Responsibilities of Participants Regarding Transactions
417.332 What methods must I use to pass down requirements to
participants in lower-tier covered transactions with whom I intend
to do business?
Subpart D--Responsibilities of Department of Agriculture Officials
Regarding Transactions
417.437 What method do I use to communicate to a participant the
requirements described in the OMB guidance at 2 CFR 180.435?
Subpart E--[Reserved]
Subpart F--[Reserved]
Subpart G--Suspension
417.755 When will I know whether the USDA suspension is continued or
terminated?
Subpart H--Debarment
417.865 How long may my debarment last?
417.870 When do I know if the USDA debarring official debars me?
Subpart I--Definitions
417.930 Debarring official (USDA supplement to government-wide
definition at 2 CFR 180.930).
417.935 Disqualified (USDA supplement to government-wide definition
at 2 CFR 180.935).
417.1010 Suspending official (USDA supplement to government-wide
definition at 2 CFR 180.1010).
Subpart J--[Reserved]
Authority: 5 U.S.C. 301; 7 U.S.C. 2209j; Sec. 2455, Pub. L. 103-
355, 108 Stat. 3327 (31 U.S.C. 6101 note); Pub. L. 101-576, 104
Stat. 2838; E.O. 12549 (51 FR 6370, 3 CFR, 1986 Comp., p. 189); E.O.
12689 (54 FR 34131, 3 CFR, 1989 Comp., p. 235); 2 CFR part 180; 7
CFR 2.28.
Sec. 417.10 What does this part do?
This part adopts the OMB guidance in subparts A through I of 2 CFR
part 180, as supplemented by this part, as the USDA policies and
procedures for nonprocurement debarment and suspension. It thereby
gives regulatory effect for the USDA to the OMB guidance, as
supplemented by this part. For any section of OMB guidance in subparts
A through I of 2 CFR part 180 that has no corresponding section in this
part, USDA policies and procedures are those in the OMB guidance. This
part satisfies the requirements in section 3 of Executive Order 12549,
``Debarment and Suspension'' (51 FR 6370, 3 CFR, 1986 Comp., p. 189),
Executive Order 12689, ``Debarment and Suspension'' (54 FR 34131, 3
CFR, 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Pub. L.
103-355, 108 Stat. 3327).
Sec. 417.20 Does this part apply to me?
Through this part, pertinent portions of the OMB guidance in
subparts A through I of 2 CFR part 180 (see table at 2 CFR 180.100(b))
apply to you if you are a:
(a) Participant or principal in a ``covered transaction'' (see
subpart B of 2 CFR part 180 and the definition of ``nonprocurement
transaction'' at 2 CFR 180.970, as supplemented by Sec. Sec. 417.215
and 417.220 of this part);
(b) Respondent in a USDA debarment and suspension action;
(c) USDA debarment or suspension official; or
(d) USDA grants officer, agreements officer, or other official
authorized to enter into any type of nonprocurement transaction that is
a covered transaction.
Sec. 417.30 What policies and procedures must I follow?
The USDA policies and procedures that you must follow are the
policies and procedures specified in this regulation and each
applicable section of the OMB guidance in subparts A through I of 2 CFR
part 180, as that section is supplemented by the section in this part
with the same section number. The contracts that are covered
transactions, for example, are specified by 2 CFR 180.220 as
supplemented by Sec. 417.220. For any section of OMB guidance in
subparts A through I of 2 CFR part 180 that has no corresponding
section in this part, USDA policies and procedures are those in the OMB
guidance.
Subpart A--General
Sec. 417.137 Who in the USDA may grant an exception to let an
excluded person participate in a covered transaction?
Within the USDA, a debarring official may grant an exception to let
an excluded person participate in a covered transaction as provided
under 2 CFR 180.135.
Subpart B--Covered Transactions
Sec. 417.210 Which nonprocurement transactions are covered
transactions?
All nonprocurement transactions, as defined in 2 CFR 180.970, are
covered transactions unless listed in Sec. 417.215.
[[Page 54383]]
Sec. 417.215 Which nonprocurement transactions, in addition to those
listed in 2 CFR 180.215, are not covered transactions?
(a) Transactions not covered. In addition to the nonprocurement
transactions listed in 2 CFR 180.215, the following nonprocurement
transactions are not covered transactions:
(1) An entitlement or mandatory award required by a statute,
including a lower tier entitlement or mandatory award that is required
by a statute.
(2) The export or substitution of Federal timber governed by the
Forest Resources Conservation and Shortage Relief Act of 1990, 16
U.S.C. 620 et seq. (The ``Export Act''), which prevents a debarred
person from entering into any contract for the purchase of unprocessed
timber from Federal lands. See 16 U.S.C. 620d(d)(1)(A).
(3) The receipt of licenses, permits, certificates, and
indemnification under regulatory programs conducted in the interest of
public health and safety, and animal and plant health and safety.
(4) The receipt of official grading and inspection services, animal
damage control services, public health and safety inspection services,
and animal and plant health and safety inspection services.
(5) If the person is a State or local government, the provision of
official grading and inspection services, animal damage control
services, animal and plant health and safety inspection services.
(6) The receipt of licenses, permits, or certificates under
regulatory programs conducted in the interest of ensuring fair trade
practices.
(7) Permits, licenses, exchanges and other acquisitions of real
property, rights of way, and easements under natural resource
management programs.
(8) Any transaction to be implemented outside the United States
that is below the primary tier covered transaction in a USDA foreign
assistance program.
(9) Any transaction to be implemented outside the United States
that is below the primary tier covered transaction in a USDA export
credit guarantee program or direct credit program.
(b) Limited requirement to check <a href="http://SAM.gov">SAM.gov</a>. Notwithstanding the fact
that transactions to be implemented outside the United States that are
below the primary tier covered transaction in a USDA foreign assistance
program, export credit guarantee program or direct credit program are
not covered transactions, pursuant to paragraphs (a)(8) and (9) of this
section, primary tier participants under these programs must check
<a href="http://SAM.gov">SAM.gov</a> prior to entering into any transaction with a person at the
first lower tier and must not enter into such a transaction if the
person is excluded or disqualified in <a href="http://SAM.gov">SAM.gov</a>.
(c) Exception. A cause for suspension or debarment under 2 CFR
180.700 or 2 CFR 180.800 may be based on the actions of a person with
respect to a procurement or nonprocurement transaction under a USDA
program even if such transaction has been excluded from covered
transaction status by this section or Sec. 417.220.
