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(2) A transcribed record of any addi- (C) Notice of suspending official's decitional proceedings shall be prepared sion. Prompt written notice of the susand made available at cost to the re- pending official's decision shall be sent spondent, upon request, unless the re- to the respondent. spondent and the agency, by mutual agreement, waive the requirement for a
$ 1096.415 Period of suspension. transcript.
(a) Suspension shall be for a tem(53 FR 19204, May 28, 1988 as amended at 53
porary period pending the completion FR 19173, May 26, 1988)
of an investigation or ensuing legal, de
barment, or Program Fraud Civil Rem1036.413 Suspending official's deci- edies Act proceedings, unless termision.
nated sooner by the suspending official The suspending official may modify or as provided in paragraph (b) of this or terminate the suspension (for exam
section. ple, see $1036.320(c) for reasons for re
(b) If legal or administrative proceedducing the period or scope of debar
ings are not initiated within 12 months ment) or may leave it in force. How- after the date of the suspension notice, ever, a decision to modify or terminate
the suspension shall be terminated unthe suspension shall be without preju
less an Assistant Attorney General or dice to the subsequent imposition of
United States Attorney requests its exsuspension by any other agency or de
tension in writing, in which case it barment by any agency. The decision
may be extended for an additional six shall be rendered in accordance with
months. In no event may a suspension the following provisions:
extend beyond 18 months, unless such (a) No additional proceedings necessary.
proceedings have been initiated within In actions: based on an indictment,
that period. conviction, or civil judgment; in which
(c) The suspending official shall nothere is no genuine dispute over mate
tify the Department of Justice of an rial facts; or in which additional pro
impending termination of a suspension, ceedings to determine disputed mate
at least 30 days before the 12-month perial facts have been denied on the basis
riod expires, to give that Department of Department of Justice advice, the
an opportunity to request an extensuspending official shall make a deci
sion. sion on the basis of all the information in the administrative record, including
9 1036.420 Scope of suspension. any submission made by the respond
The scope of a suspension is the same ent. The decision shall be made within
as the scope of a debarment (see 45 days after receipt of any information
$1036.325), except that the procedures of and argument submitted by the re
$$ 1036.410 through 1036.413 shall be used spondent, unless the suspending official
in imposing a suspension. extends this period for good cause. (b) Additional proceedings necessary.
Subpart E-Responsibilities of GSA, (1) In actions in which additional pro- Agency and Participants ceedings are necessary to determine disputed material facts, written find
3 1036.500 GSA responsibilities. ings of fact shall be prepared. The sus- (a) In accordance with the OMB pending official shall base the decision guidelines, GSA shall compile, mainon the facts as found, together with tain, and distribute a list of all persons any information and argument submit- who have been debarred, suspended, or ted by the respondent and any other in- voluntarily excluded by agencies under formation in the administrative record. Executive Order 12549 and these regula
(2) The suspending official may refer tions, and those who have been determatters involving disputed material mined to be ineligible. facts to another official for findings of (b) At a minimum, this list shall infact. The suspending oficial may re- dicate: ject any such findings, in whole or in (1) The names and addresses of all part, only after specifically determin- debarred, suspended, ineligible, and ing them to be arbitrary or capricious voluntarily excluded persons, in alphaor clearly erroneous.
betical order, with cross-references
when more than one name is involved in a single action;
(2) The type of action;
(5) Any termination date for each listing; and
(6) The agency and name and telephone number of the agency point of contact for the action. $ 1036.505 DOE responsibilities.
(a) The agency shall provide GSA with current information concerning debarments, suspension, determinations of ineligibility, and voluntary exclusions it has taken. Until February 18, 1989, the agency shall also provide GSA and OMB with information concerning all transactions in which DOE has granted exceptions under $1036.215 permitting participation by debarred, suspended, or voluntarily excluded persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency shall advise GSA of the information set forth in 81036.500(b) and of the exceptions granted under $ 36.215 within five working days after taking such actions.
(c) The agency shall direct inquiries concerning listed persons to the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before entering covered transactions to determine whether a participant in a primary transaction is debarred, suspended, ineligible, or voluntarily excluded (Tel.
a primary covered transaction, except that States need only complete such certification as to their principals. Participants may decide the method and frequency by which they determine the eligibility of their principals. In addition, each participant may, but is not required to check the Nonprocurement List for its principals (Tel. #). Adverse information on the certification will not necessarily result in denial of participation. However, the certification, and any additional information pertaining to the certification submitted by the participant, shall be considered in the administration of covered transactions.
