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HomeMy WebLinkAboutCOM 0770.001 1998-2000 Stephen K. Yatuashiro Richard Wurdeman Mayor, V Coq(orauion Counsel (irru Ttla Q#'Farm it OFFICE OF THE CORPORATION COUNSa i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262 - (808) 961.8251 - Fax (808) 961.8622 May 10, 2000 TO: AARON S. Y. CHUNG, Chair Committee on Finance, County Council FROM: RICHARD D. WURDEMA Corporation Counsel SUBJECT: Qualifications for Marijuana Eradication Grants In your letter of May 5, 2000, you asked for an opinion on the eligibility of the Hawaii County Police Department to apply and qualify for, a proposed marijuana eradication grant from the U. S. Department of Justice. The rules of the Department of Justice (DOJ) 28 CFR §67.100 et sea, provide for what is termed nonprocurement debarment and suspension. Debarment is the exclusion of a person from participating in covered transactions, such as grant agreements. Suspension is a temporary action taken while debarment proceedings are pending. 28 CFR $67.105. Persons who are debarred or suspended are excluded from such covered transactions, for the term of their debarment or suspension. 28 CFR ¢67.200. There is an exception provision, by which the Department of Justice is permitted to allow debarred persons to participate, but it is the policy to give such exceptions infrequently 28 CFR ¢67.215. Grounds for debarment include civil judgement for embezzlement, theft, forgery, bribery, falsification or destruction of records. 28 CFR X67.305 (a) (3), and fraud in connection with the performance of a public or private transaction. 28 CFR 305 (a) (1). There are also catch all provisions, one commission of an offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a person, 28 CFR 005 (a) (4), and another relating to any other cause so serious or compelling that it affects the present responsibility of the person. 28 CFR 67.305 (d). Debarment and suspension do not occur automatically, but are results which follow the notice and hearing procedure set forth in 28 CFR 07.310-314. Comm. No. 770.001 File No. END OF Ref. F FC 'd. Date Y Aaron Chung, Chair Committee on Finance May 10, 2000 Page 2 Debarment, depending on the findings of the debarring official, can extend to the entire organization, or may be limited to specifically named individuals. 28 CFR 67.3250). To enforce the administration of the debarment program, DOJ requires applicants to provide the certification, OSP Form 4061/6 (3-91), which you attached to your request. 28 CFR §67.510. This certification is a representation which, should it be found to be erroneous will result in termination of the program. ApD. A to Part 67. 28 CFR Ch. 1. The inability to certify, however, will not necessarily result in denial of participation, if the application is accompanied by an adequate written explanation. Ibid. To summarize, it is my opinion that, as a result of the recent civil judgment against Chief Carvalho, that the Police Department may be subject to debarment proceedings, although since this is a discretionary act by the government, not necessarily so, Second, it does not appear that the Chief of Police can provide the certification that is required to accompany the application. Therefore, should the Council elect to proceed with this process, the explanation referred to above should be provided in lieu of the form certification. RDW:B3 Enclosures CHIJNG-MJ Eradication Grants Page 1 ;itation Found Document Rank 1 of 1 Database ;xec. Order No. 12549 PRES it FR 6370, 1986 WL 141785 (Pres.) (Publication page references are not available for this document.) Executive Order 12549 Debarment and Suspension February 18, 1986 By the authority vested in me as President by the Constitution and laws of the Jnited States of America, and in order to curb fraud, waste, and abuse in Federal )rograms, increase agency accountability, and ensure consistency among agency -egulations concerning debarment and suspension of participants in Federal )rograms, it is hereby ordered that: Section 1. (a) To the extent permitted by law and subject to the limitations in Section 1 (c), Executive departments and agencies shall participate in a system or debarment and suspension from programs and activities involving Federal inancial and nonfinancial assistance and benefits. Debarment or suspension of a )articipant in a program by one agency shall have government- wide effect. (b) Activities covered by this order include but are not limited to: grants, ooperative agreements, contracts of assistance, loans, and loan guarantees. (c) This order does not cover procurement programs and activities, direct 'ederal statutory entitlements or mandatory awards, direct awards to foreign overnments or public international organizations, benefits to an individual as a ersonal entitlement, or Federal employment. Sec. 2. To the extent permitted by law, Executive departments and agencies hall: (a) Follow government-wide criteria and government-wide minimum due process rocedures when they act to debar or suspend participants in affected programs. (b) Send to the agency designated pursuant to Section 5 identifying nformation concerning debarred and suspended participants in affected programs, articipants who have agreed to exclusion from participation, and participants aclared ineligible under applicable law, including Executive Orders. This zformation shall be included in the list to be maintained pursuant to Section 5. (c) Not allow a party to participate in any affected program if any Executive apartment or agency has debarred, suspended, or otherwise excluded (to the <tent specified in the exclusion agreement) that party from participation in an `_fected program. An agency may grant an exception permitting a debarred, ispended, or excluded party to participate in a particular transaction upon a -itten determination by the agency head or authorized designee stating the Mason(s) for deviating from this Presidential policy. However, I intend that cceptions to this policy should be granted only infrequently. Sec. 3. Executive departments and agencies shall issue regulations governing ieir implementation of this Order that shall be consistent with the guidelines :sued under section 6. Proposed regulations shall be submitted to the Office of tnagement and Budget for review within four months of the date of the guidelines ;sued under Section 6. The Director of the Office of Management and Budget may Copr. 0 West 2000 No Claim to Orig. U.S. Govt. Works Page 2 3xec. Order No. 12549 ;Publication page references are not available for this document.) -eturn for reconsideration proposed regulations that the Director believes are Inconsistent with the guidelines. Final regulations shall be published within =welve months of the date of the guidelines. Sec. 4. There is hereby constituted the Interagency Committee on Debarment and Suspension, which shall monitor implementation of this Order. The Committee Shall consist of representatives of agencies designated by the Director of the Dffice of Management and Budget. Sec. 5. The Director of the Office of Management and Budget shall designate a ?ederal agency to perform the following functions: maintain a current list of all individuals and organizations excluded from program participation under this Drder, periodically distribute the list to Federal agencies, and study the feasibility of automating the list; coordinate with the lead agency responsible for government-wide debarment and suspension of contractors; chair the Interagency Committee established by Section 4; and report periodically to the Director on implementation of this Order, with the first report due within two years of the date of the Order. Sec. 6. The Director of the Office of Management and Budget is authorized to issue guidelines to Executive departments and agencies that govern which programs and activities are covered by this Order, prescribe government-wide criteria and government-wide minimum due process procedures, and set forth other related details for the effective administration of the guidelines. Sec. 7. The Director of the Office of Management and Budget shall report to the President within three years of the date of this Order on Federal agency compliance with the order, including the number of exceptions made under Section 2(c), and shall make such recommendations as are appropriate further to curb fraud, waste, and abuse. RONALD REAGAN THE WHITE HOUSE, February 18, 1986. Exec. Order No. 12549, 51 FR 6370, 1986 WL 141785 (Pres.) END OF DOCUMENT Copr. © West 2000 No Claim to Orig. U.S. Govt. Works 4~J Cir Os 4;•;I4 Stephen K. Yamashiro .;I Harry A. Takahashi Mayor Director .t . S. K. Schulte Deputy Countp of JI)ainaii DEPARTMENT OF FINANCE 25 Aupuni Street, Roam 118 • Hilo, Hawaii 967204252 (808) %1.8234 • Fax(808)961-8248 April 17, 2000 Honorable James Arakaki, Chairperson and Members of the County Council Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Re: Resolution Enclosed is a resolution to authorize the Mayor to enter into an agreement with the U. S. Department of Justice, Drug Enforcement Administration, for a marijuana eradication grant. If there are any questions, please do not hesitate to call the Hawai'i County Police Department. ~D ~L(A' Harry A. TVahashi Director of mance APPROVED: ephen K. ashiro Mayor Enc. Res, 244-00 Comm. No. 7qq File No. PO L Ref. To:_ FG Ref. DsW APR 1 9 2000 Men= COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 246 00 RESOLUTION AUTHORIZING THE COUNTY OF HAWAII TO ENTER INTO AN AGREEMENT WITH THE UNITED STATES OF AMERICA, PURSUANT TO HRS 46-7, FOR A MARIJUANA ERADICATION GRANT. WHEREAS, the United States of America through the U.S. Department of Justice, Drug Enforcement Administration, is desirous of providing funding for expenses incurred to investigate, eradicate and suppress the cultivation and trafficking of controlled substances; and WHEREAS, the Hawaii County Police Department is ready and willing to proceed with its obligations under the Marijuana Eradication Program; and WHEREAS, pursuant to Sections 46-7 of the Hawaii Revised Statutes, the Federal government may enter into agreements with the Council of the County of Hawaii providing the expenditures or receipt of funds or for other assistance; NOW, THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the Honorable Stephen K. Yamashiro is hereby authorized and designated to sign in the name of the County Project number 2000-43, which will effectuate these purposes. BE IT FURTHER RESOLVED, that the County Clerk is hereby directed to forward copies of this Resolution to said Mayor Yamashiro, the Chief of Police, and any other interested governmental agencies. Dated: Hilo, Hawaii, this day of 2000. INTRODUCED BY: COUNCIL MEMBER COUNTY OF MW*il COUNTY COUNCIL ROLL CAL VOTE County of Hawaii AYES NOES ABS EX Hilo, Hawaii ARAKAKI CHUNG I hereby certify that the foregoing RESOLUTION was by ELARIONOFF the vote indicated to the right hereof adopted by the COUNCIL of the JACOBSON County of Hawaii on LEITHEAD-TODD ATTEST: PISICCHIO SMITH TYLER YAGONG Reference: C-749/IC COUNTY CLERK CHAIRMAN & PRESIDING OFFICER RESOLUTION NO. 246 00 u5- `oJ^1~ OI N,~1 Wayne G. Camalho Stephen K. Yamashiro Polk<ChirJ hL~ror \ James S. Correa Mw Deputy Police Chief (9II1unfv of'ufunii POLICE DEPARTMENT April 10, 2000 349 Kapiolani Street • Hilo, Hawaii 96720.3998 (808) 935-3311 • Fax (808) 961-2702 Mr. Thomas E. Kelly Assistant Special Agent in Charge Drug Enforcement Administration Honolulu District Office 300 Ala Mcana Blvd., #3-147 Honolulu, Hawaii 96813 Dear Mr. Kelly: SUBJECT: DOMESTIC CANNABIS ERADICATION/SUPPRESSION PROGRAM (DCE/SP), CY 2000, LETTER OF AGREEMENT NO. 2000-43 ( Enclosed is the signed Agreement for the above project. The following information is being provided, as requested, to authorize the disbursement of our DCE/SP funds by wire transfer directly to our bank account: 1. Agency Name on Bank Account: Department of Finance, County of Hawaii; 2. Account Number: 48-002544; 3. Names of Bank/Financial Institution: Bank of Hawaii 4. Address of Bank/Financial Institution: Kaiko'o Branch, Hilo, Hawaii 96720 5. Telephone Number of Bank/Financial Institution: (808)935-9701; 6. Contact Pe on of Bank/Financial Institution: Joyce Kaitoku; 7. Bank/Fin cial Institution ABA Number: 12130128. Should you require further information, please contact =ieutenant .._nry Tavares of our Vice Section at (808)9'01-2253. Thank you for the continued support provided by your agency. Sincerely, ~y~ G • Cr.1~r~,G~o [Q.'. E G. CARVALHO ?o- CE CHIEF Enclosure ~y Drug Enforcement Administration Agreement Number: 200043 AGREEMENT This agreement is entered between the HAWAII COUNTY POLICE DEPARTMENT hereinafter referred to as the HCPD and the DRUG ENFORCEMENT ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF JUSTICE, hereinafter referred to as DEA, with a reference to the following: There is evidence that trafficking in controlled substances exists and that such illegal activity has a substantial and detrimental effect on the health and general welfare of the people of the State of HAWAII. The parties hereto agree that it is to their mutual benefit to cooperate in locating and eradicating illicit cannabis plants and in the investigation and prosecution of cases before the courts of the United States and the courts of the State of HAWAII involving controlled substances. The DEA, pursuant to the authority of 21 USC 873, proposes to provide certain necessary funds and the HCPD is desirous of securing funds. NOW, therefore, in consideration of the mutual covenants hereinafter contained, the parties hereto have agreed as follows: 1. The HCPD, will, with its own law enforcement personnel and employees, as hereinafter perform specified, performed the activities and duties described below: A. Gather and report intelligence data relating to the illicit possession and distribution of marijuana. B. Investigate and report instances involving the trafficking in controlled substances. C. Provide staffing of law enforcement personnel for the eradication of illicit marijuana located within the State of HAWAII. D. Arrest and bring to prosecution defendants charged with violation of the controlled substance laws. E. Send required samples of eradicated marijuana to the NIDA marijuana Potency Monitoring Program. It is understood and agreed by the parties to this agreement that the activities described in Sub-paragraphs A, B, C, D, and E above shall be provided with the existing personnel and that the scope of the HCPD program with respect to those activities by such personnel, shall be solely at the HCPD discretion, subject to appropriate limitations contained in the budget adopted by the HCPD. Letter of Agreement N. _000-43 Page 2 2. DEA will pay to the HCPD the amount of TWO HUNDRED SIXTY FIVE THOUSAND DOLLARS ($265,000) for the period of JANUARY 1, 2000 TO DECEMBER 31, 2000 to defray the cost relating to the eradication and suppression of illicit marijuana. It is explicitly understood and agreed that Federal funds provided to the HCPD under this agreement may not be used to defray costs relating to herbicidal eradication of marijuana without the advance written consent of DEA. The expenses shall include payment of deputies'/officers' overtime, salary and overtime of reserve officers during the period of time they are engaged in the eradication process, and per diem as appropriate, as well as other direct costs such as purchases of expendable equipment, rental of equipment and vehicles, and fuel for vehicles and aircraft and minor repairs and maintenance necessitated by their use. These funds shall not be used for the purchase of non-expendable equipment defined as property having a useful life of more than one year and all purchases with an acquisition cost of $600 or more per unit or an aggregate cost of $5,000 must have verbal approval from the DEA DCE/SP Coordinator. In the event DEA approves the purchase of non-expendable equipment that costs $5,000 or more per unit for the use by the HCPD personnel pursuant to this Agreement, DEA may elect to claim DEA ownership of this equipment at, the end of the period of this Agreement, or DEA may at its discretion, allow the HCPD to retain ownership of the equipment for its future use in accordance with applicable federal rules and regulations. Payment by DEA to the HCPD will be in accordance with a schedule determined by DEA and said payment will be made pursuant to the execution by the HCPD of a Standard Form SF-270, Request for Advance or Reimbursement, and receipt of same by DEA. However, no funds will be paid by DEA to a state/county agency under this Agreement until DEA has received to its satisfaction an accounting of the expenditures of all funds paid to this state/county agency during the periods of previous Agreements for this same purpose. These expenditures will be reported on a Standard Form SF-269, Financial Status Report, or equivalent document. 