Sec. 417.220 Are any procurement contracts included as covered
transactions?
In addition to the procurement contracts listed in 2 CFR 180.220,
the following procurement contracts are covered transactions:
(a) Specifically, a contract for goods or services is a covered
transaction if any of the following applies:
(1) The contract is awarded by a participant in a nonprocurement
transaction covered under Sec. 417.210, and the contract amount is
expected to equal or exceed $25,000.
(2) [Reserved]
(b) Any procurement contract to be implemented outside the United
States that is below the primary tier covered transaction in a USDA
foreign assistance program is not a covered transaction,
notwithstanding the provisions in 2 CFR 180.220(a) and 2 CFR 180.220(b)
and paragraph (a) of this section.
(c) Any procurement contract to be implemented outside the United
States that is below the primary tier covered transaction in a USDA
export credit guarantee program or direct credit program is not a
covered transaction, notwithstanding the provisions in 2 CFR 180.220(a)
and 2 CFR 180.220(b) and paragraph (a) of this section.
(d) Notwithstanding the fact that procurement contracts to be
implemented outside the United States that are below the primary tier
covered transaction in a USDA foreign assistance program, export credit
guarantee program or direct credit program are not covered
transactions, pursuant to paragraph (b) and (c) of this section,
primary tier participants under these programs must check <a href="http://SAM.gov">SAM.gov</a> prior
to entering into any procurement contract that is expected to equal or
exceed $25,000 with a person at the first lower tier and must not enter
into such a procurement contract if the person is excluded or
disqualified in <a href="http://SAM.gov">SAM.gov</a>.
Sec. 417.221 How would the exclusions from coverage for the USDA's
foreign assistance programs apply?
The primary tier covered transaction would be the food aid grant
agreement entered into between USDA and a program participant, such as
a U.S. private voluntary organization. USDA would have to check <a href="http://SAM.gov">SAM.gov</a>
before entering into the food aid grant agreement to ensure that the
U.S. private voluntary organization that would be the primary tier
participant is not excluded or disqualified. A transaction at the first
lower tier might be a subrecipient agreement between the U.S. private
voluntary organization and a foreign subrecipient of the commodities
that were provided under the food aid grant agreement. Pursuant to
Sec. 417.215(a)(8), this nonprocurement transaction would not be a
covered transaction. In addition, a transaction at the first lower tier
might be a procurement contract entered into between the U.S. private
voluntary organization and a foreign entity to provide supplies or
services that are expected to equal or exceed $25,000 in value and that
are needed by such organization to implement activities under the food
aid grant agreement. Pursuant to Sec. 417.220(b), this procurement
contract would not be a covered transaction. However, pursuant to
Sec. Sec. 417.215(b) and 417.220(d), the U.S. private voluntary
organization would be prohibited from entering into, at the first lower
tier, an agreement with a subrecipient or a procurement contract that
is expected to equal or exceed $25,000 with an entity that appears in
<a href="http://SAM.gov">SAM.gov</a> as excluded or disqualified.
Sec. 417.222 How would the exclusions from coverage for the USDA's
export credit guarantee and direct credit programs apply?
(a) Export credit guarantee program. In the case of the export
credit guarantee program, the primary tier covered transaction would be
the guarantee issued by the USDA to a U.S. exporter. The U.S. exporter
usually assigns the guarantee to a U.S. financial institution, and this
would create another primary tier covered transaction between USDA and
the U.S. financial institution. USDA would have to check the <a href="http://SAM.gov">SAM.gov</a>
before issuing a guarantee or accepting a guarantee assignment to
ensure that the U.S. exporter or financial institution that would be
the primary tier participant is not excluded or disqualified. A
transaction at the first lower tier under the export credit guarantee
program might be a payment obligation of a foreign bank to the U.S.
exporter to pay on behalf of the importer for the exported U.S.
commodities that are covered by the guarantee. Similarly, a transaction
at the first lower tier might be a payment obligation of a foreign bank
under an instrument, such as a
[[Page 54384]]
loan agreement or letter of credit, to the U.S. financial institution
assigned the guarantee, which has paid the exporter for the exported
U.S. commodities and, in so doing, issued a loan to the foreign bank,
which the foreign bank is obligated to repay on deferred payment terms.
Pursuant to Sec. 417.215(a)(9), these nonprocurement transactions
would not be covered transactions. In addition, a transaction at the
first lower tier under the export credit guarantee program might be a
procurement contract (i.e., a contract for the purchase and sale of
goods) that is expected to equal or exceed $25,000 entered into between
the U.S. exporter and the foreign importer for the U.S. commodities,
the payment for which is covered by the guarantee. Pursuant to Sec.
417.220(c), this procurement contract would not be a covered
transaction. However, pursuant to Sec. Sec. 417.215(b) and 417.220(d),
the U.S. exporter or U.S. financial institution would be prohibited
from entering into, at the first lower tier, an agreement with an
importer (or intervening purchaser) or foreign bank or a procurement
contract that is expected to equal or exceed $25,000 with an entity
that appears on the <a href="http://SAM.gov">SAM.gov</a> as excluded or disqualified.
(b) Direct credit program. In the case of the direct credit
program, the primary tier covered transaction would be the financing
agreement between the USDA and the U.S. exporter. USDA purchases the
exporter's account receivable in a particular transaction pursuant to
the financing agreement. On occasion, such a transaction may
contemplate a payment obligation of a U.S. or foreign bank to make the
required payments. USDA would have to check <a href="http://SAM.gov">SAM.gov</a> before entering
into a financing agreement or accepting such a payor to ensure that the
U.S. exporter or the bank, if any, that would be the primary tier
participant is not excluded or disqualified. A transaction at the first
lower tier might be a payment obligation of the importer to pay the
exporter for the exported U.S. commodities that are covered by the
financing agreement. Pursuant to Sec. 417.215(a)(9), this
nonprocurement transaction would not be a covered transaction. In
addition, a transaction at the first lower tier might be a procurement
contract that is expected to equal or exceed $25,000 entered into
between the U.S. exporter and the foreign importer for the U.S.
commodities, the payment for which is covered by the financing
agreement. Pursuant to Sec. 417.220(c), this procurement contract
would not be a covered transaction. However, pursuant to Sec. Sec.
