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National Endowment for the Arts
Freedom of Information Act Guide

Process for Reconsideration of Declined General Applications for Federal Assistance

SUMMARY: The National Endowment for the Arts has been restructured. The Notices of Process for Reconsideration of Declined General Applications published on January 14, 1992 and March 29, 1993, are amended herein to reflect the agency's new structure, including new office and division names.

FOR FURTHER INFORMATION CONTACT: Hope O'Keeffe, Acting General Counsel (202) 682-5418, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Room 518, Washington, DC 20506.

1. Purpose

The processes by which the National Endowment for the Arts (the "Endowment") offers financial and technical assistance have been designed to result in supporting projects of artistic excellence and merit. The Endowment relies on discipline review and advisory panel review of grant applications to assure that projects are of substantial artistic and cultural significance. Panel recommendations are subsequently reviewed by the National Council on the Arts, which provides advice to the Endowment's chairperson who then decides whether to approve the applications recommended by the Council.
    This Circular modifies the procedure for reconsideration of applications for financial and technical assistance which have been declined by the National Endowment for the Arts based on negative recommendations of the advisory panel. This procedure does not include reconsideration of grant amounts once a grant is awarded. This process does not apply to applications recommended by the advisory panel but rejected by the Council or Chairperson. Reconsideration of such applications is had at the discretion of the Chairperson only. These revisions are being made in light of a major restructuring of the Endowment and its grant making process. The provisions of this Circular, which updates and amends the earlier Circulars on this subject, dated December 16, 1992 and March 29, 1983, do not apply to procurement governed by the Federal Acquisition Regulations. These provisions will apply to all requests for reconsideration filed after October 1, 1996.

2. Policy

     (a) Statement. Award of financial and technical assistance is discretionary. Discipline and panel recommendations are made using criteria described in the Endowment guidelines. Criteria that involve subjective, qualitative judgments are not subject to reconsideration. Notwithstanding this fact, a Project Director, Authorizing Official, or individual whose application has been declined (hereafter referred to as "applicant") may obtain an explanation of the declination from the appropriate Endowment Discipline Director (hereafter referred to as "Director"). Following receipt of the explanation, if the applicant believes that the declination was based on one or more of the following Grounds for Reconsideration, reconsideration may be obtained under the procedure outlined in Section 3, below.
     (b) Ground(s) for Reconsideration. Reconsideration of application declinations is available solely for one or more of the following three reasons relating to procedural impropriety or error:
     (i) Discipline reviewers or advisory panel considered criteria other than those appearing in the relevant guidelines.
     (ii) Individual(s) with conflict of interest served as a discipline reviewer or on the advisory panel.
     (iii) Information relevant to the deliberations was provided by staff, reviewers, panelists, or others, but not including the applicant, which was inaccurate or incomplete, despite the fact that the applicant provided the Endowment staff with accurate and

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complete information as part of the regular application process.

3. Procedure To Be Followed for Reconsideration

     (a) Explanation by Director. Within 30 days following written notification from the Endowment of its decision on any application, the applicant may request an explanation for a declined application from the appropriate Director. This initial request may be by telephone, in person or in writing. The Director will explain within 30 days following the applicant's request the basis for declination which may include a summary of the discipline review, advisory panel comments, applicable on-site evaluation reports, the names of all discipline reviewers, panel and staff members, and other information not otherwise exempt from disclosure requested by the applicant. If the Director cannot provide such explanation within 30 days, the applicant will receive a written explanation of the need for more time and an estimate of when the results can be expected.
     The Director may designate another Endowment official to provide the explanation for the declination to the applicant. The term "Director" as used here applies to such designees.
     (b) Request for Reconsideration. If the Director's explanation appears to the applicant to indicate the presence of one or more of the "Grounds for Reconsideration" listed in paragraph 2(b) above, the applicant may submit to the Deputy Chairperson for Grants and Partnership (hereafter referred to as "the Deputy") a written Request for Reconsideration. This written request must reference the particular ground(s) for reconsideration and specify the facts supporting his or her claim, with enough particularity to enable the Deputy to determine whether the claim is meritorious. A request of this nature will be considered only if (a) the Request for Reconsideration is based on one or more of the grounds listed in paragraph 2(b); (b) the applicant has obtained an explanation from the appropriate Director, (c) the applicant has specified with sufficient particularity the facts supporting his or her claim; and (d) the Request for Reconsideration is received by the Deputy within 30 days after the date of the Director's explanation.
     (c) Action by the Deputy.
     (i) The Deputy will review the applicant's Request for Reconsideration, records of the discipline review and panel discussions, the applicant's application file, and any other relevant materials to determine if the recommendations were influenced by one or more of the grounds listed in paragraph 2(b). In conducting this review, the Deputy may request additional information from the applicant, obtain advice from an advisory panel, or conduct additional investigation or review. However, no revisions or additions to the grant application materials will be accepted in connection with the Request for Reconsideration except to the extent that additional materials are necessary to substantiate the applicant's claim that one or more of the grounds listed in paragraph 2(b) exists.
     (ii) The Deputy may conduct the reconsideration personally or may designate another Endowment official who had no part in the initial evaluation to do so. The term "the Deputy", as used here, applies to such designees.
     (iii) The Deputy will provide written notification of the results of the reconsideration within 45 days following receipt of the Request for Reconsideration. If the Deputy cannot provide such notice within 45 days, the applicant will receive a written explanation of the need for more time and an estimate of when the results can be expected.
     (d) Resolution of Requests for Reconsideration. Reconsideration is not an adversarial process and a formal hearing is not provided. The Endowment cannot assure applicants that reconsideration will result in the award of a grant even if error is established in connection with the initial evaluation. The Deputy shall make one of the following four determinations. The determinations of the Deputy shall be in writing and shall be final.
     (i) If the Deputy determines that none of the grounds listed in paragraph 2(b) existed, the declination will be affirmed.
     (ii) If the Deputy determines that one or more of the grounds listed in paragraph 2(b) existed, but the recommendation of the advisory panel was not affected materially, the declination will be affirmed.
     (iii) If the Deputy determines that one or more of the grounds listed in 2(b) existed, and he or she can determine, based on the materials reviewed, that but for the infirmity in the review process, the application would have been recommended, the application will be considered by the National Council on the Arts at its next regularly scheduled meeting. The Chairperson of the Endowment then will decide whether to approve applications recommended by the Council.
     (iv) If the Deputy determines that one or more of the grounds listed in paragraph 2(b) occurred, but he or she cannot determine whether, but for the infirmity, the advisory panel would have recommended that application, the application will be reviewed by a panel. If the panel recommends the application for support, the National Council on the Arts will review it at the next regularly scheduled meeting. The Chairperson of the Endowment then will decide whether to approve applications recommended by the Council.

4. Reporting Requirements

     The Deputy will maintain a record of Requests for Reconsideration in accordance with the Endowment's Records Disposition schedule. The record will include the date of receipt, the name of the applicant, including name of organization or institution where applicable, the application number, the determinations of the Deputy, and once the Deputy's review is complete, the date on which each applicant was notified of the results of the reconsideration, and what those results were.

Dated: September 23, 1996. Karen Christensen, General Counsel, National Endowment for the Arts. [FR Doc. 96-25075 Filed 9-30-96; 8:45 am] BILLING CODE 7536-01-M