3. Employees of the HCPD shall at no time be considered employees of the United States Government or the Drug Enforcement Administration for any purpose, nor will this Agreement establish an agency relationship between the HCPD and the Drug Enforcement Administration. 4. The HCPD shall maintain complete and accurate reports, records and accounts of all obligations and expenditures of DEA funds under this Agreement in accordance with generally accepted accounting principle and in accordance with State laws and procedures for expending and accounting for it's own funds. The HCPD shall further maintain its records of all obligations and expenditures of DEA funds under this Agreement in accordance with all instructions provided by DEA to facilitate on-site inspection and auditing of such records and accounts. 5. The HCPD shall permit and have available for examination and auditing by DEA, the United States, Department of Justice or the Comptroller General of the United States, or any of their duly authorized agents and representatives, any and all investigative reports, records, documents, accounts, invoices, receipts or expenditures relating to this Agreement. In addition, the HCPD will maintain all such foregoing reports and records until all audits and examinations are completed and resolved, or for a period of three (3) years after termination of this Agreement, whichever sooner. Letter of Agreement No. 2000-43 Page 3 6. The recipient agrees to comply with the organizational audit requirements of OMB Circular A- 133, "Audits of States, Local Governments, and Non-Profit Organizations." In conjunction with the beginning date of the award, the audit report period of the state or local government entity to be audited under the single audit requirement is (1/2000) to (12/2000). The audit report must be submitted no later than (1/02) and each audit cycle thereafter covering the entire award period as originally approved or amended. The management letter must be submitted with the audit report. Subsequent audits must be submitted no later than thirteen (13) months after the close of the recipient organization's audited fiscal year. The submission of the audit report shall be as follows: When the Department of Justice (DOJ) is the cognizant agency, an original and one copy of the audit report shall be sent to: DOJ Regional Inspector General for Audit San Francisco regional Audit Office 525 Marker Street, Suite 3522 San Francisco, California 94105 415-974-0993 A copy of your audit transmittal letter addressed to the Regional Inspector General, shall be sent to: Audit Services Office of the Controller Office of Justice Programs 633 Indiana Avenue, NW, Room 942 Washington, D.C. 20531 When DOJ is not the cognizant agency, an original and one copy of the audit report shall be sent to the cognizant agency: Also, a copy of the audit report shall be sent: DOJ Regional Inspector General for Audit San Francisco regional Audit Office 525 Market Street, Suite 3522 San Francisco, California 94105 415-974-0993 Letter of Agreement N 1000-43 Page 4 A copy of your audit transmittal letter addressed to the Regional Inspector General, shall be sent to: Audit Services Office of the Controller Office of Justice Programs 633 Indiana Avenue, NW, Room 942 Washington, D.C. 20531 The recipient agrees to submit their corrective action plan with the audit report to the DOJ Regional Inspector General for Audit, when there are findings/recommendations disclosed in the audit report. The corrective action plan should include: (1) specific steps taken to comply with the recommendations; (2) timetable for performance and/or implementation date for each recommendation; and (3) description of monitoring to be conducted to ensure implementation. A Department of Justice Order requires the Office of Justice Programs (OJP) to maintain a data base of all grants made by DOJ components. DOJ Order 2900.8A (June 20, 1990) copy attached). To implement this requirement, OJP requires all DOJ components to submit to it a completed form, "Grantee Information for Access, a copy of which is attached, for completion by the recipient. The recipient acknowledges that failure to furnish an acceptable audit as determined by the cognizant Federal agency may be a basis for denial of future Federal funds and/or refunding of Federal funds and may be a basis for limiting the recipient to payment by reimbursement on a case basis. 7. Executive Order 12549 The participant agrees that an authorized officer or employee will execute and return to the DEA State and Local Programs Section, Washington, D.C. 20537, the attached OJP Form 4061/3, "Certification Regarding Lobbying; Debarment, Suspension, and other Responsibility Matters; and Drug Free Workplace Requirements." The participant acknowledges that this agreement will not take effect and that no Federal funds will be awarded by DEA until the completed certification is received. 8. Disclosure ofFederal Participation In compliance with Section 623 of Public Law 102-141, the recipient agrees that no amount of this Award shall be used to finance the acquisition of goods or services (including construction services) for the Project unless the recipient: (a) Specifies in any announcement of the awarding of the contract for the procurement of the goods and services involved (including construction services) the amount of Federal funds that will be used to finance the acquisition; and (b) Expresses the amount announced pursuant to paragraph (a) as a percentage of the total cost of the planned acquisition. Letter of Agreement No. 2000-43 Page 5 The above requirements only apply to a procurement for goods or services (including construction services) that have an aggregate value of $500,000 or more. 9. It is further covenant and agreed that the HCPD will hold the DEA, its agents and employees and the United States Government harmless from any and all claims, demands, suits, liabilities and cases of action, of whatever kind and designation, and where-ever located in the State of HAWAII, resulting from the Domestic Cannabis Eradication/Suppression Program funded by DEA. The DEA acknowledges that the United States is liable for the wrongful or negligent acts or omissions of its officers and employees while on duty and acting within the scope of their employment to the extent permitted by the Federal Tort Claims Act, 28 USC Sections 1346(b), 2671, et seq. 10. The HCPD will comply with Title VI of the Civil Rights Act of 1954 and with section 504 of the Rehabilitation Act of 1973, as amended, and with all requirements imposed by or pursuant to the regulations of the Department of Justice (28 CFR Part 42, Subparts C, D, and G) issued to those Acts relating to discrimination on the grounds of race, color, creed, sex, age, national origin or handicap and to equal employment opportunities. 11. Within sixty (60) days after termination of the Agreement, the HCPD will prepare SF-269, Financial Status Report, itemizing the breakdown of final expenditures. This SF-269, along with a refund check for any unexpended funds which were advanced by DEA, pursuant to this Agreement will be returned to DEA. 12. Upon submission of the SF-269 to State and Local Programs Section (DOS) for the preceding year, a copy of the general ledger and the underlying supporting documentation reflecting the expenditures for equipment in excess of $5,000 and the expenses associated with the rental or leasing of vehicles or aircraft must be attached. 13. The duration of this Agreement shall be as specified in Paragraph 2. The terms of this Agreement may be terminated by either party for good cause shown by notice in writing given to the other party thirty (30) days prior thereof. All obligations that are outstanding on the above prescribed termination date or on the date of any thirty (30) day notice of termination shall be liquidated by HCPD within sixty (60) days thereof, in which event DEA will only be liable for obligations incurred by the HCPD during the terms of this Agreement. In no event shall the HCPD incur any new obligations during the period of notice of termination. The HCPD shall return to DEA all unexpended funds forthwith after the sixty (60) days liquidated period. Letter of Agreement 2000-43 Page 6 THE HAWAII COUNTY POLICE DEPARTMENT By. 11kgkt// ` , 4~jLV'<GV'V Title: POLICE CHIEF Date: 4-tl-00 DRUG ENFORCEMENT MINIS TION By:_ - Special Agent i ge _S_~~(~l~o . Date: 'DEA ACCOUNTING DATA: DEA/FFS INPUT DATE: BY: 'DIVISIONAL FISCAL CLERK MUST INPUT INTO DEA/FFS TO BE FILLED OUT BY HEADQUARTERS: APPROVAL FOR PAYMENT This is to verify that all of the administrative determinations have been made, that the payment is legal, proper, correct and approved for payment. Amount: Obligation Doc No. Line No. Signature Printed Name /Title Date Approved 0,_ U.S. DEPARTMENT OF JUSTICE OFFICE OF JUSTICE PROGRAMS OFFICE OF THE COMPTROLLER CERTIFICATIONS REGARDING LOBBYING; DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS; AND DRUG-FREE WORKPLACE REQUIREMENTS Applicants should refer to the regulations cited below to determine the certification to which they are required to attest. Applicants should also review the instructions for certification included in the regulations before completing this from. Signature of this form provides for compliance with certification requirements under 28 CFR Part 69, "New Restrictions on Lobbying" and 28 CFR Part 67, "Government-wide Department and Suspension (Nonprocurement) and Government-wide Requirements for Drug-Free Workplace (Grants)." The certifications shall be treated as a material representation of fact upon reliance will be placed when the Department of Justice determines to award the covered transaction, grant, or cooperative agreement 1. LOBBYING public (Federal, State, or local) transaction or contract under a As required by Section 1352, Title 31 of the U.S. Code, and public transaction; violation of Federal or State antitrust implemented at 28 CFR Part 69, for persons entering into a statutes or commission of 'embezzlement, theft forgery. grant or cooperative agreement over $100,000, as defined at bribery, falsification or destruction of records, making false 28 CFR Part 69, the applicant certifies that statements, or receiving stolen property; (a) No Federal appropriate funds have been pad or will be (c). Are not presently indicted for or otherwise criminally or aid, b bealf of the funds have ciwlly charged by a governmental entity (Federal, State, or y undersigned, or on to any person for in- loca with commission of any of the offenses enumerated in uencing or attempting to influence an officer or employee of paragraph (1)(b) of this certification; and any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in con- (d) Have not within a three-year period preceding this applica- nectlon with the making of any Federal grant, the entering into t~ion had one or more public transactions (Federal, State, or of any cooperative agreement, and extension, continuation, local) terminated for cause or default; and renewal, amendment, or modification of any Federal grant or cooperative agreement S. Where the applicant is unable to certify to any of the (b) If an funds other than Federal a statements in this ce rtification, he or she shall attach an been or wt11 be aid to an pProPrioted funds have explanation to this application. pa P Y person for influencing or at- te to influence an officer or employee of any agency, a , a Member of Congress, an officer or employee of Congress, or 3. DRUG-FREE WORKPLACE an employee of a Member of Congress in connection with this (GRANTEES OTHER THAN INDIVIDUALS) Federal grant or cooperative agreement, the undersigned shall complete and submit Standard Forth - LLL. Disclosure of As required by the Drug-Free Workplace Act of 1988, and Lobbying Activities." in accordance with its instructions; implemented at 28 CFR Part 67, Subpart F. for grantees. as (c) The undersigned shall require that the language of this car- defined at 28 CFR Part 67 Sections 67.615 and 67.620- tificahon be included in the award documents for all subawards A. The applicant certifies that it will or will continue to provide at all tiers (including subgrants, contracts under grants and a drug-free workplace by: cooperative agreements, and subcontracts) and that all sub- recipients shall' certify and disclose accordingly. (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, disperising, possession, or 2. DEBARMENT SUSPENSION, AND OTHER use of a controlled. substance is prohibited in the grantee's RESPONSIBILITY MATTERS workplace and specifying the actions that will be taken against (DIRECT RECIPIENT) employees for violation o such prohibition; As required by Executive Order 12549 Debarment and (b Establishing an ongoing drug-free awareness program to Suspension, and Implemented at 28 CFR fart 67, for prospeo- In rm employees about- tive participants in primary covered transactions, as defined at (1) The dangers of drugs abuse in the workplace; 28 CFR Part 67, Section 67.510- A. The applicant certifies that it and its principals: (2) The grantee's policy of maintaining a drug-free workplace; .