417.215(b) and 417.220(d), the U.S. exporter would be prohibited from
entering into, at the first lower tier, an agreement with an importer
(or intervening purchaser) or bank, or a procurement contract that is
expected to equal or exceed $25,000 with an entity that appears in
<a href="http://SAM.gov">SAM.gov</a> as excluded or disqualified.
Subpart C--Responsibilities of Participants Regarding Transactions
Sec. 417.332 What methods must I use to pass down requirements to
participants in lower-tier covered transactions with whom I intend to
do business?
You as a participant must include a term or condition in lower tier
covered transactions requiring lower tier participants to comply with
subpart C of the OMB guidance in 2 CFR part 180, as supplemented by
subpart C of this part.
Subpart D--Responsibilities of Department of Agriculture Officials
Regarding Transactions
Sec. 417.437 What method do I use to communicate to a participant the
requirements described in the OMB guidance at 2 CFR 180.435?
To communicate to a participant the requirements described in 2 CFR
180.435, you must include a term or condition in the transaction that
requires the participant's compliance with subpart C of 2 CFR part 180,
as supplemented by subpart C of this part, and requires the participant
to include a similar term or condition in lower tier covered
transactions.
Subpart E--[Reserved]
Subpart F--[Reserved]
Subpart G--Suspension
Sec. 417.755 When will I know whether the USDA suspension is
continued or terminated?
The record will remain open for the full 30 days, as called for in
2 CFR 180.725, even when you make a submission before the 30 days
expire.
Subpart H--Debarment
Sec. 417.865 How long may my debarment last?
The Secretary must permanently debar from participation in USDA
programs any individual, organization, corporation, or other entity
convicted of a felony for knowingly defrauding the United States in
connection with any program administered by USDA.
(a) Reduction. A debarment under this paragraph may be reduced by
the Secretary to a period of not less than 10 years.
(b) Exemption. A debarment under this paragraph will not apply with
regard to participation in USDA domestic food assistance programs. For
purposes of this paragraph, participation in a domestic food assistance
program does not include acting as an authorized retail food store in
the Supplemental Nutrition Assistance Program (SNAP), the Special
Supplemental Nutrition Assistance Program for Women, Infants, and
Children (WIC), or as a nonbeneficiary entity in any of the domestic
food assistance programs. The programs include:
(1) Special Nutrition Assistance Program, 7 U.S.C. 2011, et seq.;
(2) Food Distribution Program on Indian Reservations, 7 U.S.C.
2013(b);
(3) National School Lunch Program, 42 U.S.C. 1751, et seq.;
(4) Summer Food Service Program for Children, 42 U.S.C. 1761; Child
and Adult Care Food Program, 42 U.S.C. 1766;
(5) Special Milk Program for Children, 42 U.S.C. 1772; School
Breakfast Program, 42 U.S.C. 1773;
(6) Special Supplemental Nutrition Program for Women, Infants, and
Children, 42 U.S.C. 1786;
(7) Commodity Supplemental Food Program, 42 U.S.C. 612c note;
(8) WIC Farmers Market Nutrition Program, 42 U.S.C. 1786;
(9) Senior Farmers' Market Nutrition Program, 7 U.S.C. 3007; and
(10) Emergency Food Assistance Program, 7 U.S.C. 7501, et seq.
Sec. 417.870 When do I know if the USDA debarring official debars me?
The record will remain open for the full 30 days, as called for in
2 CFR 180.820, even when you make a submission before the 30 days
expire.
Subpart I--Definitions
Sec. 417.930 Debarring official (USDA supplement to government-wide
definition at 2 CFR 180.930).
The head of an organizational unit within USDA (e.g.,
Administrator, Food and Nutrition Service), who has been delegated
authority in 7 CFR part 2 to carry out a covered transaction, is
delegated authority to act as the debarring official in connection with
such transaction. This authority to act as a debarring official may not
be redelegated below the head of the organizational unit, except that,
in the case of the Forest Service, the Chief may redelegate the
authority to act as a debarring official to the Deputy Chief for the
National Forest System or an
[[Page 54385]]
Associate Deputy Chief for the National Forest System.
Sec. 417.935 Disqualified (USDA supplement to government-wide
definition at 2 CFR 180.935).
Disqualified means that a person is prohibited from participating
in specified Federal procurement or nonprocurement transactions as
required under a statute, Executive order (other than Executive Orders
12549 and 12689), or other authority. Examples of disqualifications
include persons prohibited under--
(a) The Davis-Bacon Act (40 U.S.C. 3142);
(b) The equal employment opportunity acts and Executive orders; or
(c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C.
1368), and E.O. 11738 (38 FR 25161, 3 CFR, 1973 Comp., p. 799);
(d) 515(h) of the Federal Crop Insurance Act (7 U.S.C. 1515(h));
(e) Section 12 of the Food and Nutrition Act of 2008 (7 U.S.C.
2021).
Sec. 417.1010 Suspending official (USDA supplement to government-wide
definition at 2 CFR 180.1010).
The head of an organizational unit within USDA (e.g.,
Administrator, Food and Nutrition Service), who has been delegated
authority in 7 CFR part 2 to carry out a covered transaction, is
delegated authority to act as the suspending official in connection
with such transaction. This authority to act as a suspending official
may not be redelegated below the head of the organizational unit,
except that, in the case of the Forest Service, the Chief may
redelegate the authority to act as a suspending official to the Deputy
Chief for the National Forest System or an Associate Deputy Chief for
the National Forest System.
Subpart J--[Reserved]
0
6. Revise and republish part 418 to read as follows:
PART 418--NEW RESTRICTIONS ON LOBBYING
Subpart A--General
Sec.
418.100 Conditions on use of funds.
418.105 Definitions.
418.110 Certification and disclosure.
Subpart B--Activities by Own Employees
Sec.
418.200 Agency and legislative liaison.
418.205 Professional and technical services.
418.210 Reporting.
Subpart C--Activities by Other Than Own Employees
Sec.
418.300 Professional and technical services.
Subpart D--Penalties and Enforcement
Sec.
418.400 Penalties.
418.405 Penalty procedures.
418.410 Enforcement.
Subpart E--Exemptions
Sec.
418.500 Secretary of Defense.
Appendix A to Part 418--Certification Regarding Lobbying
Authority: 31 U.S.C. 1352; 5 U.S.C. 301; 2 CFR 200.450.
