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transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
agency, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals, need not be identified on the certification. If known, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the grantee must keep the identity of the workplace(s) on file in its office and make the information available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the performance of the grant, the grantee shall inform the agency of the change(s), if it previously identified the workplaces in question (see paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and Debarment common rule and Drug-Free Workplace common rule apply to this certification. Grantees' attention is called, in particular, to the following definitions from these rules:
Controlled substance means a controlled substance in Schedules I through V of the Controlled Substances Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15);
Conviction means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance;
Employee means the employee of a grantee directly engaged in the performance of work under a grant, including: (i) All direct charge employees; (ii) All indirect charge employees unless their impact or involvement is insignificant to the performance of the grant; and, (iii) Temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll
Certification Regarding Debarment, Suspension,
Ineligibility an Voluntary Exclusion-Lower Tier Covered Transactions
(1) The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
(2) Where the prospective lower tier pa ipant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
[60 FR 33042, 33056, June 26, 1995)
APPENDIX CTO PART 85-CERTIFICATION
REGARDING DRUG-FREE WORKPLACE
Instructions for Certification 1. By signing and/or submitting this application or grant agreement, the grantee is providing the certification set out below.
2. The certification set out below is a material representation of fact upon which reliance is placed when the agency awards the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the
of the grantee (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the grantee's payroll; or employees of subrecipients or subcontractors in covered workplaces).
Certification Regarding Drug-Free Workplace
Alternate I. (GRANTEES OTHER THAN
(1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;
(g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f).
B. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance (Street address, city,
county, state, zip code)
Check if there are workplaces on file that are not identified here.
Alternate II. (GRANTEES WHO ARE
A. The grantee certifies that it will or will continue to provide a drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees about
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a);
(d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after receiving notice under paragraph (a)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)(2), with respect to any employee who is so convicted
(a) The grantee certifies that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity, he or she will report the conviction, in writing, within 10 calendar days of the conviction, to every grant officer or other designee, unless the Federal agency designates a central point for the receipt of such notices. When notice is made to such a central point, it shall include the identification number(s) of each affected grant.
[55 FR 21690, 21699, May 25, 1990]
PART 86-DRUG AND ALCOHOL
Sec. 86.1 What is the purpose of the Drug and Al
cohol Abuse Prevention regulations? 86.2 What Federal programs are covered by
this part? 86.3 What actions shall an IHE take to com
ply with the requirements of this part? 86.4 What are the procedures for submitting
a drug prevention program certification? 86.5 What are the consequences if an IHE
fails to submit a drug prevention program certification?
86.6 When must an IHE submit a drug pre
vention program certification? 86.7 What definitions apply to this part?
AUTHORITY: 20 U.S.C. 1145g, unless otherwise noted.
SOURCE: 55 FR 33581, Aug. 16, 1990, unless otherwise noted.
Subpart B-Institutions of Higher Education
86.100 What must the IHE's drug prevention
program include? 86.101 What review of IHE drug prevention
programs does the Secretary conduct? 86.102 What is required of an IHE that the
Secretary selects for annual review? 86.103 What records and information must
an IHE make available to the Secretary and the public concerning its drug prevention program?
Subpart C [Reserved]
$ 86.1 What is the purpose of the Drug
and Alcohol Abuse Prevention regu
lations? The purpose of the Drug and Alcohol Abuse Prevention regulations is to implement section 22 of the Drug-Free Schools and Communities Act Amendments of 1989, which added section 1213 to the Higher Education Act. These amendments require that, as a condition of receiving funds or any other form of financial assistance under any Federal program,
an institution of higher education (IHE) must certify that it has adopted and implemented a drug prevention program as described in this part.
Subpart D-Responses and Sanctions
issued or Imposed by the Secretary for Violations by an IHE
(Authority: 20 U.S.C. 1145g)
[61 FR 66225, Dec. 17, 1996)
86.300 What constitutes a violation of this
part by an IHE? 86.301 What actions may the Secretary take
if an IHE violates this part? 86.302 What are the procedures used by the
Secretary for providing information or
technical assistance? 86.303 What are the procedures used by the
Secretary for issuing a response other than the formulation of a compliance agreement or the provision of informa
tion or technical assistance? 86.304 What are the procedures used by the
Secretary to demand repayment of Fed-
$ 86.2 What Federal programs are cov
ered by this part? The Federal programs covered by this part include
(a) All programs administered by the Department of Education under which an IHE may receive funds or any other form of Federal financial assistance; and
(b) All programs administered by any other Federal agency under which an IHE may receive funds or any other form of Federal financial assistance.