(a) Are not presently debarred, suspended, proposed for debar- ass stance availabledrug and tinseling, rehabilitation, and employee ment, declared ineligible sentenced to a denial of Federal benefits by a State or federal court, or voluntarily excluded (4) The penalties that may be imposed upon employees for from covered transactions by any Federal department drug abuse violations occurring in the workplace; or agency; (b) Have not within athree- ear eriod recedin this applica- (c) Making it a requirement that each employee to be engaged y p p rein In the performance of the grant be given a copy of the state- tion been convicted of or had a civil judgment rendered against ment required by paragraph (a); them for commission of fraud or a criminal offense in connec- tion with obtaining, attempting to obtain, or performing a (d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the gran? the employee will- OJP FORM 4061/6 (3-91) REPLACES OJP FORMS 40612, 406213 AND 406114 WHICH ARE OBSOLETE. (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; (e1 Notifying. the agency, in writing, within 10 calendar days after receiving notice under subparagraph (d)(2) from an Check ? if there are workplace on file that are not identified employee or otherwise receiving actual notice of such conic- here. Employers of convicted employees must provide notice, including position title, to: Department of Justice, Office of Section 67, 630 of the regulations provides that a grantee that Justice Programs, ATTN: Control Desk, 633 Indiana Avenue, is a State may elect to make one certification in each Federal N.W., Washington, D.C. 20531. Notice -shall include the iden- fiscal year. A copy of which should be included with each ap- tificetion number(s) of each affected grant; plication for Department of Justice funding.. . States and Slate (f) Taking one of the following actions, within 30 calendar agencies may elect to use OJP Form 4061x days of receiving notice under subparagraph (d)(2), with Check ? if the State has elected to complete OJP Form respect to any employee who is so convicted- 4061!7. (1) Taking appropriate personnel .action against such an employee, up o and including termination consistent with the DRUG-FREE WORKPLACE requirements of the Renal ilitafion Act of 19 3, as amended; or (GRANTEES WHO ARE INDIVIDUALS) (2) Requiring such employee to, participate satisfactorily in a As required by the Drug-Free Workplace Act of 1988, and drug abuse assistance or rehabilitation program approved for implemented at 28 CFR Part 67, Subpart F, for grantees, as such purposes by a Federal, State, or local health, law enforce- defined at 28 CFR Part 67; Sections 67.615 and 67.620- ment, or other appropriate agency; A. Asa condition of the grant I certify that I will not engage (g) Making a good faith effort continue to maintain g in the unlawful manufacture, distribution, dispensing posses- ftree workplace through implementation of paragraphs (a)a). , (b), son, or use of a controlled substance in condition any (c), (d), (e), and (f). activity with the grant; and 8. The grantee may insert in the space provided below the B. If convinced of a criminal drug offense resulting from a site(s) for the performance of work done in connection with violation occurring during the conduct of any grant activity, I the specific grant: will report the conviction, in writing within 0 calendar days of the conviction, to, Department oY Justice, Office of Justice Place of Performance (Street address, city, country, state, zip Programs, ATTN: Control Desk, 633 Indiana Avenue, N.W., code) Washington, D.C. 20531. As the duly authorized representative of the applicant, I hereby certify that the applicant will comply with the above certifications. 1. Grantee Name and Address: Hawaii Police Department 349 Kapiolani Street Hilo, Hawaii 96720 2. Application Number and/or Project Name 3. Grantee IRS/Vendor Number DCE/SP Agreement No. 2000-43 4. Typed Name and Title of Authorized Representative WAYNE G. CARVALHO POLICE CHIEF 5. Signature 6. Date ma~?,,~,QG,~n~r~,t,~jw me OMB APPROVAL NO. PAGE OF 0348-004 PAGES REQUEST FOR ADVANCE a. 7Ponearbomrm•• 2. BASIS OF REQUEST OR REIMBURSEMENT TYPE OF ®ADVANCE nRE1MBUR5E- r CASH PAYMENT ` MENT REQUESTED b. •x. m• appeob4 box - (See instructions On back) F`' FINAL J PARTIAL ACCRUAL 3. FEDERAL SPONSORING AGENCY AND ORGANIZATIONAL ELEMENT 4. FEDERAL GRANTOR OTHER 5. PARTIAL PAYMENT REQUEST TO WHICH THIS REPORT IS SUBMITTED IDENTIFYING NUMBER ASSIGNED NUMBER FOR THIS REQUEST DRUG ENFORCEMENT ADMINISTRATION BY FEDERAL AGENCY 2000-93 6. EMPLOYER IDENTIFICATION 7. RECIPIENTS ACCOUNT NUMBER 8. PERIOD COVERED BY THIS REQUEST NUMBER OR IDENTIFYING NUMBER FROM (month, day, year) TO (month, day,.year) 996000567 N/A JANUARY 1, 2000 DECEMBER 31, 2000 9 RECIPIENT ORGANIZATION 10. PAYEE (Where check is to be sent ifdigerent than florin 9) Name: Name: HAWAII COUNTY OF HAWAII POLICE DEPARTMENT Number Number C/O DEA and Street: N/A and Street: 300 ALA MOANA BOULEVARD, ROOM 3129 HONOLULU, HAWAII 96850 City, state city, state and ZIP Code: and ZIP Code: 11. COMPUTATION OF AMOUNT OF REIMBURSEMENTS/ADVANCES REQUESTED (a) (b) (c) FROG RAMS)FUNCTIONS)ACTI VITI ES TOTAL a. Total program (As of date) outlays to date 265 000.00 265 000.00 b. Less: Cumulative program inco h, 0.00 C. Net program outlays (line a minus )in&D 265 000.00 0.00 0.00 265..000 00 d. Estimated net cash outlays for advance period 0.00 e. Total (Sum of lines c 6 d) 265 000.00 0.00 0.00 265 000.00 f. Non-Federal sham of amount on line a 0.00 9. Federal share of amount on line a 265, 000.00 265,000.00 h. Federal payments previous requested 0.00 i. Federal share now requested (L4re g minus line h) 265 000.00 0.00 0.00 265 000.00 j. Advances required by month. when requested 1 at month 265,000.00 265,000.00 by Federal grantor agency for use in making 2nd month .00 pn!sUeduled advances 0 3rd month Cd 0.00 12, -UMPUTATION FOR ADVANCES ONLY a Estimated Federal cash outlays that will be made during period covered the advance $ b Less. Estimated balance of Federal man on hand as of beginning of advance nod d Amount reauettggfLine II min line bl d` 0.00 AUTHORIZED FOR LOCAL REPRODUCTION (Continued on Reverse) STANDARD FORM 270 (Rev. 747) Prescribed by OMB Circulars A-102 and A-110 Subject Date April 10, 2000 Grantee Information for ACCESS To From Audit Services Drug Enforcement Administration State and Local Programs Section 1. GRANTEE: Hawaii County Police Department 2. GRANTEE ADDRESS: 349 Kapiolani Street Hilo, Hawaii 96720 GRANT NO: 2000-43 4. GRANT PERIOD: January 1. 2000 - December 31. 2000 5. AUDIT REPORT PERIOD: 6. COGNIZANT AGENCY: Department of Justice 7. RECIPIENT T'i PE: 01 AGENCY LEVEL: 03 (Code) (Code) 8. REASON OR MEMO: (Check As Many of the Following As Apply) a. New Grantee: [ ] e. Change in Audit Report Period: [ ] b. New Award: [ X ] f. Change in Cognizant Agency: [ ] c. Change in Grantee Address: [ ] g. Other: [ ] d. Chanee in Award Report Period: [ ] (Specify) NOTE: If submission is for a CHANGE ONLY (8c-8g) to information previously submitted to :audit Services. you will only need to complete Item 1 in Items 1- 6 in addition to your change information. * CODES for Item 7: Recipient Type and Agency Level 01 - Law Enforcement 02 - State 03 - Countv 04 - Citv ~ttiTIFICATION QwM trial to this best of my SIGNATI ARE OR AUTHOROM CERTIFYM OFFICIAL GATE REOUESY khowbdge and besef On data on SUBMITTED the reverse are cansct and that as outlays were made in accordance h with the grant conditions Or other TYPED OR p" NAME AND TITLE TELEPHONE (AREA CODE, agreement and that payrent is NUMBER AND EXTENSION) due and has not been previously WAYNE G. CARVALHO, POLICE CHIEF (808)961-2244 requested. This space for agency use _ Public reporting burden for this collection of Information is estimated to average 60 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of Information. Send comments regarding the burden estimate or any other aspect of this collection of Information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0004), Washington, DC 20503. PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY. INSTRUCTIONS Please type or print legibly. Items 1, 3, 5, 9, 10, 11 Is, 11f, I Ig, 111, 12 and 13 are self-explanatory; specific instructions for other items are as follows: Item Entry Item Entry 2 Indicate whether request is prepared on cash or accrued activity. If additional columns are needed, use as many expenditure basis. AO requests for advances shall be additional forms as needed and indicate page number in prepared on a cash basis. space provided in upper right; however, the summary totals of all programs, functions, or activities should be 4 Enter the Federal grant number, or other identifying shown in the "total" column on the first page. number assigned by the Federal sponsoring agency. If the advance or reimbursement is for more than one 11a Enter in "as of date," the month, day, and year of the grant or other agreement, insert WA; then, show the ending of the accounting period to which this amount aggregate amounts. On a separate sheet, list each applies. Enter program outlays to date (net of refunds, grant or agreement number and the Federal share of rebates, and discounts), in the appropriate columns. For outlays made against the grant or agreement, requests prepared on a cash basis, outlays are the sum of actual cash disbursements for goods and services, the 6 Enter the employer identification number assigned by the amount of indirect expenses charged, the value of U.S. Internal Revenue Service, or the FICE (institution) in-kind contributions applied, and the amount of cash code if requested by the Federal agency, advances and payments made to subcontractors and subrecipients. For requests prepared on an accrued 7 This space is reserved for an account number or other expenditure basis, outlays are the sum of the actual cash identifying number that may be assigned by the recipient disbursements, the amount of indirect expenses incurred, and the net increase (or decrease) in the 8 Enter the month, day, and year for the beginning and amounts owed by the recipient for goods and other ending of the period covered in this request. If the property received and for services performed by request Is for an advance or for both an advance and employees, contracts, subgrantees and other payees. reimbursement, show the period that the advance will cover. If the request is for reimbursement, show the 11b Enter the cumulative cash income received to date, if period for which the reimbursement is requested. requests are prepared on a cash basis. For requests prepared on an accrued expenditure basis, enter the Note: The Federal sponsoring agencies have the option of cumulative income earned to date. Under either basis, requiring recipients to complete items 11 or 12, but not enter only the amount applicable to program income that both. Item 12 should be used when only a minimum was required to be used for the project or program by the amount of information is needed to make an advance terms of the grant or other agreement. and outlay information contained in item 11 can be obtained in a timely manner from other reports, 1 td Only when making requests for advance payments, enter the total estimated amount of cash outlays that will be 11 The purpose of the vertical columns (a), (b), and (c) is to made during the period covered by the advance. provide space for separate cost breakdowns when a project has been planned and budgeted by program, 13 Complete the certification before submitting this request. function, or STANDARD FORM 270 (Rev. 7-97) Back §67.100 28 CFR Ch. 1 (7-1-99 Edition) Streets Act of 1968, 42 U.S.C. 3711, et seq. (as (c) These regulations also implement amended). Juvenile Justice and Delinquency Executive Order 12689 (3 CFR. 1989 Prevention Act of 1974, 42 U.S.C. 5601, et seq. Comp., p. 235) and 31 U.S.C. 6101 note (as amended), Victims of Crime Act of 1984, (Public Law 103-355, sec. 2455, 108 Star. 42 U.S.C. 10601, et seq. (as amended); 18 U.S.C. 3327) by- 4042; and 18 U.S.C. 4351-4353. CROSS REFERENCE: See also Office of Man- (I) Providing for [ inclusion i the agement and Budget notice published at 55 List of Parties Excluded d from Federal l Pro- Programs FR 21679, May 25, 1990. all persons and proposed osed for r debarment, all pebarment, SOURCE: 53 FR 19188 and 19204, May 26. 1988, debarred or suspended under the Fed- unless otherwise noted. eral Acquisition Regulation, 48 CFR EDITORIAL NOTE: Nomenclature changes af- part 9, subpart 9.4; persons against fecting this part appear in Order No. 1271-88, which governmentwide exclusions have 53 FR 19188. May 26, 1988, and at 60 FR 33036, been entered under this part; and per- June 26, 1995. sons determined to be ineligible; and (2) Setting forth the consequences of Subpart A-General a debarment, suspension, determina- tion of ineligibility, or voluntary ex- clusion. (a) Executive Order (E.O.) 12549 pro- (d) Although these regulations cover vides that, to the extent permitted by the listing of ineligible participants law, Executive departments and agen- and the effect of such listing, they do ties shall participate in a government- not prescribe policies and procedures wide system for nonprocurement debar- governing declarations of ineligibility. ment and suspension. A person who is debarred or suspended shall be excluded lOrder No. 1972-95, 60 FR 33040, 33052, June 26, from Federal financial and non- 18951 financial assistance and benefits under §67.105 Definitions. Federal programs and activities. De- barment or suspension of a participant The following definitions apply to in a program by one agency shall have this part: governmentwide effect. Adequate evidence. Information suffi- (b) These regulations implement sec- cient to support the reasonable belief tion 3 of E.O. 12549 and the guidelines that a particular act or omission has promulgated by the Office of Manage- occurred. ment and Budget under section 6 of the Affiliate. Persons are affiliates of E.O. by: each other if, directly or indirectly, ei- (1) Prescribing the programs and ac- ther one controls or has the power to tivities that are covered by the govern- control the other, or, a third person mentwide system; controls or has the power to control (2) Prescribing the governmentwide both. Indicia of control include, but are criteria and governmentwide minimum not limited to: interlocking manage- due process procedures that each agen- ment or ownership, identity of inter- cy shall use: ests among family members, shared fa- (3) Providing for the listing of cilities and equipment, common use of debarred and suspended participants, employees, or a business entity orga- participants declared ineligible (see nized following the suspension or de- definition of "ineligible" in §67.105), barment of a person which has the and participants who have voluntarily same or similar management, owner- excluded themselves from participation ship, or principal employees as the sus- in covered transactions; pended, debarred, ineligible, or volun- (4) Setting forth the consequences of tarily excluded person, a debarment, suspension, determina- Agency. Any executive department, tion of ineligibility, or voluntary ex- military department or defense agency elusion; and or other agency of the executive (5) Offering such other guidance as branch, excluding the independent reg- necessary for the effective implementa- ulatory agencies. tion and administration of the govern- Civil judgment. The disposition of a mentwide system. civil action by any court of competent 176 Department of Justice § 67.105 jurisdiction, whether entered by ver- persons who have been debarred, sus- dict, decision, settlement, stipulation, pended, or voluntarily excluded under or otherwise creating a civil liability Executive Orders 12549 and 12689 and for the wrongful acts complained of; or these regulations or 48 CFR part 9. sub- a final determination of liability under part 9.4, persons who have been pro- the Program Fraud Civil Remedies Act posed for debarment under 48 CFR part of 1988 (31 U.S.C. 3801-12). 