Subpart A--General
Sec. 418.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative agreement to pay any
person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with any
of the following covered Federal actions: the awarding of any Federal
contract, the making of any Federal grant, the making of any Federal
loan, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement must file with that
agency a certification, set forth in Appendix A, that the person has
not made, and will not make, any payment prohibited by paragraph (a) of
this section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement must file with that
agency a disclosure form, in the OMB-approved format, if such person
has made or has agreed to make any payment using nonappropriated funds
(to include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a
commitment providing for the United States to insure or guarantee a
loan must file with that agency a statement, set forth in Appendix A,
whether that person has made or has agreed to make any payment to
influence or attempt to influence an officer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with that loan insurance
or guarantee.
(e) Each person who requests or receives from an agency a
commitment providing for the United States to insure or guarantee a
loan must file with that agency a disclosure form, in the OMB-approved
format, if that person has made or has agreed to make any payment to
influence or attempt to influence an officer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with that loan insurance
or guarantee.
Sec. 418.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action.
(1) Covered Federal action means any of the following Federal
actions:
(i) The awarding of any Federal contract;
(ii) The making of any Federal grant;
(iii) The making of any Federal loan;
(iv) The entering into of any cooperative agreement; and,
(v) The extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan, or cooperative
agreement.
(2) Covered Federal action does not include receiving from an
agency a commitment providing for the United States to insure or
guarantee a loan. Loan guarantees and loan insurance are addressed
independently within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the
form of money, or property in lieu of money, by the Federal Government
or a direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance,
[[Page 54386]]
or direct United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 5304). Alaskan Natives are included under the
definitions of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee
or insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other
instrumentality of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under 5 U.S.C., including a position under a temporary appointment;
(2) A member of the uniformed services as defined in 37 U.S.C.
101(3);
(3) A special Government employee as defined in 18 U.S.C. 202; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, 5 U.S.C. Appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee
for work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to professional and
other technical services, a payment in an amount that is consistent
with the amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or
employee of a person requesting or receiving a Federal contract, grant,
loan, or cooperative agreement or a commitment providing for the United
States to insure or guarantee a loan, an officer or employee who is
employed by such person for at least 130 working days within one year
immediately preceding the date of the submission that initiates agency
consideration of such person for receipt of such contract, grant, loan,
cooperative agreement, loan insurance commitment, or loan guarantee
commitment. An officer or employee who is employed by such person for
less than 130 working days within one year immediately preceding the
date of the submission that initiates agency consideration of such
person will be considered to be regularly employed as soon as he or she
is employed by such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a
multi-State, regional, or interstate entity having governmental duties
and powers.
Sec. 418.110 Certification and disclosure.
(a) Each person must file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration
of such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b)(1) Each person must file a certification, and a disclosure
form, if required, upon receipt by such person of:
(i) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(ii) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000,
(2) Unless such person previously filed a certification, and a
disclosure form, if required, under paragraph (a) of this section.
(c) Each person must file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a
covered Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person must file a certification, and a disclosure form, if
required, to the next tier above who requests or receives from a person
referred to in paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under
a Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under
a Federal cooperative agreement.
(e) All disclosure forms, but not certifications, must be forwarded
from tier to tier until received by the person referred to in
paragraphs (a) or (b) of this section. That person must forward all
disclosure forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section will be treated as a material representation of fact
upon which all receiving tiers must rely. All liability arising from an
erroneous representation will be borne solely by the tier filing that
representation and must not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure,
[[Page 54387]]
respectively. If a person fails to file a required certification or
disclosure, the United States may pursue all available remedies,
including those authorized by 31 U.S.C. 1352.
(g) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C of this part.
Subpart B--Activities by Own Employees
Sec. 418.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
418.100(a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is
allowable at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time
only where they are not related to a specific solicitation for any
covered Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation
of a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 418.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
418.100(a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as
a condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' will be limited to advice and analysis
directly applying any professional or technical discipline. For
example, drafting of a legal document accompanying a bid or proposal by
a lawyer is allowable. Similarly, technical advice provided by an
engineer on the performance or operational capability of a piece of
equipment rendered directly in the negotiation of a contract is
allowable. However, communications with the intent to influence made by
a professional (such as a licensed lawyer) or a technical person (such
as a licensed accountant) are not allowable under this section unless
they provide advice and analysis directly applying their professional
or technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice
or analysis directly and solely related to the legal aspects of his or
her client's proposal, but generally advocate one proposal over another
are not allowable under this section because the lawyer is not
providing professional legal services. Similarly, communications with
the intent to influence made by an engineer providing an engineering
analysis prior to the preparation or submission of a bid or proposal
are not allowable under this section since the engineer is providing
technical services but not directly in the preparation, submission or
negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 418.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C--Activities by Other Than Own Employees
Sec. 418.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
418.100(a), does not apply in the case of any reasonable payment to a
person, other than an officer or employee of a person requesting or
receiving a covered Federal action, if the payment is for professional
or technical services rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 418.110 (a) and (b)
regarding filing a disclosure form by each person, if required, will
not apply with respect to professional or technical services rendered
directly in the preparation, submission, or negotiation of any
commitment providing for the United States to insure or guarantee a
loan.
(c) For purposes of paragraph (a) of this section, ``professional
and technical services'' will be limited to advice and analysis
directly applying any professional or technical discipline. For
example, drafting of a legal document accompanying a bid or proposal by
a lawyer is allowable. Similarly, technical advice provided by an
engineer on the performance or operational capability of a piece of
equipment rendered directly in the negotiation of a contract is
allowable. However, communications with the intent to influence made by
a professional (such as a licensed lawyer) or a technical person (such
as a licensed accountant) are not allowable under this section unless
they provide advice and analysis directly applying their professional
or technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example,
[[Page 54388]]
communications with the intent to influence made by a lawyer that do
not provide legal advice or analysis directly and solely related to the
legal aspects of his or her client's proposal, but generally advocate
one proposal over another are not allowable under this section because
the lawyer is not providing professional legal services. Similarly,
communications with the intent to influence made by an engineer
providing an engineering analysis prior to the preparation or
submission of a bid or proposal are not allowable under this section
since the engineer is providing technical services but not directly in
the preparation, submission or negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D--Penalties and Enforcement
Sec. 418.400 Penalties.
(a) Any person who makes an expenditure prohibited herein will be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (in
the OMB-approved format) to be filed or amended if required herein,
will be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is
commenced does not prevent the imposition of such civil penalty for a
failure occurring before that date. An administrative action is
commenced with respect to a failure when an investigating official
determines in writing to commence an investigation of an allegation of
such failure.
