Rule 35. Time, computation, and extensions.

(a) General. Where possible, procedural actions should be taken in less time than the maximum time allowed. Where appropriate and justified, extensions of time shall be granted. All requests for extensions of time shall be in writing and shall be filed before the due date, unless excused.

(b) Computation. In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run to the end of the next business day.

Rule 36. Ex parte communications.

(a) Definition. An ex parte communication is any communication with a member of the Board, direct or indirect, oral or written, concerning the merits of matters in issue of any pending proceeding which is made by a party in the absence of any other party. Ex parte communications do not include communications where:

(1) The purpose and content of the communication have been disclosed in advance or simultaneously to all parties;

(2) The communication is a request for information concerning the status of the case;

or

(3) The communication involves the Board's administrative functions or procedures.

(b) Prohibition of ex parte communications. Ex parte communications are prohibited.

(c) Procedure after receipt of ex parte communications. Any member of the Board who receives an ex parte communication that the member of the Board knows or has reason to believe is unauthorized shall promptly place the communication, or its substance, in all files and shall furnish copies to all parties. Unauthorized ex parte communications shall

(41 U.S.C. 701 et seq., as amended) that applies to grants. It also applies the provisions of the Act to cooperative agreements and other financial assistance awards, as a matter of Federal Government policy.

§ 21.105 Does this part apply to me? (a) Portions of this part apply to you if you are either

(1) A recipient of an assistance award from the Department of Housing and Urban Development; or

(2) A(n) HUD awarding official. (See definitions of award and recipient in §§ 21.605 and 21.660, respectively.)

(b) The following table shows the subparts that apply to you:

see subparts.

A, B and E.

A, C and E.

A, D and E.

§ 21.110 Are any of my Federal assistance awards exempt from this part? This part does not apply to any award that the Secretary or designee determines that the application of this part would be inconsistent with the international obligations of the United States or the laws or regulations of a foreign government.

$21.115 Does this part affect the Federal contracts that I receive?

It will affect future contract awards indirectly if you are debarred or suspended for a violation of the requirements of this part, as described in §21.510(c). However, this part does not apply directly to procurement contracts. The portion of the Drug-Free Workplace Act of 1988 that applies to Federal procurement contracts is carried out through the Federal Acquisition Regulation in chapter 1 of Title 48 of the Code of Federal Regulations (the drug-free workplace coverage currently is in 48 CFR part 23, subpart 23.5).

Subpart B-Requirements for Recipients Other Than Individuals

§ 21.200 What must I do to comply with this part?

There are two general requirements if you are a recipient other than an individual.

(a) First, you must make a good faith effort, on a continuing basis, to maintain a drug-free workplace. You must agree to do so as a condition for receiving any award covered by this part. The specific measures that you must take in this regard are described in more detail in subsequent sections of this subpart. Briefly, those measures are to

(1) Publish a drug-free workplace statement and establish a drug-free awareness program for your employees (see §§ 21.205 through 21.220); and

(2) Take actions concerning employees who are convicted of violating drug statutes in the workplace (see §21.225).

(b) Second, you must identify all known workplaces under your Federal awards (see § 21.230).

§ 21.205 What must I include in my drug-free workplace statement?

You must publish a statement that(a) Tells your employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in your workplace;

(b) Specifies the actions that you will take against employees for violating that prohibition; and

(c) Lets each employee know that, as a condition of employment under any award, he or she:

(1) Will abide by the terms of the statement; and

(2) Must notify you in writing if he or she is convicted for a violation of a criminal drug statute occurring in the workplace and must do so than five calendar days after the conviction.

no more

$21.210 To whom must I distribute my

drug-free workplace statement?

You must require that a copy of the statement described in § 21.205 be given

If

(a) The performance period of the award is less than 30 days

(b) The performance period of the award is 30 days or more (c) You believe there are extraordinary circumstances that will require more than 30 days for you to publish the policy statement and establish the awareness program.

to each employee who will be engaged in the performance of any Federal award.

§ 21.215 What must I include in my drug-free awareness program?

You must establish an ongoing drugfree awareness program to inform employees about

(a) The dangers of drug abuse in the workplace;

(b) Your policy of maintaining a drug-free workplace;

(c) Any available drug counseling, rehabilitation, and employee assistance programs; and

(d) The penalties that you may impose upon them for drug abuse violations occurring in the workplace.

$21.220 By when must I publish my drug-free workplace statement and establish my drug-free awareness program?

If you are a new recipient that does not already have a policy statement as described in §21.205 and an ongoing awareness program as described in §21.215, you must publish the statement and establish the program by the time given in the following table:

then you...

must have the policy statement and program in place as soon as possible, but before the date on which performance is expected to be completed.

must have the policy statement and program in place within 30 days after award.

may ask the HUD awarding official to give you more time to do so. The amount of additional time, if any, to be given is at the discretion of the awarding official.

§ 21.225 What actions must I take concerning employees who are convicted of drug violations in the workplace?