9, subpart 9.4, and those persons who Conviction. A judgment or conviction have been determined to be ineligible. of a criminal offense by any court of Notice. A written communication competent jurisdiction, whether en- served in person or sent by certified tered upon a verdict or a plea, includ- mail, return receipt requested, or its ing a plea of nolo contendere. equivalent, to the last known address Debarment. An action taken by a de- of a party, its identified counsel, its barring official in accordance with agent for service of process, or any these regulations to exclude a person partner. officer, director, owner, or from participating in covered trans- joint venturer of the party. Notice, if actions. A person so excluded is undeliverable, shall be considered to "debarred." have been received by the addressee Debarring official. An official author- five days after being properly sent to ized to impose debarment. The debar- the last address known by the agency. ring official is either: Participant. Any person who submits (1) The agency head, or a proposal for, enters into, or reason- (2) An official designated by the ably may be expected to enter into a agency head. - covered transaction. This term also in- Indictment. Indictment for a criminal eludes any person who acts on behalf of offense. An information or other filing or is authorized to commit a partici- by competent authority charging a pant in a covered transaction as an criminal offense shall be given the agent or representative of another par- same effect as an indictment. ticipant. Ineligible. Excluded from participa- Person. Any individual, corporation, tion in Federal nonprocurement pro- partnership, association, unit of gov- grams pursuant to a determination of ernment or legal entity, however orga- ineligibility under statutory, executive nized, except: foreign governments or order, or regulatory authority. other foreign governmental entities, public than Executive Order 12549 and its international organizations. foreign agency implementing regulations; for government owned (in whole or in part) exemple, excluded pursuant to the or controlled entities, and entities con- Davis-Bacon Act and its implementing sisting wholly or partially of foreign regulations, the equal employment op- governments or foreign governmental portunity acts and executive orders, or entities. the environmental protection acts and Preponderance of the evidence. Proof executive orders. A person is ineligible by information that, compared with where the determination of ineligi- that opposing it, leads to the conclu- bility affects such person's eligibility sion that the fact at issue is more prob- to participate in more than one cov- ably true than not. ered transaction. Principal. Officer, director, owner, Legal proceedings. Any criminal pro- partner, key employee, or other person ceeding or any civil judicial proceeding within a participant with primary to which the Federal Government or a management or supervisory respon- State or local government or quasi- sibilities; or a person who has a critical governmental authority is a party. The influence on or substantive control term includes appeals from such pro- over a covered transaction, whether or ceedings. not employed by the participant. Per- List of Parties Excluded from Federal sons who have a critical influence on or Procurement and Nonprocurement Pro- substantive control over a covered grams. A list compiled, maintained and transaction are: distributed by the General Services Ad- (1) Principal investigators. ministration (GSA) containing the Proposal. A solicited or unsolicited names and other information about bid, application. request, invitation to 177 §67.110 26 CFR Ch. 1 (7-1-99 Edition) consider or similar communication by or a lower tier covered transaction. or on behalf of a person seeking to par- Covered transactions at any tier need ticipate or to receive a benefit, directly not involve the transfer of Federal or indirectly. in or under a covered funds. transaction. (i) Primary covered transaction. Except Respondent. A person against whom a as noted in paragraph (a) (2) of this sec- debarment or suspension action has tion, a primary covered transaction is been initiated. an nonprocurement transaction be- State. Any of the States of the United tween an agency and a person, regard- States, the District of Columbia, the less of type, including: grants, coopera- territoCommry or Commonwealth possession Puerto of rto the Rico, United any rive agreements. scholarships, fellow- States, or any agency of a State, exclu- ships, contracts of assistance, loans, sive of institutions of higher education, loan guarantees, subsidies, insurance. hospitals, and units of local govern- payments for specified use, donation ment. A State instrumentality will be agreements and any other nonprocure- considered part of the State govern- ment transactions between a Federal ment if it has a written determination agency and a person. Primary covered from a State government that such transactions also include those trans- State considers that instrumentality actions specially designated by the to be an agency of the State govern- U.S. Department of Housing and Urban ment. Development in such agency's regula- Suspending official. An official au- tions governing debarment and suspen- thorized to impose suspension. The sus- sion. pending official is either: (ii) Lower tier covered transaction. A (1) The agency head, or lower tier covered transaction is: (2) An official designated by the (A) Any transaction between a par- agency head. ticipant and a person other than a pro- Suspension. An action taken by a sus- pending official in accordance with curement contract for goods or serv- these regulations that immediately ex- ices, regardless of type, under a pri- cludes a person from participating in mary covered transaction, covered transactions for a temporary (B) Any procurement contract for period, pending completion of an inves- goods or services between a participant tigation and such legal, debarment, or and a person, regardless of type, ex- Program Fraud Civil Remedies Act pected to equal or exceed the Federal proceedings as may ensue. A person so procurement small purchase threshold excluded is "suspended." fixed at 10 U.S.C. 2304(8) and 41 U.S.C. Voluntary exclusion or voluntarily ex- 253(8) (currently $25.000) under a pri- cluded. A status of nonparticipation or mary covered transaction. limited participation in covered trans- (C) Any procurement contract for actions assumed by a person pursuant goods or services between a participant to the terms of a settlement. and a person under a covered trans- [53 FR 19188 and 19204, May 26, 1988, as action. regardless of amount, under amended by Order No. 1972-95, 60 FR 33040, which that person will have a critical 33052, June 26, 1995] influence on or substantive control §67.110 Coverage. over that covered transaction. Such persons are: (a) These regulations apply to all per- (1) Principal investigators. sons who have participated, are cur- (2) Providers of federally-required rently participating or may reasonably audit services. be expected to participate in trans- (2) Exceptions. The following trans- actions under Federal nonprocurement actions are not covered: programs. For purposes of these regula- tions such transactions will be referred (i) Statutory entitlements or manda- to as ''covered transactions." tory awards (but not subtier awards (1) Covered transaction. For purposes thereunder which are not themselves of these regulations, a covered trans- mandatory), including deposited funds action is a primary covered transaction insured by the Federal Government; 178 Department of Justice § 67.200 (it) Direct awards to foreign govern- ated under this regulation on or after ments or public international organiza- August 25, 1995, shall be recognized by tions. or transactions with foreign gov- and effective for those agencies as a de- ernments or foreign governmental en- barment or suspension under the FAR. tities, public international organiza- [53 FR 19188 and 19204, May 26, 1988, as tions, foreign government owned (in amended by Order No. 1972-95, 60 FR 33041, whole or in part) or controlled entities, 33052, June 26. 19951 entities consisting wholly or partially of foreign governments or foreign gov- §67.115 Policy. ernmental entities: (a) In order to protect the public in- (iii) Benefits to an individual as a terest, it is the policy of the Federal personal entitlement without regard to Government to conduct business only the individual's present responsibility with responsible persons. Debarment (but benefits received in an Individual's and suspension are discretionary ac- business capacity are not excepted); tions that, taken in accordance with (iv) Federal employment; Executive Order 12549 and these regula- (v) Transactions pursuant to national tions, are appropriate means to imple- or agency-recognized emergencies or ment this policy. disasters; (b) Debarment and suspension are se- (vi) Incidental benefits derived from rious actions which shall be used only ordinary governmental operations: and in the public interest and for the Fed- (vii) Other transactions where the ap- eral Government's protection and not plication of these regulations would be for purposes of punishment. Agencies prohibited by law. may impose debarment or suspension (b) Relationship to other sections. This for the causes and in accordance with section describes the types of trans- the procedures set forth in these regu- actions to which a debarment or sus- lations. pension under the regulations will (c) When more than one agency has apply. Subpart B. "Effect of Action," an interest in the proposed debarment §67.200, "Debarment or suspension," or suspension of a person, consider- sets forth the consequences of a debar- ation shall be given to designating one ment or suspension. Those con- agency as the lead agency for making sequences would obtain only with re- the decision. Agencies are encouraged spect to participants and principals in to establish methods and procedures the covered transactions and activities for coordinating their debarment or described in §67.110(a). Sections 67.325, suspension actions. "Scope of debarment," and 67.420, "Scope of suspension," govern the ex- Subpart B-Effect of Action tent to which a specific participant or organizational elements of a partici- §67.200 Debarment or suspension. pant would be automatically included (a) Primary covered transactions. Ex- within a debarment or suspension ac- cept to the extent prohibited by law. tion, and the conditions under which persons who are debarred or suspended affiliates or persons associated with a shall be excluded from primary covered participant may also be brought within transactions as either participants or the scope of the action. principals throughout the Executive (c) Relationship to Federal procurement Branch of the Federal Government for activities. In accordance with E.O. 12689 the period of their debarment. suspen- and section 2455 of Public Law 103-355, sion, or the period they are proposed any debarment, suspension, proposed for debarment under 48 CFR part 9, debarment or other governmentwide subpart 9.4. Accordingly, no agency exclusion initiated under the Federal shall enter into primary covered trans- Acquisition Regulation (FAR) on or actions with such excluded persons after August 25, 1995 shall be recog- during such period, except as permitted nized by and effective for Executive pursuant to §67.215. Branch agencies and participants as an (b) Lower tier covered transactions. Ex- exclusion under this regulation. Simi- cept to the extent prohibited by law, larly, any debarment. suspension or persons who have been proposed for de- other governmentwide exclusion initi- barment under 48 CFR part 9, subpart 179 §67.205 28 CFR Ch. 1 (7-1-99 Edition) 9.4, debarred or suspended shall be ex- debarred, suspended, or voluntarily ex- cluded from participating as either cluded person, or a person proposed for participants or principals in all lower debarment under 48 CFR part 9, sub- tier covered transactions (see part 9.4, to participate in a particular §67.110(a)(1)(ii)) for the period of their covered transaction upon a written de- exclusion. termination by the agency head or an (c) Exceptions. Debarment or suspen- authorized designee stating the rea- sion does not affect a person's eligi- son(s) for deviating from the Presi- bility for- dential policy established by Executive (1) Statutory entitlements or manda- Order 12549 and §67.200. However, in ac- tory awards (but not subtler awards cordance with the President's stated thereunder which are not themselves intention in the Executive Order, ex- mandatory), including deposited funds ceptions shall be granted only infre- insured by the Federal Government; quently, Exceptions shall be reported (2) Direct awards to foreign govern- in accordance with §67.505(a). ments or public international organiza- tions, or transactions with foreign gov- (Order No. 1972-95, 60 FR 33041, 33052, June 26, ernments or foreign governmental en- 19851 tities, public international organiza- §67.220 Continuation of covered trans- tions, foreign government owned (in actions. whole in part) controlled entities. and entities consisting wholly or par- (a) Notwithstanding the debarment, tially of foreign governments or for- suspension, proposed debarment under eign governmental entities: 48 CFR part 9, subpart 9.4, determina- (3) Benefits to an individual as a per- tion of ineligibility, or voluntary ex- serial entitlement without regard to elusion of any person by an agency, the individual's present responsibility agencies and participants may con- (but benefits received in an individual's tinue covered transactions in existence business capacity are not excepted); at the time the person was debarred, (4) Federal employment; suspended, proposed for debarment (5) Transactions pursuant to national under 48 CFR part 9, subpart 9.4, de- or agency-recognized emergencies or clared ineligible. or voluntarily ex- disasters: cluded. A decision as to the type of ter- (6) Incidental benefits derived from mination action, if any, to be taken ordinary governmental operations: and should be made only after thorough re- (7) Other transactions where the ap- view to ensure the propriety of the pro- plication of these regulations would be posed action. prohibited by law. (b) Agencies and participants shall (Order No. 1972-95, 60 FR 33041, 33052, June 26, not renew or extend covered trans- 19851 actions (other than no-cost time exten- sions) with any person who is debarred, §67.205 Ineligible persons. suspended, proposed for debarment Persons who are ineligible, as defined under 48 CFR part 9, subpart 9.4, ineli- in §67.105(i), are excluded in accordance gible or voluntary excluded, except as with the applicable statutory, execu- provided in §67.215. tive order, or regulatory authority. Order No. 1972-95, 60 FR 33041, 33052, June 26, 19951 §67.210 Voluntary exclusion. Persons who accept voluntary exclu- §67.225 Failure to adhere to restric- sions under §67.315 are excluded in ac- tions. cordance with the terms of their settle- (a) Except as permitted under §67.215 ments. Department of Justice shall, or §67.220, a participant shall not and participants may. contact the knowingly do business under a covered original action agency to ascertain the transaction with a person who is- extent of the exclusion. (1) Debarred or suspended; (2) Proposed for debarment under 48 §67.215 Exception provision. CFR part 9, subpart 9.4; or The Department of Justice may (3) Ineligible for or voluntarily ex- grant an exception permitting a cluded from the covered transaction. 