(d) In determining whether to impose a civil penalty, and the
amount of any such penalty, by reason of a violation by any person, the
agency will consider the nature, circumstances, extent, and gravity of
the violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of
culpability of such person, the ability of the person to pay the
penalty, and such other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
will be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons will be
subject to an appropriate civil penalty between $10,000 and $100,000,
as determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 418.405 Penalty procedures.
Agencies must impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803
(except subsection (c)), 3804 through 3808, and 3812, insofar as these
provisions are not inconsistent with the requirements herein.
Sec. 418.410 Enforcement.
The head of each agency must take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E--Exemptions
Sec. 418.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary must transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Appendix A to Part 418--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge
and belief, that:
(1) No Federal appropriated funds have been paid or will be
paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of an
agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with the awarding
of any Federal contract, the making of any Federal grant, the making
of any Federal loan, the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this Federal contract, grant,
loan, or cooperative agreement, the undersigned must complete and
submit Standard Form-LLL, ``Disclosure of Lobbying Activities,'' in
accordance with its instructions.
(3) The undersigned must require that the language of this
certification be included in the award documents for all subawards
at all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all
subrecipients must certify and disclose accordingly.
This certification is a material representation of fact upon
which reliance was placed when this transaction was made or entered
into. Submission of this certification is a prerequisite for making
or entering into this transaction imposed by 31 U.S.C. 1352. Any
person who fails to file the required certification will be subject
to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with this
commitment providing for the United States to insure or guarantee a
loan, the undersigned must complete and submit Standard Form-LLL,
``Disclosure of Lobbying Activities,'' in accordance with its
instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31,
U.S. Code. Any person who fails to file the required statement will
be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
PART 421--REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL
ASSISTANCE)
0
7. The authority citation for part 421 continues to read as follows:
Authority: 41 U.S.C. 701-707
0
8. Amend Sec. 421.10 by revising the introductory text and paragraph
(b) as follows:
Sec. 421.10 What does this part do?
This part requires that the award and administration of USDA grants
and
[[Page 54389]]
cooperative agreements comply with Office of Management and Budget
(OMB) guidance implementing the portion of the Drug-Free Workplace Act
of 1988 (41 U.S.C. 8101-8106, as amended, hereafter referred to as
``the Act'') that applies to grants. It thereby--
* * * * *
(b) Establishes USDA policies and procedures for compliance with
the Act that are the same as those of other Federal agencies, in
conformance with the requirement in 41 U.S.C. 8106 for Governmentwide
implementing regulations.
* * * * *
0
9. Revise Sec. 421.400 to read as follows:
Sec. 421.400 What method do I use as an agency awarding official to
obtain a recipient's agreement to comply with the OMB guidance?
To obtain a recipient's agreement to comply with applicable
requirements in the OMB guidance at 2 CFR part 182, you must include
the following term or condition in the award:
Drug-free workplace. You as the recipient must comply with drug-
free workplace requirements in Subpart B (or Subpart C, if the
recipient is an individual) of part 421, which adopts the
Governmentwide implementation (2 CFR part 182) of sec. 5152-5158 of the
Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D;
41 U.S.C. 8101-8106).
0
10. Revise and republish part 422 to read as follows:
PART 422--RESEARCH INSTITUTIONS CONDUCTING USDA-FUNDED EXTRAMURAL
RESEARCH; RESEARCH MISCONDUCT
Sec.
422.1 Definitions.
422.2 Procedures.
422.3 Inquiry, investigation, and adjudication.
422.4 USDA Panel to determine appropriateness of research misconduct
policy.
422.5 Reservation of right to conduct subsequent inquiry,
investigation, and adjudication.
422.6 Notification of USDA of allegations of research misconduct.
422.7 Notification of ARIO during an inquiry or investigation.
422.8 Communication of research misconduct policies and procedures.
422.9 Documents required.
422.10 Reporting to USDA.
422.11 Research records and evidence.
422.12 Remedies for noncompliance.
422.13 Appeals.
422.14 Relationship to other requirements.
Authority: 5 U.S.C. 301; 7 CFR 2610.1(c); Federal Policy on
Research Misconduct (65 FR 76260)
Sec. 422.1 Definitions.
The following definitions apply to this part:
Adjudication. The stage in response to an allegation of research
misconduct when the outcome of the investigation is reviewed, and
appropriate corrective actions, if any, are determined. Corrective
actions generally will be administrative in nature, such as termination
of an award, debarment, award restrictions, recovery of funds, or
correction of the research record. However, if there is an indication
of violation of civil or criminal statutes, civil or criminal sanctions
may be pursued.
Agency Research Integrity Officer (ARIO). The individual appointed
by a USDA agency that conducts research and who is responsible for:
(1) Receiving and processing allegations of research misconduct as
assigned by the USDA RIO;
(2) Informing OIG and the USDA RIO and the research institution
associated with the alleged research misconduct, of allegations of
research misconduct in the event it is reported to the USDA agency;
(3) Ensuring that any records, documents and other materials
relating to a research misconduct allegation are provided to OIG when
requested;
(4) Coordinating actions taken to address allegations of research
misconduct with respect to extramural research with the research
institution(s) at which time the research misconduct is alleged to have
occurred, and with the USDA RIO;
(5) Overseeing proceedings to address allegations of extramurally
funded research misconduct at intramural research institutions and
research institutions where extramural research occurs;
(6) Ensuring that agency action to address allegations of research
misconduct at USDA agencies performing extramurally funded research is
performed at an organizational level that allows an independent,
unbiased, and equitable process;
(7) Immediately notifying OIG, the USDA RIO, and the applicable
research institution if:
(i) Public health or safety is at risk;
(ii) USDA's resources, reputation, or other interests need
protecting;
(iii) Research activities should be suspended;
(iv) Federal action may be needed to protect the interest of a
subject of the investigation or of others potentially affected;
(v) A premature public disclosure of the inquiry into or
investigation of the allegation may compromise the process;
(vi) The scientific community or the public should be informed; or
(vii) Behavior that is or may be criminal in nature is discovered
at any point during the inquiry, investigation, or adjudication phases
of the research misconduct proceedings;
(8) Documenting the dismissal of the allegation, and ensuring that
the name of the accused individual and/or institution is cleared if an
allegation of research misconduct is dismissed at any point during the
inquiry or investigation phase of the proceedings;
(9) Other duties relating to research misconduct proceedings as
assigned.