(b) Certification by participants in lower tier covered transactions. (1) Each participant shall require participants in lower tier covered transactions to include the certification in appendix B to this part for it and its principals in any proposal submitted in connection with such lower tier covered transactions.
(2) A participant may rely upon the certification of a prospective participant in a lower tier covered transaction that it and its principals are not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction by any Federal agency, unless it knows that the certification is erroneous. Participants may decide the method and frequency by which they determine the eligiblity of their principals. In addition, a participant may, but is not required to check the Nonprocurement List for its principals and for participants (Tel. #).
(c) Changed circumstances regarding certification. A participant shall provide immediate written notice to DOE if at any time the participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. Participants in lower tier covered transactions shall provide the same updated notice to the participant to which it submitted its proposals.
(e) Agency officials shall check the Nonprocurement List before approving principals or lower tier participants where agency approval of the principal or lower tier participant is required under the terms of the transaction, to determine whether such principals or participants are debarred, suspended, ineligible, or voluntarily excluded. 8 1036.510 Participants' responsibil.
ities. (a) Certification by participants in primary covered transactions. Each participant shall submit the certification in appendix A to this part for it and its principals at the time the participant submits its proposal in connection with
Subpart F–Drug-Free Workplace
SOURCE: 55 FR 21688 and 21691, May 25, 1990, unless otherwise noted.
8 1036.600 Purpose.
(a) The purpose of this subpart is to carry out the Drug-Free Workplace Act of 1988 by requiring that,
(1) A grantee, other than an individual, shall certify to the agency that it will provide a drug-free workplace;
(2) A grantee who is an .ndividual shall certify to the agency 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) Requirements implementing the Drug-Free Workplace Act of 1988 for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, and 52.2.
$ 1036.606 Definitions.
(a) Except as amended in this section, the definitions of $1036.105 apply to this subpart.
(b) For purposes of this subpart
(1) 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 at 21 CFR 1308.11 through 1308.15;
(2) 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;
(3) Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance;
(4) Drug-free workplace means a site for the performance of work done in connection with a specific grant at which employees of the grantee are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance;
(5) Employee means the employee of a grantee directly engaged in the performance of work under the grant, including:
(1) All “direct charge" employees;
(1) 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 of the grantee (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the payroll; or employees of subrecipients or subcontractors in covered workplaces);
(6) Federal agency or agency means any United States executive department, military department, government corporation, government controlled corporation, any other establishment in the executive branch (including the Executive Office of the President), or any independent regulatory agency;
(7) Grant means an award of financial assistance, including a cooperative agreement, in the form of money, or property in lieu of money, by a Federal agency directly to a grantee. The term grant includes block grant and entitlement grant programs, whether or not exempted from coverage under the grants management government-wide common rule on uniform administrative requirements for grants and cooperative agreements. The term does not include technical assistance that provides services instead of money, or other assistance in the form of loans, loan guarantees, interest subsidies, insurance, or direct appropriations; or any veterans' benefits to individuals, i.e., any benefit to veterans, their families, or survivors by virtue of the service of a veteran in the Armed Forces of the United States;
(8) Grantee means a person who applies for or receives a grant directly from a Federal agency (except another Federal agency);
(9) Individual means a natural person;
(10) State means any of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or any agency of a State, exclusive of institutions of higher education, hospitals, and units of local government. A State instrumen
tality will be considered part of the (1) The grantee has violated the cerState government if it has a written tification by failing to carry out its redetermination from a State govern- quirements (Alternate II to appendix ment that such State considers the in- C); or strumentality to be an agency of the (2) The grantee is convicted of a State government.
criminal drug offense resulting from a
violation occurring during the conduct 81036.610 Coverage.
of any grant activity. (a) This subpart applies to any grant
8 1036.620 Effect of violation ee of the agency. (b) This subpart applies to any grant,
(a) In the event of a violation of this except where application of this sub
subpart as provided in 81036.615, and in part would be inconsistent with the
accordance with applicable law, the international obligations of the United
grantee shall be subject to one or more States or the laws or regulations of a
of the following actions: foreign government. A determination
(1) Suspension of payments under the
grant; of such inconsistency may be made only by the agency head or his/her des
(2) Suspension or termination of the ignee.