180 Department of Justice § 67.305 (b) Violation of the restriction under statements, receiving stolen property, paragraph (a) of this section may re- making false claims, or obstruction of sult in disallowance of costs, annul- justice: or ment or termination of award, issuance (4) Commission of any other offense of a stop work order, debarment or sus- indicating a lack of business integrity pension, or other remedies as appro- or business honesty that seriously and priate. directly affects the present responsi- (c) A participant may rely upon the bility of a person. certification of a prospective partici- ant in a lower tier covered trans- (b) Violation of the terms of a public p agreement action that it and its principals are not or transaction so serious as debarred, suspended. proposed for de- to affect the integrity of an agency barment under 48 CFR part 9, subpart program, such as: 9.4, ineligible, or voluntarily excluded (1) A willful failure to perform in ac- from the covered transaction (See ap- cordance with the terms of one or more pendix B of these regulations), unless it public agreements or transactions; knows that the certification is erro- (2) A history of failure to perform or neous. An agency has the burden of of unsatisfactory performance of one or proof that a participant did knowingly more public agreements or trans- do business with a person that filed an actions; or erroneous certification. (3) A willful violation of a statutory (Order No. 1972-95, 60 FR 33041, 33052, June 26, or regulatory provision or requirement 19951 applicable to a public agreement or transaction. Subpart C-Debarment (c) Any of the following causes: (1) A nonprocurement debarment by §67.300 General. any Federal agency taken before Octo- The debarring official may debar a ber 1, 1988, the effective date of these person for any of the causes in §67.305, regulations, or a procurement debar- using procedures established in §§67.310 ment by any Federal agency taken pur- through 67.314. The existence of a cause suant to 48 CFR subpart 9.4; for debarment, however, does not nec- (2) Knowingly doing business with a essarily require that the person be debarred, suspended, ineligible, or vol- debarred; the seriousness of the per- untarily excluded person, in connection son's acts or omissions and any miti- with a covered transaction, except as gating factors shall be considered in permitted in §67.215 or §67.220; making any debarment decision. (3) Failure to pay a single substantial §67.305 Causes for debarment. debt, or a number of outstanding debts (including disallowed costs and over- Debarment may be imposed in ac- payments, but not including sums owed cordance with the provisions of §§67.300 the Federal Government under the In- through 67.314 for: ternal Revenue Code) owed to any Fed- (a) Conviction of or civil judgment eral agency or instrumentality, pro- for: vided the debt is uncontested by the (1) Commission of fraud or a criminal debtor or, if contested, provided that offense in connection with obtaining, the debtor's legal and administrative attempting to obtain, or performing a remedies have been exhausted; public or private agreement or trans- (4) Violation of a material provision action; of a voluntary exclusion agreement en- trust statutes, including those pro- Violation of Federal or e anti- tered into under §67.315 or of any set- dement of a debarment or suspension scribing price fixing between comperoti- tors, allocation of customers between action; or competitors, and bid rigging; (5) Violation of any requirement of (3) Commission of embezzlement, subpart F of this part, relating to pro- theft, forgery, bribery, falsification or viding a drug-free workplace, as set destruction of records, making false forth in §67.615 of this part. 181 §67.310 28 CFR Ch. 1 (7-1-99 Edition) (d) Any other cause of so serious or that the respondent's submission in op- compelling a nature that it affects the position raises a genuine dispute over present responsibility of a person. facts material to the proposed debar- [53 FR 19188 and 19204, May 26, 1988, as ment, respondent(s) shall be afforded amended at 54 FR 4950 and 4959, Jan. 31, 1989; an opportunity to appear with a rep- 55 FR 21699. May 25, 19901 resentative, submit documentary evi- dence. present witnesses, and confront §67.310 Procedures. any witness the agency presents. Department of Justice shall process (2) A transcribed record of any addi- debarment actions as informally as tional proceedings shall be made avail- practicable, consistent with the prin- able at cost to the respondent, upon re- ciples of fundamental fairness, using quest, unless the respondent and the the procedures in §§67.311 through agency, by mutual agreement, waive 67.314. the requirement for a transcript. §67.311 Investigation and referral. §67.314 Debarring official's decision. Information concerning the existence (a) No additional proceedings necessary. of a cause for debarment from any In actions based upon a conviction or source shall be promptly reported, in- civil judgment, or in which there is no vestigated. and referred, when appro- genuine dispute over material facts, priate, to the debarring official for con- the debarring official shall make a de- sideration. After consideration, the de- cision on the basis of all the informa- barring official may issue a notice of tion in the administrative record, in- proposed debarment. eluding any submission made by the re- spondent. The decision shall be made §67.312 Notice of proposed debarment. within 45 days after receipt of any in- A debarment proceeding shall be ini- formation and argument submitted by tiated by notice to the respondent ad- the respondent, unless the debarring vising: official extends this period for good (a) That debarment is being consid- cause. ered; (b) Additional proceedings necessary. (b) Of the reasons for the proposed (1) In actions in which additional pro- debarment in terms sufficient to put ceedings are necessary to determine the respondent on notice of the con- disputed material facts, written find- duct or transaction(s) upon which it is ings of fact shall be prepared. The de- based; barring official shall base the decision (c) Of the cause(s) relied upon under on the facts as found, together with §67.305 for proposing debarment; any information and argument sub- (d) Of the provisions of §§67.311 mitted by the respondent and any through 67.314, and any other Depart- other information in the administra- ment of Justice procedures, if applica- tive record. ble, governing debarment decision- (2) The debarring official may refer making; and disputed material facts to another offi- (e) Of the potential effect of a debar- cial for findings of fact. The debarring ment. official may reject any such findings, in whole or in part, only after specifi- §67.313 Opportunity to contest pro- cally determining them to be arbitrary posed debarment. and capricious or clearly erroneous. (a) Submission in opposition. Within 30 (3) The debarring official's decision days after receipt of the notice of pro- shall be made after the conclusion of posed debarment, the respondent may the proceedings with respect to dis- submit, in person, in writing, or puted facts. through a representative, information (c)(1) Standard ofproof. In any debar- and -argument in opposition to the pro- ment action, the cause for debarment posed debarment, must be established by a preponderance (b) Additional proceedings as to dis- of the evidence. Where the proposed de- puted material facts. (1) In actions not barment is based upon a conviction or based upon a conviction or civil J . udg- civil judgment the standard shall be ment, if the debarring official finds deemed to have been met. 182 Department of Justice § 67.325 (2) Burden of proof. The burden of (b) The debarring official may extend proof is on the agency proposing debar- an existing debarment for an addi- ment, tional period, if that official deter- (d) Notice of debarring official's deci- mines that an extension is necessary to sion. (I) If the debarring official decides protect the public interest. However, a to impose debarment, the respondent debarment may not be extended solely shall be given prompt notice: on the basis of the facts and cir- (i) Referring to the notice of proposed cumstances upon which the initial de- debarment barment action was based. If debar- (ii) Specifying the reasons for debar- ment for an additional period is deter- ment; mined to be necessary, the procedures (iii) Stating the period of debarment, of §§67.311 through 67.314 shall be fol- including effective dates; and lowed to extend the debarment. (iv) Advising that the debarment is (c) The respondent may request the effective for covered transactions debarring official to reverse the debar throughout the executive branch of the ment decision or to reduce the period Federal Government unless an agency or scope of debarment. Such a request head or an authorized designee makes shall be in writing and supported by the determination referred to in documentation. The debarring official §67.215. may grant such a request for reasons (2) If the debarring official decides including, but not limited to: not to impose debarment, the respond- (1) Newly discovered material evi- ent shall be given prompt notice of dence; that decision. A decision not to impose (2) Reversal of the conviction or civil debarment shall be without prejudice judgment upon which the debarment to a subsequent imposition of debar- was based; ment by any other agency. (3) Bona fide change in ownership or §67.315 Settlement and voluntary ex- management; elusion. (4) Elimination of other causes for (a) When in the best interest of the which the debarment was imposed; or ment, Department of Justice cial (5) deems Other reasons the debarring offi- appropriate. Governmay, at any time, settle a debarment or suspension action. (53 FR 19188 and 19204, May 26. 1988, as (b) If a participant and the agency amended at 54 FR 4950 and 4959, Jan. 31, 1989; agree to a voluntary exclusion of the 55 FR 21699. May 25, 19901 participant, such voluntary exclusion §67.325 Scope of debarment. shall be entered on the Nonprocure- ment List (see subpart E). (a) Scope In general. (1) Debarment of a person under these regulations con- §67.320 Period of debarment. stitutes debarment of all its divisions (a) Debarment shall be for a period and other organizational elements commensurate with the seriousness of from all covered transactions, unless the cause(s). If a suspension precedes a the debarment decision is limited by debarment, the suspension period shall its terms to one or more specifically be considered in determining the de- identified individuals, divisions or barment period. other organizational elements or to (1) Debarment for causes other than specific types of transactions. those related to a violation of the re- (2) The debarment action may in- quirements of subpart F of this part elude any affiliate of the participant generally should not exceed three that is specifically named and given years. Where circumstances warrant, a notice of the proposed debarment and longer period of debarment may be im- an opportunity to respond (see §§67.311 posed. through 67.314). (2) In the case of a debarment for a (b) Imputing conduct. For purposes of violation of the requirements of sub- determining the scope of debarment, part F of this part (see 67.305(c)(5)), the conduct may be imputed as follows: period of debarment shall not exceed (1) Conduct imputed to participant. The five years. fraudulent, criminal or other seriously 183 § 67.400 28 CFR Ch. 1 (7-1-99 Edition) improper conduct of any officer, direc- (c) In assessing the adequacy of the tor. shareholder, partner, employee, or evidence, the agency should consider other individual associated with a par- how much information is available, ticipant may be imputed to the partici- how credible it is given the cir- pant when the conduct occurred in con- cumstances, whether or not important nection with the individual's perform- allegations are corroborated, and what ance of duties for or on behalf of the inferences can reasonably be drawn as participant, or with the participant's a result. This assessment should in- knowledge. approval. or acquiescence. clude an examination of basic docu- The participant's acceptance of the ments such as grants, cooperative benefits derived from the conduct shall agreements, loan authorizations, and be evidence of such knowledge, ap- contracts. proval, or acquiescence. (2) Conduct imputed to individuals also- §67.405 Causes for suspension. ciated with participant. The fraudulent, (a) Suspension may be imposed in ac- criminal, or other seriously improper cordance with the provisions of §§67.400 conduct of a participant may be im- through 67.413 upon adequate evidence: puted to any officer, director, share- (1) To suspect the commission of an holder, partner, employee, or other in- offense listed in §67.305(a); or dividual associated with the partici- (2) That a cause for debarment under pant who participated in, knew of, or §67.305 