Allegation. A disclosure of possible research misconduct through
any means of communication. The disclosure may be by written or oral
statement, or by other means of communication to an institutional or
USDA official.
Applied research. Systematic study to gain knowledge or
understanding necessary to determine the means by which a recognized
and specific need may be met.
Assistant Inspector General for Investigations. The individual in
OIG who is responsible for OIG's domestic and foreign investigative
operations through OIG's national and regional investigative offices.
Basic research. Systematic study directed toward fuller knowledge
or understanding of the fundamental aspects of phenomena and of
observable facts without specific applications towards processes or
products in mind.
Extramural research. Research conducted by any research institution
or entity other than the Federal agency to which the funds supporting
the research were appropriated. Research institutions conducting
extramural research may include Federal research facilities.
Fabrication. Making up data or results and recording or reporting
them.
Falsification. Manipulating research materials, equipment, or
processes, or changing or omitting data or results such that the
research is not accurately represented in the research record.
Finding of research misconduct. The conclusion, proven by a
preponderance of the evidence, that research misconduct occurred, that
such research misconduct represented a significant departure from
accepted practices of the relevant research community, and that such
research misconduct was committed intentionally, knowingly, or
recklessly.
Inquiry. The stage in the response to an allegation of research
misconduct when an assessment is made to
[[Page 54390]]
determine whether the allegation has substance and whether an
investigation is warranted.
Intramural research. Research conducted by a Federal Agency, to
which funds were appropriated for the purpose of conducting research.
Investigation. The stage in the response to an allegation of
research misconduct when the factual record is formally developed and
examined to determine whether to dismiss the case, recommend a finding
of research misconduct, and/or take other appropriate remedies.
Office of Inspector General (OIG). The Office of Inspector General
of the United States Department of Agriculture.
Office of Science and Technology Policy (OSTP). The Office of
Science and Technology Policy of the Executive Office of the President.
Plagiarism. The appropriation of another person's ideas, processes,
results, or words without giving appropriate credit.
Preponderance of the evidence. Proof by information that, compared
with that opposing it, leads to the conclusion that the fact at issue
is more probably true than not.
Research. All basic, applied, and demonstration research in all
fields of science, engineering, and mathematics. This includes, but is
not limited to, research in economics, education, linguistics,
medicine, psychology, social sciences, statistics, and research
involving human subjects or animals regardless of the funding mechanism
used to support it.
Research institution. All organizations using Federal funds for
research, including, for example, colleges and universities, Federally
funded research and development centers, national user facilities,
industrial laboratories, or other research institutes. Activities which
meet this definition constitute research for purposes of this part,
whether or not they are conducted or supported under a program which is
considered ``research'' for other purposes. For example, some
demonstration and service programs may include research/scientific
activities.
Research misconduct. Fabrication, falsification, or plagiarism in
proposing, performing, or reviewing research, or in reporting research
results. Research misconduct does not include honest error or
differences of opinion.
Research record. The record of data or results that embody the
facts resulting from scientific inquiry, and includes, but is not
limited to, research proposals, research records (including data,
notes, journals, laboratory records (both physical and electronic)),
progress reports, abstracts, theses, oral presentations, internal
reports, and journal articles.
USDA. United States Department of Agriculture.
USDA Research Integrity Officer (USDA RIO). The individual
designated by the Office of the Under Secretary for Research,
Education, and Economics (REE) who is responsible for:
(1) Overseeing USDA agency responses to allegations of research
misconduct;
(2) Ensuring that agency research misconduct procedures are
consistent with this part;
(3) Receiving and assigning allegations of research misconduct
reported by the public;
(4) Developing Memoranda of Understanding with agencies that elect
not to develop their own research misconduct procedures;
(5) Monitoring the progress of all research misconduct cases; and
(6) Serving as liaison with OIG to receive allegations of research
misconduct when they are received via the OIG Hotline.
Sec. 422.2 Procedures.
Research institutions that conduct extramural research funded by
USDA must foster an atmosphere conducive to research integrity. They
must develop or have procedures in place to respond to allegations of
research misconduct that ensure:
(a) Appropriate separations of responsibility for inquiry,
investigation, and adjudication;
(b) Objectivity;
(c) Due process;
(d) Whistleblower protection;
(e) Confidentiality. To the extent possible and consistent with a
fair and thorough investigation and as allowed by law, knowledge about
the identity of subjects and complainants is limited to those who need
to know; and
(f) Timely resolution.
Sec. 422.3 Inquiry, investigation, and adjudication.
A research institution that conducts extramural research funded by
USDA bears primary responsibility for prevention and detection of
research misconduct and for the inquiry, investigation, and
adjudication of research misconduct allegations reported directly to
it. The research institution must perform an inquiry in response to an
allegation, and must follow the inquiry with an investigation if the
inquiry determines that the allegation or apparent instance of research
misconduct has substance. The responsibilities for adjudication must be
separate from those for inquiry and investigation. In most instances,
USDA will rely on a research institution conducting extramural research
to promptly:
(a) Initiate an inquiry into any suspected or alleged research
misconduct;
(b) Conduct a subsequent investigation, if warranted;
(c) Acquire, prepare, and maintain appropriate records of
allegations of extramural research misconduct and all related
inquiries, investigations, and findings; and
(d) Take action to ensure the following:
(1) The integrity of research;
(2) The rights and interests of the subject of the investigation
and the public are protected;
(3) The observance of legal requirements or responsibilities
including cooperation with criminal investigations; and
(4) Appropriate safeguards for subjects of allegations, as well as
complainants (see Sec. 422.6). These safeguards should include timely
written notification of subjects regarding substantive allegations made
against them; a description of all such allegations; reasonable access
to the data and other evidence supporting the allegations; and the
opportunity to respond to allegations, the supporting evidence and the
proposed findings of research misconduct, if any.
Sec. 422.4 USDA Panel to determine appropriateness of research
misconduct policy.