Subpart E-Appeal Procedures
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996)
86.400 What is the scope of this subpart? 86.401 What are the authority and respon
sibility of the ALJ? 86.402 Who may be a party in a hearing
under this subpart? 86.403 May a party be represented by coun
sel? 86.404 How may a party communicate with
an ALJ? 86.405 What are the requirements for filing
written submissions? 86.406 What must the ALJ do if the parties
enter settlement negotiations? 86.407 What are the procedures for schedul
ing a hearing? 86.408 What are the procedures for conduct
ing a pre-hearing conference? 86.409 What are the procedures for conduct
ing a hearing on the record? 86.410 What are the procedures for issuance
of a decision? 86.411 What are the procedures for request
ing reinstatement of eligibility?
$ 86.3 What actions shall an IHE take
to comply with the requirements of
this part? (a) An IHE shall adopt and implement a drug prevention program as described in $86.100 to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by all students and employees on school premises or as part of any of its activities.
(b) An IHE shall provide a written certification that it has adopted and
$ 86.5 What are the consequences if an
IHE fails to submit a drug preven
tion program certification? (a) An IHE that fails to submit a drug prevention program certification is not eligible to receive funds or any other form of financial assistance under any Federal program.
(b) The effect of loss of eligibility to receive funds or any other form of Federal financial assistance is determined by the statute and regulations governing the Federal programs under which an IHE receives or desires to receive assistance.
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996)
$ 86.6 When must an IHE submit a
drug prevention program certification?
8 86.7 What definitions apply to this
part? (a) Definitions in EDGAR. The following terms used in this part are defined in 34 CFR part 77: Department EDGAR Secretary
(b) Other definitions. The following terms used in this part are defined as follows:
Compliance agreement means an agreement between the Secretary and an IHE that is not in full compliance with its drug prevention program certification. The agreement specifies the steps the IHE will take to comply fully with its drug prevention program certification, and provides a schedule for the accomplishment of those steps. A compliance agreement does not excuse or remedy past violations of this part.
Institution of higher education means
(1) An institution of higher education, as defined in 34 CFR 600.4;
(2) A proprietary institution of higher education, as defined in 34 CFR 600.5;
(3) A postsecondary vocational institution, as defined in 34 CFR 600.6; and
(a) After October 1, 1990, except as provided in paragraph (b) of this section, an IHE is not eligible to receive funds or any other form of financial assistance under any Federal program until the IHE has submitted a drug prevention program certification.
(b)(1) The Secretary may allow an IHE until not later than April 1, 1991, to submit the drug prevention program certification, only if the IHE establishes that it has a need, other than administrative convenience, for
$ 86.101 What review of IHE drug pre
vention programs does the Sec
retary conduct? The Secretary annually reviews a representative sample of IHE drug prevention programs.
(Authority: 20 U.S.C. 1145g)
$ 86.102 What is required of an IHE
that the Secretary selects for an
nual review? If the Secretary selects an IHE for review under $86.101, the IHE shall provide the Secretary access to personnel, records, documents and any other necessary information requested by the Secretary to review the IHE's adoption and implementation of its drug prevention program.
(Approved by the Office of Management and Budget under control number 1880-0522)
(Authority: 20 U.S.C. 1145g)
$ 86.100 What must the IHE's drug pre
vention program include? The IHE's drug prevention program must, at a minimum, include the following:
(a) The annual distribution in writing to each employee, and to each student who is taking one or more classes for any type of academic credit except for continuing education units, regardless of the length of the student's program of study, of,
(1) Standards of conduct that clearly prohibit, at a minimum, the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees on its property or as part of any of its activities;
(2) A description of the applicable legal sanctions under local, State, or Federal law for the unlawful possession or distribution of illicit drugs and alcohol;
(3) A description of the health risks associated with the use of illicit drugs and the abuse of alcohol;
(4) A description of any drug or alcohol counseling, treatment, or rehabilitation or re-entry programs that are available to employees or students; and
(5) A clear statement that the IHE will impose disciplinary sanctions on students and employees (consistent with local, State, and Federal law), and a description of those sanctions, up to and including expulsion or termination of employment and referral for prosecution, for violations of the standards of conduct required by paragraph (a)(1) of this section. For the purpose of this section, a disciplinary sanction may include the completion of an appropriate rehabilitation program.
(b) A biennial review by the IHE of its program to
(1) Determine its effectiveness and implement changes to the program if they are needed; and
$ 86.103 What records and information
must an IHE make available to the Secretary and the public concern
ing its drug prevention program? (a) Each IHE that provides the drug prevention program certification required by $86.3(b) shall, upon request, make available to the Secretary and the public a copy of each item required by $ 86.100(a) as well as the results of the biennial review required by $ 86.100(b).
(b)(1) An IHE shall retain the following records for three years after the fiscal year in which the record was created:
(i) The items described in paragraph (a) of this section.
(ii) Any other records reasonably related to the IHE's compliance with the drug prevention program certification.
(2) If any litigation, claim, negotiation, audit, review, or other action involving the records has been started before expiration of the three-year period, the IHE shall retain the records