may exist. had reason to know of the participant's (b) Indictment shall constitute ade- conduct. quate evidence for purposes of suspen- (3) Conduct of one participant imputed sion actions. to other participants in a joint venture. The fraudulent, criminal, or other seri- §67.410 Procedures. ously improper conduct of one partici- a joint venture, grant pursuant ( tion Investigation and referral. Informa- pant to a j in joint application, or similar ar- concerning the existence of ment may be imputed to other cause for suspension from any source range e shall be promptly if the conduct occurred for tigated. and referred, reported when , appro- or on behalf of the joint venture. grant pri, the - f pursuant to a joint application, or con suspending official l for similar arrangement may be imputed consideration. After consideration, the to other participants if the conduct oc- suspending official may issue a notice curred for or on behalf of the joint ven- of suspension. Depart- ture, grant pursuant to a joint applica- m ent of Justice shall pprocess.rocess suspen- tion, or similar arrangement or with a informally prac- the knowledge, approval, or acquies- sion actions shall cence of these participants. Acceptance fundamental consistent with principles the proce- of the benefits derived from the con- dfures fundamental in §§67.411 fairness. through 67using.413. duct shall be evidence of such knowl- edge, approval, or acquiescence. §67.411 Notice of suspension. Subpart D-Suspension when a respondent is suspended, no- tice shall immediately be given: §67.400 General. (a) That suspension has been im- posed; (a) The suspending official may sus- (b) That the suspension is based on pend a person for any of the causes in an indictment, conviction, or other §67.405 using procedures established in adequate evidence that the respondent §§67.410 through 67.413. has committed irregularities seriously (b) Suspension is a serious action to reflecting on the propriety of further be imposed only when: Federal Government dealings with the (I) There exists adequate evidence of respondent; one or more of the causes set out in (c) Describing any such irregularities §67.405, and in terms sufficient to put the respond- (2) Immediate action is necessary to ent on notice without disclosing the protect the public interest. Federal Government's evidence; 184 Department of Justice § 67.415 (d) Of the cause(s) relied upon under Sion by any other agency or debarment §67.405 for imposing suspension; by any agency. The decision shall be (e) That the suspension is for a tem- rendered in accordance with the fol- porary period pending the completion lowing provisions: of an investigation or ensuing legal, de- (a) No additional proceedings necessary. barment, or Program Fraud Civil Rem- In actions: based on an indictment, edies Act proceedings; conviction, or civil judgment; in which (f) Of the provisions of §§67.411 there is no genuine dispute over mate- through 67.413 and any other Depart- rial facts; or in which additional pro- ment of Justice procedures, if applica- ceedings to determine disputed mate- ble, governing suspension decision- rial facts have been denied on the basis making; and of Department of Justice advice, the (g) Of the effect of the suspension. suspending official shall make a deci- sion on the basis of all the information §67.412 Opportunity to contest sus- in the administrative record, including pension. any submission made by the respond- (a) Submission in opposition. Within 30 ent. The decision shall be made within days after receipt of the notice of sus- 45 days after receipt of any information pension, the respondent may submit, in and argument submitted by the re- person, in writing, or through a rep- spondent, unless the suspending official resentative, information and argument extends this period for good cause. in opposition to the suspension. (b) Additional proceedings necessary. (b) Additional proceedings as to dis- (1) In actions in which additional pro- puted material facts. (1) If the sus- ceedings are necessary to determine pending official finds that the respond- disputed material facts, written find- ent's submission in opposition raises a ings of fact shall be prepared. The sus- genuine dispute over facts material to pending official shall base the decision the suspension, respondent(s) shall be on the facts as found, together with afforded an opportunity to appear with any information and argument sub- a representative, submit documentary mitted by the respondent and any evidence, present witnesses, and con- other information in the administra- front any witness the agency presents, tive record. unless: (2) The suspending official may refer (i) The action is based on an indict- matters involving disputed material ment, conviction or civil judgment, or facts to another official for findings of (ii) A determination is made, on the fact. The suspending official may re- basis of Department of Justice advice, ject any such findings, in whole or in that the substantial interests of the part, only after specifically deter- Federal Government in pending or con- mining them to be arbitrary or capri- templated legal proceedings based on cious or clearly erroneous. the same facts as the suspension would (c) Notice of suspending official's deci- be prejudiced. sion. Prompt written notice of the sus- (2) A transcribed record of any addi- pending official's decision shall be sent tional proceedings shall be prepared to the respondent. and made available at cost to the re- spondent. upon request, unless the re- §67.415 Period of suspension. spondent and the agency, by mutual (a) Suspension shall be for a tem- agreement, waive the requirement for a porary period pending the completion transcript. of an investigation or ensuing legal, de- ba barment, or Program Fraud Civil Rem- §67.413 Suspending official's decision, de- edies Act proceedings, unless termi- The suspending official may modify nated sooner by the suspending official or terminate the suspension (for exam- or as provided in paragraph (b) of this ple, see §67.320(c) for reasons for reduc- section. ing the period or scope of debarment) (b) If legal or administrative pro- or may leave it in force. However, a de- ceedings are not initiated within 12 cision to modify or terminate the sus- months after the date of the suspension pension shall be without prejudice to notice, the suspension shall be termi- the subsequent imposition of suspen- nated unless an Assistant Attorney 185 § 67.420 28 CFR Ch. 1 (7-1-99 Edition) General or United States Attorney re- GSA and OMB with information con- quests its extension in writing, in cerning all transactions in which De- which case it may be extended for an partment of Justice has granted excep- additional six months. In no event may tions under §67.215 permitting partici- a suspension extend beyond 18 months, pation by debarred. suspended. or vol- unless such proceedings have been ini- untarily excluded persons. tiated within that period. (b) Unless an alternative schedule is (c) The suspending official shall no- agreed to by GSA, the agency shall ad- tify the Department of Justice of an vise GSA of the information set forth impending termination of a suspension, in §67.500(b) and of the exceptions at least 30 days before the 12-month pe- granted under §67.215 within five work- riod expires, to give that Department ing days after taking such actions. an opportunity to request an exten- (c) The agency shall direct inquiries sion. concerning listed persons to the agency that took the action. §67.420 Scope of suspension. (d) Agency officials shall check the The scope of a suspension is the same Nonprocurement List before entering as the scope of a debarment (see covered transactions to determine §67.325), except that the procedures of whether a participant in a primary §§67.410 through 67.413 shall be used in transaction is debarred, suspended, in- imposing a suspension. eligible, or voluntarily excluded (Tel. Subpart E-Responsibilities of GSA, (e) Agency officials shall check the Agency, and Participants Nonprocurement List before approving principals or lower tier participants §67.500 GSA responsibilities. where agency approval of the principal (a) In accordance with the OMB or lower tier participant is required guidelines, GSA shall compile, main- under the terms of the transaction, to tain. and distribute a list of all persons determine whether such principals or who have been debarred, suspended, or participants are debarred, suspended, voluntarily excluded by agencies under ineligible, or voluntarily excluded. Executive Order 12549 and these regula- §67.510 Participants' responsibilities. tions, and those who have been deter- mined to be ineligible. (a) Certification by participants in pri- (b) At a minimum, this list shall in- mary covered transactions. Each partici- dicate: pant shall submit the certification in (1) The names and addresses of all appendix A to this part for it and its debarred, suspended, ineligible, and principals at the time the participant voluntarily excluded persons, in alpha- submits its proposal in connection with betical order, with cross-references a primary covered transaction, except when more than one name is involved that States need only complete such in a single action; certification as to their principals. (2) The type of action; Participants may decide the method (3) The cause for the action; and frequency by which they determine (4) The scope of the action; the eligibility of their principals. In (5) Any termination date for each addition, each participant may, but is listing; and not required to, check the Nonprocure- (6) The agency and name and tele- ment List for its principals (Tel. phone number of the agency point of Adverse information on the certifi- contact for the action. cation will not necessarily result in de- nial of participation. However, the cer- §67.505 Department of Justice respon- tification, and any additional informa- sibilities. tion pertaining to the certification (a) The agency shall provide GSA submitted by the participant, shall be with current information concerning considered in the administration of debarments, suspension, determina- covered transactions. tions of ineligibility. and voluntary ex- (b) Certification by participants in elusions it has taken. Until February lower tier covered transactions. (1) Each 18, 1989, the agency shall also provide participant shall require participants 186 Department of Justice § 67.605 in lower tier covered transactions to contractors with the agency are found include the certification in appendix B at 48 CFR subparts 9.4, 23.5, and 52.2. to this part for it and its principals in any proposal submitted in connection §67.605 Definitions. with such lower tier covered trans- (a) Except as amended in this sec- actions. tion, the definitions of §67.105 apply to (2) A participant may rely upon the this subpart. certification of a prospective partici- (b) For purposes of this subpart- pant in a lower tier covered trans- action that it and its principals are not Controlled substance means es debarred, suspended, ineligible, or vol- trolled substance ro schedules I untarily excluded from the covered Act through .Sof.Cthe Controlled Substances transaction by any Federal agency, un- (21 U. 812), and as further de- less it knows that the certification is fined regulation at 21 CFR 1308.11 erroneous. Participants may decide the through h 1308.15; method and frequency by which they ( Conviction means a finding lereguilt determine the eligiblity of their prin- cipals.In addition, a participant may, imposition of sentence, or both, by any but is not required to, check the Non- Judicial body charged with the respon- procurement List for its principals and sibility to determine violations of the for participants (Tel. Federal or State criminal drug stat- (c) Changed circumstances regarding utes; certification. A participant shall provide (3) Criminal drug statute means a Fed- immediate written notice to Depart- eral or non-Federal criminal statute ment of Justice if at any time the par- involving the manufacture, distribu- ticipant learns that its certification tion, dispensing, use, or possession of was erroneous when submitted or has any controlled substance; become erroneous by reason of changed (4) Drug-free workplace means a site circumstances. Participants in lower for the performance of work done in tier covered transactions shall provide connection with a specific grant at the same updated notice to the partici- which employees of the grantee are pant to which it submitted its pro- prohibited from engaging in the unlaw- posals. ful manufacture. distribution, dis- pensing. possession, or use of a con- Subpart F-Drug-Free Work f~lace trolled substance; Requirements (Grants) (5) Employee means the employee of a grantee directly engaged in the per- SOURCE: Order No. 1416-9 55 PR 21 formance of work under the grant. in- 21696, May 25, 1990, unless otherwise noted. . eluding: (i) All direct charge employees; §67.600 Purpose. (ii) All indirect charge employees. un- (a) The purpose of this subpart is to less their impact or involvement is in- carry out the Drug-Free Workplace Act significant to the performance of the of 1988 by requiring that- grant; and, (1) A grantee, other than an indi- (iii) Temporary personnel and con- vidual, shall certify to the agency that sultants who are directly engaged in it will provide a drug-free workplace; the performance of work under the (2) A grantee who is an individual grant and who are on the grantee's shall certify to the agency that, as a payroll. condition of the grant, he or she will This definition does not include work- not engage in the unlawful manufac- ers not on the payroll of the grantee ture, distribution, dispensing. posses- (e.g.. volunteers, even if used to meet a sion or use of a controlled substance in matching requirement; consultants or conducting any activity with the independent contractors not on the grant. payroll; or employees of subrecipients (b) Requirements implementing the or subcontractors in covered work- Drug-Free Workplace Act of 1988 for places): 187 §67.610 28 CFR Ch. 1 (7-1-99 Edition) (6) Federal agency or agency means foreign government. A determination any United States executive depart- of such inconsistency may be made ment, military department, govern- only by the agency head or his/her des- ment corporation, government con- ignee. trolled corporation, any other estab- (c) The provisions of subparts A, B. C. lishment in the executive branch (in- D and E of this part apply to matters eluding the Executive Office of the covered by this subpart, except where President). or any independent regu- specifically modified by this subpart. latory agency; In the event of any conflict between (7) Grant means an award of financial provisions of this subpart and other assistance, including a cooperative provisions of this part, the provisions agreement, in the form of money, or of this