Before USDA will rely on a research institution to conduct an
inquiry, investigation, and adjudication of an allegation in accordance
with this part, the research institution where the research misconduct
is alleged must provide the ARIO its policies and procedures related to
research misconduct at the institution. The research institution has
the option of providing either a written copy of such policies and
procedures or a website address where such policies and procedures can
be accessed. The ARIO to whom the policies and procedures were made
available must convene a panel comprised of the USDA RIO and ARIOs from
the Forest Service, the Agricultural Research Service, and the National
Institute of Food and Agriculture. The Panel will review the research
institution's policies and procedures for compliance with the OSTP
Policy and render a decision regarding the research institution's
ability to adequately resolve research
[[Page 54391]]
misconduct allegations. The ARIO will inform the research institution
of the Panel's determination that its inquiry, investigation, and
adjudication procedures are sufficient. If the Panel determines that
the research institution does not have sufficient policies and
procedures in place to conduct inquiry, investigation, and adjudication
proceedings, or that the research institution is in any way unfit or
unprepared to handle the inquiry, investigation, and adjudication in a
prompt, unbiased, fair, and independent manner, the ARIO will inform
the research institution in writing of the Panel's decision. An
appropriate USDA agency, as determined by the Panel, will then conduct
the inquiry, investigation, and adjudication of research misconduct in
accordance with this part. If an allegation of research misconduct is
made regarding extramural research conducted at a Federal research
institution (whether USDA or not), it is presumed that the Federal
research institution has research misconduct procedures consistent with
the OSTP Policy. USDA reserves the right to convene the Panel to assess
the sufficiency of a Federal agency's research misconduct procedures,
should there be any question whether the agency's procedures will
ensure a fair, unbiased, equitable, and independent inquiry,
investigation, and adjudication process.
Sec. 422.5 Reservation of right to conduct subsequent inquiry,
investigation, and adjudication.
(a) USDA reserves the right to conduct its own inquiry,
investigation, and adjudication into allegations of research misconduct
at a research institution conducting extramural research subsequent to
the proceedings of the research institution related to the same
allegation. This may be necessary if the USDA RIO or ARIO believes,
using sound discretion, that despite the Panel's finding that the
research institution in question had appropriate and OSTP-compliant
research misconduct procedures in place, the research institution
conducting the extramural research at issue:
(1) Did not adhere to its own research misconduct procedures;
(2) Did not conduct research misconduct proceedings in a fair,
unbiased, or independent manner; or
(3) Has not completed research misconduct inquiry, investigation,
or adjudication in a timely manner.
(b) Additionally, USDA reserves the right to conduct its own
inquiry, investigation, and adjudication into allegations of research
misconduct at a research institution conducting extramural research
subsequent to the proceedings of the research institution related to
the same allegation for any other reason that the USDA RIO or ARIO
considers it appropriate to conduct research misconduct proceedings in
lieu of the research institution's conducting the extramural research
at issue. This right is subject to paragraph (c) of this section.
(c) In cases where the USDA RIO or ARIO believes it is necessary
for USDA to conduct its own inquiry, investigation, and adjudication
subsequent to the proceedings of the research institution related to
the same allegation, the USDA RIO or ARIO will reconvene the Panel,
which will determine whether it is appropriate for the relevant USDA
agency to conduct the research misconduct proceedings related to the
allegation(s) of research misconduct. If the Panel determines that it
is appropriate for a USDA agency to conduct the proceedings, the ARIO
will immediately notify the research institution in question. The
research institution must then promptly provide the relevant USDA
agency with documentation of the research misconduct proceedings the
research institution has conducted to that point, and the USDA agency
will conduct research misconduct proceedings in accordance with the
Agency research misconduct procedures.
Sec. 422.6 Notification of USDA of allegations of research
misconduct.
(a) Research institutions that conduct USDA-funded extramural
research must promptly notify OIG and the USDA RIO of all allegations
of research misconduct or violations of Federal criminal statutes
involving USDA funds when the institution inquiry into the allegation
warrants the institution moving on to an investigation.
(b) Individuals at research institutions who suspect research
misconduct at the institution should report allegations in accordance
with the institution's research misconduct policies and procedures.
Anyone else who suspects that researchers or research institutions
performing Federally funded research may have engaged in research
misconduct is encouraged to make a formal allegation of research
misconduct to OIG.
(1) OIG has established a hotline for USDA employees and the
general public to report fraud, waste, abuse, and mismanagement in USDA
programs including allegations of research misconduct. Complaints,
which may be submitted anonymously, must be filed with the OIG by
submitting a complaint via the hotline on OIG's public website, sending
a fax, or writing a letter.
(i) The OIG hotline may be accessed at <a href="https://usdaoig.oversight.gov/hotline">https://usdaoig.oversight.gov/hotline</a>.
(ii) Complainants who submit to the hotline on OIG's public website
and who wish to provide additional documentation may fax them to (202)
690-2474.
(iii) Letters may be mailed to: United States Department of
Agriculture, Office of Inspector General, P.O. Box 23399, Washington,
DC 20026-3399.
(2) The USDA RIO may be reached at:
USDA Research Integrity Officer, 214W Whitten Building, Washington, DC
20250
Telephone: (202) 690-0745
Email: <a href="/cdn-cgi/l/email-protection#cdbfa8bea8acbfaea5a4a3b9a8aabfa4b9b48db8bea9ace3aaa2bb"><span class="__cf_email__" data-cfemail="f6849385939784959e9f98829391849f828fb683859297d8919980">[email protected]</span></a>
(c) To the extent known, the following details should be included
in any formal allegation:
(1) The name of the research projects involved, the nature of the
alleged misconduct, and the names of the individual or individuals
alleged to be involved in the misconduct;
(2) The source or sources of funding for the research project or
research projects involved in the alleged misconduct;
(3) Important dates;
(4) Any documentation that bears upon the allegation; and
(5) Any other potentially relevant information.
(d) Safeguards for complainants give individuals the confidence
that they can bring allegations of research misconduct made in good
faith to the attention of appropriate authorities or serve as
complainants to an inquiry or an investigation without suffering
retribution. Safeguards include protection against retaliation for
complainants who make good faith allegations, fair and objective
procedures for the examination and resolution of allegations of
research misconduct, and diligence in protecting the positions and
reputations of those persons who make allegations of research
misconduct in good faith. The identity of complainants who wish to
remain anonymous will be kept confidential to the extent permitted by
law or regulation.
Sec. 422.7 Notification of ARIO during an inquiry or investigation.