(3) Suspension or debarment of the (c) The provisions of subparts A, B, C,
grantee under the provisions of this D and E of this part apply to matters
part. covered by this subpart, except where (b) Upon issuance of any final decispecifically modified by this subpart.
sion under this part requiring debarIn the event of any conflict between
ment of a grantee, the debarred grantprovisions of this subpart and other
ee shall be ineligible for award of any provisions of this part, the provisions
grant from any Federal agency for a of this subpart are deemed to control
period specified in the decision, not to with respect to the implementation of
exceed five years (see $1036.320(a)(2) of drug-free workplace requirements con
this part). cerning grants.
1036.625 Exception provision. $ 1036.615 Grounds for suspension of payments, suspension or termi
The agency head may waive with renation of grants, or suspension or
spect to a particular grant, in writing, debarment.
a suspension of payments under & A grantee shall be deemed in viola
grant, suspension or termination of a tion of the requirements of this sub
grant, or suspension or debarment of a part if the agency head or his or her of
grantee if the agency head determines ficial designee determines, in writing,
that such a waiver would be in the pubthat
lic interest. This exception authority (a) The grantee has made a false cer
cannot be delegated to any other offi
cial. tification under $ 1036.630;
(b) With respect to a grantee other § 1036.630 Certification requirements than an individual
and procedures. (1) The grantee has violated the cer- (a)(1) As a prior condition of being tification by failing to carry out the awarded a grant, each grantee shall requirements of subparagraphs (A.) (a) make the appropriate certification to (8) and/or (B.) of the certification (Al- the Federal agency providing the ternate I to appendix C) or
grant, as provided in appendix C to this (2) Such a number of employees of
part. the grantee have been convicted of vio- (2) Grantees are not required to make lations of criminal drug statutes for a certification in order to continue reviolations occurring in the workplace ceiving funds under a grant awarded as to indicate that the grantee has before March 18, 1989, or under a nofailed to make a good faith effort to cost time extension of such a grant. provide a drug-free workplace.
However, the grantee shall make a one(c) With respect to a grantee who is time drug-free workplace certification an individual
for a non-automatic continuation of
(e)(1) For a grant of less than 30 days performance duration, grantees shall have this policy statement and program in place as soon as possible, but in any case by a date prior to the date on which performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees shall have this policy statement and program in place within 30 days after award.
(3) Where extraordinary circumstances warrant for a specific grant, the grant officer may determine a different date on which the policy statement and program shall be in place.
such a grant made on or after March 18, 1989.
(b) Except as provided in this section, all grantees shall make the required certification for each grant. For mandatory formula grants and entitlements that have no application process, grantees shall submit a one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in each Federal fiscal year. States that previously submitted an annual certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. Except as provided in paragraph (d) of this section, this certification shall cover all grants to all State agencies from any Federal agency. The State shall retain the original of this statewide certification in its Governor's office and, prior to grant award, shall ensure that a copy is submitted individually with respect to each grant, unless the Federal agency has designated a central location for submission.
(d)(1) The Governor of a State may exclude certain State agencies from the statewide certification and authorize these agencies to submit their own certifications to Federal agencies. The statewide certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not apply, or a State agency in a State that does not have a statewide certification, may elect to make one certification in each Federal fiscal year. State agencies that previously submitted a State agency certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. The State agency shall retain the original of this State agency-wide certification in its central office and, prior to grant award, shall ensure that a copy is submitted individually with respect to each grant, unless the Federal agency designates a central location for submission.
(3) When the work of a grant is done by more than one State agency, the certification of the State agency directly receiving the grant shall be deemed to certify compliance for all workplaces, including those located in other State agencies.
g 1036.635 Reporting of and employee
sanctions for convictions of crimi
nal drug offenses. (a) When a grantee other than an individual is notified that an employee has been convicted for a violation of a criminal drug statute occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction, the grantee shall provide written notice, including the convicted employee's position title, to every grant officer, or other designee on whose grant activity the convicted employee was working, unless a Federal agency has designated a central point for the receipt of such notifications. Notification shall include the identification number(s) for each of the Federal agency's affected grants.
(2) Within 30 calendar days of receiving notice of the conviction, the grantee shall do the following with respect to the employee who was convicted.
(1) Take appropriate personnel action against the employee, up to and including termination, consistent with requirements of the Rehabilitation Act of 1973, as amended; or
(ii) Require the 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.
(b) A grantee who is an individual who is convicted for a violation of a criminal drug statute occurring during the conduct of any grant activity shall report the conviction, in writing, with