subpart are deemed to control property In lieu of money, by a Federal with respect to the implementation of agency directly to a grantee. The term drug-free workplace requirements con- grant includes block grant and entitle- cerning grants. ment grant programs, whether or not exempted from coverage under the §67.615 Grounds for suspension of grants management government-wide payments, suspension or termi- common rule on uniform administra- nation of grants, or suspension or tive requirements for grants and coop- debarment. erative agreements. The term does not A grantee shall be deemed in viola- include technical assistance that pro- tion of the requirements of this sub- vides services instead of money. or part if the agency head or his or her of- other assistance in the form of loans, ficial designee determines, in writing, loan guarantees, interest subsidies, in- that- surance, or direct appropriations; or (a) The grantee has made a false cer- any veterans' benefits to individuals, tification under §67.630; i.e., any benefit to veterans, their fami- (b) With respect to a grantee other lies, or survivors by virtue of the serv- than an individual- ice of a veteran in the Armed Forces of (1) The grantee has violated the cer- the United States; tification by failing to carry out the (8) Grantee means a person who ap- requirements of paragraphs (A)(a)-(g) plies for or receives a grant directly and/or (B) of the certification (Alter- from a Federal agency (except another nate I to appendix C) or Federal agency); (9) Individual means a natural person; (2) Such a number of employees of (10) State means any of the States of the grantee have been convicted vio- the United States, the District of Co- lations of criminal drug statutes for lumbia. the Commonwealth of Puerto violations occurring in the workplace Rico, any territory or possession of the as to indicate that the grantee has United States, or any agency of a failed to make a good faith effort to State, exclusive of institutions of high- provide a drug-free workplace. er education, hospitals. and units of (c) With respect to a grantee who is local government. A State instrumen- an individual- tality will be considered part of the (1) The grantee has violated the cer- State government if it has a written tification by failing to carry out its re- determination 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 §67.610 Coverage. of any grant activity. (a) This subpart applies to any grant- §67.620 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 §67.615, 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: 188 Department of Justice § 67.630 (1) Suspension of payments under the tification for Fiscal Year 1990 until grant; June 30, 1990. Except as provided in (2) Suspension or termination of the paragraph (d) of this section, this cer- grant; and tification shall cover all grants to all (3) Suspension or debarment of the State agencies from any Federal agen- grantee under the provisions of this cy. The State shall retain the original part. of this statewide certification in its (b) Upon issuance of any final deci- Governor's office and, prior to grant sion under this part requiring debar- award, shall ensure that a copy is sub- ment of a grantee. the debarred grant- mitted individually with respect to ee shall be ineligible for award of any each grant. unless the Federal agency grant from any Federal agency for a has designated a central location for period specified in the decision, not to submission. exceed five years (see §67.320(a)(2) of (d)(1) The Governor of a State may this part). exclude certain State agencies from the statewide certification and author- §67.625 Exception provision. ize these agencies to submit their own The agency head may waive with re- certifications to Federal agencies. The spect to a particular grant, in writing, statewide certification shall name any a suspension of payments under a State agencies so excluded. grant, suspension or termination of a (2) A State agency to which the grant. or suspension or debarment of a statewide certification does not apply, grantee if the agency head determines or a State agency in a State that does that such a waiver would be in the pub- not have a statewide certification, may lic interest. This exception authority elect to make one certification in each cannot be delegated to any other offi- Federal fiscal year. State agencies that cial. previously submitted a State agency certification are not required to make §67.630 Certification requirements a certification for Fiscal Year 1990 and procedures. until June 30, 1990. The State agency (a)(1) As a prior condition of being shall retain the original of this State awarded a grant, each grantee shall agency-wide certification in its central make the appropriate certification to office and, prior to grant award, shall the Federal agency providing the ensure that a copy is submitted indi- grant, as provided in appendix C to this vidually with respect to each grant, part. unless the Federal agency designates a (2) Grantees are not required to make central location for submission. a certification in order to continue re- (3) When the work of a grant is done ceiving funds under a grant awarded by more than one State agency, the before March 18, 1989, or under a no- certification of the State agency di- cost time extension of such a grant. rectly receiving the grant shall be However, the grantee shall make a one- deemed to certify compliance for all time drug-free workplace certification workplaces, including those located in for a non-automatic continuation of other State agencies. such a grant made on or after March (e)(1) For a grant of less than 30 days 18, 1989. performance duration, grantees shall (b) Except as provided in this section, have this policy statement and pro- all grantees shall make the required gram in place as soon as possible, but certification for each grant. For man- in any case by a date prior to the date datory formula grants and entitle- on which performance is expected to be ments that have no application proc- completed. ess, grantees shall submit a one-time (2) For a grant of 30 days or more per- certification in order to continue re- formance duration, grantees shall have ceiving awards. this policy statement and program in (c) A grantee that is a State may place within 30 days after award. elect to make one certification in each (3) Where extraordinary cir- Federal fiscal year. States that pre- cumstances warrant for a specific viously submitted an annual certifi- grant, the grant officer may determine cation are not required to make a cer- a different date on which the policy 189 §67.635 28 CFR Ch. 1 (7-1-99 Edition) statement and program shall be in APPENDIX A TO PART 67-CERTIFICATION place. REGARDING DEBARMENT. SUSPEN- SION, AND OTHER RESPONSIBILITY §67.635 Reporting of and employee MATTERS-PRIMARY COVERED sanctions for convictions of crimi- TRANSACTIONS nal drug offenses. (a) When a grantee other than an in- Instructions for Certification dividual is notified that an employee 1. By signing and submitting this proposal, has been convicted for a violation of a the prospective primary participant is pro- viding drug occurring the certification set out below. g g 2. The inability of a person to provide the workplace, it shall take the following certification required below will not nec- actions: essarily result in denial of participation in (1) Within 10 calendar days of receiv- this covered transaction. The prospective ing notice of the conviction, the grant- participant shall submit an explanation of ee shall provide written notice, includ- why it cannot provide the certification set out below. The certification or explanation ing the convicted employee's position will be considered in connection with the de title, to every grant officer, or other partment or agency's determination whether designee on whose grant activity the to enter into this transaction. However, fail- convicted employee was working, un- ure of the prospective primary participant to less a Federal agency has designated a furnish a certification or an explanation shall disqualify such person from participa- central point for the receipt of such no- tion in this transaction. tifications. Notification shall include 3. The certification in this clause is a ma- the identification number(s) for each of terial representation of fact upon which reli- the Federal agency's affected grants. ante was placed when the department or (2) Within 30 calendar days of receiv- agency determined to enter into this trans- ing notice of the conviction, the grant- action. If it is later determined that the pro- spective following respect primary participant knowingly ren- ee g P dered an erroneous certification, in addition to the employee who was convicted. to other remedies available to the Federal (i) Take appropriate personnel action Government. the department or agency may against the employee, up to and includ- terminate this transaction for cause or Be- ing termination, consistent with re- fault. 4. The prospective primary participant quirements of the Rehabilitation Act shall provide immediate written notice to of 1973, as amended: or the department or agency to which this pro (if) Require the employee to partici- posal is submitted if at any time the pro- pate satisfactorily in a drug abuse as- spective primary participant learns that its sistance or rehabilitation program ap- certification was erroneous when submitted proved for such purposes by a Federal, or has become erroneous by reason of changed circumstances. State. or local health, law enforce- 5. The terms covered transaction, debarred, ment, or other appropriate agency. suspended, ineligible, lower tier covered trans- (b) A grantee who is an individual action, participant, person, primary covered who is convicted for a violation of a transaction, principal, proposal, and volun- criminal drug statute occurring during tarily excluded, as used in this clause, have the conduct of an rant activity shall the meanings set out in the Definitions and any g Coverage sections of the rules implementing report the conviction. in writing, with- Executive Order 12549. You may contact the in 10 calendar days. to his or her Fed- department or agency to which this proposal eral agency grant officer, or other des- is being submitted for assistance in obtain- ignee, unless the Federal agency has ing a copy of those regulations. designated a central point for the re- 6. The prospective primary participant agrees by submitting this proposal that, ceipt of such notices. Notification shall should the proposed covered transaction be include the identification number(s) entered into, it shall not knowingly enter for each of the Federal agency's af- into any lower tier covered transaction with fected grants. a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, (Approved by the Office of Management and suspended, declared ineligible. or voluntarily Budget under control number 0991-0002) excluded from participation in this covered 190 Department of Justice Pt. 67, App. B transaction, unless authorized by the depart- State or local) transaction or contract under ment or agency entering into this trans- a public transaction; violation of Federal or action. State antitrust statutes or commission of 7. The prospective primary participant fur- embezzlement, theft. forgery, bribery, fal- ther agrees by submitting this proposal that sification or destruction of records. making it will include the clause titled "Certifi- false statements, or receiving stolen prop- cation Regarding Debarment, Suspension, erty; Ineligibility and Voluntary Exclusion-Lower (c) Are not presently indicted for or other- Tier Covered Transaction," provided by the wise criminally or civilly charged by a gov- department or agency entering into this cov- ernmental entity (Federal, State or local) Bred transaction, without modification, in with commission of any of the offenses enu- all lower tier covered transactions and in all merated in paragraph (p(b) of this certifi- solicitations for lower tier covered trans- cation; and actions. (d) Have not within a three-year period 8. A participant in a covered transaction preceding this application/proposal had one may rely upon a certification of a prospec- or more public transactions (Federal. State tive participant in a lower tier covered or local) terminated for cause or default. transaction that it is not proposed for debar- (2) Where the prospective primary partici- ment under 48 CPR part 9, subpart 9.4, pant is unable to certify to any of the state- debarred, suspended, ineligible, or volun- ments in this certification, such prospective tarily excluded from the covered trans- participant shall attach an explanation to action, unless it knows that the certification this proposal. is erroneous. A participant may decide the method and frequency by which it deter- [Order No. 1972-95, 60 FR 33041, 33052, June 26, mines the eligibility of its principals. Each 19951 participant may, but is not required to, check the List of Parties Excluded from Fed- APPENDIX B TO PART 67-CERTIFICATION eral Procurement and Nonprocurement Pro- REGARDING DEBARMENT, SUSPEN- grams. SION, INELIGIBILITY AND VOLUNTARY 9. Nothing contained in the foregoing shall EXCLUSION-LOWER TIER COVERED be construed to require establishment of a TRANSACTIONS system of records in order to render in good faith the certification required by this Instructions for Certification clause. The knowledge and information of a participant is not required to exceed that 1. By signing and submitting this proposal, which is normally possessed by a prudent the prospective lower tier participant is pro- person in the ordinary course of business viding the certification set out below. dealings. 2. The certification in this clause is a ma- 10. Except for transactions authorized terial representation of fact upon which reli- under paragraph 6 of these instructions, if a ante was placed when this transaction was participant in a covered transaction know- entered into. If it is later determined that Ingly enters into a lower tier covered trans- the prospective lower tier participant know- action with a person who is proposed for de- ingly rendered an erroneous certification, in barment under 48 CFR part 9, subpart 9.4, addition to other remedies available to the suspended, debarred, ineligible, or volun- Federal Government the department or tarily excluded from participation in this agency with which this transaction origi- transaction, in addition to other remedies nated may pursue available remedies, includ- available to the Federal Government, the de- ing suspension and/or debarment. partment or agency may terminate this 3. The prospective lower tier participant transaction for cause or default. shall provide immediate written notice to the person to which this proposal is sub- Certtfcatlon Regarding Debarment, Suspension, milted if at any time the prospective lower and Other Responsibility Matters-primary tier participant learns that its certification Covered Transactions was erroneous when submitted or had be (1) The prospective primary participant come erroneous by reason of changed cir- certifies to the best of Its knowledge and be- cumstances. lief, that it and its principals: 4. The terms covered transaction, debarred, (a) Are not presently debarred, suspended, suspended, ineligible, lower tier covered trans- proposed for debarment, declared ineligible, action, participant, person, primary covered or voluntarily excluded by any Federal de- transaction, principal, proposal, and volun- partment or agency, tarily excluded, as used in this clause, have (b) Have not within a three-year period the meaning set Out in the Definitions and preceding this proposal been convicted of or Coverage sections of rules implementing Ex had a civil judgment rendered against them ecutive Order 12549. You may contact the for commission of fraud or a criminal offense person to which this proposal is submitted in connection with obtaining, attempting to for assistance in obtaining a copy of those obtain, or performing a public (Federal, regulations. 