(a) Research institutions that conduct USDA-funded extramural
research must promptly notify the ARIO should the institution become
aware during an inquiry or investigation that:
(1) Public health or safety is at risk;
(2) The resources, reputation, or other interests of USDA are in
need of protection;
[[Page 54392]]
(3) Research activities should be suspended;
(4) Federal action may be needed to protect the interest of a
subject of the investigation or of others potentially affected;
(5) A premature public disclosure of the inquiry into or
investigation of the allegation may compromise the process;
(6) The scientific community or the public should be informed; or
(7) There is reasonable indication of possible violations of civil
or criminal law.
(b) If research misconduct proceedings reveal behavior that may be
criminal in nature at any point during the proceedings, the institution
must promptly notify the ARIO.
Sec. 422.8 Communication of research misconduct policies and
procedures.
Institutions that conduct USDA-funded extramural research are to
maintain and effectively communicate to their staff policies and
procedures relating to research misconduct, including the guidelines in
this part. The institution is to inform their researchers and staff
members who conduct USDA-funded extramural research when and under what
circumstances USDA is to be notified of allegations of research
misconduct, and when and under what circumstances USDA is to be updated
on research misconduct proceedings.
Sec. 422.9 Documents required.
(a) A research institution that conducts USDA-funded extramural
research must maintain the following documents related to an allegation
of research misconduct at the research institution:
(1) A written statement describing the original allegation;
(2) A copy of the formal notification presented to the subject of
the allegation;
(3) A written report describing the inquiry stage and its outcome
including copies of all supporting documentation;
(4) A description of the methods and procedures used to gather and
evaluate information pertinent to the alleged misconduct during inquiry
and investigation stages;
(5) A written report of the investigation, including the
evidentiary record and supporting documentation;
(6) A written statement of the findings; and
(7) If applicable, a statement of recommended corrective actions,
and any response to such a statement by the subject of the original
allegation, and/or other interested parties, including any corrective
action plan.
(b) The research institution must retain the documents specified in
paragraph (a) of this section for at least 3 years following the final
adjudication of the alleged research misconduct.
Sec. 422.10 Reporting to USDA.
Following completion of an investigation into allegations of
research misconduct, the institution conducting extramural research
must provide to the ARIO a copy of the evidentiary record, the report
of the investigation, recommendations made to the institution's
adjudicating official, the adjudicating official's determination, the
institution's corrective action taken or planned, and the written
response of the individual who is the subject of the allegation to any
recommendations.
Sec. 422.11 Research records and evidence.
(a) A research institution that conducts extramural research
supported by USDA funds, as the responsible legal entity for the USDA-
supported research, has a continuing obligation to create and maintain
adequate records (including documents and other evidentiary matter) as
may be required by any subsequent inquiry, investigation, finding,
adjudication, or other proceeding.
(b) Whenever an investigation is initiated, the research
institution must promptly take all reasonable and practical steps to
obtain custody of all relevant research records and evidence as may be
necessary to conduct the research misconduct proceedings. This must be
accomplished before the research institution notifies the researcher/
respondent of the allegation, or immediately thereafter.
(c) The original research records and evidence taken into custody
by the research institution must be inventoried and stored in a secure
place and manner. Research records involving raw data must include the
devices or instruments on which they reside. However, if deemed
appropriate by the research institution or investigator, research data
or records that reside on or in instruments or devices may be copied
and removed from those instruments or devices as long as the copies are
complete, accurate, and have substantially equivalent evidentiary value
as the data or records have when the data or records reside on the
instruments or devices. Such copies of data or records must be made by
a disinterested, qualified technician and not by the subject of the
original allegation or other interested parties. When the relevant data
or records have been removed from the devices or instruments, the
instruments or devices need not be maintained as evidence.
Sec. 422.12 Remedies for noncompliance.
USDA agencies' implementation procedures identify the
administrative actions available to remedy a finding of research
misconduct. Such actions may include the recovery of funds, correction
of the research record, debarment of the researcher(s) that engaged in
the research misconduct, proper attribution, or any other action deemed
appropriate to remedy the instance(s) of research misconduct. The
agency should consider the seriousness of the misconduct, including,
but not limited to, the degree to which the misconduct was knowingly
conducted, intentional, or reckless; was an isolated event or part of a
pattern; or had significant impact on the research record, research
subjects, other researchers, institutions, or the public welfare. In
determining the appropriate administrative action, the appropriate
agency must impose a remedy that is commensurate with the infraction as
described in the finding of research misconduct.
Sec. 422.13 Appeals.
(a) If USDA relied on an institution to conduct an inquiry,
investigation, and adjudication, the alleged person(s) should first
follow the institution's appeal policy and procedures.
(b) USDA agencies' implementation procedures, which must be made
available on a designated USDA public website, identify the appeal
process when a finding of research misconduct is elevated to the
agency.
Sec. 422.14 Relationship to other requirements.
Some of the research covered by this part also may be subject to
regulations of other governmental agencies (e.g., a university that
receives funding from a USDA agency and also under a grant from another
Federal agency). If more than one agency of the Federal Government has
jurisdiction, USDA will cooperate with the other agency(ies) in
designating a lead agency. When USDA is not the lead agency, it will
rely on the lead agency following its policies and procedures in
determining whether there is a finding of research misconduct. Further,
USDA may, in consultation with the lead agency, take action to protect
the health and safety of the public, to promote the integrity of the
USDA-supported research and research process, or to conserve public
funds. When appropriate, USDA will seek to resolve allegations jointly
with the other agency or agencies.
[[Page 54393]]
0
11. Add part 423 to read as follows:
PART 423--GEOSPATIAL DATA MANAGEMENT AND STANDARDS FOR FEDERAL
FINANCIAL ASSISTANCE AWARDS
Sec.
423.1 What does this part do?
423.2 Disclosure of geospatial investments.
Authority: 43 U.S.C. Ch. 46; 5 U.S.C. 301
Sec. 423.1 What does this part do?
This part implements the requirements at 43 U.S.C. 2808(b)(3) which
pertain to the disclosure of USDA Federal financial assistance that
involves geospatial data, as supplemented by this part.
Sec. 423.2 Disclosure of geospatial investments.
USDA awarding agencies must ensure that all Federal financial
assistance instruments which involve the acquisition, storage, or
distribution of geospatial data comply with USDA policy. For all such
instruments, USDA awarding agencies must require award terms and
conditions necessary for the specific purpose of complying with law,
regulation, and USDA policy.
Lynn Moaney,
Deputy Chief Financial Officer, Office of the Chief Financial Officer.
[FR Doc. 2024-13845 Filed 6-28-24; 8:45 am]
BILLING CODE 3410-KS-P
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