There are two actions you must take if an employee is convicted of a drug violation in the workplace:

(a) First, you must notify Federal agencies if an employee who is engaged in the performance of an award informs you about a conviction, as required by § 21.205(c)(2), or you otherwise learn of the conviction. Your notification to the Federal agencies must

(1) Be in writing;

(2) Include the employee's position title;

(3) Include the identification number(s) of each affected award;

on

(4) Be sent within ten calendar days after you learn of the conviction; and (5) Be sent to every Federal agency whose award the convicted employee was working. It must be sent to every awarding official or his or her official designee, unless the Federal agency has specified a central point for the receipt of the notices.

(b) Second, within 30 calendar days of learning about an employee's conviction, you must either

(1) Take appropriate personnel action against the employee, up to and including termination, consistent with the

requirements of the Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or

(2) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for these purposes by a Federal, State or local health, law enforcement, or other appropriate agency.

§ 21.230 How and when must I identify workplaces?

(a) You must identify all known workplaces under each HUD award. A failure to do so is a violation of your drug-free workplace requirements. You may identify the workplaces

(1) To the HUD official that is making the award, either at the time of application or upon award; or

(2) In documents that you keep on file in your offices during the performance of the award, in which case you must make the information available for inspection upon request by HUD officials or their designated representatives.

(b) Your workplace identification for an award must include the actual address of buildings (or parts of buildings) or other sites where work under the award 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).

(c) If you identified workplaces to the HUD awarding official at the time of application or award, as described in paragraph (a)(1) of this section, and any workplace that you identified changes during the performance of the award, you must inform the HUD awarding official.

Subpart C-Requirements for Recipients Who Are Individuals

§ 21.300 What must I do to comply with this part if I am an individual recipient?

As a condition of receiving a(n) HUD award, if you are an individual recipient, you must agree that

(a) You will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a con

trolled substance in conducting any activity related to the award; and

(b) If you are convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity, you will report the conviction:

(1) In writing.

(2) Within 10 calendar days of the conviction.

(3) To the HUD awarding official or other designee for each award that you currently have, unless $21.301 or the award document designates a central point for the receipt of the notices. When notice is made to a central point, it must include the identification number(s) of each affected award.

§ 21.301 [Reserved]

Subpart D-Responsibilities of HUD Awarding Officials

§ 21.400 What are my responsibilities as a(n) HUD awarding official?

As a(n) HUD awarding official, you must obtain each recipient's agreement, as a condition of the award, to comply with the requirements in

(a) Subpart B of this part, if the recipient is not an individual; or

(b) Subpart C of this part, if the recipient is an individual.

Subpart E-Violations of this Part and Consequences

$21.500 How are violations of this part determined for recipients other than individuals?

A recipient other than an individual is in violation of the requirements of this part if the Secretary or designee determines, in writing, that—

(a) The recipient has violated the requirements of subpart B of this part; or (b) The number of convictions of the recipient's employees for violating criminal drug statutes in the workplace is large enough to indicate that the recipient has failed to make a good faith effort to provide a drug-free workplace.

$21.505 How are violations of this part determined for recipients who are individuals?

An individual recipient is in violation of the requirements of this part if the Secretary or designee determines, in writing, that

(a) The recipient has violated the requirements of subpart C of this part; or

(b) The recipient is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity.

$21.510 What actions will the Federal Government take against a recipient determined to have violated this part?

If a recipient is determined to have violated this part, as described in $21.500 or $21.505, the Department of Housing and Urban Development may take one or more of the following actions

(a) Suspension of payments under the award;

(b) Suspension or termination of the award; and

(c) Suspension or debarment of the recipient under 24 CFR part 24, for a period not to exceed five years.

[68 FR 66557, 66594, Nov. 26, 2003; 69 FR 11314, Mar. 10, 2004]

$21.515 Are there any exceptions to those actions?

The Secretary may waive with respect to a particular award, in writing, a suspension of payments under an award, suspension or termination of an award, or suspension or debarment of a recipient if the Secretary determines that such a waiver would be in the public interest. This exception authority cannot be delegated to any other official.

Subpart F-Definitions

$21.605 Award.

Award means an award of financial assistance by the Department of Housing and Urban Development or other Federal agency directly to a recipient. (a) The term award includes:

(1) A Federal grant or cooperative agreement, in the form of money or property in lieu of money.

(2) A block grant or a grant in an entitlement program, whether or not the grant is exempted from coverage under the Governmentwide rule 24 CFR part 24 that implements OMB Circular A-102 (for availability, see 5 CFR 1310.3) and specifies uniform administrative requirements.

(b) The term award does not include: (1) Technical assistance that provides services instead of money.

(2) Loans.

(3) Loan guarantees.
(4) Interest subsidies.
(5) Insurance.

(6) Direct appropriations.

(7) 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).

[68 FR 66557, 66594, Nov. 26, 2003; 69 FR 11314, Mar. 10, 2004]

§ 21.610 Controlled substance.

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.

$21.615 Conviction.

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.

§ 21.620 Cooperative agreement.

Cooperative agreement means an award of financial assistance that, consistent with 31 U.S.C. 6305, is used to enter into the same kind of relationship as a grant (see definition of grant in § 21.650), except that substantial involvement is expected between the Federal agency and the recipient when carrying out the activity contemplated by the award. The term does not include cooperative research and development agreements as defined in 15 U.S.C. 3710a.