191 Pt. 67, App. C 28 CFR Ch. 1 (7-1-99 Edition) 5. The prospective lower tier participant from participation In this transaction by any agrees by submitting this proposal that. Federal department or agency. should the proposed covered transaction be (2) Where the prospective lower tier partic- entered into. It shall not knowingly enter ipant is unable to certify to any of the state- into any lower tier covered transaction with ments in this certification, such prospective a person who is proposed for debarment participant shall attach an explanation to under 48 CFR part 9, subpart 9.4, debarred, this proposal. suspended, declared ineligible, or voluntarily (Order No. 1972-95, 60 FR 33041, 33052, June 26, excluded from participation in this covered 18851 transaction, unless authorized by the depart- ment or agency with which this transaction APPENDIX C TO PART 67-CERTIFICATION originated. REGARDING DRUG-FREE WORKPLACE 6. The prospective lower tier participant REQUIREMENTS further agrees by submitting this proposal that it will include this clause titled "Car- Instructions for Certification tification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower 1. By signing and/or submitting this appli- Tler Covered Transaction." without mods- cation or grant agreement, the grantee is Bretton, I. all lower tier covered trans- providing the certification set out below. actions and in all solicitations for lower tier 2. The certification set out below is a ma- covered transactions. terial representation of fact upon which tell- 7. A participant in a covered transaction once is placed when the agency awards the may rely upon a certification of a prospec- grant. If It Is later determined that the tive participant in a lower tier covered grantee knowingly rendered a false certifi- transactlon that it is not proposed for debar- cation, or otherwise violates the require- ment under 48 CFR part 9, subpart 9.4, ments of the Drug-Free Workplace Act. the debarred, suspended. ineligible, or volun- agency, in addition to any other remedies tarily excluded from covered transactions, available to the Federal Government, may unless It knows that the certification is erro- take action authorized under the Drug-Free Workplace Act. neous. A participant may decide the method 3 and frequency by which it determines the . For grantees other than individuals, A]- eligibility of its principals. Each participant 4 te. For I applies. Alter- may, but is not required to, check the List of 4. For grantees who are individuals, Al[er- Parties Excluded from Federal Procurement nate If applies. and Nonprocuremen[ Programs. 5. Workplaces under grants, for grantees an other than individuals, need not be identified 6be. Nothing d to require contained o ed i the foregoing establishment shall a all on the certification. If known, they may be identified in the grant application. If the system of records In order to render in good grantee does not identify the workplaces at faith the certification required by this the time of application, or upon award, If clause. The knowledge and information of a there is no application, the grantee must participant is not required to exceed that keep the identity of the workplace(s) on file which is normally possessed by a prudent in its office and make the information avail- person in the ordinary course of business able for Federal inspection. Failure to iden- dealings. tify all known workplaces constitutes a vio- 9. Except for transactions authorized under lation of the grantee's drug-free workplace paragraph 5 of these instructions, if a partic- requirements, ipant in a covered transaction knowingly en- 6. Workplace Identifications must include ters into a lower tier covered transaction the actual address of buildings (or parts of with a person who is proposed for debarment buildings) or other sites where work under under 48 CPR part 9, subpart 9.4, suspended, the grant takes place. Categorical descrip- debarred, ineligible, or voluntarily excluded tions may be used e.g all vehicles of mass from participation in this transaction, in ad- transit authority g or State highway depa dition to other remedies available to the Federal Government, the department or men[ while in operation, State employees in each local unemployment office, performers agency with which this transaction origi- I. concert halls or radio studios). nated may pursue available remedies, includ- 7. If the workplace identified to the agency ing suspension and/or debarment. changes during the performance of the grant, Certification Regarding Debarment, Suspension, the grantee shall Inform the agency of the Ineligibility an Voluntary Exclusion-Lower change(s), if it previously Identified the Tier Covered Transactions workplaces in question (see paragraph five). 8. Definitions of terms in the Nonprocure- (1) The prospective lower tier participant ment Suspension and Debarment common certifies, by submission of this proposal, that rule and Drug-Free Workplace common rule neither it nor its principals is presently apply to this certification. Grantees' atten- debarred, suspended, proposed for debarment, tion is called, In particular. to the following declared ineligible, or voluntarily excluded definitions from these rules: 192 Department of Justice Pt. 67, App. C Controlled substance means a controlled condition of employment under the grant, substance I. Schedules 1 through V of the the employee will- Controlled Substances Act (2l U.S.C. 812) and (l) Abide by the terms of the statement; as further defined by regulation (21 CFR and 1308.11 through 1308.15); (2) Notify the employer in writing of his or Conviction means a finding of guilt (includ- her conviction for a violation of a criminal ing a plea of nolo contendere) or Imposition drug statute occurring In the workplace no of sentence, or both, by any judicial body later than five calendar days after such con- charged with the responsibility to determine viction; violations of the Federal or State criminal (e) Notifying the agency in writing. within drug statutes: ten calendar days after receiving notice Criminal drug statute means a Federal or under paragraph (d)(2) from an employee or non-Federal criminal statute involving the otherwise receiving actual notice of such manufacture, distribution, dispensing, use, conviction. Employers of convicted employ- or possession of any controlled substance; ees must provide notice, including position Employee means the employee of a grantee title, to every grant officer or other designee directly engaged in the performance of work on whose grant activity the convicted em- under a grant, including: (i) All direct charge ployee was working, unless the Federal agen- employees; (it) All indirect charge employees cy has designated a central point for the re- unless their impact or involvement is insig- ceipt of such notices. Notice shall include nificant to the performance of the grant; the identification number(s) of each affected and, (iii) Temporary personnel and consult- grant; ants who are directly engaged in the per- (f) Taking one of the following actions, formance of work under the grant and who within 30 calendar days of receiving notice are on the grantee's payroll. This definition under paragraph (d)(2), with respect to any does not include workers not on the payroll employee who is so convicted- of the grantee (e.g., volunteers, even If used (1) Taking appropriate personnel action to meet a matching requirement; consult- against such an employee. up to and Includ- ants or independent contractors not on the ing termination, consistent with the require- grantee's payroll; or employees of subrecipi- mints of the Rehabilitation Act of 1973, as ents or subcontractors in covered work- amended; or places). (2) Requiring such employee to participate Certification Regarding Drug-Free Workplace satisfactorily in a drug abuse assistance or Requirements rehabilitation program approved for such purposes by a Federal, State, or local health, Alternate 1. (GRANTEES OTHER THAN law enforcement, or other appropriate agen- INDIVIDUALS) cy: (g) Making a good faith effort to continue A. The grantee certifies that it will or will to maintain adrug-free workplace through rough continue to provide a drug-free workplace implementation of paragraphs (a), (b), (c), by; (d), (e) and (f). (a) Publishing a statement notifying em- B. The grantee may insert in the space pro- ployees that the unlawful manufacture, dis- vided below the site(s) for the performance of tribution, dispensing, possession, or use of a work done in connection with the specific controlled substance is prohibited in the grant: grantee's workplace and specifying the ac- place of Performance (Street address, city, tions that will be taken against employees county, state, zip code) 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 work- Check 0 if there are workplaces on file that place; are not identified here. (2) The grantee's policy of maintaining a Alternate 1T. (GRANTEES WHO ARE drug-free workplace; INDIVIDUALS) (3) Any available drug counseling, rehabili- tation, and employee assistance programs: (a) The grantee certifies that, as a conch and tion of the grant, he or she will not engage (4) The penalties that may be imposed in the unlawful manufacture, distribution, upon employees for drug abuse violations oc- dispensing, possession, or use of a controlled curring in the workplace; substance in conducting any activity with (c) Making it a requirement that each em- the grant; ployee to be engaged in the performance of (b) if convicted of a criminal drug offense the grant be given a copy of the statement resulting from a violation occurring during required by paragraph (a): the conduct of any grant activity, he or she (d) Notifying the employee in the state- will report the conviction, in writing, within ment required by paragraph (a) that, as a 10 calendar days of the conviction. to every 193 Pt. 68 28 CFR Ch. 1 (7-1-99 Edition) grant officer or other designee, unless the 68.34 Legal assistance. Federal agency designates a central point for 68.35 Standards of conduct. the receipt of such notices. When notice 1s 68.36 Ex parte communications, made to such a central point, it shall include 68.37 Waiver of right to appear and failure the identification number(s) of each affected to participate or to appear. grant. 68.38 Motion for summary decision. [Order No. 1416-90. 55 FR 21690, 21696, May 25. 68.39 Formal hearings. 1990 68.40 Evidence. 68.41 Official notice. 68.42 In camera and protective orders. PART 68-RULES OF PRACTICE AND 68.43 Exhibits. PROCEDURE FOR ADMINISTRA- 68.44 Records in other proceedings. TIVE HEARINGS BEFORE ADMIN- 66.45 Designation of parts of documents. ISTRATIVE LAW JUDGES IN CASE 68 .46 Authenticity. S 66.47 Stipulations. INVOLVING ALLEGATIONS OF 68.48 Record of hearings. UNLAWFUL EMPLOYMENT OF 68.49 Closing the record. ALIENS, UNFAIR IMMIGRATION- 68.50 Receipt of documents after hearing. 68.51 Restricted access. RELATED EMPLOYMENT PRAC- 68.52 Final order of the Administrative Law TICES, AND DOCUMENT FRAUD Judge. 68.53 Review of an interlocutory order of an Sec. Administrative Law Judge in cases aris- 68.1 Scope of rules. ing under section 274A or 274C. 68.2 Definitions. 68.54 Administrative review of a final order 68.3 Service of complaint, notice of hearing, of an Administrative Law Judge In cases written orders, and decisions. arising under section 274A or 274C. 68.4 Complaints regarding unfair immigra- 68.55 Referral of cases arising under sec- tion-related employment practices. tions 274A or 274C to the Attorney Gen- 68.5 Notice of date. time, and place of hear- eral for review, ing 68.56 Judicial review of a final agency order 68.6 Service and filing of documents. In cases arising under section 274A or 68.7 Form of pleadings. 274C. 68.8 Time computations. 68.57 Judicial review of the final agency 68.9 Responsive pleadings-answer. order of an Administrative Law Judge in 68.10 Motion to dismiss for failure to state a cases arising under section 2748, claim upon which relief can be granted. 68.58 Filing of the official record. 68.11 Motions and requests. AlrrnORn7Y: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 68.12 Preheating statements. 1324a, 1324b, and 1324c. 68.13 Conferences. 68.14 Consent findings or dismissal. §68.1 Scope of rules. 68.15 Intervenor in unfair immigration-re- lated employment cases. The rules of practice in this part are 68.16 Consolidation of hearings. applicable to adjudicatory proceedings 68.17 Amicus curiae. before Administrative Law Judges of 68.18 Discovery-general provisions. the Executive Office for Immigration 68.19 Written interrogatories to parties. Review, United States Department of 68.20 Production of documents, things, and inspection of land. Justice, with regard to unlawful em- 68.21 Admissions. ployment cases under section 274A of 68.22 Depositions. the INA, unfair immigration-related 68.23 Motion to compel response to dis- employment practice cases under sec- covery; sanctions. tion 2746 of the INA, and document 68.24 Use of depositions at hearings. fraud cases under section 274C of the con- 68.25 Subpoenas. INA. Such proceedings shall be 6826 Designation of Administrative Law Judge. educted expeditiously, and the parties 68.27 Continuances. shall make every effort at each stage of 68.28 Authority of Administrative Law a proceeding to avoid delay. To the ex- Judge. tent that these rules may be incon- 68.29 Unavailability of Administrative Law sistent with a rule of special applica- Judge. tion as provided by statute, executive 68.30 Disqualification. 68.31 Separation of functions. older. or regulation, the latter is con- 68.32 Expedition. trolling. The Federal Rules of Civil 68.33 Participation of parties and represen- Procedure may be used as a general tation. guideline in any situation not provided 194